DOE, ACLU fight over Title IX heats up over legalities, vacation
A federal lawsuit over Title IX violations takes a bureaucratic turn in the latest set of legal documents between the state Department of Education (DOE) and the ACLU of Hawaii.
HONOLULU - A federal lawsuit over Title IX violations takes a bureaucratic turn in the latest set of legal documents between the state Department of Education (DOE) and the ACLU of Hawaii. In a May 29 filing, the state Attorney General’s office, which represents the DOE, suggested the court dismiss the case over a technicality.
Deputy AG John Cregor submitted a Memorandum in Limited Opposition to Plaintiff’s Motions for Leave to File First Amended Complaint. He argued, “…this case is immediately dismissable for lack of a proper Plaintiff” because the girls filing the lawsuit graduate this season.
Cregor says the state needs time to address “the 239 allegations of Plaintiff one by one. We simply need adequate time to do it properly.”
He also writes, “I am away on vacation.”
The plaintiffs’ counsel – the ACLU, Legal Aid at Work, and Simpson Thacher & Bartlett – responded June 5 with a sharp reply; on page seven, it says, "DOE’s pattern of delay makes it painfully clear that DOE’s entire defense strategy has been to do nothing, wait for Plaintiffs to graduate, and move to dismiss. This strategy is as legally flawed as it is wasteful and shameful. Plaintiffs and their peers sincerely hope that the so-called ‘dramatic changes’ to the Complaint cause real dramatic changes in the way DOE approaches this litigation and Title IX compliance in the future."
The tone of the nine-page reply is one of frustration. With regards to Cregor’s vacation, the ACLU points out that the AG’s office has 180 attorneys and more than 500 support staff, making it the largest law firm in the state. “’I am away on vacation’ is simply not an adequate excuse to put an entire case on hold,” the ACLU retorts.
The Oahu Interscholastic Association (OIA), also named in the lawsuit, recently asked the court to dismiss it from the case claiming it was not subject to Title IX. The court denied that motion. The court found that based on the allegations in the complaint, DOE appears to have controlling authority over OIA and is clearly subject to Title IX’s equity mandate.
ACLU of Hawaii executive director Joshua Wisch said, “The fact that DOE is now admitting that its entire strategy has been to wait for our clients to graduate and then attempt to sweep this under the rug is unacceptable. The people of Hawaii deserve better.”
T.T., one of the plaintiffs in the lawsuit, said, “We aren’t asking for money, we aren’t sabotaging anything they have, all we want is for future athletes coming in to Campbell High School to have the best possible experience and opportunities. And if the DOE wants to say that this lawsuit is hurting their rep, no, it’s giving them a chance to make it better.”
In December 2018, Plaintiffs’ counsel filed a class action lawsuit against DOE and the OIA on behalf of two female student athletes at Campbell High School. The lawsuit alleges the DOE has committed multiple violations of federal civil rights law by denying girls at Campbell the same athletic opportunities, treatment, and benefits that it provides boys, such as providing fewer teams to girls, inferior locker room space, and subpar competition facilities. The lawsuit followed approximately ten months of attempts by the ACLU of Hawaii to get DOE to voluntarily make changes.
The lawsuit is being brought under Title IX, the federal civil rights law co-authored by former Hawaii Congresswoman Patsy Takemoto Mink that prohibits discrimination on the basis of gender in any school that receives federal financial assistance. Ironically, the 49th anniversary of Title IX is on June 23, 2019.
KITV4 reached out to the DOE for response on this latest story. The DOE has repeatedly told KITV4 it cannot comment on pending litigation.