Gomes v. Rhode Island Interscholastic League

• Decision Date: 01 May 1979
• Docket Number: Civ. A. No. 79-0158.
• Citation: 469 F. Supp. 659
• Parties: Donald M. GOMES v. RHODE ISLAND INTERSCHOLASTIC LEAGUE, Rhode Island Secondary Principals' Association, Vincent Trainor, Jr., Superintendent of Schools for the City of Newport, Rhode Island, Charles Tobin, Principal of Rogers High School, Brian Burns, David R. Carlin, Jr., Patrick Francis Carroll, Louis T. Kazanjian, Charles R. Silvia, Arron Slom, George Herbert Triplett, in their capacities as Members of the School Committee of the City of Newport, Rhode Island.
• Court: U.S. District Court — District of Rhode Island

469 F. Supp. 659

Donald M. GOMES v. RHODE ISLAND INTERSCHOLASTIC LEAGUE, Rhode Island Secondary Principals' Association, Vincent Trainor, Jr., Superintendent of Schools for the City of Newport, Rhode Island, Charles Tobin, Principal of Rogers High School, Brian Burns, David R. Carlin, Jr., Patrick Francis Carroll, Louis T. Kazanjian, Charles R. Silvia, Arron Slom, George Herbert Triplett, in their capacities as Members of the School Committee of the City of Newport, Rhode Island.

Civ. A. No. 79-0158.

United States District Court, D. Rhode Island.

May 1, 1979.

A. Lauriston Parks of Hanson, Curran & Parks, Providence, R. I., for plaintiff.

James F. McAleer, Providence, R. I., for R. I. Interscholastic League and R. I. Secondary Principals' Assoc. Co-counsel: Robert B. Mann, Providence, R. I., for defendants.

Albert B. West, Providence, R. I., for School Committee.

OPINION

PETTINE, Chief Judge.

In recent years dozens of federal courts have interpreted the equal protection clause of the fourteenth amendment as mandating equal athletic opportunities for high school females. These rulings allowed girls to breach such previously all-male bastions as Little League baseball, high school soccer and cross-country skiing. See, e. g., Fortin v. Darlington Little League, Inc., 514 F.2d 344 (1st Cir. 1975); Brenden v. Independent Sch. Dist. 742, 477 F.2d 1292 (8th Cir. 1973). See also 23 A.L.R.Fed. 661 at 664. There were only some minor limitations upon this athletic revolution: schools had a sufficiently strong interest in safety to prohibit co-ed participation in "contact" sports, "separate but equal" sports teams were permissible, and a reluctant school committee could always avoid such constitutional requirements by eliminating its athletic program completely. See Hoover v. Meiklejohn, 430 F.Supp. 164 (D.Colo.1977) (and cases cited therein).

Congress further assured athletic equality for females by passing Title IX of the Education Amendments of 1972. The statute broadly assures that no person "shall, on the basis of sex, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance . . .." 20 U.S.C. § 1681. Regulations promulgated under the statute assure that Title IX covers such educational activities as high school athletics. 45 C.F.R. § 86.41. Responding to these judicial and legislative mandates, many schools now provide increased athletic opportunities for women.

The present case requires this Court to face the unique, if inevitable, corollary to such advances against sex discrimination: may a qualified male play on an all-girls athletic team when the high school offers no separate male team. This issue is presented by a motion for a preliminary injunction filed by Donald Gomes, a senior at Rogers High School in Newport, Rhode Island, against the Rhode Island Interscholastic League, members of the Newport School Committee, and others. Gomes correctly premises his claim upon 42 U.S.C. § 1983 and alleges violations of Title IX and the fourteenth amendment. This Court need only decide the statutory issue.

There is little dispute that the actions of the defendants constitute state actions within the purview of 42 U.S.C. § 1983. The Rhode Island Interscholastic League is composed of various private and public schools, including Rogers High, and sponsors a variety of athletic events, formulates rules, and mandates certain sanctions. Such associations consistently have been held to be state actors and within the reach of section 1983. See, e. g., Brenden v. Independent Sch. Dist., supra; Mitchell v. Louisiana High Sch. Athl. Assoc., 430 F.2d 1155 (5th Cir. 1970).¹

The facts as presented at the preliminary injunction hearing were not vigorously contested.

