Gomes v. Rhode Island Interscholastic League, No. 79-1181

• Decision Date: 31 August 1979
• Docket Number: No. 79-1181
• Citation: 604 F.2d 733
• Parties: Donald M. GOMES, Plaintiff, Appellee, v. RHODE ISLAND INTERSCHOLASTIC LEAGUE, et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 733

604 F.2d 733

Donald M. GOMES, Plaintiff, Appellee, v. RHODE ISLAND INTERSCHOLASTIC LEAGUE, et al., Defendants, Appellants.

No. 79-1181.

United States Court of Appeals, First Circuit.

Argued June 8, 1979.

Decided Aug. 31, 1979.

Robert B. Mann, Providence, R. I., with whom Mann & Roney, James J. McAleer, Albert B. West, and Manning, West, Santaniello & Pari, Providence, R. I., were on brief, for appellants.

Robert D. Parrillo, Providence, R. I., with whom Hanson, Curran & Parks, Providence, R. I., was on brief, for appellee.

John G. Poust, Wayne F. Flaza, Margaret S. Garvey, and Rooks Pitts, Fullagar & Poust, Chicago, Ill., on brief for The National Federation of State High School Athletic Associations, amicus curiae.

Drew S. Days, III, Asst. Atty. Gen., Jessica Dunsay Silver, and Joan F. Hartman, Attys., Dept. of Justice, Washington, D. C., on brief for the United States of America, amicus curiae.

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

LEVIN H. CAMPBELL, Circuit Judge.

Donald M. Gomes, a volleyball enthusiast who had played on an all-male volleyball team at his high school in Pennsylvania, was excluded from interscholastic competition when he transferred to Rogers High School in Newport, Rhode Island, for his senior year. Rogers' only volleyball team was all-female and played in competition under the auspices of the defendant, the Rhode Island Interscholastic League. The League provides interscholastic volleyball competition only for all-female teams and disqualifies teams on which any male plays. As a result, Rogers High allowed Gomes to join its all-female team but did not use him in League competition.

Gomes brought this suit against the League at the beginning of its 1979 volleyball season, alleging that its rule against male participation in volleyball competition violated the fourteenth amendment and Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1686, which generally prohibits sex discrimination in educational programs receiving federal funds, 20 U.S.C. § 1681(a). Without reaching the constitutional issues, the district court ruled in Gomes' favor on the basis of the following regulation promulgated by the Department of Health, Education and Welfare under Title IX:

"(a) General. No person shall, on the basis of sex, be excluded from participation in . . . any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.

(b) Separate Teams. Notwithstanding the requirements of paragraph (a) of this section, a recipient may operate or sponsor separate teams for members of each sex where selection . . . is based upon competitive skill or the activity involved is a contact sport. However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport. . . ."

45 C.F.R. § 86.41(a), (b) (emphasis added). In the district court's view, the clause (b) exception for separate-sex teams was made inapplicable by the passage italicized, since defendants sponsored no men's volleyball teams and opportunities for boys to play volleyball previously had been non-existent. In so interpreting the regulation, the court rejected defendants' argument that the reference in clause (b) to previously limited athletic opportunities refers to overall athletic opportunities. ¹ Under defendants' interpretation, Rogers did not have to allow Gomes to play in all-female volleyball competition because men had always been offered a very comprehensive athletic program albeit not one including volleyball. Indeed, Rogers' own program in particular was said to have been outstanding for men, far exceeding the offerings for women even though women's opportunities were now improving.

The district court rendered its decision on May 1, in the midst of the volleyball season, and ordered the League to accommodate Gomes as a member of the Rogers team. As defendants persuaded us that the district court's order would disrupt the remainder of the sports season ² and that there existed a probability of success on the merits, we stayed implementation of that order pending appellate review. We also allowed the motions of the United States and the National Federation of State High School Athletic Associations to participate on appeal as amici curiae, ³ and set the case on an expedited schedule.

Despite the speed with which this case reached us, ⁴ the last interscholastic game of the League's volleyball season had been played and Gomes was about to graduate from Rogers High School when we heard argument on June 8. Defendants, apparently confident of obtaining a favorable decision on the merits, urged that the case nevertheless was not moot because it involved events "capable of repetition, yet evading review," Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). Plaintiff, by contrast, asked that we dismiss the appeal as moot under DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974). As we conclude that the "capable of repetition, yet evading review" exception to the usual definition of a "live" case or controversy necessary for federal adjudication, U.S.Const. art. III, sec. 2, does not apply, we agree with plaintiff that this appeal must be dismissed as moot. We do not, therefore, reach the merits.

There remains no live controversy between Gomes and defendants: the volleyball season is over and Gomes, having graduated, will never again attempt to play in interscholastic high school competition. These circumstances are similar to those in DeFunis v. Odegaard, supra, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974), which presented a challenge to allegedly discriminatory admissions policies of the University of Washington Law School. DeFunis had attended the school under a Supreme Court order effective pending appeal and was assured of graduating when the Court heard argument on the case. The Court dismissed the case as moot, noting that federal court jurisdiction " 'depends upon the existence of a case or controversy' " and that " 'federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them,' " 416 U.S. at 316, 94 S.Ct. at 1705-1706, quoting Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964), and North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971), respectively. In this case, too, since Gomes has not...