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Bonus Editorial
Testing Title IX:
Herb Dempsey Explains Why Even the Nicest Parents File Complaints

Herb Dempsey, a father of five children (two girls and three boys), has spent the last several years filing Office of Civil Rights (OCR) complaints and working with other parents who have Title IX concerns. He is a self-described "pit bull" with a mission in life: to gain equality for girls' athletics in our public schools.

He began his foray into Title IX legal affairs in 1995 when his youngest daughter was in seventh grade, and he had just retired after a 33-year career as a public school teacher. He had also served as a part-time police officer for 20 years. He felt he had some insight into Title IX because of his teaching background, and he had the investigative skills to do something about it from his police work.

He is also representative of parents everywhere who are starting to demand that schools take more action to comply with Title IX. Here are his thoughts on why parents file complaints and the different ways they may demand action.

Momentum Media: What led you to consider filing your first Title IX complaint?

Dempsey: The process that turned me into an activist took place over several years, but there were some watershed moments that were part of my awakening. In 1995, I saw a videotape of the Homecoming gala at my daughter's high school. The members of a losing football team were escorted into reserved seating by exquisitely coiffured and elegantly gowned cheerleaders. Then somebody decided to recognize the members of the girls' volleyball team. No escorts. No reserved seating. As a matter of fact the players were standing in the foyer of the gym because they couldn't even get seats and THEY were competing for the state championship.

This was the last straw. I thought of my very athletic older daughter who had eaten sandwiches while playing away games even though the football boys ate steak in sit-down restaurants. I thought of the nasty little softball field next to the elegant baseball field. Then, one day while sitting in freezing rain in a driving windstorm, I noticed that the junior high girls on my younger daughter's school soccer team were turning blue. I asked why the girls were freezing in loose-fitting summer uniforms while the boys on the football team had warm-ups, rain slickers and blankets. I looked at the Air Force Colonel sitting next to me and said, as I remember it, "This is crap."

I filed a complaint and confronted the principal. The principal and I together created a local issue and the school district solved the problem by giving the girls the requested clothing. Then I confronted the Soccer Officials Association and got a written agreement that they would no longer insist on standard uniforms in a non-standard environment. This was because soccer, an outdoor sport, is played in the winter by girls, who risk injury on cement-hard fields and who frequently play in harsh winds and driving rain, but that's another story. I think the officials worded the new rules to say that "officials shall use flexibility in making such judgments." This allowed the girls to wear tights and warm shirts under their uniforms.

From there, I filed a series of complaints that targeted a number of inequities I observed. For example, I documented that girls at the local high school had a disproportionately low percentage of Associated Student Body (ASB) funds appropriated for their athletics; that girls had less coverage than boys from the athletic trainer; the expenditures for boys' and girls' sports at the local junior high school were vastly unequal; and that even the sports banquets that honored athletes at the end of their seasons were unequal: boys' teams went to restaurants, girls' teams got to celebrate in the school cafeteria. All of these, and other issues, I documented and presented in an OCR complaint.

What motivates you, and other parents, to do this?
What motivates any parent when their kids are threatened? This started with members of my own family being attacked by a callous and uncaring system.

I loved what Ron Randolph, a parent who was involved in a complaint in Owasso, Okla., said when he was trying to get a softball field. He said that if he gave 10 dollars of his tax money to the schools and it went for athletics, then five should go to his son and five should go to his daughter. Very simple. Very clean.

But, in reality it is much more complicated and horrifically dirty: Girls are treated like second-class citizens. I found most schools, most districts, most states, and even the nation adopt levels of discrimination as "acceptable." Inequality abounds, and unless a complaint is filed, the entire system designed to address discrimination can't (or won't) even move.

What is your procedure for filing a complaint? Do you talk to the athletic director first?
I start by taking statements from victims, looking at the facilities or equipment involved, making some notes and taking some pictures with imprinted dates. If I find the situation/system isn't equal then the problem is to discover which part of EQUAL the system is having trouble with. How does the system measure its components to define "equal?" What policies and laws are out there to provide guidance?

Then, I usually talk to school administrators. The file starts and both sides can take their positions. The rules are usually simple: my side tries to move the other side toward the goal of equal treatment for all. I do my homework as well as I can and then I ask the local folks for a plan. I want a system that can produce measurable results that I can see and on a specific timeline.

