BILL ANALYSIS Ó
AB 949
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Date of Hearing: April 21, 2015
ASSEMBLY COMMITTEE ON ARTS, ENTERTAINMENT, SPORTS, TOURISM, AND
INTERNET MEDIA
Ian Charles Calderon, Chair
AB 949
(Gonzalez) - As Amended March 26, 2015
AS PROPOSED TO BE AMENDED
SUBJECT: Physical education: cheerleading.
SUMMARY: Would require the California Interscholastic
Federation (CIF), in consultation with the state Department of
Education (department), to develop guidelines, procedures, and
safety standards for the purpose of classifying competition
cheer as an interscholastic sport that is compliant with the
Federal Department of Education Office of Civil Rights (OCR)
definition of sport, by July 1, 2017.
EXISTING LAW:
1)Requires, as a condition of graduation, pupils in grades 9 to
12 to complete 2 courses in physical education, unless
otherwise exempted.
2)Requires pupils, except those exempted, to attend courses of
physical education for not less than 400 minutes each 10
schooldays. Authorizes any pupil to be excused from physical
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education classes during one of grades 10, 11, or 12 for 24
hours in order to participate in automobile driver training,
but specifies that pupil shall attend a minimum of 7,000
minutes of physical education instruction during such school
year.
3)Authorizes the governing board of a school district to exempt
any four-year or senior high school pupil from attending
courses of physical education, if the pupil is engaged in a
regular school-sponsored interscholastic athletic program
carried on wholly or partially after regular school hours.
4)Establishes the CIF as a voluntary organization responsible
for administering high school interscholastic athletics and
sunsets this authorization on January 1, 2017.
5)Requires the CIF to report to the Legislature and Governor by
January 1, 2016, on several specified goals and objectives,
such as effectiveness of the governance structure, gender
equity, health and safety, and economic viability.
6)Authorizes the California Department of Education (CDE) to
determine if the policies of school districts and the CIF are
in compliance with state and federal laws, as specified.
7)Prohibits discrimination based on sex and considers exclusion
from the participation in, or denial of opportunity in
athletic programs as discrimination.
8)Provides the following three ways an educational institution
may be found to be providing equivalent athletic
opportunities:
a) If interscholastic level participation opportunities for
male and female pupils are provided in numbers
substantially proportionate to their respective
enrollments;
b If the school district can show a history and continuing
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practice of program expansion that is demonstrably
responsive to the developing interest and abilities of the
members of the sex that have been and are underrepresented
among interscholastic athletes; or
b If the school district can demonstrate that the interest
and abilities of the members of the sex that have been
underrepresented among interscholastic athletes is fully
and effectively accommodated by the present program, where,
in the past, the school district was unable to show a
continuing practice of program expansion.
EXISTING FEDERAL LAW 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." (Title IX of the
Education Amendments of 1972 to the 1964 Civil Rights Act".
Title IX applies to all aspects of educational opportunities,
not just athletics.
FISCAL EFFECT: Unknown
COMMENTS:
1)Bill is being heard as proposed to be amended in mock-up form.
Amendments will be adopted in the Education Committee due to
policy hearing deadline time constraints and double referral.
2)Author's Statement of need for legislation
According to the author, "AB 949 would create new safety
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guidelines for training and potentially spark changes in
athletic department funding for cheerleading at California
high schools. The recognition of cheerleading as an official
sport will provide resources to cheerleading coaches and
cheerleaders consistent with other California Interscholastic
Federation (CIF)-sanctioned sports. The benefits of having the
same CIF standards will ensure a certain level of coaching
competency and skill once safety guidelines are developed by
the Department and CIF.
"Traditional cheerleading was predominantly male in the early
days, mainly consisting of tow-touch jumps, splits and
clapping. Today, cheerleaders are mostly athletic females.
Cheerleading has evolved significantly into a physically
demanding competitive sport of its own. Cheerleading is as
athletic and potentially dangerous as other sports, as cheer
athletes perform gymnastic-style backflips, lifting and
throwing team members, jumps, pyramid building and risky dance
moves that are often performed on hard surfaces.
