Reed v. Nebraska School Activities Association, CV72-L-145.

• Decision Date: 12 April 1972
• Docket Number: No. CV72-L-145.,CV72-L-145.
• Citation: 341 F. Supp. 258
• Parties: George D. REED, as father and next friend of Debbie Reed, et al., Plaintiffs, v. The NEBRASKA SCHOOL ACTIVITIES ASSOCIATION, a not-for-profit corporation, et al., Defendants.
• Court: U.S. District Court — District of Nebraska

341 F. Supp. 258

George D. REED, as father and next friend of Debbie Reed, et al., Plaintiffs, v. The NEBRASKA SCHOOL ACTIVITIES ASSOCIATION, a not-for-profit corporation, et al., Defendants.

No. CV72-L-145.

United States District Court, D. Nebraska.

April 12, 1972.

Wallace M. Rudolph, Lincoln, Neb., for plaintiffs.

Robert Guenzel, Lincoln, Neb., for defendants Chamberlin & Nebraska School Activities Ass'n.

Daniel D. Jewell, Norfolk, Neb., for all other defendants.

MEMORANDUM RE MOTION FOR PRELIMINARY INJUNCTION

URBOM, Chief Judge.

This action challenges a state's practice of providing in a public school golf and basketball programs for boys, while providing none for girls and prohibiting girls from participating with or against boys.

For decision now is a motion for a preliminary injunction against the superintendent and principal of the school, members of the board of education, and the interschool activities association and its executive secretary to restrain them from preventing Debbie Reed from participating in the competitive golf program established at the Norfolk High School in Norfolk, Nebraska.

Jurisdiction of this court is established by 42 U.S.C. § 1983 and 28 U.S.C. § 1343.

The facts have been presented by stipulation. Debbie Reed is a student at Norfolk High School, which is operated by The School District of the city of Norfolk, in the county of Madison, in the State of Nebraska. Roger E. Maxwell is principal of the high school; Gene L. Lavender is superintendent of the Norfolk public schools; Leslie T. Chamberlin is executive secretary of The Nebraska School Activities Association; The Nebraska School Activities Association is a nonprofit corporation of which all school districts in Nebraska operating high schools are members; and the other defendants are the members of the board of education which controls the operation of the Norfolk public schools, including Norfolk High School.

Debbie Reed at an unspecified time asked Vernon Doren, guidance counsellor of the Norfolk High School, for permission to try out for the boys' golf team. After consultation with the athletic director, Gary Randels, Doren denied the request because it was contrary to the rules of The Nebraska School Activities Association.

The high school has a boys' golf team but does not have a girls' golf team. The boys' golf team competes with boys' golf teams from other school districts and has a schedule of meets and tournaments to be played with other school districts in the spring of 1972 under the rules of The Nebraska School Activities Association. If there were a girl on the boys' golf team of Norfolk High School, the rules of the Association would bar the boys' team of Norfolk High School and the boys' teams of other districts that are members of The Nebraska School Activities Association from playing each other. The exact wording of the prohibitory rule, Article I-A, Section 16(d), of the bylaws of the Association relating to athletics, is:

"Girls and boys may not compete on the same athletic team, and girls and boys may not compete against each other."

THE NEBRASKA SCHOOL ACTIVITIES ASSOCIATION AS A "PERSON" AND ACTING UNDER COLOR OF STATE LAW, CUSTOM OR USAGE WITHIN THE CIVIL RIGHTS ACT

A political subdivision is not a "person" within the meaning of the Civil Rights Act, 42 U.S.C. § 1983, when pecuniary damages are sought. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed. 2d 492 (1961); Morey v. Independent School Dist. No. 492, 312 F.Supp. 1257 (U.S.D.C.Minn.1969) aff'd 429 F.2d 428 (C.A.8th Cir. 1970); Blount v. Ladue School Dist., 321 F.Supp. 1245 (U.S.D.C. E.D.Mo.1970); and Martin v. Davison, 322 F.Supp. 318 (U.S.D.C.W.D.Pa.1971). Nonetheless, federal courts have granted injunctive relief, which is all that is being sought here, against such a political subdivision. See Harkless v. Sweeny Independent School Dist., 427 F.2d 319 (C.A.5th Cir. 1970) cert. den. 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439 (1971); Butts v. Dallas Independent School Dist., 436 F.2d 728 (C.A. 5th Cir. 1971); and Henson v. City of St. Francis, 322 F.Supp. 1034 (U.S.D.C.E.D. Wis.1971).

