Darrin v. Gould

• Decision Date: 25 September 1975
• Docket Number: No. 117,No. 43276,117,43276
• Citation: 540 P.2d 882,85 Wn.2d 859
• Parties: Mr. and Mrs. Russel DARRIN, Guardians of Delores Darrin and Carol Darrin, on behalf of Delores Darrin and Carol Darrin and all others similarly situated, Appellants, v. H. D. GOULD, Superintendent of Wishkah Valley School District, et al., Respondents.
• Court: Washington Supreme Court

Page 859

85 Wn.2d 859

540 P.2d 882

Mr. and Mrs. Russel DARRIN, Guardians of Delores Darrin and

Carol Darrin, on behalf of Delores Darrin and

Carol Darrin and all others similarly

situated, Appellants, v. H. D. GOULD, Superintendent of Wishkah Valley School

District No. 117, et al., Respondents.

No. 43276.

Supreme Court of Washington, En Banc.

Sept. 25, 1975.

[540 P.2d 883] American Civil Liberties Union of Washington, Jim Phillips, Seattle,

John Wolfe, Aberdeen, for appellants

Lycette, Diamond & Sylvester, John N. Sylvester, John T. Petrie, Seattle, Curtis M. Janhunen, Aberdeen, for respondents.

HOROWITZ, Associate Justice.

This case involves a claim of illegal discrimination against girls in the field of high school interscholastic football competition. The trial court denied relief against the discrimination claimed and this appeal followed.

The question is whether a school district operating a high school in this state may constitutionally deny two of its fully qualified high school students permission to play on Carol and Delores Darrin were students at the Wishkah Valley High School in Grays Harbor County, Washington, during the fall of 1973. Carol was then a junior, 16 years of age, 5 feet 6 inches tall, weighing about 170 pounds. Delores was then a freshman, 14 years of age, 5 feet 9 inches tall, weighing about 212 pounds. The girls wished to play contact football. The high school had no girl's contact football team. The school did, however, have a high school football team eligible for interstate competition, all members of the team being boys. The high school football coach found both girls complied with all eligibility requirements and permitted them to play on the team in practice sessions. The girls passed the required physical examinations, met the medical insurance requirements and played the necessary number of practice sessions required by the rules of the Washington Interscholastic Activities Association (WIAA) for football players.

the high school football team in interscholastic competition solely on the ground the students are girls. We hold [540 P.2d 884] the denial a prohibited discrimination based on sex and reverse.

WIAA is an association of approximately 600 high school and junior high schools, comprising most, if not all, the high schools in the state. Through their elected representatives, the member schools have adopted rules and regulations governing sports and other activities. Wishkah Valley School District is a member of the association. Such membership, the court found, 'is a practical necessity for any school which desires to participate in interscholastic sports.'

Just prior to the start of the football season, WIAA informed the football coach that WIAA regulations prohibited girls from participating in interscholastic contact football on boys' teams. For that reason only, the school board of the Wishkah Valley School District prohibited the Darrin girls from playing on the high school team. Indeed, the court found According to their coach, both of the girls have in general been able to hold their own with the boys in practice sessions and would be allowed to play in interscholastic contests were in not for the W.I.A.A. regulation.

Finding of fact No. 4.

On September 21, 1973, the Darrin girls' parents sued defendants on behalf of the Darrin girls individually and on behalf of all others similarly situated pursuant to CR 23. The purpose of the suit was to enjoin the enforcement of the WIAA rule involved and to enjoin defendants from interfering with the Darrin girls' participation as a member of the football team in the school's upcoming September 22nd football game. The court denied any relief. This appeal followed.

QUESTIONS PRESENTED

Appellants assign error to certain findings of fact and conclusions of law as noted in the margin. ¹ The issues we deem controlling presented by such assignments are later considered.

Two basic questions arise:

(1) Does the denial of permission to the Darrin girls to play on the boys' high school football team in interscholastic competition constitute a discrimination by state action based on sex per se or is the denial based on inability to play?

(2) If the denial is a discrimination based on sex per se is it prohibited by law, constitutional, statutory, or both?