"Incidents of cheerleading injuries - including fractures,
spinal damage, head injuries, concussions and paralysis - have
increased (as cheer has become more popular). According to the
Consumer Product Safety Commission, in 2011, there were almost
37,000 emergency room visits for cheerleading injuries.
Cheerleading injuries account for approximately 65 percent of
all catastrophic injuries in girls' high school athletics,
according to a recent report by the National Center for
Catastrophic Sport Injury Research at the University of North
Carolina.
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"The medical field has recognized the dramatically increase
popularity of cheerleading and injuries. The American Academy
of Pediatrics issued a policy statement and The American
Medical Association adopted the policy to consider
cheerleading a sport because of its rigors and risks.
"AB 949's designation of cheerleading as a sport will afford
it consistent minimum safety resources and regulations.
Equally as important, it means capturing cheerleading injury
data.
This bill will have the responsible parties - California
Department of Education and the California Interscholastic
Federation - collaborate and develop higher consistence safety
standards for cheerleaders."
3)Who is the CIF?
The CIF is an association of public, private and parochial
secondary schools which was formally established in 1914. The
CIF is authorized by state statute and is responsible for
administering all high school athletic programs; including
establishing rules for participation.
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In 1981, the Legislature delegated state oversight of high
school athletics to local school district governing boards.
That same legislation recognized the authority of the CIF, and
allowed the local districts to join such associations.
According to the CIF website, currently, more than 1,372
public and private high schools in California compete in the
wide range of athletic activities administered by the CIF and
organized under the direction of local school boards. In
total, over 700,000 girls and boys throughout the state
compete in more than 30 sports each year.
4)Title IX concerns: Under existing case law traditional
cheerleading is not a sport.
The CIF Website refers readers to the following article from
High School Today, entitled Cheerleading is not a sport: Can
cheer and competitive cheer be considered? Wherein the writer
opines,
"There appears to be unanimous agreement across the
country that cheerleading is not a sport as it relates to
Title IX purposes. Cheerleading's primary purpose from
its origin centuries ago has been to support the athletic
teams and to lead the crowd. Cheerleading teams can add
the elements of gymnastics, dance and stunting, but the
main goal of their existence does not change. With that
being said, the confusion comes from the terms
'competitive cheer' and 'cheer.' If you enter 'Is
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cheerleading or cheer a sport?' in an Internet search,
literally thousands of articles or opinion papers appear.
An association or an outside organization can refer to
cheerleading any way it desires, but there is only one
organization that can determine if the athletes meet the
definition of sport and be considered in the school's
proportionality count for equitable opportunities
offered?. Unfortunately, too many interscholastic
institutions have tried and failed to use
cheer/competitive cheer/spirit numbers for
proportionality without meeting all the criteria. Don't
be confused; the titles are not the problem, and the
criteria and standards are not debatable."
According to Title IX case law, cheer is not a sport. The
following cases offer guidance and the committee may note that
cases regarding college athletics are relevant to the
interpretation of Title IX at the primary and secondary school
levels. From the Biediger case:
Cheerleading does "not qualify as a varsity sport for the
purposes of Title IX, therefore, its members may not be
counted as athletic participants under the statute?For an
athletic opportunity to count under Title IX, it must be
genuine, meaning that it must take place in the course of
playing an actual 'sport?.To qualify the activity must allow
an athlete to receive the same benefits and experience that
she would receive if she played on another established varsity
squad." Biediger v. Quinnipiac Univ., 728 F. Supp. 2d 62, 91
(D. Conn. 2010) aff'd, 691 F.3d 85 (2d Cir. 2012).
They also draw the committee's attention to the Torres
decision wherein it was held, "Primary purpose of . . . any
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cheerleading team, is to support athletic teams and the school
at various athletic competitions . . . lack of competition
against other teams or individuals excludes . . . [cheer] from
being classified as a sporting team." Torres v. University of
Massachusetts, 2005 WL 5652770 (Mass. Super.)
5)What is a "sport" under Title IX?
