2007 California Education Code Article 4. Sex Equity In Education

CA Codes (edc:66271.5-66281.5)

66271.5.  The provisions of this article are supplemental to any
provision in the Constitution or laws of the United States or laws of
the State of California, relating to discrimination.



66271.6.  The Legislature finds and declares all of the following:
   (a) On June 23, 1972, Congress enacted Title IX of the Education
Amendments of 1972 to the 1964 Civil Rights Act.  This landmark
legislation provides that: "No person in the United States shall, on
the basis of sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any educational
program or activity receiving Federal financial assistance."
   (b) While Title IX applies to all aspects of educational
opportunities, it is well-known for opening the door to athletics for
girls and women.
   (c) In 1975, the United States Department of Health, Education and
Welfare enacted regulations requiring that secondary and
postsecondary schools comply with Title IX immediately.  Those that
could show real barriers to immediate compliance had just three years
to meet the regulations, including equalizing their athletic
programs.
   (d) California state law has included several athletic equity
provisions similar to those in Title IX since 1976.  For example, the
Sex Equity in Education Act provides, in subdivision (a) of Section
221.7, that: "It is the intent of the Legislature that opportunities
for participation in athletics be provided equally to male and female
pupils." Similar provisions are expressly applicable to community
colleges and the California State University.
   (e) Enhancing athletic opportunities for young women and girls is
vitally important because of the significant benefits athletic
opportunities provide including greater academic success, better
physical and psychological health, responsible social behaviors, and
enhanced interpersonal skills.   For some women and girls, the
financial support made available through athletic scholarships can
make it possible to attend college.
   (f) Title IX has promoted significant advances for women and girls
to participate in sports.  While fewer than 32,000 women
participated in college sports nationally prior to the enactment of
Title IX, today approximately 163,000 women participate--a nearly
five fold--or more than 400 percent increase.  Athletic opportunities
for girls at the high school level nationally have grown even more
dramatically--from 294,000 in 1972 to 2,800,000 today--an 894 percent
increase.  California boasts the second highest number of high
school girls participating in athletics nationwide--a total of
270,000 girls in California's high schools now participate in
interscholastic athletics.
   (g) Men's intercollegiate athletic participation has also
increased, rising from approximately 220,000 in 1981-82 to
approximately 232,000 in 1998-99.  Between 1981-82 and 1998-99,
football participation increased by 7,199; men's participation in
baseball, lacrosse, and soccer also increased during the same time
period.   High school boys' participation rates have also
increased--jumping 8.2 percent in the last three years in California.