Preliminarily, it is necessary to discuss procedural obstacles to a consideration of the merits of this case. Plaintiffs purport to sue on behalf of themselves and, pursuant to CR 23, on behalf of all others similarly situated. The trial court nevertheless treated the action solely as a class action validly brought notwithstanding there had been no compliance with requirements of CR 23(c) and (d). 3B J. Moore, Federal Practice 23.01(11.--1), 23.60 at 23--1203 (2d ed. 1974); 7A C. Wright and A. Miller, Federal Practice & Procedure § 1789 (1972). The judgment defines the class as:

all present or future junior and senior high school girls in this state who either now or in the future shall desire to participate in interscholastic contact football on the boys' teams . . .

The Darrin girls have not assigned any error to the court's findings, conclusion or judgment defining the class.

If, therefore, we treat the action both as an individual action and as an unchallenged class action, it is still necessary to determine with greater precision the nature of the class in light of the theory upon which the action was tried, especially because of the absence of compliance with CR 23(c) and (d). There is no claim relief was sought for members of the class who were unqualified to play. Indeed, unqualified girls would not be 'similarly situated' to the Darrin girls. We construe the true and intended nature of the class to be the high schooll girls described in the class who are qualified to play. See LaHue v. Keystone Inv. Co., 6 Wash.App. 765, 496 P.2d 343 (1972); Stratton v. U.S. Bulk Carriers, Inc., 3 Wash.App. 790, 478 P.2d 253 (1970).

With the class so defined, the answers to the two basic questions involved will be the same whether the action be treated as a class action or one brought on behalf of the Darrin girls individually. ²

CONSTITUTIONAL AND STATUTORY PRINCIPLES APPLICABLE

Resolution of the issues argued requires we first discuss the relevant federal and state constitutional and statutory provisions before they are applied to the facts of the instant case.

Whatever may have been the former law (See Singer v. Hara, 11 Wash.App. 247, 258, 522 P.2d 1187 (1974)), when the Darrin girls in the fall of 1973 were denied permission to play on the high school football team, Washington's constitutional and statutory law expressly forbade discrimination based on sex. Const. art. 31; Const. art. 9, § 1; RCW 49.60, particularly RCW 49.60.010, .030. See also Hanson v. Hutt, 83 Wash.2d 195, 201, 517 P.2d 599 (1973); J.S.K. Enterprises, Inc. v. Lacey, 6 Wash.App. 43, 492 P.2d 600 (1971). We shall shortly discuss these constitutional and statutory provisions.

We must consider first to what extent sex discrimination was forbidden by the Equal Protection Clauses of the Fourteenth Amendment and corresponding art. 1, § 12 of the State Constitution. The Equal Protection Clause of the Fourteenth Amendment as construed by the Supreme Court of the United States has been increasingly and somewhat more aggressively used to invalidate classifications based on sex in determining whether there exists a rational relationship between the classification and the lawfully permissible object of the statute. ³ As Reed v. Reed 404 U.S. 71, 77, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971) states: 'dissimilar treatment for men and women who are thus similarly situated . . . violates the Equal Protection Clause.'

A special constitutional standard of review is used if the statutory classification attacked as discriminatory under the Equal Protection Clause involves a 'suspect' class or involves a 'fundamental right' explicitly or implicitly guaranteed by the United States Constitution. In such cases the classification which allegedly violates equal protection is subject to 'strict scrutiny.' When strict scrutiny is involved, the classification will be upheld only if the state makes a showing of a compelling state interest to justify the classification. Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 627, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).

Suspect classifications have been held to exist when based on race, alienage and national origin. ⁴ The Supreme Court of the United States has not yet held classifications based on sex to be 'suspect.' However, as many as four Justices of the Supreme Court have been prepared to so hold. See Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975); Cf. Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975).

Classifications involving fundamental rights explicitly or implicitly guaranteed by the United States Constitution have included interstate travel, voting, freedom of expression and procreation. ⁵ The Supreme Court of the United States, however, has refused to hold that education is a fundamental right implicitly guaranteed by the United States Constitution so as to require application of the strict scrutiny test when a classification is challenged as a denial of equal protection. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 33--40, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973).

Thus, according to the Supreme Court of the United States, although a classification based on sex may not be subject to 'strict scrutiny' when attacked as prejudicial under the Fourteenth Amendment, it may still be attacked by applying the other available rational relationship test.

In the field of athletic...