Brenden v. Independent School District 742

• Citation: 477 F.2d 1292
• Decision Date: 18 April 1973
• Docket Number: No. 72-1287.,72-1287.
• Parties: Torbin H. BRENDEN, Individually and as parent and natural guardian of Peggy Brenden, et al., Plaintiffs-Appellees, v. INDEPENDENT SCHOOL DISTRICT 742, and Independent School District 274, Defendants, and the Minnesota State High School League, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

477 F.2d 1292 (1973)

Torbin H. BRENDEN, Individually and as parent and natural guardian of Peggy Brenden, et al., Plaintiffs-Appellees, v. INDEPENDENT SCHOOL DISTRICT 742, and Independent School District 274, Defendants, and the Minnesota State High School League, Defendant-Appellant.

No. 72-1287.

United States Court of Appeals, Eighth Circuit.

Submitted January 8, 1973.

Decided April 18, 1973.

COPYRIGHT MATERIAL OMITTED

Bernhard W. LeVander, Minneapolis, Minn., for defendant-appellant.

Thomas W. Wexler, Minneapolis, Minn., for plaintiffs-appellees.

Before LAY, HEANEY and STEPHENSON, Circuit Judges.

HEANEY, Circuit Judge.

This is a civil rights action brought under 42 U.S.C. § 1983 to enjoin enforcement of a rule promulgated by the Minnesota State High School League which bars females from participating with males in high school interscholastic athletics. The rule states:

"Girls shall be prohibited from participation in the boys\' interscholastic athletic program either as a member of the boys\' team or a member of the girls\' team playing the boys\' team.

"The girls\' team shall not accept male members."

Minnesota State High School League Official Handbook, 1971-72.

Athletic Rules for Girls, Article III, Section 5.

The complaint charges that this rule discriminates against females in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

The plaintiffs are Peggy Brenden and Antoinette St. Pierre, female high school students at Minnesota public high schools. Brenden attends the St. Cloud Technical High School in Independent School District 742 and St. Pierre attends Hopkins Eisenhower High School in Independent School District 274. Neither school district has appealed the judgment below. The defendant and sole appellant, the Minnesota State High School League, is a non-profit corporation which claims the membership of the state's 485 public high schools, including St. Cloud Technical High School and Hopkins Eisenhower High School.

The plaintiffs desired to participate in non-contact interscholastic sports: Brenden in tennis; St. Pierre in cross-country skiing and cross-country running. Neither of their schools provided teams for females in the respective sports. They did, however, provide such teams for males. Both plaintiffs would have liked to qualify for positions on the teams which have been established for males, but they were precluded from doing so on the basis of the above quoted rule. The trial court found that both were excellent athletes, and that neither would be damaged by competition with males.

The court, after a trial on the merits, granted relief stating:

"In summary, the Court is confronted with a situation where two high school girls wish to take part in certain interscholastic boys\' athletics; where it is shown that the girls could compete effectively on those teams; and where there are no alternative competitive programs sponsored by their schools which would provide an equal opportunity for competition for these girls; and where the rule, in its application, becomes unreasonable in light of the objectives which the rule seeks to promote. Brought to its base, then, Peggy Brenden and Tony St. Pierre are being prevented from participating on the boys\' interscholastic teams in tennis, cross-country, and cross-country skiing solely on the basis of the fact of sex and sex alone. The Court is thus of the opinion that in these factual circumstances, the application of the League rules to Peggy Brenden and Tony St. Pierre is arbitrary and unreasonable, in violation of the equal protection clause of the fourteenth amendment. For this reason, the application of the rule to these girls cannot stand. * * * To implement this decision, it is ordered.

"1. That Peggy Brenden and Tony St. Pierre be declared eligible to compete on their respective teams at their respective high schools.

"2. That the Minnesota State High School League is enjoined from imposing any sanctions upon either St. Cloud Technical High School or Hopkins Eisenhower High School for compliance with this Court order, and that no sanctions are to be imposed on any other public high schools for engaging in interscholastic competition with St. Cloud Technical High School and Hopkins Eisenhower High School."

Brenden v. Independent School District 742, 342 F.Supp. 1224, 1234 (D.Minn. 1972).

We affirm the decision of the trial court.