In September 2008, the US Department of Education Office of
Civil Rights issued a Dear Colleague Letter: Athletic
Activities Counted for Title IX Compliance document, "to
provide State educational agencies, local educational
agencies, and postsecondary institutions with information to
ensure that male and female students are provided equal
opportunities to participate in intercollegiate and
interscholastic athletics programs consistent with Title IX of
the Education Amendments of 1972, 20 U.S.C §§ 1681 et seq.,
and its implementing regulations (34 C.F.R. Part
106)?Specifically, this letter provides clarifying information
to help institutions determine which intercollegiate or
interscholastic athletic activities can be counted for the
purpose of Title IX compliance; it does not represent a change
in OCR's policy under Title IX."
The letter outlined several factors to consider on a
case-by-case evaluation of whether an activity can be counted
as an intercollegiate or interscholastic sport for the purpose
of Title IX compliance, OCR will consider all of the following
factors:
a) PROGRAM STRUCTURE AND ADMINISTRATION - Taking into
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account the unique aspects inherent in the nature and basic
operation of specific sports, OCR considers whether the
activity is structured and administered in a manner
consistent with established intercollegiate or
interscholastic varsity sports in the institution's
athletics program...
b) TEAM PREPARATION AND COMPETITION - Taking into account
the unique aspects inherent in the nature and basic
operation of specific sports, OCR considers whether the
team prepares for and engages in competition in a manner
consistent with established varsity sports in the
institution's intercollegiate or interscholastic athletics
program, including:
i) Whether the practice opportunities (e.g., number,
length and quality) are available in a manner consistent
with established varsity sports in the institution's
athletics program; and
ii) Whether the regular season competitive opportunities
differ quantitatively and/or qualitatively from
established varsity sports; whether the team competes
against intercollegiate or interscholastic varsity
opponents in a manner consistent with established varsity
sports;
iii) When analyzing this factor, the following may be
taken into consideration:
iv) Whether the number of competitions and length of
play are predetermined by a governing athletics
organization, an athletic conference, or a consortium of
institutions;
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v) Whether the competitive schedule reflects the
abilities of the team; and
vi) Whether the activity has a defined season; whether
the season is determined by a governing athletics
organization, an athletic conference, or a consortium.
vii) If pre-season and/or post-season competition exists
for the activity, whether the activity provides an
opportunity for student athletes to engage in the
pre-season and/or post-season competition in a manner
consistent with established varsity sports; for example,
whether state, national and/or conference championships
exist for the activity; and
c) Whether the primary purpose of the activity is to
provide athletic competition at the intercollegiate or
interscholastic varsity levels rather than to support or
promote other athletic activities.
i) When analyzing this factor, the following may be
taken into consideration:
ii) Whether the activity is governed by a specific set
of rules of play adopted by a state, national, or
conference organization and/or consistent with
established varsity sports, which include objective,
standardized criteria by which competition must be
judged;
iii) Whether resources for the activity (e.g., practice
and competition schedules, coaching staff) are based on
the competitive needs of the team;
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iv) If post-season competition opportunities are
available, whether participation in post-season
competition is dependent on or related to regular season
results in a manner consistent with established varsity
sports; and
v) Whether the selection of teams/participants is based
on factors related primarily to athletic ability.
"It is OCR's policy to encourage compliance with the Title IX
athletics regulations in a flexible manner that expands,
rather than limits, student athletic opportunities. By
disseminating this list of factors, OCR intends to provide
institutions with information to include new sports in their
athletics programs, such as those athletic activities not yet
recognized by governing athletics organizations and those
featured at the Olympic games, if they so choose. Expanding
interscholastic and intercollegiate competitive athletic
opportunities through new sports can benefit students by
creating and stimulating student interest in athletics, taking
advantage of athletic opportunities specific to a particular
competitive region, and providing the opportunity for access
to a wide array of competitive athletic activities."
6)Michigan High School Athletic Association (MHSAA) may provide
model of competition cheer to address Title IX concerns.
According to information provided by the author, the sport of
competition cheer has been adopted in other states, and at
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least one state, Michigan, has received a letter from OCR
which declares their sport of competition cheer to meet Title
IX standards. On their website, the MHSAA states the following
regarding competition cheer:
"In 1994, the MHSAA welcomed the sport of Competitive Cheer to
the list of many sports that are offered end-of-season MHSAA
tournament competition.
