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November 15, 1972


The opinion of the court was delivered by: Austin, District Judge.



Plaintiffs are two female students at Hinsdale Center Township High School who were excluded from trying out for and participating on the school's interscholastic swimming team solely because of their sex. They allege that this discrimination is necessitated by the rules of the Illinois High School Association (the "IHSA"), which is an unincorporated association of approximately 790 Illinois high schools that regulates interscholastic sports among its members. Three IHSA by-laws are challenged in this action. The first is a rule prohibiting member schools from conducting interscholastic swimming competition for girls. Since the commencement of this suit that by-law has been amended to allow interscholastic swimming meets for girls,*fn1 but those contests are subject to the second challenged by-law, which places limitations on girls' athletic contests that are not applicable to those available to the boys.*fn2 Moreover, it is asserted that the girls' contests are purposely conducted in a manner that emphasizes intramural, multi-sport activities which are devoid of the concentration and competitive emphasis that is characteristic of boys' extracurricular sports. Finally, plaintiffs challenge a recent amendment to the IHSA by-laws which completely prohibits competition between members of the opposite sex.

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.


In bringing this suit on behalf of the class of all girls who want to participate in interscholastic swimming competition, plaintiffs urge that they represent both those girls of exceptional ability who might wish to compete against boys as members of presently all-boy teams and those girls of similar or lesser ability who wish to participate in an interscholastic program that is separate from but equal to the boys' competition. Defendants question the propriety of allowing the named plaintiffs to represent this class because they are exceptional athletes whose interests necessarily exceed those of the average member of the class. Defendants also point to the affidavits 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 all-boy teams.

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.


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 States.

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 ...

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