of certain women coaches and swimmers, which were submitted in
conjunction with an earlier motion for a preliminary
injunction and which raised objections to the notion that
girls should be permitted to become members of presently
The objections to plaintiffs' standing to represent their
class are not well taken. Although these two girls might have
an interest in becoming members of presently all-boy teams,
they also have an interest in seeking the development of a
"separate but equal" program for themselves and other girls.
Indeed, the present lawsuit might never have been brought if
such a program had been available to them. Moreover, the fact
that the named plaintiffs have interests which exceed those of
some class members will not defeat the class action, so long
as they possess interests which are coextensive with those of
the class. First American Corp. v. Foster, 51 F.R.D. 248
(N.D.Ga. 1970). Further, the fact that some members of a class
might like the status quo will not defeat a claim on behalf of
the class to redress a denial of equal protection. Moss v.
Lane Co., 50 F.R.D. 122 (W.D.Va. 1970). Therefore, this court
finds that the named plaintiffs will adequately represent all
the members of their class.
III. DEFENDANTS' MOTIONS TO DISMISS.
Separate motions to dismiss were filed by the defendant
Board of Education and by the IHSA and its directors. Since
both make essentially identical substantive arguments, they
will be considered together. Furthermore, both parties have
previously submitted affidavits in conjunction with the
earlier hearing on the motion for a preliminary injunction.
These affidavits and the factual allegations of the complaint
will be considered by this court in disposing of defendants'
motions. When affidavits previously on file with the court
adequately explore the factual circumstances of a case and
there is no genuine issue of material fact, the court may
properly treat a motion to dismiss as a motion for summary
judgment under Rule 56. Fed.R.Civ.Proc. 12(b); Thompson v. New
York Central Railroad Co., 361 F.2d 137 (2d Cir. 1966). As
will be discussed later, the complaint and affidavits are not
in conflict as to any of the material facts needed to decide
this case, for it is not denied that the high school
interscholastic sports program for girls differs in some
respects from that open to boys. Rather, the real dispute lies
in the legal question of whether that difference in treatment
has some rational relationship to a valid state objective.
Hence, this case is ripe for disposition by summary judgment.
Defendants make basically three arguments on their behalf.
First, they say that the IHSA and the Board of Education are
not persons within the meaning of 42 U.S.C. § 1983 (1970).
Second, it is asserted that the challenged discrimination is
not an action under color of state statute, ordinance,
regulation, custom, or usage. Third, defendants argue that the
challenged discrimination does not constitute a deprivation of
a right guaranteed by the Constitution and laws of the United
A. Defendants Are Persons Within § 1983 and Act Under Color
of State Law, Custom, or Usage.
With respect to the claim that the IHSA and the Board of
Education are not persons under § 1983, it is well-settled in
this circuit and elsewhere that a political subdivision is not
a person when pecuniary damages are sought. Monroe v. Pape,
365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Yumich v. Cotter,
452 F.2d 59 (7th Cir. 1971); Ries v. Lynskey, 452 F.2d 172 (7th
Cir. 1971); United States ex rel. Gittlemacker v. County of
Philadelphia, 413 F.2d 84 (3d Cir. 1969), cert. denied,
396 U.S. 1046, 90 S.Ct. 696, 24 L.Ed.2d 691 (1970). But see Carter
v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358 (1971), cert.
granted, District of Columbia v. Carter, 404 U.S. 1014, 92
S.Ct. 683, 30
L.Ed.2d 661 (1972). On the other hand, it is also clear that
political subdivisions may properly be enjoined pursuant to
§ 1983. Butts v. Dallas Independent School District,
436 F.2d 728 (5th Cir. 1971); Reed v. Nebraska School Activities
Association, 341 F. Supp. 258 (D.Neb. 1972). High school
athletic associations, such as the IHSA, have been treated as
persons for injunctive purposes under § 1983 when they act
under color of state law, custom, or usage. Mitchell v.
Louisiana High School Athletic Association, 430 F.2d 1155 (5th
Cir. 1970); Oklahoma High School Athletic Association v. Bray,
321 F.2d 269 (10th Cir. 1963); Reed v. Nebraska School
Activities Association, supra. Therefore, all defendants may
properly be enjoined as persons under § 1983, but only the
individual defendants can be liable for the damages sought.