"The introduction of Competitive Cheer as a member school
recognized sport has allowed school administrators their first
opportunity to participate in the development and review
process for safety rules and the competition format. This
opportunity provides assurance that Competitive Cheer will
meet safety guidelines appropriate for the participants as
well as include the elements and characteristics necessary to
be a positive sport offering within member school athletic
programs.
"The sport format was created by Michigan cheer coaches and
athletic administrators with the purpose of providing
consistent rules from week to week and from team to team with
the sport season. The format allows teams to perform all
aspects of cheer techniques and styles and it is designed to
encourage athleticism. Competitive Cheer meets the criteria of
a sport provided by the Office of Civil Rights in the U.S.
Department of Education. Such criteria includes contracting a
coach who conducts practices to teach and train athletes for
competition, having a schedule of meets, having a win-loss
record, following rules of a sport, participating in contest
that are officiated, receiving school varsity recognition and
potentially league/conference recognition.
"Competitive Cheer does not replace nor is it intended to
conflict with game cheerleading squads. Competitive Cheer
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teams condition, practice and prepare solely for competition
while sideline/game cheerleading squads' main objective is to
leave cheers for school sports fans and to promote good
sportsmanship for all involved. A sideline/game cheerleading
squad provides a unique opportunity for its participants as
well as the school teams and spectators it benefits."
7)Required training for Interscholastic Athletic Coaches would
be mandated for Competition Cheer coaches under proposed
amendments. Interscholastic athletic coaches (coaches of the
programs recognized as sports by the CIF) are required to
complete a mandatory training program under existing state law
either offered by the school district or the California
Interscholastic Federation. Interscholastic athletic coaches
are required to participate in the California High School
Coaching Education and Training Program and the Legislature
has expressed its intent that the program emphasize the
following components:
a) Development of coaching philosophies consistent with the
goals of the school, school district, and school district
governing board.
b) Sport psychology.
c) Sport pedagogy.
d) Sport physiology including principles of training and
the harmful effects associated with the use of steroids.
e) Sport management.
f) Training certification in CPR and first aid.
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g) Knowledge of and adherence to statewide rules and
regulations, as well as school regulations including, but
not necessarily limited to, eligibility, gender equity, and
discrimination.
h) Sound planning and goal setting. (Education Code Section
35179.1)
Currently CIF offers training programs to high school coaches
who receive a certificate upon course completion (typically an
eight hour class). To date more than 60,000 coaches have taken
the training, which costs approximately $60 per person. Some
school districts pay for the program while others require the
coach to pay for it. The completed certificate is transferable
between school districts.
California Code of Regulations, Title 5, Section 5593,
requires school districts to ensure that temporary athletic
team coaches are knowledgeable and competent in the following
areas: Care and prevention of athletic injuries; basic first
aid and emergency procedure; coaching techniques; rules and
regulations in the athletic activity being coached; and, child
or adolescent psychology for the appropriate grade level.
Temporary athletic team coaches can demonstrate their
competency in these areas in a number of ways, including but
not limited to, completing a college-level course on the
topic, completing an in-service training by the district or
county office of education, or demonstration of prior
experience in the topic area. The regulations also allow a
school district superintendent to waive compliance with any
one or more of the competencies provided that the person is
enrolled in a program leading to acquisition of a competency.
Until the competencies are met, the prospective coach shall
serve under the immediate supervision of a fully qualified
temporary athletic team coach.
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8)Opposition concerns are addressed with proposed amendments.
The prior version of this measure contained three elements,
each of which engendered some form of opposition; the first
was classifying cheerleading as an interscholastic sport
without defining which discipline of cheer was included (e.g.
mascots, song leaders, sideline cheer or stunt). The issue
with this provision is discussed in Comment 2 above, as the
courts and community of women's athletics do not consider all
aspects of cheer to be sports. By defining "Cheer" to mean
competition cheer which is compliant with the federal OCR
definition of sport; the author has addressed this concern.
