Carnes v. TENN. SECONDARY SCHOOL ATHLETIC ASS'N

• Decision Date: 10 May 1976
• Docket Number: Civ. No. 3-76-137.
• Citation: 415 F. Supp. 569
• Parties: Jo Ann CARNES v. TENNESSEE SECONDARY SCHOOL ATHLETIC ASSOCIATION et al.
• Court: U.S. District Court — Eastern District of Tennessee

415 F. Supp. 569

Jo Ann CARNES v. TENNESSEE SECONDARY SCHOOL ATHLETIC ASSOCIATION et al.

Civ. No. 3-76-137.

United States District Court, E. D. Tennessee, N. D.

May 10, 1976.

James N. Ramsey, Dorothy B. Stulberg, Oak Ridge, Tenn., for plaintiff.

George H. Buxton, III, Oak Ridge, Tenn., Charles Hampton White, Nashville, Tenn., for defendants.

MEMORANDUM

ROBERT L. TAYLOR, District Judge.

Before the Court is plaintiff's motion for a preliminary injunction in connection with her claim that she is being denied the right to participate in interscholastic baseball at Central High School, Wartburg, Tennessee, solely on account of her sex. Jurisdiction is asserted pursuant to 42 U.S.C. § 1983, 28 U.S.C. § 1343 and 20 U.S.C. § 1681.

A hearing was held on the motion and the Court heard arguments of counsel for all parties. Shortly thereafter, the Court issued a temporary injunction as prayed for by plaintiff. Pursuant to Rule 52(a), F.R. C.P., the Court enters the following findings of fact and conclusions of law.

Plaintiff Jo Ann Carnes is an eighteen-year-old female student at Central High School in Wartburg, Tennessee. Defendant Tennessee Secondary School Athletic Association (TSSAA) is a state-wide voluntary athletic association of which Central High School is a member. The TSSAA promulgates rules for participation in interscholastic high school athletics in Tennessee. Defendant Board of Education is organized and exists under the laws of the State of Tennessee and has under its management and control the public schools of Morgan County, Tennessee, including Central High School. Defendant John W. Galloway is the superintendent of the public schools of Morgan County. Defendant Jake Gamble is the principal of Central High School, and defendant Carl Edward Kreis is the baseball coach and a teacher at the high school.

Coach Kreis notified the student body at the high school in early March of this year that he sought prospective players for this year's team. Plaintiff was among the 35 or so applicants. At first the coach told plaintiff that she could participate in the baseball program if she was prepared to follow the normal rules applicable to the team. He told her that it would be necessary to have her hair cut to conform to team rules, and she complied.

After being advised by an official of the TSSAA that plaintiff was not eligible to play on the baseball team and that Central High School might be suspended from the association if it allowed plaintiff to participate in interscholastic baseball, Coach Kreis reversed his earlier position and informed plaintiff that she could not participate on the baseball team.

In a letter dated March 17, 1976 an official of the TSSAA communicated the following to the principal of Central High School:

"This letter is to inform you that TSSAA does not permit girls to participate in baseball since baseball is a contact sport. Article II, Section 32 in the TSSAA Handbook entitled "Mixed Competition" states that boys and girls shall not be permitted to participate in interschool athletic games as mixed teams, nor shall boys' teams and girls' teams participate against each other in interschool athletic contests provided that this rule shall not apply to those sports which are not defined as collision sports or which do not involve physical contact. For purposes of this rule, collision sports and sports involving physical contact shall include, but not be limited to, football, baseball, basketball, and wrestling.

"According to the above regulation, it would be a violation for any school to allow a girl to play on the baseball team against another TSSAA registered baseball team.

"If you have any additional questions regarding girls participating on boys' teams in contact sports, please let me know."

Although the regular season ended on the date of the hearing, the proof showed that the team will play at least one more game — the first game of the state tournament which is scheduled to be played the day after the regular season ends.

In order to be entitled to a preliminary injunction, the plaintiff has the burden of demonstrating (1) a probability of success on the merits, (2) a clear case of irreparable injury, and (3) that a balance of the injury favored the granting of the injunction. Garlock, Inc. v. United Seal, Inc., 404 F.2d 256 (6th Cir. 1968).

TSSAA's rule prohibiting mixed participation and competition in contact or collision sports, as applied to the facts of the present case, discriminates against plaintiff on the basis of sex because it effectively denies her the opportunity to participate in a baseball program of any sort at Central High School.¹ The rule must be sustained, however, if it bears a rational relationship to a legitimate state purpose. Smith v. Troyan, 520 F.2d 492 (6th Cir. 1975). Moreover, the rule must be presumed to be valid. See Robinson v. Board of Regents, 475 F.2d 707 (6th Cir. 1973).

In Morris v. Michigan State Board of Education, 472 F.2d 1207 (6th Cir. 1973), the Sixth Circuit Court of Appeals suggested that the State may have a legitimate interest in prohibiting mixed participation in contact sports. The Court did not identify this interest nor did it discuss the rationale for distinguishing between contact and non-contact sports. The Court also did not reach the question of which sports may reasonably be classified as contact sports.²

A representative of the TSSAA stated at the hearing that at least two reasons exist for the collision vs. noncollision sport rule: (1) to protect females from exposure to an unreasonable risk of harm, and (2) to protect female sports programs from male intrusion.

TSSAA's first justification for its rule is questionable because it may be drawn too imprecisely to accomplish its avowed purpose. In other words, as applied to the facts of the present case, the rule may permit males who are highly prone to injury to play baseball at Central High School, while, at the same time, it may prevent females, whose physical fitness would make a risk of physical harm unlikely, from participating in the school's baseball program. See Fortin v. Darlington Little League, Inc., 514 F.2d 344 (1st Cir. 1975).

The proof showed that plaintiff was denied the opportunity to play baseball because of her sex and not because she may have been exposed to a risk of harm any greater than that to which the male players would have been exposed. She appeared physically suited to play baseball. Coach Kreis stated that she was baseball material, and that he knew of no physical reason why she could not play on the team. She has actively engaged in other sports without suffering any serious injuries and testified that, if given the opportunity to play, she would be willing to wear a chest protector specially designed for women.

The second avowed purpose of the rule, that of protecting female athletic programs from male intrusion, is also questionable. The separation of male and female interscholastic competition arguably bears a rational relation to a state interest in...