Attorney General v. Massachusetts Interscholastic Athletic Ass'n, Inc.

• Decision Date: 02 July 1979
• Citation: 393 N.E.2d 284,378 Mass. 342
• Parties: ATTORNEY GENERAL et al. 1 v. MASSACHUSETTS INTERSCHOLASTIC ATHLETIC ASSOCIATION, INC. et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 284

393 N.E.2d 284

378 Mass. 342

ATTORNEY GENERAL et al. ¹ v. MASSACHUSETTS INTERSCHOLASTIC ATHLETIC ASSOCIATION, INC. et al. ²

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 8, 1979.

Decided July 2, 1979.

Robert H. Bohn, Jr., Asst. Atty. Gen. (Joan M. Entmacher, Asst. Atty. Gen., with him), for plaintiffs.

Roger Dowd, Boston (Ben D. Cooper, Boston, with him), for defendants.

HENNESSEY, C. J., and QUIRICO, KAPLAN, WILKINS and ABRAMS, JJ.

KAPLAN, Justice.

Believing that a rule of the defendant Massachusetts Interscholastic Athletic Association (MIAA) that "No boy may play on a girls' team," as impressed upon and carried out by public schools under school committee jurisdiction, was unlawful, the State Board of Education referred the matter to the Attorney General for appropriate action under G.L. c. 15, § 1G. ³ The Attorney General decided to resort to litigation and, joining with him the Board of Education and the Commissioner of Education, he commenced the present action in October, 1978, in the Supreme Judicial Court for Suffolk County against MIAA, the interrelated Massachusetts Interscholastic Athletic Council (Council), and an individual occupying important positions in both organizations. The plaintiffs prayed a declaration that the quoted rule violates the Massachusetts Equal Rights Amendment (ERA) ⁴ as well as G.L. c. 76, § 5, ⁵ and regulations promulgated under that statute, ⁶ and requested corresponding injunctive relief. After answer, the parties joined in a stipulation of facts, and a single justice reserved and reported the case upon the pleadings and stipulation. We outline the facts as they appear without significant dispute.

Virtually all public secondary schools in the Commonwealth are members of MIAA and, by virtue of what is in effect a delegation of authority by local school committees under G.L. c. 71, § 47, ⁷ MIAA governs and regulates competitive sports among these schools. Some private secondary schools are likewise members and enter into the same competition. All member schools undertake to submit to the rules promulgated by MIAA; they pay dues to MIAA in proportion to their student populations. (MIAA also shares in the receipts from State-wide tournaments, many of which are held on State-owned property.)

Framing of the rules which cover all aspects of interscholastic sports, including practice time, recruitment, and age, academic, and residence requirements for player eligibility, is in the hands of the Council, whose members, parties defendants here, are drawn from a Statewide association of school committees, and from associations of school superintendents, administrators, and principals. MIAA may recommend rule changes to the Council, and it is the MIAA's executive body, called the Board of Control, that is responsible for enforcement (including interpretation) of the rules, with power to impose a variety of sanctions upon offending member schools, ranging from warning or censure to a year's suspension from interscholastic play. Because the rules are comprehensive in scope, it is evident that their policies reach beyond the interscholastic sphere and to some considerable extent also influence the intramural athletic activities of the member schools.

The rules "recognize" for interscholastic play sixteen boys', and thirteen girls' sports: the names coincide except that baseball, football, hockey, riflery, and wrestling are listed only for boys, and field hockey and softball only for girls. ⁸ Originally part II, § 1, rule 17, entitled "Boys and Girls on the Same Team," provided for strict sex segregation. By 1976, evidently reflecting regulations promulgated by the State Board of Education, and, more generally, the adoption of ERA in that year, rule 17 had been amended so that a student could not be barred from competing for a place on a team because of sex unless the school provided a "separate but equal" team. ⁹

Some schools proceeded on that basis to admit male students to a "girls' " team where there was no counterpart "boys' " team. As there were no boys' interscholastic softball teams, Newton South High School in spring, 1978, pursuant to rule 17, allowed two male students to play on its girls' team. This provoked the Massachusetts Division of Girls' and Women's Sports to protest to MIAA's predecessor organization, and then, on June 6, 1978, to commence suit against that organization with a view to preventing Newton South from competing in the girls' State softball tournament. ¹⁰ With that action pending, MIAA recommended to the Council that a subdivision d be added to rule 17 which would prohibit boys from playing on girls' teams. It was adopted (with a nonsymmetrical clause regarding girls playing on boys' teams), effective July 1, 1978, in the following terms:

"With due regard to protecting the welfare and safety of all students participating in MIAA athletics: 1) No boy may play on a girls' team. 2) A girl may play on a boys' team if that sport is not offered in the school for the girl." ¹¹