The second provision of the prior version which drew
opposition was the requirement that the department grant
school districts discretion to allow participants in
cheerleading to satisfy their physical education course study
by participation in cheer (broadly defined). The concerns
about this provision are discussed in Comments 2 above, and --
below and center on allowing school related "activities" to be
treated equally as "sports". The proposed amendment addresses
this issue by expressly defining the scope of cheer under the
bill to be "Competition" cheer, which would be recognized as
an interscholastic competitive sport. As noted under Existing
Law, school districts may allow student participants in
recognized sports an exemption from physical education. The
scope of the district's discretion under the existing law
would be limited to students competing in competition cheer as
now amended.
The final concern was raised by the former version of the bill
requiring the CIF to develop guidelines, procedures and safety
standards for cheerleading, which was too broadly defined
under the prior version. As discussed in Comment 2 above,
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cheer is a broad descriptor for many activities which are not
currently defined as sports. The concern with this provision
is that the CIF is expert in the regulation and establishment
of fair play standards for existing sports; however they are
not adept at creating a new sport from whole cloth, which the
prior version of this measure would have them do. For
instance, there is no competitive model currently for team
mascots, who most often perform skits. By amending the scope
of the bill to the emerging sport of Competition Cheer, the
CIF has an existing sport and set of regulations to model and
adapt to California's unique needs.
9)Outstanding concerns, safety of unregulated cheer activities.
The author remains concerned about the health and safety
standards for those disciplines of cheer which are not to be
regulated as CIF recognized sports. Pointing to studies which
demonstrate that even sideline cheer can be dangerous when
performed under unsafe condition (such as tumbling and pyramid
practice on asphalt concrete surfaces), the author wishes to
continue exploring ways to make the entire spectrum of cheer
as safe and well regulated as the proposed new sport of
Competition Cheer will be.
10) Prior related legislation.
a) AB 351 (Salas), of 2009, would have authorized the
governing board of a school district that provides the
following courses or programs to exempt any pupil
participating in such a course or program from attending
courses of physical education (PE) and from the physical
education high school graduation requirement: California
Cadet Corps; Cheer team or Dance Team; Color guard or Drill
team; Junior Reserve Officer Training Corps; Marching band.
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The Assembly Education Committee contained the following
in their analysis of that measure, " Physical Education
Content Standards & Framework . State regulation specifies
that school districts shall judge the quality of a high
school physical education program based upon whether or
not the course of study provides for instruction in each
of the following areas: effects of physical activity upon
dynamic health, mechanics of body movement, aquatics,
gymnastics and tumbling, individual and dual sports,
rhythms and dance, team sports, and combative for boys.
According to the Physical Education Framework for
California Public Schools, Pre-Publication Version,
September 15, 2008, 'Marching band, cheerleading, and
ROTC also offer students opportunities to be physically
active. These elective courses do not prepare students
to meet grade- or course-level standards in physical
education and do not follow the high school course of
study established by California Code of Regulation, Title
5, Section 10060. Although these courses are appropriate
for elective course credit, they are not appropriate for
physical education course credit.'"
AB 351 failed passage in Assembly.
b) AB 1646 (Hayashi), of 2010, would have amended the
existing California High School Coaching Education and
Training (CHSCET) program to require coaches be trained in
a basic understanding of the signs and symptoms of
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specified injuries, including those related to the head and
neck. Held in Assembly Appropriations Committee.
c) AB 1647 (Hayashi), of 2010, would have established
certification and training requirements for athletic
trainers, and prohibited individuals from calling
themselves athletic trainers unless they met specified
requirements. Vetoed.
d) AB 1893 (Hayashi), of 2010, which have require beginning
July 1, 2011, all high school spirit activities (HSSA)
coaches to have a valid certification in CPR and first aid
and, establishes several requirements for HSSA coaches and
pupils including, but not limited to requiring pupils
participating in HSSA to have an annual medical examination
and receive proper training, and requiring HSSA coaches to
develop an emergency plan. Held in Assembly Education
Committee.
11)Double-referral: Should this bill pass out of this committee,
it will be re-referred to the Assembly Committee on Education.
REGISTERED SUPPORT / OPPOSITION:
Support
(Prior version)
California Interscholastic Federation
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California Medical Association
None on file for this version
Opposition
None on file for this version
Analysis Prepared by:Dana Mitchell / A.,E.,S.,T., & I.M. / (916)
319-3450