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O'CONNOR v. BOARD OF EDUC. OF SCHOOL DIST. 23

August 12, 1982

KAREN O'CONNOR, BY HER PARENTS AND NEXT FRIENDS, JOSEPH O'CONNOR AND FRANCES O'CONNOR, PLAINTIFFS,
v.
BOARD OF EDUCATION OF SCHOOL DISTRICT 23, A BODY POLITIC AND CORPORATE, DEAN EITEL, SALLYANN OKUNO, JANE ADELMAN, SUSAN LEWIS, JAMES KASTNER, ANN MARIE LUNDSTROM, AND MARY ANN STITAK, AS OFFICERS AND MEMBERS OF THE BOARD OF EDUCATION OF SCHOOL DISTRICT 23, EDWARD GRODSKY, AS SUPERINTENDENT OF SCHOOL DISTRICT 23, GERALD MCGOVERN, AS ASSISTANT SUPERINTENDENT OF SCHOOL DISTRICT 23, PHILIP ARENSTEIN, AS PRINCIPAL OF MACARTHUR JUNIOR HIGH SCHOOL, MID-SUBURBAN JUNIOR HIGH SCHOOL CONFERENCE, AND ROBERT D. WHITE, AN OFFICER OF THE MID-SUBURBAN JUNIOR HIGH SCHOOL CONFERENCE, DEFENDANTS.



The opinion of the court was delivered by: Prentice H. Marshall, District Judge.

MEMORANDUM OPINION

Karen O'Connor is an extraordinarily gifted basketball player. She is also female. Therein lies the problem which gave rise to the instant case.

Since she was seven years old, Karen has played on organized basketball teams with boys. She has participated in programs run by the YMCA, the Arlington Heights Park District, the Arlington Heights Youth Basketball Association, and in the NBA-Pepsi Hotshot competition in Indianapolis, Indiana, and the Elks Hoop Shoot Contest. During this period, the teams Karen has played on have won 97 and lost only 17 games, Karen has frequently been the team's leading scorer, and she has received numerous awards recognizing her abilities. She has also gone to summer basketball camps, where she has been coached by Oscar Robertson, Digger Phelps and Lou Henson.*fn1 In all of these programs, Karen played with boys. Karen has also played with boys in little league baseball and park district soccer and has excelled.

In the fall of 1980, Karen, now 11, enrolled in sixth grade at MacArthur Junior High School in Des Plaines, Illinois. She was then presented with her first opportunity to play interscholastic basketball (the lower grades do not have such teams). Naturally, she wanted to play with boys, feeling that only the boys' basketball team could provide her with a level of competition sufficiently high to enable her to develop her skills. As a result, Karen's father requested that she be permitted to try out for the boys' basketball team. Defendants in this case, the principal of the school, the superintendent and board of the school district which encompasses MacArthur, and the president of the principals' board of the Mid-Suburban Conference, an association of six schools organized to promote interscholastic activities to which the school belongs, all denied Karen permission to do so.

Karen and her parents then filed the instant action, seeking injunctive relief requiring defendants to permit her to try out for the boys' team. Tryouts were scheduled for Monday, October 27, 1980. Accordingly, on Thursday, October 23, following an emergency adversary hearing, we rendered an oral opinion, which is attached as an appendix, and granted a preliminary injunction requiring defendants to allow Karen to participate in the tryouts. We denied defendants a stay pending appeal. Defendants then postponed the tryouts,*fn2 appealed the preliminary injunction, and sought a stay of the injunction from the United States Court of Appeals for the Seventh Circuit. On October 27, a divided panel of the court of appeals issued a stay without stating reasons. On October 29, on rehearing en banc, the court voted five to three to continue the stay, again without stating reasons. Karen then applied to Justice Stevens, as Circuit Justice, to vacate the stay. In a written opinion, Justice Stevens denied her application. O'Connor v. Board of Education, 449 U.S. 1301, 101 S.Ct. 72, 66 L.Ed.2d 179 (Stevens, Circuit Justice, 1980). The court of appeals subsequently reversed this court's entry of the preliminary injunction. O'Connor v. Board of Education, 645 F.2d 578 (7th Cir.), cert. denied, 454 U.S. 1084, 102 S.Ct. 641, 70 L.Ed.2d 619 (1981). The case is now before us on defendants' motion for summary judgment under Fed.R.Civ.P. 56.*fn3

