BILL ANALYSIS                                                                                                                                                                                                    



                                                                     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