Haffer v. Temple University

• Decision Date: 15 January 1988
• Docket Number: Civ. A. No. 80-1362.
• Citation: 678 F. Supp. 517
• Parties: Rollin HAFFER, et al. v. TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

678 F. Supp. 517

Rollin HAFFER, et al. v. TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION, et al.

Civ. A. No. 80-1362.

United States District Court, E.D. Pennsylvania.

October 30, 1987.

On Motion for Reconsideration January 15, 1988.

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Arthur Bryant, Washington, D.C. (Trial Lawyers for Public Justice), Ellen Vargyas, Washington, D.C. (National Women's Law Center), William Hangley, Philadelphia, Pa., for plaintiffs.

Robert J. Reinstein (Mary Ellen Krober), University Counsel, John B. Langel, Philadelphia, Pa., for defendants.

OPINION

JOSEPH S. LORD, III, Senior District Judge.

INTRODUCTION

This is a class action alleging unlawful gender discrimination in Temple University's intercollegiate athletic program. The plaintiff class consists of "all current women students at Temple University who participate, or who are or have been deterred from participating because of sex discrimination in Temple's intercollegiate athletic program." Plaintiffs' claims focus on three basic areas: (a) the extent to which Temple affords women students fewer "opportunities to compete" in intercollegiate athletics; (b) the alleged disparity in resources allocated to the men's and women's intercollegiate athletic programs; and (c) the alleged disparity in the allocation of financial aid to male and female student athletes. Plaintiffs claim that the treatment of women student athletes in each of these areas violates the fourteenth amendment's equal protection clause¹ and the Pennsylvania Equal Rights Amendment. Plaintiffs also claim that the distribution of financial aid violates Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. ("Title IX").²

Defendants have moved for summary judgment. Defendants' motion is supported by a lengthy legal memorandum, two expert reports, numerous affidavits and well over fifteen hundred pages of deposition testimony. Plaintiffs have filed a motion, supported by over eight hundred pages of depositions and exhibits, to strike the expert reports. Plaintiffs' memorandum in opposition to defendants' motion for summary judgment ("Plaintiffs' memorandum") is supported by twenty-nine exhibits. In addition, defendants' reply memorandum and plaintiffs' memorandum of law in further opposition to defendants' motion for summary judgment are before me, as are exhibits and other evidence submitted in connection with plaintiffs' motion for a preliminary injunction. Review of this evidence reveals many genuine issues of material fact.

As the parties advance radically divergent views of the law applicable to plaintiffs' federal constitutional claims, I will first discuss the applicable legal standards. I will then examine whether the evidence produced by plaintiff is sufficient to raise a genuine issue of material fact on these claims. Next, I will briefly discuss plaintiffs' state constitutional claims. Finally, I will consider plaintiffs' Title IX claim.

Federal Constitutional Claims

I.

This appears to be the first case to challenge the operation of an intercollegiate athletic program on federal equal protection grounds. The existing case law, primarily involving equal protection challenges to various high school athletic programs, is of limited value. However, it is helpful to review briefly the reported cases, to extract certain principles courts have applied in these cases, and to identify certain arguments that courts generally accept.

In Blair v. Washington State University, 108 Wash.2d 558, 740 P.2d 1379 (1987) (en banc), plaintiffs alleged that defendants' intercollegiate athletic program discriminated against female student athletes in violation of state law. The trial court found that

The women's athletic program received inferior treatment in funding, fundraising efforts, publicity and promotions, scholarships, facilities, equipment, coaching, uniforms, practice clothing, awards, and administrative staff and support. During the 1980-81 school year ... the total funding available to the men's athletic programs was $3,017,692, and for the women's programs was $689,757, roughly 23 percent of the men's.... Although the number of participation opportunities for men increased by 115 positions from 1973-74 to 1980-81, the opportunities made available for women decreased 9 positions during the same period.

Id. at 561, 740 P.2d at 1380-81.

The trial court ordered that the women's program receive a specified percentage of the funds allocated to intercollegiate athletics, and that this percentage be increased each year by 2 percent until it corresponds to the percentage of women undergraduates at the University. The trial court further provided that "the level of support for women's athletics was not required to exceed by more than 3 percent the actual participation rate of women in intercollegiate athletics at the University, excluding football participation from the comparison." Id. at 562, 740 P.2d at 1381. Similarly, the court ordered that women receive a specified percentage "of all money expended for scholarships, excluding funds expended for football scholarships." Id. at 562, 740 P.2d at 1381. This percentage is to increase yearly until it equals the percentage of women undergraduates. Finally, the University was ordered "to allow for increased participation opportunities until female participation, again excluding football participation from the comparison, reached a level commensurate with the proportion of female undergraduate students." Id. at 563, 740 P.2d at 1381.

