The opinion of the court was delivered by: Austin, District Judge.
MEMORANDUM OPINION and JUDGMENT ORDER
Defendants herein are the IHSA, its directors, and the Board
of Education of Hinsdale Township. Plaintiffs seek to maintain
this as a class action on behalf of themselves and all other
female high school students who wish to participate in
interscholastic swimming. They ask this court to declare that
the challenged IHSA rules violate the equal protection clause
of the fourteenth amendment and the prohibition against a
deprivation of federal rights under color of law contained in
42 U.S.C. § 1983 (1970). Further, they request this court to
enjoin the enforcement of the challenged by-laws and the
conduct of all interscholastic swimming contests until the
named plaintiffs are permitted to qualify on the same basis as
boys. Finally, they seek a judgment against all defendants in
the amount of $25,000. This court finds that it has
jurisdiction pursuant to 28 U.S.C. § 1331, 1343(3) & (4),
2201, and 2202 (1970). For the reasons stated below, this court
finds that a class action may be maintained in the instant
case, but grants summary judgment in favor of all defendants.
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 ...