We turn first to Karen's claim that she has been denied the equal protection of the laws in violation of the fourteenth amendment because defendants have subjected her to discrimination on the basis of her sex. Defendants concede that their refusal to permit Karen to try out for the boys' team is premised solely on her sex. When the state treats persons differently because of their sex, scrutiny of the differential treatment is required under the equal protection clause. Orr v. Orr, 440 U.S. 268, 278-79, 99 S.Ct. 1102, 1111, 59 L.Ed.2d 306 (1979); Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1977); Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 253, 30 L.Ed.2d 225 (1971). As the court of appeals observed in the earlier appeal, "To be constitutional, a gender-based discrimination must serve important governmental objectives. The discriminatory means must be substantially related to the achievement of those objectives." 645 F.2d at 580. See Mississippi University for Women v. Hogan, ___ U.S. ___, ___, ___, 102 S.Ct. 3331, 3334-36, 73 L.Ed.2d 1090 (1982); Wengler v. Druggists Mutual Insurance Co., 446 U.S. 142, 150, 100 S.Ct. 1540, 1545, 64 L.Ed.2d 107 (1980); Caban v. Mohammad, 441 U.S. 380, 388, 99 S.Ct. 1760, 1765, 60 L.Ed.2d 297 (1979); Orr v. Orr, 440 U.S. 268, 279, 99 S.Ct. 1102, 1111, 59 L.Ed.2d 306 (1979); Califano v. Webster, 430 U.S. 313, 316-17, 97 S.Ct. 1192, 1194-95, 51 L.Ed.2d 360 (1977); Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1977). In this case, there is no dispute as to what the governmental objectives are behind defendants' gender-based actions, or how their actions relate to the objectives.

Defendants' refusal to allow Karen to try out for the boys' team stems from their policy of maintaining separate basketball teams for boys and girls. Plaintiffs concede that defendants do this in order to maximize the participation of both sexes in interscholastic sports. Plaintiffs also concede that defendants' separate team policy is substantially related to this goal. Since boys, on the whole, are substantially better basketball players than are girls, then, in the words of Justice Stevens, "[w]ithout a gender-based classification . . . there would be a substantial risk that boys would dominate the girls' program and deny them an equal opportunity to compete in interscholastic events." 449 U.S. at 1307, 101 S.Ct. at 75.*fn4 By maintaining separate programs, defendants enable girls to participate in interscholastic sports. On the other hand, defendants concede that their policy is arbitrary as applied to Karen. No claim is made that considerations of administrative convenience, prevention of harm to Karen or the boys in the program, or any other legitimate interests justify excluding Karen as a particular individual from the boys' tryouts. Neither do defendants dispute Karen's claim that only participation on the boys' team will provide her with a level of competition suited to her level of skills, and her needs for developing those skills. In short, defendants concede that there is no reason to keep Karen off the team apart from the general policy of separate teams. The parties' disagreement is limited to the question whether defendants' policies need be justified only in terms of the differences between the sexes as a whole, or whether they must also be justified as applied to Karen's particular case.

Defendants' policy of providing separate teams for boys and girls is bottomed on a generalization about the relative basketball skills of boys and girls. Karen does not dispute the general validity of this generalization, though she does argue that it is not true of her. The Supreme Court has repeatedly indicated that even where generalizations about the differences between the sexes enjoy a substantial basis in fact, they nevertheless tend to be overbroad, and therefore constitute forbidden sex discrimination. See Wengler v. Druggists Mutual Insurance Co., 446 U.S. 142, 151-52, 100 S.Ct. 1540, 1546-47, 64 L.Ed.2d 107 (1980); Califano v. Wescott, 443 U.S. 76, 88-89, 99 S.Ct. 2655, 2662-63, 61 L.Ed.2d 382 (1979); Caban v. Mohammad, 441 U.S. 380, 388-89, 99 S.Ct. 1760, 1765-66, 60 L.Ed.2d 297 (1979); Orr v. Orr, 440 U.S. 268, 280-82, 99 S.Ct. 1102, 1112-13, 59 L.Ed.2d 306 (1979); Califano v. Goldfarb, 430 U.S. 199, 206-07, 217, 97 S.Ct. 1021, 1026-27, 1032, 51 L.Ed.2d 270 (1977); Craig v. Boren, 429 U.S. 190, 201-02 & n. 13, 97 S.Ct. 451, 461-59 & n. 13, 50 L.Ed.2d 397 (1977).*fn5 In light of the Supreme Court's view of the treacherous nature of generalizations about the sexes, it might be inappropriate to apply the generalization without regard for the individual case. Cf. Cleveland Board of Education v. Lafleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974) (Generalizations about the ability of pregnant teachers to work after a certain point in their pregnancy are sufficiently treacherous so that they should not be the basis of a mandatory leave policy without opportunity to prove the policy does not apply to a specific case.). See also Turner v. Department of Employment Security, 423 U.S. 44, 96 S.Ct. 249, 46 L.Ed.2d 181 (1975); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). This approach is often called the "irrebuttable presumption doctrine," and its most vigorous advocate is Professor Tribe.