Plaintiffs appealed various aspects of the trial court's order. The Washington Supreme Court held that the trial court abused its discretion in constructing remedies that excluded football from the relevant calculations. "The Equal Rights Amendment contains no exception for football." Id. at 566, 740 P.2d at 1383. However, the state Supreme Court refused to modify that portion of the order which permitted the University to exclude revenue generated by a particular sport from calculations of the University's overall financial support. The Court found that exclusion of such revenues was "neither required nor prohibited by applicable law," and specifically held that the trial court "acted within its discretion" in permitting such exclusions. Id. at 567, 740 P.2d at 1384.

Numerous cases have challenged regulations that prohibit girls from participating in a particular high school sport or sports. In general, courts have had little difficulty in concluding that such regulations deny girls the equal protection of the laws. See Hoover v. Meiklejohn, 430 F.Supp. 164 (D.Colo.1977) (striking a regulation prohibiting girls from playing on high school soccer team); Brenden v. Independent School Dist., 477 F.2d 1292 (8th Cir.1973) (striking a regulation barring girls from competing against boys in tennis, cross country skiing and cross country running). See also Morris v. Michigan State Board of Education, 472 F.2d 1207 (6th Cir.1973) (affirming preliminary injunction striking regulation prohibiting girls from competing on tennis team); Force by Force v. Pierce City R-VI School Dist., 570 F.Supp. 1020 (W.D.Mo. 1983) (striking rule prohibiting females from trying out for football team); Leffel v. Wisconsin Interscholastic Athletic Ass'n, 444 F.Supp. 1117 (E.D.Wis 1978) (striking regulation prohibiting girls from trying out for boy's teams); Carnes v. Tennessee Secondary School Athletics Ass'n, 415 F.Supp. 569 (E.D.Tenn.1976) (preliminarily enjoining enforcement of rule prohibiting girls from playing on baseball team); Clinton v. Nagy, 411 F.Supp. 1396 (N.D.Ohio 1974) (granting temporary restraining order against enforcement of rule prohibiting girls from playing football); National Organization for Women v. Little League Baseball, Inc., 127 N.J.Super. 522, 318 A.2d 33, aff'd, 67 N.J. 320, 338 A.2d 198 (1974) (striking rule prohibiting girls from participating in little league baseball).

Courts have had more difficulty with rules prohibiting boys from participating on girl's teams. In Clark v. Arizona Interscholastic Ass'n, 695 F.2d 1126 (9th Cir. 1982), cert. denied, 464 U.S. 818, 104 S.Ct. 79, 78 L.Ed.2d 90 (1983), Petrie v. Ill. High School Athletic Ass'n, 75 Ill.App.3d 980, 31 Ill.Dec. 653, 394 N.E.2d 855 (1979) and Mularadelis v. Haldane Central School Board, 74 A.D.2d 248, 427 N.Y.S.2d 458 (1980) such rules were upheld. These courts relied on the arguments that such regulations were substantially related to the important governmental interests in promoting overall equality of athletic opportunity, and in redressing past discrimination against women in athletics. But see Gomes v. Rhode Island Interscholastic League, 469 F.Supp. 659 (D.R.I.), vacated as moot by time of appeal, 604 F.2d 733 (1st Cir.1979) (exclusion of boys from volley ball team violates Title IX); Attorney General v. Mass. Interscholastic Athletic Ass'n, 378 Mass. 342, 393 N.E.2d 284 (1979) (exclusion of boys from girl's team violates state equal rights amendment).

The reported decisions reveal a heightened sensitivity to the history of sex discrimination in athletics, see, e.g., Yellow Springs v. Ohio High School Athletic Ass'n, 647 F.2d 651, 669-675 (6th Cir.1981), and a judicial endorsement of the policy of maximizing athletic opportunity for females. Although differential treatment, with respect to a particular sport, is permitted when the record reveals relevant physical differences, Clark, 695 F.2d at 1127, Lafler v. Athletic Board of Control, 536 F.Supp. 104, 106 (W.D.Mich.1982), over-broad and unsupported generalizations regarding the relative athletic abilities of males and females will be rejected. Yellow Springs, 647 F.2d at 657; Brenden, 477 F.2d at 1300-1301. Excluding girls from participation in particular sports for their own "safety" does not pass constitutional muster. Force by Force, 570 F.Supp. at 1030; Fortin v. Darlington Little...