O'CONNOR v. Board of Educ. of School Dist. 23

• Citation: 545 F. Supp. 376
• Decision Date: 12 August 1982
• Docket Number: No. 80 C 5660.,80 C 5660.
• Court: U.S. District Court — Northern District of Illinois
• Parties: Karen O'CONNOR, by her parents and next friends, Joseph O'Connor and Frances O'Connor, Plaintiffs, v. BOARD OF EDUCATION OF SCHOOL DISTRICT 23, a body politic and corporate, Dean Eitel, Sallyann Okuno, Jane Adelman, Susan Lewis, James Kastner, Ann Marie Lundstrom, and Mary Ann Stitak, as officers and members of the Board of Education of School District 23, Edward Grodsky, as Superintendent of School District 23, Gerald McGovern, as Assistant Superintendent of School District 23, Philip Arenstein, as Principal of MacArthur Junior High School, Mid-Suburban Junior High School Conference, and Robert D. White, an officer of the Mid-Suburban Junior High School Conference, Defendants.

545 F. Supp. 376

Karen O'CONNOR, by her parents and next friends, Joseph O'Connor and Frances O'Connor, Plaintiffs, v. BOARD OF EDUCATION OF SCHOOL DISTRICT 23, a body politic and corporate, Dean Eitel, Sallyann Okuno, Jane Adelman, Susan Lewis, James Kastner, Ann Marie Lundstrom, and Mary Ann Stitak, as officers and members of the Board of Education of School District 23, Edward Grodsky, as Superintendent of School District 23, Gerald McGovern, as Assistant Superintendent of School District 23, Philip Arenstein, as Principal of MacArthur Junior High School, Mid-Suburban Junior High School Conference, and Robert D. White, an officer of the Mid-Suburban Junior High School Conference, Defendants.

No. 80 C 5660.

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

August 12, 1982.

Andrew B. David, Rosemary J. Guadnolo, Arvey Hodes Costello & Burman, Chicago, Ill., for plaintiffs.

Robert A. Kohn, Robbins, Schwartz, Nicholas, Lifton & Taylor Ltd., Chicago, Ill., for defendants.

MEMORANDUM OPINION

PRENTICE H. MARSHALL, District Judge.

Karen O'Connor is an extraordinarily gifted basketball player. She is also female. Therein lies the problem which gave rise to the instant case.

Since she was seven years old, Karen has played on organized basketball teams with boys. She has participated in programs run by the YMCA, the Arlington Heights Park District, the Arlington Heights Youth Basketball Association, and in the NBA-Pepsi Hotshot competition in Indianapolis, Indiana, and the Elks Hoop Shoot Contest. During this period, the teams Karen has played on have won 97 and lost only 17 games, Karen has frequently been the team's leading scorer, and she has received numerous awards recognizing her abilities. She has also gone to summer basketball camps, where she has been coached by Oscar Robertson, Digger Phelps and Lou Henson.¹ In all of these programs, Karen played with boys. Karen has also played with boys in little league baseball and park district soccer and has excelled.

In the fall of 1980, Karen, now 11, enrolled in sixth grade at MacArthur Junior High School in Des Plaines, Illinois. She was then presented with her first opportunity to play interscholastic basketball (the lower grades do not have such teams). Naturally, she wanted to play with boys, feeling that only the boys' basketball team could provide her with a level of competition sufficiently high to enable her to develop her skills. As a result, Karen's father requested that she be permitted to try out for the boys' basketball team. Defendants in this case, the principal of the school, the superintendent and board of the school district which encompasses MacArthur, and the president of the principals' board of the Mid-Suburban Conference, an association of six schools organized to promote interscholastic activities to which the school belongs, all denied Karen permission to do so.

Karen and her parents then filed the instant action, seeking injunctive relief requiring defendants to permit her to try out for the boys' team. Tryouts were scheduled for Monday, October 27, 1980. Accordingly, on Thursday, October 23, following an emergency adversary hearing, we rendered an oral opinion, which is attached as an appendix, and granted a preliminary injunction requiring defendants to allow Karen to participate in the tryouts. We denied defendants a stay pending appeal. Defendants then postponed the tryouts,² appealed the preliminary injunction, and sought a stay of the injunction from the United States Court of Appeals for the Seventh Circuit. On October 27, a divided panel of the court of appeals issued a stay without stating reasons. On October 29, on rehearing en banc, the court voted five to three to continue the stay, again without stating reasons. Karen then applied to Justice Stevens, as Circuit Justice, to vacate the stay. In a written opinion, Justice Stevens denied her application. O'Connor v. Board of Education, 449 U.S. 1301, 101 S.Ct. 72, 66 L.Ed.2d 179 (Stevens, Circuit Justice, 1980). The court of appeals subsequently reversed this court's entry of the preliminary injunction. O'Connor v. Board of Education, 645 F.2d 578 (7th Cir.), cert. denied, 454 U.S. 1084, 102 S.Ct. 641, 70 L.Ed.2d 619 (1981). The case is now before us on defendants' motion for summary judgment under Fed. R.Civ.P. 56.³

