BILL ANALYSIS Ó
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