Original Notice.

     Preproposal statement of inquiry was filed as WSR 13-03-108.

     Title of Rule and Other Identifying Information: WAC 392-190-026 Recreational and athletic -- Sex discrimination -- Equal opportunities -- Separate teams.

     Hearing Location(s): Office of Superintendent of Public Instruction (OSPI), Billings Conference Room, 3rd Floor, 600 Washington Street S.W., Olympia, WA 98504, on April 29, 2013, at 10 a.m. to 11 a.m.

     Date of Intended Adoption: April 30, 2013.

     Submit Written Comments to: Yvonne Ryans, P.O. Box 47200, Olympia, WA 98504-7200, e-mail equity@k12.wa.us, fax (360) 664-2967, by April 29, 2013.

     Assistance for Persons with Disabilities: Contact Wanda Griffin by April 3, 2013, TTY (360) 664-3631 or (360) 725-6132.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The agency proposes an amendment to WAC 392-190-026 in order to clarify rules for the athletic participation of students in grades K-6.

     Reasons Supporting Proposal: As the rule is currently written, WAC 392-190-026 only allows schools to maintain separate sports teams for girls and boys in grades 7-12. Sports teams in grades K-6 must be coeducational. This is inconsistent with RCW 28A.642.020 and Title IX, which allow schools to provide separate sports teams at any grade, provided that they do so with no disparities based on sex.

     Statutory Authority for Adoption: RCW 28A.640.020 and 28A.642.020.

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: OSPI, governmental.

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Yvonne Ryans, OSPI, P.O. Box 47200, Olympia, WA 98504-7200, (360) 725-6162.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rules do not impose costs on businesses or industries.

     A cost-benefit analysis is not required under RCW 34.05.328.

March 12, 2013

Randy Dorn

State Superintendent

of Public Instruction

OTS-5189.1

AMENDATORY SECTION(Amending WSR 11-09-024, filed 4/13/11, effective 5/14/11)

WAC 392-190-026   Recreational and athletic -- Sex discrimination -- Equal opportunities -- Separate teams.   (1) Sports teams and programs offered by a school district must be equally open to participation by qualified members of both sexes. For sports and recreational activities offered for students ((in grades 7 through 12)), a school district may maintain separate teams for members of each sex if:

     (a) It can clearly be shown, under the factual circumstances involved in the particular case, that the maintenance of separate teams for boys and girls truly constitutes the best method of providing both sexes, as a whole, with an equal opportunity to participate in the sports or games of their choice; and

     (b) At the same time, a test of substantial equality between the two programs has been met.

     (2) For the purpose of this section and WAC 392-190-050(2) "substantial equality" must be determined by considering factors including, but not limited to, the following:

     (a) The relationship between the skill and compensation of coaching staffs;

     (b) The size of their budgets;

     (c) The quality of competition and game schedule;

     (d) Uniforms;

     (e) Equipment and facilities; and

     (f) Sufficient numbers of participants to warrant separate teams.

[Statutory Authority: RCW 28A.642.020 and 28A.640.020. 11-09-024, § 392-190-026, filed 4/13/11, effective 5/14/11.]