Thus, whether The Nebraska School Activities Association is a political subdivision is not pivotal. Injunctive relief is permissible in either case, if the Association acts under color of state law, custom or usage. Whether it acts under such color turns upon an analysis of the facts presented. See Louisiana High School Athletic Association v. St. Augustine High School, 396 F.2d 224 (C.A. 5th Cir. 1968); and Oklahoma High School Athletic Association v. Bray, 321 F.2d 269 (C.A. 10th Cir. 1963).

Introduced into evidence was the Thirty-seventh Annual Yearbook of The Nebraska School Activities Association, showing, among other things, the Association's constitution, bylaws, activities, auditor's report, and membership list. An exposition of the yearbook demonstrates that the Association is sufficiently entwined with the public schools to cause its actions to be under color of state law, custom or usage. Schools belonging number 378, of which the vast majority are public schools.

"The program of activities for the schools is recommended by the State Board of Education through the Commissioner of Education ... but the rules ... governing interscholastic competition ... are made by the member schools ... The Schools are the base of the entire organization and are represented by the ... Superintendents, Principals and Activity Directors. These people attend the ... District Activity Meetings held in conjunction with the Teachers Conventions in October. At these meetings they have an opportunity to ... make recommendations for consideration by the Representative Assembly. Also at these meetings are elected ... Delegates to the Representative Assembly ..."¹

The Representative Assembly has legislative authority which is "inclusive of all policy-determining power necessary or desirable for the effective regulation of school activities. Legislation may be enacted by a three-fifths majority vote at any annual meeting, provided changes in the Constitution ... or in the eligibility rules for participation in interschool activities shall be approved by member schools of the Association. ..."²

The superintendent of schools or another member of the school faculty is the authorized representative of a member school in all interschool events and no such event is to be held without his consent.³

Revenue is collected from the member schools directly through dues⁴ and indirectly through gate receipts at various tournaments.⁵

Teaching duties of coaches,⁶ eligibility of students, and reporting duties of superintendents or principals⁷ are subjects over which the Association has some control. Any member school may be suspended from membership for as much as one year if found guilty of a violation of its obligations to the Association,⁸ which would render the suspended school ineligible to compete with any other member. No member is permitted to engage in any event with a nonmember in Nebraska.⁹

The foregoing requires a conclusion that the activities of the Association are clearly under color of state law, custom or usage. See Louisiana High School Athletic Association v. St. Augustine High School, supra. All districts in Nebraska which operate high schools are members voluntarily. They have relegated to the Association extensive control over the interschool sports activities and are limited in their athletic programs by the rules of the Association. Financing and governing personnel are provided from the member schools, most of which are public schools. The Association, therefore, is subject to the Civil Rights Act.

REQUIREMENTS FOR ISSUANCE OF A PRELIMINARY INJUNCTION

Probability of Success on the Merits

The Fourteenth Amendment of the Constitution of the United States provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." Actions by the defendants, including the Association, the members of the board of education, and the administrative staff of the school, are actions by the State of Nebraska. Is denial of an opportunity to try out for a place on a school golf team solely on the basis of sex a denial of equal protection of the laws? I think so, in the absence of justification by the state in the form of a rational connection between the differences in the sexes and a legitimate objective of the state in golf activities.

"Under traditional equal protection principles, a State retains broad discretion to classify as long as its classification has a reasonable basis." Graham v. Richardson, 403 U.S. 365, 371, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971)

A classification based upon sex requires the state to show that the difference in sex bears a rational relationship to a state objective sought to be advanced by the operation of the rule treating the sexes differently. See Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L. Ed.2d 225 (1971). I doubt that the rational relationship may be presumed. See Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). At the present stage of these proceedings I cannot say that there is or is not a rational relationship; I can and do say that none has been offered yet by the defendants.

One justification advanced by the defendants for the rule prohibiting girls from playing golf with and against boys is that golf, unlike education, is a privilege, rather than a right. Even assuming that interschool competition in golf is not educational, the privilege-right distinction is not viable. See Graham v. Richardson, supra. The issue is not whether Debbie Reed has a "right" to play golf; the issue is whether she can be treated differently from boys in an activity provided by the state. Her right is not the right to play golf. Her right is the right to be treated the same as boys unless there is a rational basis for her being treated differently. The burden on that...