Sex Discrimination Case in Hawaii Could Change High School Sports Across the US

Carri Pothier sitting in her home in Ewa Beach, Hawaii, as her daughter, Abby Pothier, speaks by video from California, Oct. 11, 2022. (Marie Eriel Hobro/The New York Times)

EWA BEACH, Hawaii — It was rough enough when Ashley Badis and her teammates in girls’ water polo had to practice in the ocean, battling fickle winds and choppy waves because their high school had failed to provide them a pool.

But it was humiliating, Badis said, when she learned about female athletes on other teams lugging their gear around school all day, running to a nearby Burger King to use the bathroom, or changing clothes under the bleachers or on the bus. The boys had no such worries because they had their own locker room and facilities.

“Hearing how many concerns and complaints that they had — it made me feel like I’m not alone in this, but it’s so wrong that we’re all being treated like this,” Badis, now 21, said in an interview at her family’s home in this Honolulu suburb.

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Badis is among the plaintiffs in a potential landmark Title IX case that alleges widespread and systemic sex discrimination against female athletes at James Campbell High School, the biggest public high school in Hawaii.

When it comes to Title IX, the 1972 federal law that prohibited sex-based discrimination in educational settings, much of the attention has focused on opportunities for women to participate in college sports. Among high schools, parents often push administrators to offer equal opportunities. When school officials are accused in lawsuits of not doing so, districts frequently settle without cases going to trial.

The Hawaii case, though, is pushing forward and goes beyond questions of systematic problems of participation and unequal treatment: It also accuses Campbell officials of retaliating against the girls for raising concerns by identifying the plaintiffs, who had used only their initials in the lawsuit, and by warning faculty members to speak carefully around them.

It was unnerving, too, Badis said, when school officials repeatedly threatened to cancel the girls water polo season, then claimed that half of the program’s paperwork, including medical and consent forms, was missing even though it had been submitted.

And now, in the wake of a federal judge’s ruling in July that the case can proceed as a class action, the outcome of the trial could affect generations of girls in Hawaii and act as a wider stress test for the promises and responsibilities of Title IX .

Several plaintiffs and their families are speaking out publicly for the first time, in interviews with The New York Times. What makes the case especially poignant is the timing of the class certification — the 50th anniversary of the enactment of Title IX — and the location of the dispute — the home of the former US Rep. Patsy Mink, one of the architects of the measure and a revered political figure in Hawaii. Mink died in 2002.

“What strikes me in this 50th anniversary year is just how little we actually know about what is going on in the high school space,” said Ellen J. Staurowsky, a professor of sports media at Ithaca College and the principal investigator for a recent Title IX report published by the Women’s Sports Foundation. “I think this case is important, foundationally. It has the potential to really be a wake-up call for schools that continue to ignore the law and don’t take it seriously.”

Referring to Mink, Staurowsky added: “If we can’t get it right in a state that she represented, then we have some really serious thinking to do.”

The defendants include the Hawaii Department of Education and the Oahu Interscholastic Association, which oversees high school sports. The athletic association’s inclusion in the lawsuit is notable because groups that do not directly receive federal funding often have not been required to comply with Title IX. But Judge Leslie E. Kobayashi of US District Court in Hawaii ruled that the plaintiffs had “provided sufficient factual matter to plausibly alleviate” that the association “may be subject to the anti-discrimination provisions of Title IX.”

Spokespeople for the education department and the athletic association said they would not comment on the pending litigation.

Gary H. Yamashiroya, a special assistant to the state attorney general, who is representing the defendants, wrote in an email: “Hawai’i has strict legal ethics rules about trial publicity, so unfortunately we are unable to provide comments for this case. ”

In court documents, the defendants have argued that school officials have done the best they can and that the girls who sued aren’t entitled to retroactive fixes: “The Department of Education has made and continues to make the required reasonable efforts to accommodate Plaintiffs. ”

Sports have outsize importance in Ewa Beach. Among its local heroes are Miami Dolphins quarterback Tua Tagovailoa and the Little League World Series team that won in 2005 — the first of four championships for Hawaii.

Campbell, whose teams are called the Sabers, has more than 3,000 students, more than three-fourths of whom are Asian, Native Hawaiian or Pacific Islander, or Hispanic. But in February 2018, the Honolulu Civil Beat, a nonprofit newsroom, detailed gender disparities at Campbell, among other schools, reporting that female athletes had not had a locker room since the school was constructed in 1962.

