Ridgeway v. Montana High School Ass'n

• Decision Date: 04 October 1988
• Docket Number: No. 86-3901,86-3901
• Citation: 858 F.2d 579
• Parties: 49 Ed. Law Rep. 495 Karyn RIDGEWAY, et al., Plaintiffs-Appellants, v. MONTANA HIGH SCHOOL ASSOCIATION, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 579

858 F.2d 579

49 Ed. Law Rep. 495

Karyn RIDGEWAY, et al., Plaintiffs-Appellants, v. MONTANA HIGH SCHOOL ASSOCIATION, et al., Defendants-Appellees.

No. 86-3901.

United States Court of Appeals Ninth Circuit.

Argued Oct. 6, 1987.

Submitted Oct. 23, 1987.

Decided Oct. 4, 1988.

Susan M. Rogers, Little Rock, Ark., for plaintiffs-appellants.

Ronald F. Waterman, Helena, Mont., for defendants-appellees.

Appeal from the United States District Court for the District of Montana.

Before TANG, SCHROEDER and BEEZER, Circuit Judges.

SCHROEDER, Circuit Judge:

INTRODUCTION

The plaintiffs in this class action are girls attending public high schools in the State of Montana and the girls' parents. Plaintiffs brought this action against the Montana High School Association and various school districts for the purpose of challenging a wide range of practices in Montana high school athletic programs that plaintiffs maintain have unlawfully discriminated against female students in favor of males. They sought equitable relief for conditions which they alleged violated both federal law and provisions of the Montana State Constitution. The case in its early stages was before District Judge Ray McNichols, and after his death, before District Judge Charles Lovell.

With the encouragement of both judges, the parties pursued a creative settlement course in which they utilized the services of a professional "facilitator." The facilitator was chosen for his expertise in the area of improving equality of opportunities for males and females in school athletic programs.

As a result of the settlement course, the parties were able to effectuate many changes in the programs of the high schools without the active intervention of the district court. In accordance with the Settlement Agreement and the recommendation of the facilitator, the matter eventually came back before Judge Lovell to determine a key issue: whether or not the high schools should be required to change the seasons in which the girls played varsity volleyball and basketball so that those seasons would coincide with the conventional seasons in the rest of the country.

The district court held an evidentiary hearing and determined that although the schools had made significant strides toward improving the opportunities for girls' participation in athletics, equality was not yet achieved. It declined to require an immediate season shift because it found that such a switch would not bring about significant improvements in opportunities for the girls, and was not directly related to the remaining serious problems of inequality. The court did, however, maintain jurisdiction of the case, and appointed a special master to oversee the implementation of the parties' Settlement Agreement attempting to achieve equality. Ridgeway v. Montana High Sch. Ass'n, 633 F.Supp. 1564, 1582-83 (D.Mont.1986).

The plaintiffs appeal from the district court's order, and contend that the district court should have ordered an immediate change for the two girls' sports. The order they appeal is in the nature of an order denying injunctive relief. We therefore have jurisdiction pursuant to 28 U.S.C. Sec. 1291, which authorizes appeals from the granting or denial of injunctive relief.

We affirm the district court because we believe the district court appropriately resolved the issues which it was asked to resolve in the unique context of the parties' Settlement Agreement. That agreement authorized the district court to examine the season question in the light of all of the conditions existing in the Montana high schools with respect to athletics, and to make an essentially factual determination as to whether immediate implementation of that change would materially further the agreement's objective to bring the girls' athletics program up to the level of the boys'.

BACKGROUND

The complaint in this case is a reflection of concerns voiced in many quarters over the last several decades that young women are being unfairly discriminated against in athletic programs at educational institutions. In 1972, Congress passed Title IX of the Education Amendments of 1972 with the intent of eliminating sex discrimination in education. Its scope included athletic programs. 45 C.F.R. Sec. 8641(a).

By 1980, a survey by the United States Commission on Civil Rights concluded that while progress had been made, old ideas die hard. It traced attitudes toward athletics from the Victorian Era, when women were considered too weak and frail to participate, through more modern notions that sports are masculine activities. It concluded that the low participation rate by women was more a reflection of lack of opportunity rather than lack of interest. U.S. Commission on Civil Rights, More Hurdles to Clear 1-6 (1980). Reprinted as an appendix to Yellow Springs Exempted Village Sch. Dist. Bd. of Educ. v. Ohio High Sch. Athletic Ass'n, 647 F.2d 651 (6th Cir.1981) (separate opinion of Judge Jones).