If a request to the school administrators doesn't result in a specific commitment with a time-certain resolution, I file a dated and signed complaint with the district asking that something specific be done (unless we've already developed a history that convinces me it would be futile to try to work it out on a local level). I like plans that are time-specific with goals I can identify, see, measure, etc. It obligates the district to offer specific remedies to situations. I don't have much faith in "We're going to try to do better." I can't measure that, and girls can't usually play on fields built to those specifications.

If all of this doesn't result in a specific resolution schedule within a month, I withdraw the complaint. Then immediately I file a complaint with OCR and include copies of all of the paperwork and see if OCR will move on the allegations of discrimination. At least OCR will tell you if they won't move on or proceed with the complaint and they will tell you why. Sometimes an OCR investigator will call and ask for additional information. In that case, I often withdraw the complaint, do the additional research, and re-file it. Sometimes, I suggest that parents hire an attorney and have the attorney file the OCR complaint or move the matter into federal court.

In what manner do you file the local complaint?
The first step is to figure out how to file a particular complaint at the specific school, which isn't always as easy as it sounds. Sometimes I can't even find the rules for how to accomplish this. At colleges I am frequently told that they have never had to develop a policy because they have never had a complaint. I will file a complaint when I can find the system for filing complaints. Sometimes I don't even file one because there is no system for even the most elementary procedures.

Sometimes I ask the state for help and then wonder why I bothered because their performance (as a state) indicates they are also incapable of acting. Some states, California for example, need thousands of girls in athletics before they even approach equal treatment for all. In a case where I got frustrated in Kentucky, one of the state athletic association positions is that OCR isn't consistent when counting participants and the association apparently uses this argument to confuse others. I have a hard time expecting school districts or colleges and universities to be in compliance when the "blame game" is so prevalent.

But, I still attempt to do something. I find the rule book, if there is one, and make sure the district plays by the rules. If there is a state agency charged with compliance I frequently send a courtesy copy of a local complaint. If there is a local newspaper I send them photos illustrating the problem--newspapers love pictures.

What type of response are you and other parents/advocates looking for so that you don't file an official complaint?
I look for a "good faith effort" that tries to deal with the problem and not just deal with me. When an administrators says to me, "Why don't you come into the office and we can discuss it?" I am wary. It's often an attempt to get me under the microscope and find out how I react. Let's say the issue is a million dollar baseball facility sitting next to a scruffy sandlot softball field in a nickel-and-dime budget cycle where female competitors are second-class citizens. The AD and I can talk all day. She can buy my lunch and take me on a tour of the district and the problem will still be that the million dollar boys' field is "way better" than the nasty little girls' place.

I believe in action plans, budget cycles, policies against discrimination in athletics and, above all, I believe in equality. If it looks like we are moving there I won't file an official complaint. But, to be honest, I haven't met very many people who want to measure equality or school districts that have aggressive and effective programs to achieve it.

This is a war and I always hope the diplomats will make the problem go away before we move to the big battle plans. But I always have a couple of prototype battle plans ready just in case. In a Kentucky complaint, the local superintendent told me they have never had a complaint even though I was looking at a copy of a letter sent months before asking him to address pages of allegations of sex discrimination. My suggestion to the parents there was to find an attorney who wasn't local and who specialized in school discrimination cases.

What are some of the biggest inequality problems you are seeing currently?
I wish I could say the answer was something simple like, "money." That we can solve in relatively low-cost or no-cost ways. We just get the money. If, for example, I argue that the grubby little girls' field is discriminatory when compared with the brick-and-brass boys' field and the institution argues they are equal, I can suggest a low-cost solution: trade the fields. If they are right and I have simply misunderstood the quality of the facilities then no one would mind if we traded. The boys can have the softball field (with some cosmetic revisions) in alternate years for the next hundred years and the girls can have the brick and brass.

On the other hand, that might not work politically if the problem is really the one I usually encounter: attitude. Girls, according to that line of thought, should be happy that we take money from the boys so they can have any athletic programs at all. According to the ignorance of that mentality, girls should forego all of the advantages found in athletics and get ready for their "true calling" as homemakers. The facts are clear: anyone who doesn't exercise regularly risks being fat and unfit. Athletics is where we put our tax money so all members of the next generation are fit and free of fat. Which part of "all" is creating the biggest problem? This is not a problem in simple arithmetic or fundamental logic. This is a problem in attitude and politics or it wouldn't even be a challenge.