   (h) The dramatic increases in participation rates at both the high
school and college levels since Title IX was passed show that when
doors are opened to women and girls, they will rush through.  Courts
have repeatedly recognized that it is unfounded and unlawful to claim
that women and girls are less interested in sports than men and
boys.  As one court stated, "interest and ability rarely develop in a
vacuum; they evolve as a function of opportunity and experience..."
(Cohen v. Brown University (1st Cir. 1996) 101 F.3d 155, 179).
Accordingly, courts have repeatedly rejected arguments that the
assessed interest level of girls in athletics should determine Title
IX compliance (Neal v. California State University (9th Cir. 1999)
198 F.3d.  763, 767).  Thus, interest surveys cannot accurately
determine whether an educational institution has effectively
accommodated the interests and abilities of female students.
   (i) The United States Department of Education uses a three-part
test adopted in 1979 to determine whether an educational institution
has met the key Title IX requirement that a school "effectively
accommodate the interests and abilities of members of both sexes"
when it comes to athletic participation.  All three prongs of the
test have been used successfully by schools to comply with Title IX,
and have given schools flexibility in structuring their athletic
programs.  The three-part test neither imposes quotas or requires
preferential treatment, nor requires mirror-image men's and women's
sports programs.  The lawfulness of the three-part test has been
affirmed by every federal appellate court to consider the issue.
   (j) Despite major advances in athletic opportunities for females
since 1972, discrimination still limits athletic opportunities for
girls and women at all educational levels today.  For example,
although women in Division I colleges are 53 percent of the student
body, they receive only 41 percent of the opportunities to play
sports, 36 percent of the overall athletic operating budgets, and 32
percent of the dollars spent to recruit new athletes.
   (k) In California, the percentage of female athletes at California
State University (CSU) campuses actually declined from 36 percent in
1977 to 30 percent in 1990.  In 1993, California National
Organization for Women (Cal NOW) filed suit against the CSU system
alleging violations of California's gender equity in athletics law.
Ultimately, CSU and Cal NOW entered into a consent decree focusing on
participation, expenditures, and grants-in-aid for women athletes.
As a result of the consent decree, women now comprise over 52 percent
of CSU athletes, expenditures on women's sports have increased 315
percent in the last 10 years and grants-in-aid for female athletes
have increased 232 percent during the same time period.
   (l) Despite major gains for women under California and federal
law, inequities in the treatment of men's and women's and boys' and
girls' athletic teams at some educational institutions remain.  These
inequities include, but are not limited to, all of the following:
   (1) Participation rates for women and girls.
   (2) Number of sports offered.
   (3) Number of levels of teams.
   (4) Encouragement by spirit and band groups.
   (5) Facilities.
   (6) Locker rooms.
   (7) Scheduling of games and practice times.
   (8) Level of financial support by the district, school, booster
club or clubs, and outside sponsors.
   (9) Treatment of coaches.
   (10) Opportunities to receive coaching and academic tutors.
   (11) Travel and per diem allowance.
   (12) Medical and training facilities and services.
   (13) Housing and dining facilities and services.
   (14) Scholarship money.
   (15) Publicity.
   (m) Educational institutions at all levels are strongly encouraged
to take immediate active steps toward full compliance with Title IX
and California's gender equity in athletics laws by reviewing all
aspects of their athletic program, including those factors listed in
subdivision (l) where appropriate, to ensure that they are offering
male and female student athletes equivalent opportunities to play
sports and that they are treating male and female athletes fairly.
The need to encourage and increase athletic participation by girls
and women is especially strong at educational institutions serving
inner-city and urban communities.  Full compliance with Title IX is
nondiscretionary.



66271.7.  (a) It is the policy of the state that community college
classes and courses, including nonacademic and elective classes and
courses, shall be conducted without regard to the sex of the student
enrolled in these classes and courses.
   (b) No community college district shall prohibit any student from
enrolling in any class or course on the basis of the sex of the
student.
   (c) No community college district shall require students of one
sex to enroll in a particular class or course, unless the same class
or course is also required of students of the opposite sex.
   (d) No school counselor, teacher, instructor, administrator, or
aide shall, on the basis of the sex of a student, offer vocational or
school program guidance to students of one sex which is different
from that offered to students of the opposite sex or, in counseling
students, differentiate career, vocational or higher education
opportunities on the basis of the sex of the student counseled.  Any
school personnel acting in a career counseling or course selection
capacity to any pupil shall affirmatively explore with the pupil the
possibility of careers, or courses leading to careers, that are
nontraditional for that pupil's sex.
   (e) Participation in a particular physical education activity or
sport, if required of students of one sex, shall be available to
students of each sex.



66271.8.  (a) The Legislature finds and declares that female
students should be accorded opportunities for participation in public
postsecondary educational institution athletic programs equivalent
to those accorded male students.
   (b) In apportioning public funds, public postsecondary educational
institutions shall apportion amounts available for athletics to
ensure that equitable amounts will be allocated for all students,
except that allowances may be made for differences in the costs of
various athletic programs. Notwithstanding any other provision of
law, no public funds shall be used in connection with any athletic
program conducted under the auspices of a public postsecondary
educational institution, or any student organization within the
postsecondary educational institution, that does not provide
equivalent opportunity to both sexes for participation and use of
facilities.  The factors considered when determining whether an
educational institution has provided equivalent opportunity include,
but are not limited to, all of the following:
   (1) Whether the selection of sports and levels of competition
offered effectively accommodate the athletic interests and abilities
of members of both sexes.
   (2) The provision of equipment and supplies.
   (3) Scheduling of games and practice times.
   (4) Selection of the season for a sport.
   (5) Location of the games and practices.
   (6) Compensation for coaches.
   (7) Travel arrangements.
   (8) Per diem.
   (9) Locker rooms.
   (10) Practice and competitive facilities.
   (11) Medical services.
   (12) Housing facilities.
   (13) Dining facilities.
   (14) Scholarships.
   (15) Publicity.
   (c) Whether a postsecondary educational institution has
effectively accommodated the athletic interests and abilities of
members of both sexes shall be assessed in any one of the following
ways:
   (1) Whether intercollegiate level participation opportunities for
male and female students are provided in numbers substantially
proportionate to their respective enrollments.
   (2) Where the members of one sex have been and are
underrepresented among intercollegiate athletes, whether the
institution can show a history and continuing practice of program
expansion that is demonstrably responsive to the developing interest
and abilities of the members of that sex.
   (3) Where the members of one sex are underrepresented among
intercollegiate athletes, and the institution cannot show a history
and continuing practice of program expansion as required in paragraph
(2), whether the institution can demonstrate that the interests and
abilities of the members of that sex have been fully and effectively
accommodated by the present program.
   (d) Nothing in this section shall be construed to invalidate any
existing consent decree or any other settlement agreement entered
into by an educational institution to address gender equity in
athletic programs.
   (e) Nothing in this section shall be construed to require a public
postsecondary educational institution to require competition between
male and female students in school-sponsored athletic programs.
   (f) If an educational institution must cut its athletic budget,
the educational institution shall do so consistently with its legal
obligation to comply with both state and federal gender equity laws.

