Fortin v. Darlington Little League, Inc.

Decision Date31 March 1975
Docket NumberNo. 74-1216,74-1216
Citation514 F.2d 344
PartiesAllison "Pookie" FORTIN et al., Plaintiffs-Appellants, v. DARLINGTON LITTLE LEAGUE, INC., etc., et al., Defendants-Appellees.
CourtU.S. Court of Appeals — First Circuit

Stephen J. Fortunato, Pawtucket, R. I., with whom McKinnon & Fortunato, Pawtucket, R. I., was on brief, for Allison "Pookie" Fortin and Robert Fortin, appellants.

William J. Burke, Jr., Pawtucket, R. I., with whom William P. Butler, Pawtucket, R. I., was on brief, for appellees.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

This case concerns the right of a girl to play Little League baseball. In the spring of 1974, ten year old Allison "Pookie" Fortin and her father went to Slater Field, a City of Pawtucket park, where Pookie sought to participate in the baseball program of the Darlington Little League, Inc., American Division ("Darlington"). 1 Pookie was a Pawtucket resident and otherwise eligible; she was turned down because of her sex. Defendant McCluskie, president of Darlington, told the Fortins that a boys-only policy was dictated by the national Little League organization. See note 1, supra. If Pookie were accepted, McCluskie feared that Darlington's Little League charter would be revoked, and the inexpensive insurance provided by the national organization lost.

After she was rejected, Pookie and her father brought suit under 42 U.S.C. § 1983 and related statutes against Darlington and McCluskie and also against Dragon, Pawtucket's Director of Parks and Recreation, who maintains Slater Field and controls permission to use its baseball diamonds. 2 They asserted that denying Pookie the same places of public accommodation and recreational activities as the male children of Pawtucket taxpayers enjoy violated the equal protection clause of the fourteenth amendment. Plaintiffs requested a declaration and injunction allowing Pookie to play on the same terms as boys.

After trial, the district court denied any relief. It held 3 that while Darlington's preferential use of a municipal park involved it significantly with the state thereby rendering Darlington's policies subject to the fourteenth amendment its exclusion of girls was "rational" and hence constitutional. In the court's view, if girls were to play a "contact" sport like baseball with boys, there was a serious risk that the girls would be hurt.

Since this appeal was argued, Congress has enacted and the President has signed into law H.R. 8864, amending the Act to incorporate Little League Baseball, Pub.L. 88-378. Pub.L. 93-551, 88 Stat. 1744 (1974). The amendment struck the words "boys" and "manhood" from the national charter, inserting the words "young people". The Report of the House Committee on the Judiciary announced that the legislative purpose was "to amend the Federal Charter of Little League Baseball, Inc., to allow girls to participate on an equal basis with boys." H.R.Rep. No. 93-1409, 93d Cong., 2d Sess. 1 (1974). The Report went on to state that

"Young girls, although they may have desired to play Little League Baseball, in the past were prohibited . . .. Over the years frustration developed until, in 1974, these young girls, through their parents, sought to participate in this activity by petitioning the courts for equal opportunities to play Little League Baseball. Twenty-two class action suits were filed across the country. . . .

"It was while many of these lawsuits were pending that the Little League Baseball organization petitioned Congress to amend their Federal charter to include girls in this far-reaching program. This fine organization . . . will now be expanded to include all of our young people. With this change in their charter, we can look forward to unhindered local Little League programs, where boys and girls can play side-by-side.

"Stressed during the hearing on the amendment to this Federal charter was the intent of Congress that this federally chartered organization should treat girls equally with boys, and that Congress would not tolerate separate but equal programs. . . .

"The proposed legislation, as amended, will accomplish the goal of girls' participation on an equal basis with boys in Little League Baseball, Inc."

Id. at 2. After enactment of H.R. 8864, this court asked the parties if the appeal had become moot. While the Act does not directly compel local groups to admit girls, Darlington's purported reliance upon the national charter to exclude Pookie led us to imagine that the controversy was at an end. However, Darlington has pointedly refused to give assurance of a change of heart. We conclude that the case is not moot and that the parties are entitled to a decision.