Defendants' second argument, that they have not acted under
color of state law or custom, has been made only by the IHSA
and its directors. They assert that the IHSA is a private
voluntary association, which neither exists by any authority
of the State of Illinois nor acts pursuant to any statute in
fulfilling its functions. Hence, it is contended that the acts
of the IHSA do not amount to state action and cannot be
reached under § 1983. However, much less than statutory
authority has been held sufficient to constitute state action.
Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct.
856, 6 L.Ed.2d 45 (1961); Adams v. Miami Police Benevolent
Association, Inc., 454 F.2d 1315 (5th Cir. 1972), cert. denied
409 U.S. 843, 93 S.Ct. 42, 34 L.Ed.2d 82 (Oct. 10, 1972);
Mitchell v. Louisiana High School Athletic Association, supra;
Oklahoma High School Athletic Association v. Bray, supra; Reed
v. Nebraska School Activities Association, supra. The fact that
many members of the IHSA are tax supported, public institutions
which cannot violate the rights of their students without being
subject to judicial review, e. g., Tinker v. Des Moines
Independent Community School District, 393 U.S. 503, 89 S.Ct.
733, 21 L.Ed.2d 731 (1969), and the fact that many IHSA
sporting events are conducted in facilities constructed,
operated, and maintained at taxpayer expense is sufficient
involvement to constitute state action under § 1983. Wellsand
v. Valparaiso Community Schools Corp., No. 71 H 122(2) (N.D.
Ind. Sept. 7, 1971).*fn*
B. Plaintiffs Have Not Been Denied Equal Protection.
When dealing with an alleged denial of equal protection, it
is necessary first to define the nature of the right asserted.
Plaintiffs claim that they have been denied the opportunity to
compete in interscholastic swimming on an equal basis with
boys solely because of their sex. The denial manifests itself
both in the rule prohibiting competition between members of
the opposite sex and in the restrictions applicable to girls'
contests that are not applicable to boys'. Defendants state
that plaintiffs exaggerate the differences between the two
programs. However, this dispute is not material because the
constitutional issues can be resolved even if it is assumed
that plaintiffs' description of the girls' program is entirely
correct. The relevant inquiry here is whether the challenged
classification is rational, Reed v. Reed, 404 U.S. 71, 92
S.Ct. 251, 30 L.Ed.2d 225 (1971), and this court finds that it
is rational even under plaintiffs' description of the facts.
Of course, it is clear that participation in interscholastic
athletics is not a right guaranteed by the Constitution or
laws of the United States. Mitchell v. Louisiana High School
Athletic Association, supra, at 1157. Nor will the courts of
the State of Illinois interfere with the policies of the IHSA
in the absence of evidence that it acted "unreasonably,
arbitrarily, or capriciously." Robinson v. Illinois High School
Association, 45 Ill. App.2d 277, 286, 195 N.E.2d 38, 43 (1963),
cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555
But, plaintiffs have not asserted that they have a
constitutional right to participate in interscholastic
athletics. Rather, they assert the right to equal educational
opportunity, Brown v. Board of Education, 347 U.S. 483, 495,
74 S.Ct. 686, 98 L.Ed. 873 (1954), and the right to equal
treatment regardless of sex absent the demonstration of a
compelling state interest, Sail'er Inn, Inc. v. Kirby,
5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529 (1971). Yet even
under this formulation of their claim plaintiffs must fail.
In analyzing an alleged denial of equal protection the
Supreme Court has utilized basically two tests depending on
the type of interest involved. See generally Developments In
the Law EQUAL PROTECTION, 82 Harv.L.Rev. 1065 (1969). The
traditional test is often found stated in economic regulation
cases and consists of a two-part inquiry that first identifies
the purposes or objectives of a legislative scheme and then
asks whether the challenged discrimination bears a rational
relationship to one of those purposes. E. g., Royster Guano Co.
v. Virginia, 253 U.S. 412, 40 S.Ct. 560, 64 L.Ed. 989 (1920).