   (g) It is the intent of the Legislature that the three-part test
articulated in subdivision (c) be interpreted as it has been in the
policies and regulations of the Office of Civil Rights in effect on
January 1, 2003.



66272.  This article shall not apply to an educational institution
whose primary purpose is the training of individuals for the military
services of the United States, or the merchant marine.



66273.  This article shall not apply to the membership practices of
a social fraternity or social sorority, exempt from taxation under
subdivision (a) of Section 501 of the federal Internal Revenue Code
of 1954, whose active membership consists primarily of students in
attendance at a postsecondary educational institution.




66276.  This article shall not apply to any scholarship or other
financial assistance awarded by a postsecondary educational
institution to any individual upon the basis of a combination of
factors related to the individual's personal appearance, poise, and
talent as an award in any pageant in which participation is limited
exclusively to individuals of one sex, provided that the pageant
complies with other nondiscrimination provisions of state and federal
law.


66277.  In regard to admissions to educational institutions, this
article shall apply only to institutions of vocational, professional,
or postgraduate education, and to public postsecondary education
institutions.


66278.  In regard to admissions to educational institutions, this
article shall not apply to any public institution of undergraduate
higher education which traditionally and continually from its
establishment has had a policy of admitting only students of one sex.




66281.5.  (a) It is the policy of the State of California, pursuant
to Section 66251, that all persons, regardless of their sex, should
enjoy freedom from discrimination of any kind in the postsecondary
educational institution of the state.  The purpose of this section is
to provide notification of the prohibition against sexual harassment
as a form of sexual discrimination and to provide notification of
available remedies.
   (b) Each postsecondary educational institution in the State of
California shall have a written policy on sexual harassment.  It is
the intent of the Legislature that each educational institution in
this state include this policy in its regular policy statement rather
than distribute an additional written document.
   (c) The postsecondary educational institution's written policy on
sexual harassment shall include information on where to obtain the
specific rules and procedures for reporting charges of sexual
harassment and for pursuing available remedies.
   (d) A copy of the postsecondary educational institution's written
policy on sexual harassment shall be displayed in a prominent
location in the main administrative building or other area of the
campus or schoolsite.  "Prominent location" means that location, or
those locations, in the main administrative building or other area
where notices regarding the institution's rules, regulations,
procedures, and standards of conduct are posted.
   (e) A copy of the postsecondary educational institution's written
policy on sexual harassment, as it pertains to students, shall be
provided as part of any orientation program conducted for new
students at the beginning of each quarter, semester, or summer
session, as applicable.
   (f) A copy of the postsecondary educational institution's written
policy on sexual harassment shall be provided for each faculty
member, all members of the administrative staff, and all members of
the support staff at the beginning of the first quarter or semester
of the school year, or at the time that there is a new employee
hired.
   (g) A copy of the postsecondary educational institution's written
policy on sexual harassment shall appear in any publication of the
institution that sets forth the comprehensive rules, regulations,
procedures, and standards of conduct for the institution.