  [A]s with any rule described as an irrebuttable
  presumption, it would of course be possible to defend
  the challenged regulation on the ground that it
  "presumes" nothing but simply chooses one substantive
  policy over another. For this reason, in fact, most
  commentators have regarded the Court's invocation of
  the irrebuttable presumption doctrine as analytically
  confused and ultimately unhelpful. All the Court is
  really condemning when it invalidates an irrebuttable
  presumption, one may argue, is a substantive rule it
  deems impermissibly overinclusive.
    There is some truth in the criticism, but it also
  misses an important point. For when the Court strikes
  down a rule as fatally overinclusive, it may be
  suggesting that the state is forbidden to make any
  use at all of the factor that led to the rule's
  condemnation. The special feature of an invalidation
  employing the irrebuttable presumption doctrine is
  that it ordinarily suggests, on the contrary, that
  the state may be free to use the factor so long as it
  does not give that factor conclusive force. Thus,
  precisely because the Court has applied the
  irrebuttable presumption doctrine only in situations
  where intermediate or strict scrutiny was
  independently warranted either by the involvement of
  a sensitive classification or by the presence of an
  important liberty or benefit, the doctrine has become
  anything but an "engine of destruction for countless
  legislative judgments." Instead, it has served only
  as a modest addition to the set of intermediate
  remedies where the alternative, in its absence, might
  have been a more drastic form of invalidation.

L. Tribe, American Constitutional Law § 16-32 at 1095-96 (1978) (emphasis in original) (footnotes omitted) (quoting Weinberger v. Salfi, 422 U.S. 749, 772, 95 S.Ct. 2457, 2470, 45 L.Ed.2d 522 (1975)). Here, because gender discrimination is involved, intermediate scrutiny, requiring a substantial relation to an important governmental interest, is required, and the generalization at issue may be sufficiently treacherous, in light of the questionable significance of the physical differences between boys and girls Karen's age, see Yellow Springs Exempted Village School District Board of Education v. Ohio High School Athletic Association, 647 F.2d 651, 656-57 (6th Cir. 1981); Fortin v. Darlington Little League, Inc., 514 F.2d 344, 349-51 (1st Cir. 1975); Hoover v. Meiklejohn, 430 F. Supp. 164, 169 (D.Colo. 1977); National Organization for Women v. Little League Baseball, Inc., 127 N.J.Super. 522, 318 A.2d 33 (1975); Comment, Sex Discrimination in High School Athletics, 25 Syracuse L.Rev. 535, 548-51 (1974); Comment, Implementing Title IX: The HEW Regulations, 124 U.Pa.L.Rev. 806, 838-39 (1976) [hereinafter cited as Comment, Implementing Title IX], that the generalization, while having substantial validity, should not be given conclusive weight in light of the Supreme Court's suspicion of such usually but not always valid generalizations about sex. See Yellow Springs Exempted Village School District Board of Education v. Ohio High School Athletic Association, 443 F. Supp. 753, 758-59 (S.D.Ohio 1978), rev'd in part and remanded, 647 F.2d 651 (6th Cir. 1981). See generally Crawford v. Cushman, 531 F.2d 1114 (2d Cir. 1976); Andrews v. Drew Municipal Separate School District, 507 F.2d 611 (5th Cir. 1975); Note, Sex Discrimination in High School Athletics, 57 Minn.L.Rev. 339 (1972); Note, Irrebutable Presumption Doctrine Applied to State and Federal Regulations Excluding Females from Contact Sports, U.Dayton L.Rev. 197 (1979).*fn6

In this case, however, plaintiff has raised no issue of fact as to the treachery of the generalization in question. Plaintiff never disputes defendants' assertion that boys Karen's age are substantially better than girls at basketball, an assertion borne out by the evidentiary materials presented at the hearing on the preliminary injunction. Plaintiff has never attempted to prove that the generalization is sufficiently unreliable so that it should not be given conclusive weight. Plaintiff only attempts to prove that the generalization is arbitrary as applied to her. However, proof that the generalization does not apply to Karen's particular case, in itself, does not raise an equal protection claim under the court of appeals' opinion in this case.

