FORCE BY FORCE v. Pierce City R-VI School Dist.

• Decision Date: 15 August 1983
• Docket Number: No. 82-5093-CV-SW-O.,82-5093-CV-SW-O.
• Citation: 570 F. Supp. 1020
• Parties: Nichole FORCE, by Her Next Friends, Renee FORCE and Vinson Force, Plaintiffs, v. PIERCE CITY R-VI SCHOOL DISTRICT, et al., Defendants, Missouri State High School Activities Association, Intervenor.
• Court: U.S. District Court — Western District of Missouri

570 F. Supp. 1020

Nichole FORCE, by Her Next Friends, Renee FORCE and Vinson Force, Plaintiffs, v. PIERCE CITY R-VI SCHOOL DISTRICT, et al., Defendants Missouri State High School Activities Association, Intervenor.

No. 82-5093-CV-SW-O.

United States District Court, W.D. Missouri, Southwestern Division.

August 15, 1983.

Karon D. Ramsey, Kansas City, Mo., for plaintiffs.

Ransom A. Ellis III, Springfield, Mo., for defendants.

J. Robert Tull, Columbia, Mo., for intervenor.

MEMORANDUM OPINION AND ORDERS

ROSS T. ROBERTS, District Judge.

Nichole Force, a thirteen year old female student enrolled in the eighth grade at the Pierce City, Missouri, Junior High School, seeks an injunction which would allow her to compete for a place on the school's eighth grade football team. Her claims are relatively simple and straightforward: that defendants' refusal to accord her that opportunity is based — and based solely — upon the fact that she is a female rather than a male, and that a sex-based determination of that sort violates her right to the equal protection of the laws under the Fourteenth Amendment, and in turn 42 U.S.C. § 1983.

Named as defendants are the Pierce City R-VI School District, which operates and administers the Pierce City Junior High School facility, the Superintendent of the School District (John A. Williams), and the Principal of the School (Raymond Dykens). In addition, the Missouri State High School Activities Association ("MSHSAA") has been permitted to intervene in the matter, upon its assertion that plaintiff's claims call into question Section 1.6 of its rules governing interscholastic competition between secondary schools in the State of Missouri. MSHSAA is an unincorporated association composed of approximately 80% of the public junior and senior high schools in Missouri, together with a number of private, parochial and state educational institutions, whose rules concerning secondary school interscholastic competition are considered binding by its members. Pierce City Junior High School is one of those members.

The matter was tried to the Court, in a full plenary hearing,¹ on August 1, 2 and 3, 1983. Having now considered the evidence produced at that hearing, as well as the parties' pre- and post-trial briefs, I conclude, for the reasons stated in Section II of this opinion, that plaintiff's claim for injunctive relief must be granted.

I. BACKGROUND

Pierce City Junior High School is a public school facility made up of the seventh, eighth and ninth grades. It is operated as a component part of the defendant Pierce City R-VI School District ("the District"). The District itself is an entity established under state law, see generally Chapter 162, R.S.Mo.1969 (as amended), and is governed by a six-member Board ("the Board"). Missouri law gives the Board the authority to "make all needful rules and regulations for the organization, grading and government in the school district." Section 171.011, R.S. Mo.1969 (as amended).

Pursuant to its statutory authority, the Pierce City R-VI Board has for some time maintained an athletic program at both the junior and senior high school levels. For junior high school students (females as well as males), participation in that program is mandatory. The program requirements, however, can be met either by attending physical education classes or (at least in part) by partaking of the interscholastic athletic team programs which the school sponsors.² For the period in question here, those interscholastic athletic team programs have been as follows:

                  SEASON    BOYS          GIRLS
                  Fall      Football      Volleyball
                  Winter    Basketball    Basketball
                  Spring    Track         Track
                

As may be noted, there is no football team for girls, and no volleyball team for boys.

Sometime during the spring of 1982, Nichole Force mentioned to her mother that she was greatly looking forward, that coming fall, to trying out for the seventh grade football team. Since Nichole had already been involved to a considerable extent in athletics (swimming, diving, organized softball, organized basketball and elementary school football), and since she had grown up with two brothers who excelled at football and who encouraged and helped her in her own athletic endeavors, her mother was perhaps less startled than some mothers might have been. Family debate ensued, nonetheless. After an apparently frank and thorough discussion on the matter, Mrs. Force decided to approach the school authorities to see what might be done.