I

Pookie's claim is made under the fourteenth amendment of the Constitution which provides "No state shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." As the equal protection clause "applies only to action by state government or officials and those significantly involved with them", Adickes v. S. H. Kress & Co., 398 U.S. 144, 189, 90 S.Ct. 1598, 1619, 26 L.Ed.2d 142 (1970) (Brennan, J., concurring), plaintiffs must demonstrate that Darlington's formally private practices are "so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action." Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct. 486, 488, 15 L.Ed.2d 373 (1966).

Thus, in accordance with the well known formulation in Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), the district court undertook to sift facts and weigh circumstances to determine whether the exchange of benefits between the City of Pawtucket and Darlington held the latter "to the same duties of observance of constitutional rights as are imposed upon a government unit." McQueen v. Druker, 438 F.2d 781, 784 (1st Cir. 1971).

The district court found that the Slater Park diamonds, laid out and maintained by the City to Little League specifications, were primarily for the benefit of Darlington and only incidentally for other groups of youth and the general public; that they were made available at specific times for practice and games; that a new diamond was being laid out at City expense primarily for Darlington; that while others required diamonds of different dimensions, there was no evidence that the City of Pawtucket dedicated its resources to these groups on a scale approaching that afforded Darlington; that a significant proportion of the Slater Park diamonds are prepared to meet the needs of Darlington and other Little League groups; and that as a result of Darlington's use of diamonds five nights a week and on Saturdays throughout the baseball season, the general public is often precluded from utilizing the facilities. Furthermore, the court found it "implicit from the testimony of Joseph Dragon concerning the interest of the City of Pawtucket in the operation of baseball programs for its youth that to a certain extent (Darlington) by its recreational program is carrying on a governmental function." 376 F.Supp. at 478.

The court concluded that while there was no evidence that Pawtucket was involved in formulating Darlington's "no girls" policy, there was "significant" state involvement in Darlington's activities sufficient to subject them to the fourteenth amendment.

We find no error in this conclusion. While the "mere use" of city parks and playgrounds is not enough to clothe private groups with a public character for fourteenth amendment purposes, the rationing of otherwise freely accessible recreational facilities creates a "stronger case" for state action " than if the facilities are simply available to all comers without condition or reservation." Gilmore v. City of Montgomery, 417 U.S. 556, 574, 94 S.Ct. 2416, 2426, 41 L.Ed.2d 304 (1974). The dividing line runs somewhere between the "symbiosis" of state and private interests found in Burton, supra, and the mere receipt by a private entity of some sort of state benefit or service, as in Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972).

Here the district court's supported findings of Darlington's heavy and preferred dependency upon city facilities place Darlington in the "symbiosis" category. While we do not go so far as to say that Darlington assumed a "governmental function", see Evans v. Newton, supra; Lavoie v. Bigwood, 457 F.2d 7, 14 (1st Cir. 1972), Darlington's extensive programs, occupying nightly six of eight city-kept diamonds, undoubtedly took on in the public consciousness a semi-official character, little different from recreational programs under direct City sponsorship. By supplementing the City's offerings, Darlington conferred a significant benefit upon the City that justified the City's return liberality as to facilities. Without intimating that lesser utilization of city recreational facilities by a private entity would lead to the same result, we affirm the district court's state action finding.

II

The district court next turned to whether Pookie's exclusion, based on her sex, violated the equal protection clause of the fourteenth amendment. The court said that "a classification based upon sex, race, alienage and national origin is inherently suspect and must therefore be subjected to close scrutiny." While the court's approach was broadly correct, its "inherently suspect-close scrutiny" language is more categorical than a majority of the Supreme Court has been willing to accept. It is true that three and possibly four of the justices have subscribed to Justice Brennan's view that gender-based classifications are subject to "close judicial scrutiny" and may "be sustained only if the government demonstrates that the classification...

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    ...is also lacking the interdependence envisioned in Burton v. Wilmington Parking Authority, supra, or shown in Fortin v. Darlington Little League, 514 F.2d 344 (1st Cir. 1975) (state action where municipal government constructed baseball diamonds to league specifications and reserved to leagu......
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