Department of Civil Rights ex rel. Forton v. Waterford Tp. Dept. of Parks and Recreation

• Decision Date: 29 May 1986
• Docket Number: Docket No. 71462
• Citation: 387 N.W.2d 821,425 Mich. 173
• Parties: DEPARTMENT OF CIVIL RIGHTS, ex rel, Rocky FORTON, Plaintiffs-Appellees, v. WATERFORD TOWNSHIP DEPARTMENT OF PARKS AND RECREATION, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 821

387 N.W.2d 821

425 Mich. 173

DEPARTMENT OF CIVIL RIGHTS, ex rel, Rocky FORTON, Plaintiffs-Appellees, v. WATERFORD TOWNSHIP DEPARTMENT OF PARKS AND RECREATION,

Defendant-Appellant.

Docket No. 71462.

Supreme Court of Michigan.

Argued June 5, 1985.

Decided May 29, 1986.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Lansing, Michael A. Lockman, Asst. Atty. Gen., Detroit, for plaintiffs-appellees.

Peter R. Donlin, Pontiac, for defendant-appellant.

Edmund J. Sikorski, Jr., Ann Arbor, for amicus curiae.

BRICKLEY, Justice.

This lawsuit comes to us on the question whether the defendant township can operate a basketball program for elementary students that requires separate gender-based leagues playing at different times of the year, without violating the Civil Rights Act, M.C.L. Sec. 37.2302; M.S.A. Sec. 3.548(302) (hereinafter Sec. 302). In order to answer that question, it is necessary first to decide whether this statute prescribes a standard prohibiting any rulemaking by the state based on gender per se, or whether it incorporates a two-part test coterminous with constitutional equal protection standards; second, whether this basketball program is permissible under the applicable standard.

I

This dispute began in January of 1978, when the Waterford Township Department of Parks and Recreation refused to allow Susie Forton to play elementary basketball in the wintertime boys' league because of her sex. Susie's exclusion was made on the basis of Waterford's specific rule prohibiting girls from playing in the elementary boys' basketball league; there was no evidence of any such rule or policy applying to boys' participation in the girls' league. The elementary basketball program is the only one of Waterford's athletic programs that restricts participation according to gender. Susie would have been eligible for the fall girls' basketball league, but she had chosen to play football during that season.

In February, 1978, the Oakland Circuit Court issued a temporary injunction that allowed Susie to play winter basketball. She was apparently permitted to play winter basketball for the remainder of her stay in elementary school. ¹

On February 8, 1979, a complaint was filed with the Civil Rights Commission charging Waterford with violating Susie Forton's constitutional equal protection rights under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and article 1, Sec. 2 of the Michigan Constitution, as well as her civil rights under Sec. 302(a) of the Civil Rights Act. Section 302(a) provides:

"Except where permitted by law, a person shall not:

"(a) Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of religion, race, color, national origin, age, sex, or marital status." MCL 37.2302; MSA 3.548(302) (emphasis added).

On November 23, 1979, after hearing testimony from Rex (Rocky) Forton, Susie's father and also a former baseball, basketball and softball coach for Waterford, and from Richard Cartmill, the Interim Director of the Waterford Parks and Recreation Department, a hearing referee for the department issued an opinion in favor of Waterford finding

"[t]hat the facilities afforded the girls' fall basketball league are parallel and equal to those of the boys' basketball league held in the winter[, and] [t]hat the Waterford Township Department of Parks and Recreation['s] primary reason for the gender-based rule is that facilities are unavailable to accommodate everyone at the same time."

Primarily on the basis of these findings, among others, the referee concluded that Waterford's separate but equal athletic program based on gender was allowable in light of the limited number of basketball facilities available. The referee noted that a court will not interfere with a municipal corporation's exercise of discretion "unless their action is so clearly unreasonable as to amount to an oppressive and manifest abuse of discretion." Because the department had failed to show any unlawful discrimination, the referee recommended that the charge against Waterford be dismissed.

Upon review by the Civil Rights Commission, the referee's recommendations were rejected. The commission focused on its finding that Waterford's

"policy of gender-based exclusionary eligibility requirements is based in part on a concern that there would be an increased risk of injury to girls if they were to play in the same league with boys."

