Title IX helped daughter-father duo level the playing field for girls' athletics in Virginia
As a freshman at Nansemond River High School in Suffolk, Ashley Alston Heberling’s passion for field hockey was rivaled only by her love of tennis. So, she was heartbroken when she learned the school would soon upend her plans to play both sports in the upcoming school year.
It was 1996 and the Virginia High School League had just elevated her school from AA to AAA. It was part of a biennial process known as realignment, in which schools are reclassified based on the rise and fall of their student populations.
The realignment meant girls sports would be moved to nontraditional seasons. Field hockey and tennis would be played at the same time, so Alston — who now goes by Heberling — was forced to choose between the two. Meanwhile, the boys sports programs at Nansemond remained unchanged.
“My biggest hang-up was the fact that every couple of years, there were going to be a select group of female individuals that were going to have to be faced with that same decision,” she recently told VPM News.
For Heberling, the shift was heartbreaking. Not only was she losing an opportunity to play, she lost teammates who chose another sport.
Heberling’s outspoken father Kevin Alston, who was Nansemond’s assistant principal at the time, set out to resolve the problem.
“When girls sports after Title IX started becoming more prolific, they didn’t want to have to share the gym with girls sports,” Alston said about boys and girls athletic teams needing to divvy up resources, space and time. “The girls have just as much right to play in their high school as the boys basketball team. The girls volleyball team should be able to play their games there — should be able to practice there.”
President Richard Nixon signed the Education Amendments Act on June 23, 1972. Title IX of those amendments recognized, for the first time, gender equity in education as a civil right.
Title IX states: “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 education program or activity receiving Federal financial assistance.”
Alston took the issue to the Virginia High School League, the organization responsible for sanctioning athletics among public high schools in Virginia.
“Oh man, I got booed. You wouldn’t believe,” he said. “These were supposed to be professionals, these principals.”
He told the Virginia High School League their handling of the realignment violated Title IX. He wanted to amicably settle the issue, rather than file a complaint. But getting nowhere, he called the ACLU of Virginia, which would later represent the father-daughter team in a lawsuit, along with 10 other girls. He recognized however, that the lawsuit could drag on so long that his daughter might not even reap the benefits.
“I said, if she just has to give up a sport for no good reason, I can’t live with that,” Alston said 25 years after the suit. “If she makes a sacrifice to help others, I can live with it.”
Heberling was on board, even if it meant giving up tennis, a sport she loved.
“This needed to be corrected because this is affecting girls across the state of Virginia on a consistent basis, where they were being put in a situation to have to choose between sports that they absolutely love,” she said.
Heberling was a freshman in college when the weeklong trial ended. The federal district court found the league’s practices violated Title IX and the 14th Amendment's equal protection clause. They ordered all girls' high school sports in Virginia to be played during traditional seasons, just like the boys, and the jury also awarded each of the 11 girls $17,000.
Alston v. Virginia High School League was just one of many incremental victories in a long history of actions aiming to fulfill Title IX’s promise of gender equity in education.
“The idea is that there should be a fair process of admission,” said Christina Manzini, an associate professor at Virginia Commonwealth University’s Wilder School of Government and Public Affairs. “There should be a fair process of evaluation of students and that it should otherwise be an environment that is free from any kind of discrimination, of any form involving gender. ... There were women who were told they were too pretty to take a tough course in physics or some other science for example.”
The law has evolved to include protections for victims of sexual assault in schools. Mancini said those protections arose from the understanding that sexual violence disrupts the learning environment disproportionately for women and LGBTQ+ people.
Title IX complaints are not always hashed out in court, as in Heberling’s case. Students and faculty can file complaints directly with the federal government, which has the authority to strip schools of federal funding for gender discrimination.
According to the Education Data Initiative, K-12 schools nationwide receive about $40 billion or $1,000 per student from the federal government every year. That’s 7% of all funding for public K-12 education. Federal funding for colleges and universities is about $1,610 per student or about 8.5%.
But Title IX researchers told VPM News that the federal government has never responded to violations by suspending or terminating federal money. Instead, it subjects schools to lengthy investigations and rigorous compliance measures ending in a “Voluntary Resolution Agreement,” which gives the institution a period of time to come into compliance.
That’s one of the reasons people privately sue schools in addition to filing complaints with the U.S. Department of Education.
“Unfortunately, Title IX is one of those laws, at least through federal enforcement, that doesn't have a lot of teeth,” said Laura Dunn, a Washington-based attorney. She represents victims of campus sexual violence in the United States and said this does little to stop intentional abuses and repeat offenders. “I do not yet think that Title IX has been meaningfully enforced by the Department of Education and I think Congress could do more to create other mechanisms, such as fines,” Dunn said.
Although the threat of losing federal money looms over schools caught violating Title IX, Dunn said it’s not surprising that a penalty hasn’t been levied.
“Because if you think about it, practically, who is using federal funding? Students,” she said.
Dunn said the prospect of pulling funding from schools is considered draconian — the “nuclear option” for violators.
“We’ve lived in a world with Title IX,” said Ezra Young, a visiting law professor at Cornell University, who spoke at the University of Virginia in April about Title IX. “It’s very different from the one that our parents … have inherited. That’s good. But there’s been lots of failed progress in really basic areas.”
He said women’s sports remain underfunded, and schools continue to mishandle sexual assaults, all while the Biden Administration clashes with conservative states over protections for LGBTQ+ people in education.
Kevin Alston agreed that the law still needs work. He said he still has conversations with administrators and athletic directors who need help recognizing gender inequities, especially in sports.
“There’s still a lot of that thought out there,” he said. “Plus, if you go to a lot of the high schools, you’ll see that girls' facilities, especially the outdoor ones, aren’t quite as nice sometimes as the boys' facilities.”
Heberling graduated from Nansemond in 1999 and went on to play college field hockey at Christopher Newport University. She also became a conference champion in doubles and singles tennis, despite being forced to give it up in high school.
She later coached high school field hockey and is now an 8th-grade math teacher.
Heberling — who now has two young daughters of her own — has stacks of laminated newspaper clippings documenting the 25-year-old court case. She said she’s proud to have played a role in clearing a path for her girls to get a fair shot on and off the field.