Gilpin v. Kansas State High School Activities Ass'n, Inc., Civ. A. No. W-5366.

• Court: United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
• Writing for the Court: THEIS
• Citation: 377 F. Supp. 1233
• Parties: Tammie S. GILPIN, by and through her next friend and natural guardian, William M. Gilpin, Plaintiff, v. The KANSAS STATE HIGH SCHOOL ACTIVITIES ASSOCIATION, INC., et al., Defendants.
• Decision Date: 22 May 1974
• Docket Number: Civ. A. No. W-5366.

377 F. Supp. 1233

Tammie S. GILPIN, by and through her next friend and natural guardian, William M. Gilpin, Plaintiff,
v.
The KANSAS STATE HIGH SCHOOL ACTIVITIES ASSOCIATION, INC., et al., Defendants.

Civ. A. No. W-5366.

United States District Court, D. Kansas.

November 30, 1973.

Supplemental Order May 22, 1974.

377 F. Supp. 1234

COPYRIGHT MATERIAL OMITTED

377 F. Supp. 1235

Rodney H. Busey, Arvin, Arvin & Busey, Wichita, Kan., for plaintiff

Ward, Martin, Crane, Martin, Claussen, Hamilton & Barry, Topeka, Kan., for KSHSAA.

Robert C. Foulston, Foulston, Siefkin, Powers & Eberhardt, Wichita, Kan., for Bo. Ed., Dr. Fred Addis, Leon Cannady.

377 F. Supp. 1236

MEMORANDUM DECISION AND ORDER

THEIS, District Judge.

On August 20, 1973, the Board of Education of Unified School District # 259 adopted a policy permitting mixed competition in certain non-contact sports, one of which was cross-country. Pursuant to this policy, Tammie S. Gilpin, a junior at Wichita High School Southeast, Wichita, Kansas, requested and was granted permission to participate on the school's otherwise all male cross-country team. Immediately prior to her team's first interscholastic meet, however, Tammie was informed that her participation was prohibited by a rule of the Kansas State High School Activities Association enunciated in its 1973-74 Official Handbook, providing that:

"Boys and girls shall not be members of the same athletic teams in interscholastic contests."

The plaintiff thereafter filed this action, seeking preliminary and permanent injunctive relief based upon the alleged violation of her constitutional right to equal protection of the laws guaranteed by the Fourteenth Amendment. Jurisdiction is predicated on 28 U.S.C. § 1343 and 42 U.S.C. § 1983.

On September 20, 1973, the Court issued a temporary restraining order enjoining the defendants from directly or indirectly interfering with plaintiff's continued participation on her high school's cross-country team in interscholastic meets pending a hearing on the merits of her claim. A hearing on the merits was subsequently held, and this case is now ripe for final resolution. Accordingly, the Court makes the following findings and orders.

The salient facts are relatively simple and are essentially not in dispute. Tammie Gilpin, a female junior in good academic standing at Southeast High School, Wichita, Kansas, enjoys long distance running and has a particularly keen desire to participate in interscholastic cross-country competition on her school team. As part of its interscholastic athletic program, Southeast High School provides for a cross-country team which has traditionally consisted solely of males, but it does not provide a separate cross-country running program for females. Since the Wichita Board of Education had promulgated a policy sanctioning mixed competition in non-contact sports, such as cross-country, Tammie sought and was granted permission from the Southeast High School cross-country coach to participate on the boys' team. Although Tammie quickly proved herself physically capable of competing with the boys on her team, she was not permitted to engage in interscholastic competition.

Tammie was informed by the school authorities that she could not participate on the boys' team because of a rule of the Kansas State High School Activities Association prohibiting participation by girls on boys' interscholastic athletic teams. Thus, although the Southeast High School authorities did not object to Tammie's participation on the cross-country team per se, she was not permitted to compete for fear that a violation of the Association's rules would result in the imposition of a penalty or sanction against the high school's athletic program. Tammie has, however, since been certified for future competition by the school authorities, dependent only upon the final outcome of this litigation. Accordingly, neither the Wichita School Board nor the Southeast High School authorities presently maintain a position adverse to that of the plaintiff.