For example, in our local district, the last four "improvements" have been made in such a way that in those sports, the girls give up over an hour per day of practice time so they can be bussed to other locations for practice. That creates a series of very unattractive and unacceptable "opportunities" and girls are simply smarter than to equate bus ridership with athletic opportunity. They decline to try out so they don't make the teams and the athletic participation numbers for the under-represented sex, female, don't grow. As one coach of a spring sport for girls pointed out to me last week, "The boys are in the state finals so we lost out. The boys needed a place to practice so our season is postponed."

What happens when you file a complaint with OCR?
For the last five years I have been trying to understand how the Office for Civil Rights complaint system works. I have a couple of college degrees and hundreds of responses to Freedom of Information Act requests, and I still can't tell anyone how OCR works. I have filed complaints with OCR, and sometimes it works and sometimes it doesn't. I have withdrawn and amended and re-filed complaints and tweaked and fiddled with the content, and sometimes it works and sometimes it doesn't. I have asked OCR employees when a sport is a sport, and they can't tell me. I have asked when one sport is equal to another sport, and they tell me that they can't tell me.

But, it is actually quite easy to file a complaint. In fact, I have the OCR complaint form as a template in the computer and a list of Internet addresses that tell you everything you need to know to file a complaint of sex discrimination. The fact-finding is the hard part. As new facts become available I add them into a bound notebook so nothing gets lost--dated pictures, the lists and the numbers that make it worthwhile to file the complaint. As far as whether or not I can get OCR to move on the complaint, I am working on that.

When OCR receives a complaint, what happens next?
At the federal level the complainant will receive a receipt for the written and signed complaint. Then, sometimes, a couple of months later, the complainant will receive a follow-up call as the local (regional) office of OCR sorts out the details to see if the complaint is one on which they wish to proceed. If the Regional Office wishes to proceed they will notify the complainant, by letter, they are going to proceed with the complaint and they will notify the institution, school district or college, that a complaint has been filed alleging discrimination and adding such specifics as are necessary. They don't identify the complainant since that is confidential information and isn't released except as a final resort and then after additional processes.

The OCR will eventually either find the district hasn't failed to comply with Title IX or that something needs to be done. But long before that the local district usually signs a contract (Agreement to Resolve) and deals with the problem. As far as I know OCR has never legally sanctioned an institution by withholding the coveted federal funding.

When you have made a complaint, do parents end up taking sides for and against you?
Parents support their children and parents sometimes believe their kids are more important than mine or yours. I don't have problems with that since I expect parents to support their children. If they want to discuss it and call me, we discuss it. Their conviction that girls are less important than boys usually doesn't become the basis of that discussion. As I see these projects, they aren't usually a matter of taking sides. They evolve in situations where somebody has made a series of very bad decisions over a very long time, and now, we are all trying to deal with the consequences. There will be stress and pain, which always accompanies changes in habits. Unfortunately, these changes should have been designed and executed in the period from 1972-75. If they had, we wouldn't have to deal with them now. This is the age of the Internet, which makes it harder to hide the habitual patterns of discrimination. Its exposure is just much easier and the remedies are more available.

Why have you made this your mission in life?
I spent years working criminal justice at the street level in uniform, and when someone on the streets was being victimized I was commissioned by the community to intervene. Then I saw an entire class of individuals who were apparently being victimized and no one was there to help. In a community, state, and nation where equality was a constitutional right, I saw 65 percent of an athletic program being delivered to males. The left-over 35 percent was thrown to the girls even though the laws all said inequality is unconstitutional. We needed a cop who understood the school system. I have a strange set of credentials that may enable me to be helpful. I spent 33 years in public school classrooms during the day and nearly 20 years in uniform in patrol cars at night. I served as president of a 600-member teachers' association for several years, and I had 20 years of training and experience as a negotiator. Why shouldn't I step up and see if I can even the odds for my girls who would be athletes? Besides, I am retired and they can't fire me now!

Do your kids think you're crazy for campaigning so strenuously on their behalf?

Am I crazy? In one interview in the newspaper my younger daughter said, "Sure, he's crazy. But it's a good kind of crazy."

Interview with Herb Dempsey conducted by Assistant Editor Lorraine Berry.

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