Magill v. Avonworth Baseball Conference

• Decision Date: 21 March 1975
• Docket Number: No. 73-1860,73-1860
• Parties: Pamela MAGILL, a minor, by her parents and natural guardians, William L. Magill and Patricia Magill, Appellants, v. AVONWORTH BASEBALL CONFERENCE et al. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 1328

516 F.2d 1328

Pamela MAGILL, a minor, by her parents and natural guardians, William L. Magill and Patricia Magill, Appellants, v. AVONWORTH BASEBALL CONFERENCE et al.

No. 73-1860.

United States Court of Appeals Third Circuit.

Submitted Under Third Circuit Rule 12(6) March 21, 1975.

Decided May 8, 1975.

Stanley M. Stein, Feldstein, Bloom & Grinberg, Pittsburgh, Pa., for appellants.

William Sloan Webber, Pittsburgh, Pa., for Avonworth Baseball Conference.

Margaret E. Graue, Bernadine T. Harrity, Mary Ann Kirkpatrick Vitaro, Jean Witter, Law Students for amicus curiae Duquesne Women's Law Student Association, Duquesne University School of Law, Pittsburgh, Pa.

Before ALDISERT, GIBBONS and ROSENN, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The question presented is whether the district court erred in denying relief to a ten-year-old girl who asserted an Equal Protection deprivation when a community youth baseball conference refused to allow her to participate. Alleging that the defendant officers of the Avonworth Baseball Conference (ABC) refused to permit her to play baseball solely because of her sex and thus infringed rights secured by the Fourteenth Amendment, plaintiffs brought a Civil Rights Action ¹ seeking preliminary and permanent injunctions. Following a hearing, the district court held (1) there was no state action, and (2) assuming state action, there was no unconstitutional discrimination. Plaintiffs have appealed. ² We hold that state action was not present to confer jurisdiction and affirm without reaching the constitutional question.

On April 6, 1973, Pamela Magill, accompanied by her parents, went to a Ben Avon Heights school to enroll in ABC's 1973 summer baseball program. Her parents completed an application form in her name and paid the.$7.00 registration fee. The following day, an ABC official told Mr. Magill that his daughter was unable to play because the program was limited to boys. Following consideration of Pamela's application by the ABC Board of Directors, ABC returned the registration fee, and appellants commenced this action.

ABC is a private, non-profit corporation chartered and organized under the laws of Pennsylvania. Its stated purpose is "(t)he promotion and encouragement of the playing and enjoyment of baseball among school-age youngsters . . . ." ABC administers the baseball program for the geographical area encompassed essentially by the Avonworth School District. ABC is staffed by volunteers and owns no playing facilities.

At the outset, we dispose of any contention that Pamela, 10 years old at the time of the hearing in this action, was or is unable to seek an injunction against the entire ABC program, including divisions of that program provided for youngsters in other age groups. ³ Pamela, by her parents, attacks the entire practice by which ABC excludes females from its baseball program as it currently exists. ⁴ In this respect her challenge resembles that of the plaintiffs in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), where desegregation of an entire school system was sought, and not merely that of the grades in which the plaintiffs would have been included.

The threshold task before us is to determine the presence vel non of state action. ⁵

I.

Any discussion of the "protean concept" ⁶ of state action must begin with the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883). It was there the Supreme Court first enunciated the principle that "(i)ndividual invasion of individual rights is not the subject-matter of the (Fourteenth) amendment" ; only "state action of a particular character . . . is prohibited." Ibid. at 11, 3 S.Ct. at 21.

Notwithstanding the Civil Rights Cases, subsequent decisions of the Supreme Court have pierced the seemingly impenetrable veil of private, individual conduct to find state action. These cases have the capability of being grouped into three general categories: (1) where state courts enforced an agreement affecting private parties; (2) where the state "significantly" involved itself with the private party; and (3) where there was private performance of a government function. ⁷

An example of cases falling in the first category is Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), in which state action was premised upon state court enforcement of private, racially restrictive covenants against black purchasers of land.