With access to only a handful of decrepit portable toilets (which were sometimes locked due to vandalism) on playing fields, some girls drank less water — despite Ewa Beach’s hot and dry climate — to avoid running to the nearest available bathroom at a fast-food gold restaurant at gas station, half a mile away.

Some girls would “crouch down in the bushes” to relieve themselves, according to the lawsuit.

Speaking through videoconference recently, Abby Pothier, a former soccer and water polo player, outlined the daily indignities of being a female Campbell Saber.

All day long, she hauled a duffel bag containing soccer balls, cleats, shin guards and more. That was separate from her backpack and her lunchbox.

Sometimes, girls’ soccer players could not practice until the football and boys’ soccer teams had concluded their workouts on the same field.

“It would be like 9:30 already,” said Pothier, now a sophomore at the University of California, Irvine. “The lights would turn off or the sprinklers would turn on — maybe both.”

While the football team played in places such as Phoenix and Las Vegas, the girls rarely left Oahu, according to the lawsuit.

Yet, when the girls’ soccer team qualified for state tournament games in Maui, the team was not allowed to stay overnight. So they had a tight window to fly there, play and return, often without showering.

“We’d be rushing after games, getting everyone into vans to get back to the airport, and we wouldn’t have time to eat,” Pothier said. “It was like: ‘Sorry, you have to get to your gate. You can eat when you get home.’”

Badis’ family was also entrenched in Campbell athletics. But not by choice.

When Badis signed up for water polo, in the spring of her freshman year after competing on the swim team in the winter, she learned that the school had not hired a coach, despite repeated requests from female students.

In stepped Ashley’s father, Dominic Badis Jr., a firefighter, even though he didn’t know anything about the sport. Only when he asked for help on Facebook did he recruit another coach: a friend through the fire department who had played in high school.

The school didn’t ask for paperwork or do background checks.

“Scary,” said Ashley’s mother, Caron.

After Civil Beat published its story about gender disparities, the American Civil Liberties Union of Hawaii demanded that the Department of Education come up with a plan to address inequities, saying that 14 schools statewide with athletic lockers for male athletes did not have them for females, said Wookie Kim, the group’s legal director.

But frustrated by the lack of progress, the ACLU of Hawaii — working with Legal Aid at Work, a nonprofit in San Francisco, and a pro bono team at Simpson Thacher & Bartlett LLP — sued in December 2018 on behalf of the plaintiffs.

“The irony is that the month we were there to file in 2018, the state of Hawaii was dedicating a statue to Patsy Mink,” said Elizabeth Kristen, a senior staff attorney with Legal Aid at Work and director of its Fair Play for Girls in Sports project.

After a lengthy legal battle over whether the case could move forward as a class action, Kobayashi set a trial date for October 2023.

The plaintiffs—Badis and her sister Alexis; Pothier; and another former student — are not seeking any damages. Instead, they are pushing for changes and accountability.

“I wanted to make sure that things are better for future generations,” said Badis, now a senior at the University of Hawaii at Manoa. “I didn’t want them to go through what I had to.”

During a tour of Campbell’s perimeter, state Rep. Matthew LoPresti, a Democrat who represents Ewa Beach, pointed to improvements, such as a new baseball and softball field with artificial turf next to a small building with some lockers for softball players (there is a separate locker room for baseball). And though hardly ideal, female athletes have also been allowed to use a boys locker room.

Meanwhile, state lawmakers allocated an additional $6 million this year to the Department of Education for Campbell athletic facilities, including a girls locker room, as part of a broader $60 million Title IX effort statewide.

“My job is playing catch-up,” LoPresti said.

But he also backed the litigation.

“I support anybody fighting for justice,” he said. “At the end of the day, we’re still fighting a patriarchal system that favors boys over girls.”

One person following the case from afar is Gwendolyn Mink, the daughter of Patsy Mink.

An academic with a background in politics and women’s studies, Gwendolyn Mink praised the Campbell plaintiffs, saying that secondary students often face extraordinary pressure from their peers and community. And though the Equity in Athletics Disclosure Act, passed in 1994, requires colleges to publish data on gender equity on their athletic programs, there is no comparable federal law at the K-12 level.

“We have made huge strides in opening the door, letting women in and also redistributing the gender balance,” Mink said. “But in terms of institutions taking on the work to create equal conditions for nurturing your aspirations, that’s where I think we have really fallen down.”

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