The State Board of Education took the view that rule 17(d)(1) could not stand legally in its blanket form, and the present action eventuated. The state of affairs, on which the new rule impinged, and the policing of the rule, are described in the stipulation of the parties. When the rule was announced, Easthampton High School, which had no swimming team for boys, was allowing boys on the girls' team (the record does not disclose how many boys). There was a similar situation at Pioneer Valley Regional High School in field hockey, ¹² and at Amherst Regional, Greenfield, and Northampton high schools in volleyball. The previously all-female David Hale Fanning Trade School in Worcester had then recently admitted forty-eight boys in a total enrollment of 585. As the school could not field teams exclusively for boys, it allowed boys to play on the girls' softball and basketball squads (again, as with the other schools, there is no indication of how many boys participated). ¹³

In summer and fall of 1978, administrators at Fanning, Greenfield, and the school district encompassing Pioneer Valley requested waiver of the new rule, ¹⁴ or of an interpretive memorandum issued by MIAA on October 31 stating that "(s)chools with girls' teams on which a boy or boys participated during any interscholastic competition must record each contest where 17-d-1 was violated as a loss." ¹⁵ The waiver requests were denied, ¹⁶ and the Greenfield and Pioneer Valley volleyball teams, which would have been eligible for tournament competition on their actual won-lost records, were unable to qualify. ¹⁷

Concluding our statement of the case, we have first to note that the parties agree, and we concur, that rule 17(d)(1) must be viewed as "State action" for legal purposes. ¹⁸ Second, we may be permitted the comment that the rule attacks a small problem with heavy artillery. In the general run of cases there has been no difficulty, as "separate but equal" teams accommodate the students of both sexes, and no question is raised in this case about the legality of separate but equal teams. ¹⁹ Rule 17(d)(2) accepts that where there is no opportunity for a girl on that basis, she may compete for a place on the boys' team. The converse problem apparently has arisen in only a handful of schools and only where there was a girls' team but no boys' team in a particular sport. There has been no demonstration by those defending rule 17(d)(1) that male participation on girls' teams after 1976 was other than limited or that it involved any serious distortion or disruption.

1. Prima Facie Invalidity of a Total Ban. In a recent OPINION OF THE JUSTICES, --- MASS. ---, 371 N.E.2D 426 (1977)^A, we gave our view of a proposed amendment of G.L. c. 76, § 5, which would have disallowed all participation of girls with boys on the "contact sports teams" of football and wrestling. The Justices' opinion was that "(t)he enactment of (the proposed bill) would violate art. 106 of the Amendments to the Constitution of the Commonwealth (ERA). The absolute prohibition in the proposed legislation cannot survive the close scrutiny to which a statutory classification based solely on sex must be subjected. A prohibition of all females from voluntary participation in a particular sport under every possible circumstance serves no compelling State interest." Id. at --- - ---, ^B 371 N.E.2d at 429-430. (The Justices reserved the question whether a statute "more limited in its impact" would serve such a State interest; in particular we did not say whether women could be excluded from men's teams in a particular sport if they were provided with equal facilities.) Judging from decisions around the country, we think the view we expressed as to wholesale exclusion of girls from boys' interscholastic teams where no girls' teams were provided would be accepted by the courts in jurisdictions having ERA (see Darrin v. Gould, 85 Wash.2d 859, 540 P.2d 882 (1975); Packel v. Pennsylvania Interscholastic Athletic Ass'n, 18 Pa.Cmwlth. 45, 334 A.2d 839 (1975)), ²⁰ and generally also by courts applying the less emphatic equal protection or due process clauses of State and Federal Constitutions. See Brenden v. Independent School Dist. 742, 477 F.2d 1292 (8th Cir. 1973); Morris v. Michigan State Bd. of Educ., 472 F.2d 1207 (6th Cir. 1973); Leffel v. Wisconsin Interscholastic Athletic Ass'n, 444 F.Supp. 1117 (E.D.Wis.1978); Yellow Springs Exempted Village School Dist. Bd. of Educ. v. Ohio High School Athletic Ass'n, 443 F.Supp. 753 (S.D.Ohio 1978); Hoover v. Meiklejohn, 430 F.Supp. 164 (D.Colo.1977); Gilpin v. Kansas State High School Activities Ass'n, Inc., 377 F.Supp. 1233 (D.Kan.1973); Reed v. Nebraska School Activities Ass'n, 341 F.Supp. 258 (D.Neb.1972); Haas v. South Bend Community School Corp., 259 Ind. 515, 289 N.E.2d 495 (1972). ²¹

The equal protection guaranty and a fortiori an equal rights amendment condemn discrimination...