Clinton v. Nagy, C 74-994.

• Citation: 411 F. Supp. 1396
• Decision Date: 14 November 1974
• Docket Number: No. C 74-994.,C 74-994.
• Parties: Brenda CLINTON, Plaintiff, v. John S. NAGY et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

411 F. Supp. 1396

Brenda CLINTON, Plaintiff, v. John S. NAGY et al., Defendants.

No. C 74-994.

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

November 14, 1974.

Rita P. Reuss and Charles E. Guerrier, Cleveland, Ohio, for plaintiff.

Richard B. Mills, Asst. Law Director, Cleveland, Ohio, for defendants.

LAMBROS, District Judge.

Plaintiff, Brenda Clinton, brought this action, through her mother and next friend Johnnie Clinton, seeking the issuance of a temporary restraining order and a preliminary and permanent injunction against defendants John S. Nagy, Commissioner of the Division of Recreation of the City of Cleveland; Robert Maver, Director of the Cleveland Browns Muny Football Association; Charles Hall, Director of Class "F" Muny League teams; and Ralph J. Perk, Mayor of the City of Cleveland. Plaintiff filed the action pursuant to 42 U.S.C. § 1983 and seeks to enjoin defendants from depriving her of equal recreational opportunities because of her sex and a declaratory judgment that the policies, customs, and practices of the defendants are in violation of the Constitution and laws of the United States. Notice of a hearing on the motion for temporary relief was afforded defendants, and this matter was heard on Friday, November 1, 1974. The Court granted plaintiff's motion for the temporary restraining order. The Court's ruling therein is set forth with more particularity below.

Plaintiff's claim is that she is a twelve year old female who expressed her interest to her mother and to Mr. William Thomas, coach of the 97th Street Bulldogs football team, in September, 1974, of her desire to play football with Mr. Thomas' team.

The 97th Street Bulldogs football team is licensed by the City as part of the Cleveland Browns Muny Football Association. Plaintiff alleges that neither her mother nor Coach Thomas have any objections to plaintiff's participation on the team. Affidavits of Mrs. Clinton and Mr. Thomas support her allegations. Mrs. Clinton testified by affidavit that on September 28, 1974, she signed a Medical Service Agreement, which is required of all Muny league players, in order that her daughter Brenda could participate in league play. It appears that the other requirements of the Cleveland Browns Muny Football Association were met by the plaintiff, and that on September 28, 1974 plaintiff was suited and prepared to play with the 97th Street Bulldogs. On that date, and on several subsequent Saturday afternoons, plaintiff was suited and ready to play but was informed by defendant Charles Hall that she would not be permitted to play because she was a female. At defendant Maver's request, Mrs. Clinton then signed a waiver, not required of males who participated in the Association's program, absolving the City and its agents from liability for any injuries which plaintiff might receive. Mrs. Clinton signed this waiver upon the representation of an employee of the Division of Recreation and a letter from Robert Maver that if the special waiver was signed, plaintiff would be able to play football with the team on October 19, 1974. However, on October 18, 1974, Mrs. Clinton was notified that although the waiver had been received, Brenda could not play because that "was the law."

Plaintiff, therefore, instituted this suit seeking an order to restrain the defendants from denying her an opportunity to qualify to participate as a member of the 97th Street Bulldogs in the last games of the Season, on Saturday, November 2, 1974 and Saturday, November 9, 1974, solely on the basis of her sex. At the hearing on the temporary restraining order, the defendants, through counsel, did not dispute that the reason that plaintiff was not permitted to play with the Bulldogs was because of her sex. The defendants argued, however, that the City's rules and regulations which govern the playing of sports specifically exclude females from participating in contact sports¹ and that such exclusion is lawful because it bears a rational relationship to a legitimate state purpose of providing for the safety and welfare of females.

Accordingly, the sole issue before this Court at the hearing on the motion for a temporary restraining order was whether plaintiff had shown a substantial likelihood of success on the merits of her claim that the defendants should be enjoined from enforcing the City's regulations which exclude females from the opportunity to qualify for participation in Muny league football, a contact sport, because such regulations do not bear a reasonable relationship to any legitimate state purpose. Morris v. Michigan State Board of Education, 472 F.2d 1207 (6th Cir. 1973). In this regard, defendants urged that the exclusion of females from contact sports was necessary for their safety and welfare and asserted that the testimony of its medical experts at the hearing on the merits would establish that the rule adopted by the Cleveland Division of Recreation is rationally related to that purpose. Defendants contended that their experts would testify that even at age ten, eleven, or twelve, boys are beginning to develop speed and greater physical stamina at a faster pace than are girls of those ages. It appears to the Court that the expected testimony which defendant indicated would defeat plaintiff's motion for a temporary restraining order was based upon the alleged naturally heavier musculature and generally greater speed of males between the ages of eight to twelve.

Although the defendants stated, moreover, that the testimony of two medical experts would show that based upon a statistical analysis of variable strengths, males were generally stronger than females, the present action was not brought as a class action seeking to enjoin defendants from refusing to allow all females to play football. This action was brought by one named-plaintiff who alleges that she has a right to pursue the opportunity to qualify to play football with the Muny leagues. There was no indication that defendants planned to assert at the hearing on the preliminary injunction that Miss Clinton does not meet those standards required of the other members of the 97th Street Bulldogs, except for the fact that she is a female. Nor did it appear that defendants planned to offer testimony from which this Court could arguably draw an inference that physical trauma will in every case have more of an impact on girls than boys or that girls are always more susceptible to disease as a result of physical trauma.

The plaintiff has cited several recent cases in which courts have struck down school regulations which bar females from...