    Judge Marshall found the maximization of
  participation in sports to be a compelling state
  interest. It is therefore certainly an important
  governmental objective. In Judge Marshall's opinion,
  the MacArthur system was not the least restrictive
  alternative. Even he, however, conceded that the
  sex-based classification substantially furthered the
  governmental objective, thus satisfying the equal
  protection clause.
    Judge Marshall's decision cannot be upheld on the
  basis of the alleged arbitrariness of the MacArthur
  program. As Justice Stevens held, in denying the
  application for a stay,
      In my opinion, the question whether the
    discrimination is justified cannot depend entirely
    on whether the girls' program will offer Karen
    opportunities that are equal in all respects to the
    advantages she would gain from the higher level of
    competition in the boys' program. The answer must
    depend on whether it is permissible for the
    defendants to structure their athletic programs by
    using sex as one criterion for eligibility. If the
    classification is reasonable in substantially all
    of its applications, I do not believe that the
    general rule can be said to be unconstitutional
    simply because it appears arbitrary in an
    individual case.

645 F.2d at 581 (emphasis supplied) (quoting 449 U.S. at 1306, 101 S.Ct. at 75 (footnote deleted from original)).

Here plaintiff has not raised an issue of fact as to whether the generalization which underlies defendants' actions is "reasonable in substantially all of its applications." The only thing she attempts to prove is that the generalization does not apply to her. That is not enough. Without offering any evidence indicating that the generalization is too treacherous to be given conclusive weight, plaintiff cannot raise an issue of fact as to the validity of defendants' policy. Evidence which proves nothing more than the arbitrariness of defendants' actions in Karen's particular case is insufficient under the court of appeals' view of the case. Because plaintiff does not dispute defendants' generalization about the relative basketball skills of boys and girls, or that the generalization is substantially related to an important governmental interest, defendants are entitled to summary judgment on plaintiff's equal protection claim.*fn7

Plaintiff also challenges her exclusion from the tryouts under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681-83 (1976) and the regulations thereunder.*fn8 In particular, plaintiff relies on the regulations promulgated by the United States Department of Health, Education and Welfare (now the United States Department of Education) concerning sex discrimination in athletics.*fn9 The regulation deserves to be quoted in full.

    (a) General. No person shall, on the basis of sex,
  be excluded from participation in, be denied the
  benefits of, be treated differently from another
  person or otherwise be discriminated against in any
  interscholastic, intercollegiate, club or intramural
  athletics offered by a recipient, and no recipient
  shall provide any such athletics separately on such
  basis.
    (b) Separate Teams. Notwithstanding the
  requirements of paragraph (a) of this section, a
  recipient may operate or sponsor separate teams for
  members of each sex where selection for such teams is
  based upon competitive skill or the activity involved
  is a contact sport. However, where a recipient
  operates or sponsors a team in a particular sport for
  members of one sex but operates no such team for
  members of the other sex, and athletic opportunities
  for members of that sex have previously been limited,
  members of the excluded sex must be allowed to tryout
  for the team offered unless the sport involved is a
  contact sport. For the purpose of this part, contact
  sports include boxing, wrestling, rugby, ice hockey,
  football, basketball and other sports the purpose of
  major activity of which involves bodily contact.
    (c) Equal Opportunity. A recipient which operates
  or sponsors interscholastic, intercollegiate, club or
  intramural athletics shall provide equal athletic
  opportunity for members of both sexes. In determining
  whether equal opportunities are available the
  Director will consider, among other factors:
    (1) Whether the selection of sports and levels of
  competition effectively accommodate the interests and
  abilities of members of both sexes;

(2) The provision of equipment and supplies;

(3) Scheduling of games and ...


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