The second test, that of the compelling state interest, need
not concern us here because in Reed v. Reed, supra, the Supreme
Court applied the traditional standard when dealing with a
statute that gave preference to men over women when granting
letters of administration in cases of intestacy. Implicit in
that holding is that sex is not an inherently suspect
classification. Nor can it be said that the economic interest
of Illinois high school girls in participating in
interscholastic sports is any greater than that of the women in
Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163
(1948), where the Court upheld a Michigan statute which denied
bartending licenses to all women except the wives or daughters
of male bar owners. Therefore, mindful of Justice Holmes'
statement in Quong Wing v. Kirkendall, 223 U.S. 59, 63, 32
S.Ct. 192, 193, 56 L.Ed. 350 (1912), that "the 14th Amendment
does not [create] a fictitious equality where there is a real
difference," the scope of this court's inquiry shall hereafter
be confined to a determination of whether there exists a
rational relationship between the purposes of the IHSA's
athletic programs and the challenged discrimination based on
High school interscholastic sports are properly a part of a
school's overall educational program because they promote an
interest in athletics and thereby encourage the students to
participate in activities that benefit them physically and
mentally. Clearly, both boys and girls benefit from
participation in athletics, so it is appropriate to note at
this point that this case does not deal with the total absence
of a girls' athletic program. Rather, what is questioned is a
matter of degree and professional judgment, that is, given the
uncontroverted existence of a statewide athletics program open
to all girls, plaintiffs assert that the decision of Illinois'
physical educators to conduct separate athletic contests for
the sexes and to provide a different program for each sex is
not rationally related to the overall educational objectives
in sponsoring sporting events. With that proposition this
court is not prepared to agree.
Since the instant inquiry probes only the rationality of separate
programs for the sexes, this court takes judicial notice of the fact
that at the pinnacle of all sporting contests, the Olympic games, the
men's times in each event are consistently better than the women's.
In the hearing on the motion for a preliminary injunction in this matter, it
was shown that the times of the two boy swimmers sent to the
state championship contest from Hinsdale were better than those
ever recorded by either of the named plaintiffs. Moreover,
plaintiffs' claim that the physical and psychological
differences between male and female athletes are "unfounded
assumptions" is refuted by expert testimony presented and
received in a case which plaintiffs
themselves cite in their favor.*fn3 All of these facts lend
substantial credence to the fears expressed by women coaches
and athletes in defendants' affidavits that unrestricted
athletic competition between the sexes would consistently lead
to male domination of interscholastic sports and actually
result in a decrease in female participation in such events.
This court finds that such opinions have a rational basis in
fact and are a constitutionally sufficient reason for
prohibiting athletic interscholastic competition between boys
and girls in Illinois.
Similarly, the uncontroverted existence of a bona fide
athletic program for girls coupled with the physical and
psychological differences noted above also support the
rationality the IHSA's decision to conduct girls'
interscholastic sports programs different from the boys'.
Plaintiffs cite the affidavit of the Associate Secretary of
the Committee on the Medical Aspects of Sport of the American
Medical Association, who reported that a trial study of
integrated athletic teams in New York revealed no harmful
consequences on either the boys or girls and was indeed
beneficial to the participants. This merely reinforces my
opinion that judicial restraint is appropriate here, for the
question of what is the best program for girls' sports is one
upon which even the experts apparently disagree. Moreover,
what is the best program is not properly an issue here, since
this case presents only the question of what is a
constitutionally permissible program.
Finally, plaintiffs cite sex discrimination cases*fn4
dealing with equal employment opportunity under Title VII of
the 1964 Civil Rights Act, 42 U.S.C. § 2000e (1970). These
cases are simply inapposite because that statute represents a
special legislative exception to the previously controlling
rational relationship test that would otherwise apply. In
enacting Title VII Congress has made the legislative judgment
that employment is too important an interest to be protected
solely by the equal protection clause of the Constitution.
Thus, while the Michigan statute which denied bartending
licenses to all women except the wives and daughters of male
bar owners may have been constitutionally sound in Goesaert v.
Cleary, supra, the result of that case has undoubtedly been
altered by a specific legislative enactment based on a
recognition of the importance of equal employment opportunity.
But, the relative competitiveness of girls' interscholastic
swimming contests has not similarly been accorded a legislative
exception to the otherwise applicable equal protection standard
of the fourteenth amendment. Neither the State of Illinois nor
the federal Congress has enacted a statute applicable to high
school sports that conceivably resembles Title VII's concern
with equal employment opportunity. Until either legislature
does so, the traditional equal protection standard will govern
in this case. That standard requires this court to defer to the
judgment of the physical educators of the IHSA once a rational
relationship has been shown to exist between their actions and
the goals of interscholastic athletic competition. Therefore,
summary judgment will be entered in favor of all defendants.