That study and others have documented continuing inequities in the variety and number of athletic opportunities at educational institutions. For example, boys' high school athletic programs received five times more money than girls' in 1974; men's college athletic programs received 30 times more money than women's. More Hurdles to Clear at 6. Although by 1980 the disparity was not as great, male athletic programs continued to receive more funding. Id. In 1982, 71% of colleges continued to offer fewer sports for women than for men, and gave women only one-sixth of all athletic funding, although women numbered one-third of all intercollegiate athletes. Tokarz, Separate but Unequal Educational Sports Programs, 1 Berkeley Women's L.J. 201, 230 (1985). Disparity between female and male athletic programs has prompted much scholarly attention. See, e.g., H. Appenzeller & T. Appenzeller, Sports and the Courts (1980); DeCrow, Hardlining Title IX, 12 Civ.Rights Q. 16 (1980); Martin, Title IX and Intercollegiate Athletics, 8 Ohio N.L.Rev. 481 (1981); Fabri & Fox, The Female High School Athlete and Interscholastic Sports, 4 J.L. & Educ. 285 (1975).

Specific issues which have reached the courts include whether females can be excluded from a school's only team in a given sport, see, e.g., Carnes v. Tennessee Secondary Sch. Athletic Ass'n, 415 F.Supp. 569, 572 (E.D.Tenn.1976); whether males may be kept off female athletic teams when no male team is available, see, e.g., Clark v. Arizona Interscholastic Ass'n., 695 F.2d 1126, 1129 (9th Cir.1982), cert. denied, 464 U.S. 818, 104 S.Ct. 79, 78 L.Ed.2d 90 (1983) and Petrie v. Illinois High Sch. Ass'n, 75 Ill.App.3d 980, 31 Ill.Dec. 653, 394 N.E.2d 855, 862 (1979); whether half-court basketball rules for girls are constitutional, see, e.g., Dodson v. Arkansas Activities Ass'n, 468 F.Supp. 394, 397 (E.D.Ark.1979); whether rules placing girls' teams in out-of-norm seasons meet a separate but equal standard, see, e.g., Michigan Dept. of Civil Rights v. Waterford Township Dept. of Parks & Recreation, 124 Mich.App. 314, 335 N.W.2d 204, 208 (1983), reversed, 425 Mich. 173, 387 N.W.2d 821, 833-34 (1986) and Striebel v. Minnesota State High Sch. League, 321 N.W.2d 400, 402 (Minn.1982). The scope of this case encompassed these areas and more.

The plaintiffs filed this complaint on May 11, 1982. The named plaintiffs in June of 1983 were certified as representing all female students who attend or will attend three public high schools attended by the three named plaintiffs. The defendants are the Montana High School Association (MHSA), an Association of high schools that regulates interscholastic athletics among member schools, the Montana Office of Public Instruction (OPI), and the three high school districts.

The complaint alleged violation of the plaintiffs' rights guaranteed by the Equal Protection Clause of the fourteenth amendment of the United States Constitution, Title IX of the Education Amendments of 1972 (20 U.S.C. Secs. 1681 et seq.) and by the Constitution and laws of the State of Montana. Plaintiffs asked for injunctive relief and damages. The specific factual allegations included the following:

(1) 88 percent of Montana High Schools provided sports for boys fall, winter and spring, but only 16 percent provided them for girls during all three seasons;

(2) fewer girls participated in interscholastic high school sports;

(3) every high school in the state spent more money on boys' sports than on girls' sports;

(4) Montana was one of two states which had failed to approve power volleyball as an interscholastic sport despite three requests in three years;

(5) only seven interscholastic sports were available to girls, while eleven interscholastic sports were available to boys;

(6) girls' basketball and volleyball in Montana were played in out-of-norm seasons;

(7) practice schedules for girls' sports teams were scheduled at undesirable times so as not to interfere with the practice schedules of boys' teams;

(8) MHSA publicized boys' tournaments more than girls' tournaments;

(9) all four classes of boys' basketball had All Star Teams, but All Star Teams were not available for girls' basketball; and

(10) the defendant school districts discriminated against girls in the scheduling of sport events, coaching, uniforms, use of school band, pep rallies, locker room facilities, access to trainers, and transportation.

The defendants initially resisted plaintiffs' claims on jurisdictional grounds, but their efforts were largely unavailing. Judge McNichols in 1983 entered an order finding class certification appropriate pursuant to Rule 23, Fed.R.Civ.P. and limiting remedies of the class to declaratory and injunctive relief. In the subsequent Settlement Agreement, the scope of the case was expanded to all school districts within Montana with the agreement of the high school association and OPI. The course of the suit is detailed in the district court's opinion, Ridgeway v. Montana High Sch. Ass'n, ...