Mrs. Force spoke first with the boys' athletics coach for the school. He stated that so long as the school administration approved, he would let Nichole participate. Mrs. Force then sought out the appropriate school administrative officials. They advised her that the matter would have to be presented to the Board for its decision.

Mrs. Force met with the Board on two occasions. At the first of those meetings, on May 17, 1982, Mrs. Force presented her request that Nichole be permitted to participate in the seventh grade football program, coupling that request with a presentation of the statistics and relevant case law which she felt supported her position. The Board voted to table the matter until its next meeting, stating that the members wished to consult with their constituents to determine what the community attitude on the subject might be. At the second meeting, held on June 21, 1982, an open discussion of the matter took place, during which various of the Board members expressed concern over the potential precedent involved in granting the request (e.g., the possibility that boys would wish to participate on the girls' volleyball team, and that high school girls might wish to play on the high school football team), the potential safety risk to a female competing in a contact sport with males, the administrative difficulties that might ensue (arrangements for locker room facilities, etc.), and that, at least as some Board members understood it, the applicable provisions of Title IX of the Educational Amendments of 1972, 20 U.S.C. §§ 1681 et seq, and the regulations thereunder, 34 C.F.R. § 106.41 (previously 45 C.F.R. § 106.41), or the provisions of Section 1.6 of the MSHSAA rules, might be violated by permitting co-educational participation in a contact sport. Following that discussion, the Board voted unanimously to deny the request. According to Mrs. Force, defendant John Williams explained the decision to her by stating that while "they all agreed" Nichole would be a good football player and would have no problems playing, if she were permitted to play the same allowance would have to be made for all other girls as well.

Suit was instituted on October 1, 1982. Unfortunately, by the time service of process had been obtained the 1982 football season was completed. Because of Nichole's continuing desire to try out for football (now at the eighth grade level), however, and the Board's continuing refusal to permit her to do so, the case has been treated by all concerned as continuing to present the same issues in connection with the fall 1983 football season. With no pressing need for an interim ruling during the winter and spring of 1982-83, the matter was set for a trial on the merits commencing August 1, 1983, thus allowing the parties ample time to develop all of the evidence they felt might bear on the troublesome and rather sensitive issues presented.

II. DISCUSSION

The record makes clear, and I find, that defendants' refusal to grant plaintiff's request is the product of a gender-based classification. Stated simply, only males are permitted to compete for a place on the Pierce City Junior High School eighth grade football team. Since Nichole is a female, that opportunity is denied to her.

The principles which must govern in this situation are summarized in the opening passages of Section II of the Supreme Court's recent decision in Mississippi University For Women v. Hogan, ___ U.S. ___, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982). I can do no better than to quote those passages here:

"Because the challenged policy expressly discriminates among applicants on the basis of gender, it is subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment. Reed v. Reed, 404 U.S. 71, 75 92 S.Ct. 251, 253, 30 L.Ed.2d 225 (1971).... Our decisions also establish that the party seeking to uphold a statute that classifies individuals on the basis of their gender must carry the burden of showing an `exceedingly persuasive justification' for the classification. Kirchberg v. Feenstra, 450 U.S. 455, 461 101 S.Ct. 1195, 1199, 67 L.Ed.2d 428 (1981); Personal Administrator of Massachusetts v. Feeney, 442 U.S. 256, 273 99 S.Ct. 2282, 2293, 60 L.Ed.2d 870 (1979). The burden is met only by showing at least that the classification serves `important governmental objectives and that the discriminatory means employed' are `substantially related to the achievement of those objectives.' Wengler v. Druggists Mutual Insurance Co., 446 U.S. 142, 150 100 S.Ct. 1540, 1545, 64 L.Ed.2d 107 (1980).

Although the test for determining the validity of a gender based classification is straightforward, it must be applied free of fixed notions concerning the roles and abilities of males and females. Care must be taken in ascertaining whether ... the objective itself reflects archaic and steretypic notions. Thus if the ... objective is to exclude or `protect' members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate. See Frontiero v. Richardson, 411 U.S. 677, 684-685 93 S.Ct. 1764, 1769-1770, 36 L.Ed.2d 583 (1973) (plurality opinion).

If the State's objective is legitimate and important, we next determine whether the requisite direct, substantial relationship between objective and means is present. The purpose of requiring that close relationship is to assure that the validity of

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