Having stated what this case is about, we would also like to emphasize what it is not about. First, because neither high school provided teams for females in the sports in which Brenden and St. Pierre desired to participate, we are not faced with the question of whether the schools can fulfill their responsibilities under the Equal Protection Clause by providing separate but equal facilities for females in interscholastic athletics. See generally, Note, Sex Discrimination in High School Athletics, 57 Minn.L.Rev. 339, 366-370 (1972). Second, because the sports in question are clearly noncontact sports, we need not determine if the High School League would be justified in precluding females from competing with males in contact sports such as football. See, Cynthia Morris et al., etc. v. Michigan State Board of Education et al., etc., 472 F.2d 1207 (6th Cir. 1973).

The High School League first contends that there is no jurisdiction over it under 42 U.S.C. § 1983 because it is a voluntary organization not acting under the color of state law. However, the trial court specifically held that:

"* * * Although the Minnesota State High School League is a voluntary organization, the original allowance for public high schools to join such an association or organization is authorized pursuant to Minnesota law. Minn.Stat.Ann. Section 192.12. In addition, the rules governing League members are promulgated pursuant to a procedure which integrally involves the member school districts in the decision-making process. Beyond this, the ultimate enforcement of the rules becomes the responsibility of the member school and the public officials of those schools and school districts. In such a situation, where there is a tremendous public interest in educational functions, and where the public school machinery of the state is so involved in the effectuation and enforcement of rules which bind all public high schools in the state, the Court is left with no conclusion other than that defendant Minnesota State High School League and the defendant school districts are acting under color of state law. * * *" (Footnote omitted.)

342 F.Supp. at 1229.

We agree with the trial court and affirm its decision in this regard. See, Mitchell v. Louisiana High School Athletic Association, 430 F.2d 1155 (5th Cir. 1970); Louisiana High School Athletic Ass'n v. St. Augustine High Sch., 396 F.2d 224 (5th Cir. 1968); Oklahoma High School Athletic Association v. Bray, 321 F.2d 269 (10th Cir. 1963); Reed v. The Nebraska School Activities Association, 341 F.Supp. 258 (D.Neb. 1972); Sex Discrimination in High School Athletics, supra at 350.

We next turn to the merits. In evaluating a claim that state action violates the Equal Protection Clause, the following three criteria must be considered:

"* * * I the character of the classification in question; II the individual interests affected by the classification; III and the governmental interests asserted in support of the classification. * * *"

Dunn v. Blumstein, 405 U.S. 330, 335, 92 S.Ct. 995, 999, 31 L.Ed.2d 274, 280 (1972).

I. Sex-Based Classifications.

In 1961, President Kennedy, having found that "prejudices and outmoded customs act as barriers to the full realization of women's basic rights," established the President's Commission on the Status of Women. Executive Order 10980 (December 14, 1961). That Commission, the President's Task Force on Women's Rights and Responsibilities, congressional hearings and critical studies have confirmed the serious nature of discrimination on account of sex.¹

In recent years, Congress and the Executive have acted to eliminate discrimination based on "`stereotyped characterizations of the sexes'," Phillips v. Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971) (Marshall, J., concurring). See, Title VII of the Civil Rights Act of 1964,² the Equal Pay Act,³ and Title IX of the Education Amendments of 1972.⁴ The jurisdiction of the Civil Rights Commission has been extended to include discrimination on the basis of sex.⁵ Finally, Congress has passed the Equal Rights Amendment and transmitted it to the states.

In recent years, courts, too, have become sensitive to the problems of sex-based discrimination. In 1963, the Presidential Commission on the Status of Women recommended that:

"Early and definitive court pronouncement, particularly by the United States Supreme Court, is urgently needed with regard to the validity under the Fifth and Fourteenth Amendments of laws and official practices discriminating against women, to the end that the principle of equality becomes firmly established in constitutional doctrine."

There is no longer any doubt that sex-based classifications are subject to scrutiny by the courts under the Equal Protection Clause and will be struck down when they provide dissimilar treatment for men and women who are similarly situated with respect to the object of the classification. Reed v. Reed, 404 U.S. 71, 77, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). See, Moritz v. C.I.R., 469 F.2d 466 (10th Cir. 1972). Compare, Green v. Waterford Board of Education, 473 F.2d 629 (2nd Cir. 1973), and LaFleur v. Cleveland Board of Education, 465 F.2d 1184 (6th Cir. 1972), with Mrs. Susan Cohen v. Chesterfield County School Board et al., etc., 474 F.2d 395 (4th Cir. 1973) (en banc). Furthermore, discrimination on the basis of sex can no longer be justified by reliance on "outdated images * * * of women as peculiarly delicate and impressionable creatures in need of protection from the rough...