We turn first to Karen's claim that she has been denied the equal protection of the laws in violation of the fourteenth amendment because defendants have subjected her to discrimination on the basis of her sex. Defendants concede that their refusal to permit Karen to try out for the boys' team is premised solely on her sex. When the state treats persons differently because of their sex, scrutiny of the differential treatment is required under the equal protection clause. Orr v. Orr, 440 U.S. 268, 278-79, 99 S.Ct. 1102, 1111, 59 L.Ed.2d 306 (1979); Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1977); Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 253, 30 L.Ed.2d 225 (1971). As the court of appeals observed in the earlier appeal, "To be constitutional, a gender-based discrimination must serve important governmental objectives. The discriminatory means must be substantially related to the achievement of those objectives." 645 F.2d at 580. See Mississippi University for Women v. Hogan, ___ U.S. ___, ___, ___, 102 S.Ct. 3331, 3334-36, 73 L.Ed.2d 1090 (1982); Wengler v. Druggists Mutual Insurance Co., 446 U.S. 142, 150, 100 S.Ct. 1540, 1545, 64 L.Ed.2d 107 (1980); Caban v. Mohammad, 441 U.S. 380, 388, 99 S.Ct. 1760, 1765, 60 L.Ed.2d 297 (1979); Orr v. Orr, 440 U.S. 268, 279, 99 S.Ct. 1102, 1111, 59 L.Ed.2d 306 (1979); Califano v. Webster, 430 U.S. 313, 316-17, 97 S.Ct. 1192, 1194-95, 51 L.Ed.2d 360 (1977); Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1977). In this case, there is no dispute as to what the governmental objectives are behind defendants' gender-based actions, or how their actions relate to the objectives.

Defendants' refusal to allow Karen to try out for the boys' team stems from their policy of maintaining separate basketball teams for boys and girls. Plaintiffs concede that defendants do this in order to maximize the participation of both sexes in interscholastic sports. Plaintiffs also concede that defendants' separate team policy is substantially related to this goal. Since boys, on the whole, are substantially better basketball players than are girls, then, in the words of Justice Stevens, "without a gender-based classification ... there would be a substantial risk that boys would dominate the girls' program and deny them an equal opportunity to compete in interscholastic events." 449 U.S. at 1307, 101 S.Ct. at 75.⁴ By maintaining separate programs, defendants enable girls to participate in interscholastic sports. On the other hand, defendants concede that their policy is arbitrary as applied to Karen. No claim is made that considerations of administrative convenience, prevention of harm to Karen or the boys in the program, or any other legitimate interests justify excluding Karen as a particular individual from the boys' tryouts. Neither do defendants dispute Karen's claim that only participation on the boys' team will provide her with a level of competition suited to her level of skills, and her needs for developing those skills. In short, defendants concede that there is no reason to keep Karen off the team apart from the general policy of separate teams. The parties' disagreement is limited to the question whether defendants' policies need be justified only in terms of the differences between the sexes as a whole, or whether they must also be justified as applied to Karen's particular case.

Defendants' policy of providing separate teams for boys and girls is bottomed on a generalization about the relative basketball skills of boys and girls. Karen does not dispute the general validity of this generalization, though she does argue that it is not true of her. The Supreme Court has repeatedly indicated that even where generalizations about the differences between the sexes enjoy a substantial basis in fact, they nevertheless tend to be overbroad, and therefore constitute forbidden sex discrimination. See Wengler v. Druggists Mutual Insurance Co., 446 U.S. 142, 151-52, 100 S.Ct. 1540, 1546-47, 64 L.Ed.2d 107 (1980); Califano v. Wescott, 443 U.S. 76, 88-89, 99 S.Ct. 2655, 2662-63, 61 L.Ed.2d 382 (1979); Caban v. Mohammad, 441 U.S. 380, 388-89, 99 S.Ct. 1760, 1765-66, 60 L.Ed.2d 297 (1979); Orr v. Orr, 440 U.S. 268, 280-82, 99 S.Ct. 1102, 1112-13, 59 L.Ed.2d 306 (1979); Califano v. Goldfarb, 430 U.S. 199, 206-07, 217, 97 S.Ct. 1021, 1026-27, 1032, 51 L.Ed.2d 270 (1977); Craig v. Boren, 429 U.S. 190, 201-02 & n. 13, 97 S.Ct. 451, 461-59 & n. 13, 50 L.Ed.2d 397 (1977).⁵ In light of the Supreme Court's view of the treacherous nature of generalizations about the sexes, it might be inappropriate to apply the generalization without regard for the individual case. Cf. Cleveland Board of Education v. Lafleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974) (Generalizations about the ability of pregnant teachers to work after a certain point in their pregnancy are sufficiently treacherous so that they should not be the basis of a mandatory leave policy without opportunity to prove the policy does not apply to a specific case.). See also Turner v. Department of Employment Security, 423 U.S. 44, 96 S.Ct. 249, 46 L.Ed.2d 181 (1975); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). This approach is often called the "irrebuttable presumption doctrine," and its most vigorous advocate is Professor Tribe.

As with any rule described as an irrebuttable presumption, it would of course be possible to defend the challenged regulation on the ground that it "presumes" nothing but simply chooses one substantive policy over another. For this reason, in fact, most commentators have regarded

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