Cases treated under the second category are quite varied; they run the gamut of possible state involvement in private conduct. Although one case, Public Utilities Commission v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068 (1952), indicated that the PUC's action in placing its imprimatur on allegedly objectionable conduct constituted state action, the Court's latest pronouncement in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), held that Metropolitan's termination of its customer's electrical service did not constitute state action. In Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), a California constitutional amendment which essentially authorized racial discrimination in the housing market provided the requisite state action. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), held that the defendant municipal parking authority was a joint participant in the operation of a privately owned restaurant and that the restaurant's refusal to serve blacks was sufficiently imbued with state action to warrant application of the Equal Protection Clause of the Fourteenth Amendment. However, Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), and Jackson v. Metropolitan Edison Co., supra, make clear that pervasive state regulation, without more, is insufficient to constitute state action.

Exemplary of cases in the third category is Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953), in which the Court struck down the private, all-white Jaybird Party's candidate selection process which excluded blacks from participation. The Court reasoned that the Party's primary was the only effective part of the electoral process which determined who would rule and govern a county. Although the state did not control the Jaybird primary, it did permit its use in the electoral process; this, in turn, produced an election that offended constitutional restrictions.

With respect to the case sub judice, we are not concerned with the first and third categories. This is not a situation where state courts have enforced an agreement affecting private parties; nor can it be said that the implicated conduct, operation of a youth baseball league, constitutes private performance of a function traditionally associated with sovereignty. Perforce, our attention must focus on significant state involvement with the particular conduct of the private party, here ABC.

It would seem that we now have only to cull a clearcut definition of state action from relevant decisions dealing with this particular concept of state action. However, the Supreme Court's studied avoidance of any definitive state action formula can hardly be gainsaid. The Court admits to extreme difficulty in articulating an all-inclusive test ⁸ and seems to emphasize that, within the confines of certain guidelines, the presence or absence of state action must be determined on a case-by-case basis. ⁹ However, we do know that the polestar of our analysis must be whether the state involvement in the challenged action is "significant." Reitman v. Mulkey, supra, 387 U.S. at 380, 87 S.Ct. 1627. Stated otherwise, "the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action . . . so that the action of the latter may be fairly treated as that of the State itself." Jackson v. Metropolitan Edison Co., supra, 419 U.S. at 351, 95 S.Ct. at 453. Because a nexus test is necessarily one of degree, we must conduct a detailed inquiry into, and a thorough sifting of, the record facts.

With this in mind we turn to the factual complex presented to the district court.

II.

ABC uses four publicly owned baseball fields in operating its two leagues. One field, Avonworth Community Park, is operated and maintained by the Avonworth Community Organization for Recreational Development (ACORD), a non-profit, unincorporated, volunteer organization, whose members are appointed by officers of the five municipalities in the Avonworth School District (Boroughs of Ben Avon, Ben Avon Heights and Emsworth; Kilbuck Township and Ohio Township). ACORD collects fees for the use of the baseball fields, picnic facilities, swimming pool and dance hall situated in the Park. Over a period of years, ACORD reduced the fees it charged ABC in deference to ABC's strained financial situation. Although ABC had been charged $25.00 for the previous season, no fee was assessed for the 1973 baseball season.

The remaining three fields are made available to ABC through the permission of the Borough of Ben Avon Heights, the Avonworth School Board and Ohio Township. The baseball conference pays no fees for the use of these public facilities. None of the four park facilities is used exclusively by the ABC. The Avonworth School Board also permits ABC to use the school facilities both for its advertising and for its annual organizational meeting, at which registration for the baseball conference's program takes place.

At the hearing below, ABC president, Ellis J. O'Brien, was asked to what extent his organization relied upon public facilities. He replied:

It would be absolutely impossible for us to play on facilities we personally own, consequently, we must depend upon public facilities upon which to play.

It thus becomes clear that ABC could not operate without the use of public facilities.

It can be argued that this is a crucial fact in the state action...