It is clear that the sole reason preventing the plaintiff's participation in interscholastic cross-country competition is her sex. She contends that the Kansas State High School Activities Association's rule prohibiting mixed interscholastic competition constitutes an unlawful discrimination based on sex, and that it violates her constitutional rights guaranteed under the Equal Protection Clause of the Fourteenth Amendment, in violation of 42 U.S.C. § 1983. Her complaint accordingly requests injunctive relief enjoining the defendants from enforcing the Association's rule or any related

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rule that would prevent her participation in interscholastic cross-country events and damages

The Court has jurisdiction over this cause of action by virtue of 42 U.S. C. § 1983 and 28 U.S.C. § 1343(3). There are two essential elements to a cause of action under the Civil Rights Act of 1871: (1) that the conduct complained of was by a person acting under color of state statutes or local law, custom or usage; who (2) while so acting, deprived another of rights, privileges or immunities secured by the Constitution and laws of the United States. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). The threshold issue in a suit under § 1983 is therefore whether the defendant acted under color of state statute, custom or usage for "it is axiomatic that the due process provisions of the Fourteenth Amendment proscribe state action only and do not reach acts of private persons unless they are acting `under color of statute law.'" Browns v. Mitchell, 409 F.2d 593, 594 (10th Cir. 1969).

The Kansas State High School Activities Association is a voluntary non-profit corporation created to regulate, supervise, promote, and develop interscholastic activities among the students of the secondary schools of the State of Kansas. It is not an agency of the state or of any local governmental unit. Nevertheless, it is sanctioned and regulated by state law pursuant to K.S. A. § 72-130 et seq.; a majority of its members are state public schools; its funds come from membership dues derived, in large part, from gate receipts generated by games between members, the majority of which are held in state-owned and state-supplied facilities; it exercises general control over all activities and contests between member schools; it has exclusive control over all state athletic meets; it is authorized to conduct investigations and to assess penalties against member schools for violations of its rules; the principals of each member school are responsible to it in all matters pertaining to inter-school activities; and it determines individual eligibility in all sports.

In light of this pervasive influence and control exercised by the Association over the state's athletic programs, it is clear that the Association acts under color of state law, and that its actions are subject to judicial scrutiny under the purview of the Civil Rights Act. See Brenden v. Independent School District 742, 477 F.2d 1292 (8th Cir. 1973), aff'g, 342 F.Supp. 1224 (D.Minn. 1972); Mitchell v. Louisiana High School Athletic Association, 430 F.2d 1155 (5th Cir. 1970); Oklahoma High School Athletic Association v. Bray, 321 F.2d 269 (10th Cir. 1963); Reed v. Nebraska School Activities Association, 341 F.Supp. 258 (D.Neb.1972). In fact, although vigorously maintaining that the plaintiff has failed to establish the deprivation of any constitutional right, the Association concedes that it is amenable to suit under § 1983.

Having determined that the Kansas State High School Activities Association acts "under color of state law," the sole remaining issue is whether the plaintiff has in fact been denied rights, privileges or immunities secured by the Constitution and laws of the United States. Two necessary prerequisites to the resolution of the merits of the plaintiff's claim are: (1) the delineation of the scope of the Court's inquiry as it is limited by the plaintiff's pleadings; and (2) the determination of the standard of review to be applied in judging the constitutionality of the Association's rule.

SCOPE OF REVIEW

The Association contends that the practical effect of the Court's decision in this case will be to either uphold the rule prohibiting mixed competition or to render it void. In the latter instance, the Association maintains that the Court's ruling would necessarily open the door to unlimited participation in interscholastic sports by both sexes and

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thereby effectively render the demise of girls' interscholastic high school competition. The Court cannot agree with the Association's characterization of this action

In this case, the plaintiff has not brought suit on behalf of an amorphous class of similarly situated female students desirous of equal participation in the full panoply of high school interscholastic sports. Quite to the contrary, she is suing in her individual capacity, and she is merely seeking the right to participate on her high school's only cross-country team—a non-contact sport for which she has shown considerable athletic prowess. She contends that she has been denied the right to equal participation solely on the basis of her sex.

In light of the limited nature of plaintiff's pleadings, the Court need not concern itself with the facial constitutionality or unconstitutionality of the Association's rule prohibiting girls from competing in boys' interscholastic athletic events, except insofar as the rule operates to deprive this plaintiff of her constitutional rights within the framework of the specific facts presented. The Court's inquiry is therefore limited in scope to the particular factual situation herein obtaining, and its decision will have no broader application. See Rice v. Sioux City Memorial Park Cemetery, Inc., 349 U.S....