Among other things, the commission found that Waterford's "policy of sex segregation of the elementary basketball league operated to exclude all girls no matter what their individual coordination, endurance, stamina, strength, size or ability."

It found that

"[r]isk of injury in competitive athletics at this age level is not a function of any sex-related physiological differences between boys and girls[, and that] ... [r]emoval of gender-based exclusionary policies would not present a logistical problem in terms of running an elementary basketball program."

The commission's opinion, without reference to constitutional equal protection standards, considered the permissibility of the "separate but equal facilities" provided by the Waterford elementary basketball program under Sec. 302(a) of the Civil Rights Act. Relying on Ferguson v. Gies, 82 Mich. 358, 46 N.W. 718 (1890) (prohibiting separate but equal facilities based on race) and Nat'l Organization for Women v. Little League Baseball, Inc., 127 N.J.Super. 522, 318 A.2d 33 (1974) (also decided on the basis of a state civil rights act), the commission held that Waterford's "gender-based limitations are prohibited under the Elliott-Larsen Civil Rights Act." The commission apparently agreed with the department that cases brought under Sec. 302 should be decided without reference to constitutional equal protection principles. The commission recommended that Waterford

"cease and desist from placing any gender-based limitations on the number of boys or girls who can participate on mixed teams and ensure that girls and boys are free to participate on mixed or separate basketball teams, solely in accordance with their athletic abilities.... It is further recommended that any future rules promulgated in connection with the operation of the basketball program be done without regard to sex."

Waterford petitioned the Oakland Circuit Court for review and appeal of the commission's order, and the court reversed the order in a trial de novo, upon the basis of the record made before the hearing referee. Like the referee, Oakland Circuit Judge Kuhn concentrated on Mr. Cartmill's testimony regarding the availability of facilities. He noted in the court's findings of fact that

"[a] primary reason for [Waterford's] separation of the elementary basketball leagues by gender is [Waterford's] perception that facilities are unavailable to accommodate all children at the same time."

Rejecting the department's "per se test" for discrimination under Sec. 302, the court applied an equal protection analysis, reasoning that the department's

"interpretation of the Act would necessitate a finding that the Legislature intended to strip governmental public interest touching upon a gender-based classification of any constitutional protection; a finding that the Constitution protects only private, not public interests."

Thus, regarding the first issue, the circuit court held

"that by inclusion of the phrase 'except where permitted by law' as the introduction to MCLA 37.2302(a) [MSA 3.548(302) ] the Legislature, recognizing and protecting civil rights not enumerated in the Michigan Constitution, recognized also that those rights must be protected in an intelligent, orderly and just fashion, and thus intended to permit classification permitted by the supreme law of the land, the United States Constitution."

Employing a version of the equal protection analysis applicable to sex discrimination that was first articulated in a law review article cited by Justice Powell in his concurring opinion in Craig v. Boren, 429 U.S. 190, 210, 97 S.Ct. 451, 463, 50 L.Ed.2d 397 (1976), reh. den. 429 U.S. 1124, 97 S.Ct. 1161, 51 L.Ed.2d 574 (1977), the court applied a balancing test. It analyzed three relevant factors: (1) the importance of the opportunity being unequally burdened or denied; (2) the strength of the state interest served in denying it; and (3) the character of the group whose opportunities are denied.

It identified the first (individual) interest as "the opportunity for a young girl to play basketball on a primarily male team, in the winter, without permission from league officials." The court concluded that, given the small number of actual cross-overs, "this opportunity is of little importance to the children affected." It identified the opportunities to compete with players of greater skill and to be free "from the public perception that one's skills are presumptively lower than another's" as of somewhat greater importance.

Regarding the state (or league's) interest, the court focused on the need to afford facilities to all players. It noted that this could be accomplished either through co-ed or separate leagues and that, therefore, the interest carried little weight. The court identified the strongest reason for allowing separate leagues as the fostering of women's sports at this stage of their development. Reviewing several federal cases that upheld separate teams for that reason, the court found that such teams "are necessary to provide meaningful athletic opportunities to women."

It concluded that the interests identified under the first factor of the test could not outweigh

"the opportunity to nurture talent in a realistic setting, playing with the group that, absent exceptional physical endowment, the child will play this game (competitively) with throughout life."

Finally, the...