Donald Gomes is six feet tall and sincerely desires to play volleyball. Donald had played on an all-boys volleyball team in Harrisburg, Pennsylvania, before being transferred to Rogers High. The sole reason Donald cannot play at Rogers High is his sex. The Rhode Island Interscholastic League does not provide interscholastic volleyball competition for males and disqualifies any team on which a male plays. There are a few all-girl private schools in the League; their teams are necessarily restricted to females. Some Rhode Island high schools field all-male volleyball teams which play outside the League's jurisdiction; Rogers High is not one of these schools.

Rogers High School does offer a wide variety of athletic opportunities for males. Women and men compete for positions on such teams as cross country, tennis, track, basketball, and baseball. Males constitute the overwhelming majority on those teams open to co-ed participation. The school also provides teams exclusively for females in tennis, track, basketball, gymnastics, volleyball, and softball. Thus a woman may choose to compete for a position on a co-ed tennis team or a position on the female tennis team; likewise, she may try out for the baseball team or the all-girls softball team. According to the league regulations adopted by the school, men are limited to the co-ed teams and, thus, may never participate in volleyball and gymnastics on a competitive basis. For safety reasons, women are not permitted to compete for positions on the all-male football team.

Not dissuaded by the League's rules, Donald tried out for and made the girls' volleyball team. He was the only male among the thirty-two individuals competing for the sixteen slots on the team. Apparently Donald's athletic interest was rather unique; the school's athletic director testified that there was not sufficient interest among the other boys at Rogers High to field a male volleyball team. Donald has been issued a uniform and has practiced steadily with the team but, because of his sex, he has not been allowed to play in the interscholastic games.

Despite Donald's size advantage over many of his female teammates, his coach, Mrs. Bryl Johnston, only ranks him between 9th and 6th in terms of comparative playing ability. Mrs. Johnson noted that girls volleyball rules differed in only one way from boys volleyball; i. e., the net height is approximately seven inches lower in girls volleyball. Mrs. Johnston also testified that in her experience of teaching co-ed gym classes in volleyball, the playing skills of boys and girls have been relatively equal. She admitted, however, that if volleyball became a popular sport among high school boys, males would begin to dominate a coed team.

This last conclusion was strongly supported by medical and other expert testimony. Dr. Betty Mathieu, a pediatrician and the medical director of the Providence school system, cited a high school boy's greater muscle strength, endurance and height, and concluded that, at the high school level, boys would be an uneven match against girls in the sport of volleyball. Dr. Dorothy Harris, director of the "Women in Sports" Research Center at Penn State University, observed that persons with certain physical characteristics were more adept at playing certain sports. Because of men's greater muscle bulk, longer limbs and greater height, males generally could propel a volleyball with more force and better control. Due to these physical advantages, Dr. Harris believed that open competition among males and females would "virtually eliminate the opportunity" for girls to play such competitive sports as volleyball. Only the exceptional girl would become a member of an "open" or "co-ed" team. Despite the possibility of male domination, Dr. Harris did note that no physical harm could come to a female playing volleyball with or against a male. All the expert testimony and predictions of male domination were premised upon the assumption that volleyball would draw competitors from the general male high school population, not just from a few isolated boys. As with many medical experiments, a significant reduction of the applicant pool might affect the accuracy of the medical or athletic generalizations.

Deborah Chin, a world class volleyball player and college coach of the sport, agreed that open competition would seriously limit playing opportunities for girls. She noted that in co-ed volleyball, girls are relegated to secondary and defensive positions despite rules that assure an equal number of men and women on the court during play. Ms. Chin would not recruit or offer scholarship aid to a female on a co-ed team because such a player is likely to have severely limited offensive skills.

Ms. Chin, among others, described the various skills required to play volleyball. She testified that volleyball was a well established and unique sport that utilized a particular combination of skills not offered by other sports.

Further testimony by certain League and school officials traced the development of female athletics at Rogers High. Prior to 1971, girls had largely been relegated to cheerleader status. Since that year, however, Rogers High has fielded numerous all-female teams and has opened formerly all-male teams to open competition. Female interest in athletics has been impressive. Approximately forty-three percent of the positions on the various varsity teams are occupied by women.

Defendants argue that female high school athletics must be provided "separate but equal" teams if they are to have a meaningful opportunity for athletic competition and development. Without such special consideration, the strides made in female athletics would disappear.

In light of the evidence, these contentions are difficult to dispute. Rogers High has made a noble and noteworthy effort to provide athletic opportunities for females. At the high school level, the average male is objectively more physically capable than the average female. Open competition would, in all probability, relegate the majority of females to second class positions as benchwarmers or spectators. As the Sixth...