BILL ANALYSIS                                                                                                                                                                                                    



                                                                     AB 949


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          Date of Hearing:  April 29, 2015


                           ASSEMBLY COMMITTEE ON EDUCATION


                              Patrick O'Donnell, Chair


          AB 949  
          (Gonzalez) - As Amended April 22, 2015


          [This bill was double referred from the Committee on Arts,  
          Entertainment, Sports, Tourism and Internet Media and was heard  
          as it related to that committee's jurisdiction.] 


          SUBJECT:  Physical education:  competition cheer


          SUMMARY:  Requires the California Interscholastic Federation  
          (CIF), in consultation with the California Department of  
          Education (CDE), to develop guidelines, procedures, and safety  
          standards for the purpose of classifying competition cheer as an  
          interscholastic sport that is consistent 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 two courses in physical education, unless  
            otherwise exempted.  (Education Code (EC) 51225.3)

          2)Authorizes the governing board of a school district to exempt  
            any four-year or senior high school pupil from attending  








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            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.   
            (EC 51242)

          3)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  
            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.  (EC 51222)

          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;








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             b)   If the school district can show a history and continuing  
               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 

             c)   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 applies to all  
          aspects of educational opportunities, not just athletics. (Title  
          IX of the Education Amendments of 1972 to the 1964 Civil Rights  
          Act) 


          FISCAL EFFECT:  Unknown


          COMMENTS: This bill creates competition cheer as a new  
          interscholastic sport governed by the California Interscholastic  
          Federation (CIF).  With the creation of competition cheer as a  
          new interscholastic sport, participants in the sport will be  
          governed by rules adopted by CIF, competition cheer coaches will  
          be required to complete the same training as all other  
          interscholastic coaches, and participants will be eligible for  
          an exemption from physical education courses, like all other  
          interscholastic sport participants.  The committee should note  
          that competition cheer is different than sideline cheer.  
          Competition cheer will be regulated like all other  
          interscholastic sports, meaning that they will compete in  








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          regular direct competitions with other teams, and only compete  
          during one season. Sideline cheer that you might see at football  
          and basketball games is not competition cheer and will not be  
          considered an interscholastic sport. 


          According to the author, AB 949 would create new safety  
          guidelines for training and potentially spark changes in  
          athletic department funding for cheer at California high  
          schools. The recognition of cheer as an official sport will  
          provide resources to cheer 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. Incidents of cheer 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 cheer injuries. Cheer injuries  
          account for approximately 65% 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.  The medical field has  
          recognized the dramatically increase popularity of cheer and  
          injuries. The American Academy of Pediatrics issued a policy  
          statement and The American Medical Association adopted the  
          policy to consider cheer a sport because of its rigors and  
          risks.

          What are Interscholastic Athletic Programs?  According to the  
          CIF, the following sports qualify as interscholastic athletic  
          programs: basketball, cross country, football, golf, track and  
          field, volleyball, wrestling, soccer, tennis, badminton,  
          baseball, field hockey, gymnastics, lacrosse, skiing,  
          snowboarding, softball, swimming and diving, and water polo.  

          Competition cheer is not currently an interscholastic athletic  
          program; is not authorized for an exemption from physical  








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          education; and, is not governed by the bylaws of the CIF.   
          Therefore, the coaches and instructors for these programs are  
          currently not required to complete the mandatory coaches  
          training in existing state law.  

          Training for Interscholastic Athletic Coaches.  Interscholastic  
          athletic coaches are required to complete a mandatory training  
          program under existing state law either offered by the school  
          district or the CIF.  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.
             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. (EC 35179.1)

          Currently CIF offers training programs to high school coaches  
          who receive a certificate upon course completion (typically a  
          six to eight hour class).  To date more than 117,000 coaches  
          have taken the training, which costs approximately $50 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. 

          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;  








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          including establishing rules for participation.


          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, 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.





          Title IX Concerns: Under existing case law traditional cheer and  
          competitive cheer are not sports.  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 cheer is not a  
          sport as it relates to Title IX purposes. Cheer's primary  
          purpose from its origin centuries ago has been to support the  
          athletic teams and to lead the crowd. Cheer 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 cheer 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 cheer any  
          way it desires, but there is only one organization that can  








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          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, it appears that sideline cheer  
          and competitive cheer are not sports. 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:   
          Sideline Cheer and Competition cheer 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).


          Further, the Torres decision wherein it was held, "Primary  
          purpose of . . . any cheer 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.)


          What is a "sport" under Title IX?  In September 2008, the US  
          Department of Education Office of Civil Rights (OCR) 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  








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          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: 



          PROGRAM STRUCTURE AND ADMINISTRATION - Taking into 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... 


          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: 
          1)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
          2)Whether the regular season competitive opportunities differ  
            quantitatively and/or qualitatively from established varsity  








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            sports; whether the team competes against intercollegiate or  
            interscholastic varsity opponents in a manner consistent with  
            established varsity sports.  When analyzing this factor, the  
            following may be taken into consideration: 
             a)   Whether the number of competitions and length of play  
               are predetermined by a governing athletics organization, an  
               athletic conference, or a consortium of institutions;
             b)   Whether the competitive schedule reflects the abilities  
               of the team; and
             c)   Whether the activity has a defined season; whether the  
               season is determined by a governing athletics organization,  
               an athletic conference, or a consortium.
             d)   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
             e)   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. When analyzing this  
               factor, the following may be taken into consideration: 
               i)     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; 
               ii)    Whether resources for the activity (e.g., practice  
                 and competition schedules, coaching staff) are based on  
                 the competitive needs of the team; 
               iii)   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
               iv)    Whether the selection of teams/participants is based  








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                 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."





          Michigan High School Athletic Association.  The Michigan High  
          School Athletic Association (MHSAA) quotes this October 2001  
          letter from OCR and states that this documents OCR's  
          determination that competitive cheer is a sport,  "The material  
          tends to support in several ways the characterization of  
          MHSAA-sanctioned competitive cheer as a Title IX sport in that  
          it specifies the season of sport, identifies the eligibility  
          requirements and standardized judging criteria used by  
          registered officials, notes the availability of some state and  
          conference championships and scholarship monies, and certifies  
          that this activity is recognized as a sport by MHSAA and  
          interscholastic athletics conferences within Michigan."


          The letter further states, however, "In addition to the material  
          you submitted, we recommend that before you conclude that  








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          competitive cheer in the state of Michigan generally satisfies  
          the Title IX standards for sport, you look more closely at the  
          actual operation of competitive cheer programs at your member  
          schools and consider information from a broader selection of  
          high school athletic programs. The following areas would be  
          relevant for your consideration:
                 Relationship of competitive cheer to high school  
               athletics departments and other sports.
                 Team selection, preparation and competition.
                 Relationship between competitive and sideline cheer.
                 Scholarships and recognition."
          "Once you have collected this information, we would be happy to  
          provide further technical assistance." 

          Since OCR made recommendations for further consideration by  
          MHSAA, before MHSAA deemed competitive cheer a sport in  
          compliance with Title IX, the legal standing of competitive  
          cheer in Michigan is unclear.  It is also unclear whether this  
          will affect California's ability to create a new Cheer sport  
          that is compliant with the Federal Office for Civil Rights  
          definition of Sport under Title IX.

          Definition of Competition Cheer and Title IX Compliance: Due to  
          the long history and legal controversy surrounding sideline  
          cheer and competitive cheer, the committee may wish to consider  
          whether to change the name of the Competition cheer program to a  
          name that hasn't already been deemed non-compliant with Title  
          IX.  Staff recommends the committee amend the bill to define  
          Competition Cheer to mean a sport wherein teams participate in  
          direct head to head competition with another team with an  
          objective scoring system.  This definition could help clarify  
          that the intent of this bill is for CIF to create the new sport  
          called Competition Cheer that is not sideline cheer, but an  
          entirely new sport that is compliant with Title IX pursuant to  
          OCR's definition of sport. The intent is for CIF to create a new  
          sport called Competition Cheer, then seek compliance with Title  
          IX pursuant to the OCR.  Further staff recommends, the committee  
          amend the bill to specify that CIF shall seek Title IX  
          compliance with OCR, but until or unless that compliance has  








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          been achieved, schools shall not count Competition Cheer towards  
          Title IX compliance.  


           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 as the proposed new sport of Competition Cheer will be.


          Committee Amendments: Staff recommends the following amendments:  



          1)Define Competition Cheer to mean a sport wherein teams  
            participate in direct head to head competition with another  
            team, with an objective scoring system.  
          2)Specify that CIF shall seek Title IX compliance with OCR, but  
            until or unless that compliance has been achieved, schools  
            shall not count Competition Cheer towards Title IX compliance.


          Previous Legislation: AB 351 (Salas), of 2009, which failed  
          passage in Assembly, 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.


          AB 1646 (Hayashi), of 2010, which was held in Assembly  








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          Appropriations Committee, 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 specified injuries, including those  
          related to the head and neck. 


          AB 1647 (Hayashi), of 2010, which was vetoed by the Governor,  
          would have established certification and training requirements  
          for athletic trainers, and prohibited individuals from calling  
          themselves athletic trainers unless they met specified  
          requirements. 


          AB 1893 (Hayashi), of 2010, which was held in Assembly Education  
          Committee, would 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. 


          REGISTERED SUPPORT / OPPOSITION:




          Support


          (Previous Version)


          California Interscholastic Federation


          California Athletic Trainers Association 








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          Opposition


          (Previous Version)


          An Individual




          Analysis Prepared by:Chelsea Kelley / ED. / (916) 319-2087