Hoover v. Meiklejohn

• Decision Date: 15 April 1977
• Docket Number: Civ. A. No. 76 M 1007.
• Citation: 430 F. Supp. 164
• Parties: Donna HOOVER, by and through Cynthia Hoover, her next friend and parent, on behalf of all girls in the State of Colorado similarly situated, Plaintiffs, v. Alvin J. MEIKLEJOHN, Jr., et al., Defendants.
• Court: U.S. District Court — District of Colorado

430 F. Supp. 164

Donna HOOVER, by and through Cynthia Hoover, her next friend and parent, on behalf of all girls in the State of Colorado similarly situated, Plaintiffs, v. Alvin J. MEIKLEJOHN, Jr., et al., Defendants.

Civ. A. No. 76 M 1007.

United States District Court, D. Colorado.

April 15, 1977.

Joan S. Brett and Morris W. Sandstead, Jr., Boulder, Colo., for plaintiffs.

Gaspar F. Perricone, Denver, Colo., and Gerald A. Caplan, Caplan & Earnest, Boulder, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

MATSCH, Judge.

In this class action under Rule 23(b)(2), Donna Hoover through her mother and next friend, representing all female persons of high school age or younger in the State of Colorado who are or may be affected by Rule XXI of the Colorado High School Activities Association, has invoked the jurisdiction granted by 28 U.S.C. § 1343(3) to seek a judgment declaring that rule to be unconstitutional, an order enjoining its enforcement, and mandatory affirmative relief under 28 U.S.C. § 2201 and 42 U.S.C. § 1983. The defendants concede jurisdiction and admit that their actions are under color of state law. They also agree that the prerequisites of Rule 23(a) have been met.

The plaintiff is 16 years old and a student in the eleventh grade at Golden High School, one of twelve senior high schools operated by Jefferson County School District R-1. The named defendants include all members of the board of education who govern that district.

The plaintiff is 5'4" tall, weighs 120 pounds, and is in excellent physical condition. In the fall of 1976, Golden High School had a varsity soccer team which engaged in interscholastic competition with other public high schools in Colorado. The teacher-coach, Tracy Fifer, permitted participation by Donna Hoover as the only female on the team. She engaged in the conditioning and skills drills at the team's practice sessions and she played in junior varsity games, which were unofficial contests played between the same schools whose varsity teams met in sanctioned competition. These junior varsity matches were to assist the skills development of those who had not yet shown sufficient proficiency to play on the varsity team. Donna Hoover was the only female playing in those junior varsity games. Although she was stunned on one occasion as a result of a collision with a much larger player, she did not suffer any disabling injury in the games or in any practice sessions.

On or about September 28, 1976, the principal of Golden High School directed that the plaintiff be removed from the soccer team because her participation was in violation of Rule XXI, § 3 of the Colorado High School Activities Association. That is a voluntary, non-profit, unincorporated association of public high schools (together with some private schools as associate members) which is governed by a board of control composed of professional educators elected from eight districts. The purpose of the organization is stated in Article II of its constitution:

The purpose of the Association is to approve, promote, develop and direct all activities among its member schools, that will contribute to, or be a part of a well rounded and meaningful educational experience at the secondary school level. The Association shall strive to develop a unified and coordinated activities plan, without destroying the identity of any specific activity.

The Association shall be an instrumentality of the member schools for the accomplishment of the foregoing objectives.

The association sanctions interscholastic competition in many sports, including soccer. While schools may participate in programs which are not sanctioned by the association, its official sanction is required for state tournaments and the association promulgates rules governing eligibility, qualification of coaches and officials, and the official rules of play for each sanctioned sport. Additionally, a low cost insurance program is made available through the association.

While the association has no sex classification for cross country and baseball, the sport of soccer is limited by Rule XXI, § 3, as follows:

Participation in this activity shall be limited to members of the male sex.

NOTE: Because inordinate injury risk jeopardizes the health and safety of the female athlete, participation in this activity is limited to members of the male sex.

Soccer is a relatively new sport in Colorado high schools. It was first sanctioned five years ago and the state championship program was developed only two years ago. The decision to limit soccer to males resulted from consultation with a committee of the Colorado Medical Society designated as "Medical Aspects of Sports Committee." That group consists of seven physicians, from different geographical areas, whose practice involves pediatrics and orthopedics. Members of that committee testified at the trial of this case that the recommendation to classify soccer as a contact sport and to prohibit mixed-sex play was the result of a perception of physiological differences which would subject the female players to an inordinate risk of injury.

Primarily, the committee was concerned with risks attendant upon collisions in the course of play. While the rules of soccer prohibit body contact (except for a brush-type shoulder block when moving toward the ball), there are frequent instances when players collide in their endeavors to "head" the ball. In those instances, contact is generally in the upper body area.

There is agreement that after puberty the female body has a higher ratio of adipose tissue to lean body weight as compared with the male, and females have less bone density than males. It is also true that, when matured, the male skeletal construct provides a natural advantage over females in the mechanics of running. Accordingly, applying the formula of force equals mass times acceleration, a collision between a male and a female of equal weights, running at full speed, would tend to be to the disadvantage of the female. It is also true that while males as a class tend to have an advantage in strength and speed over females as a class, the range of differences among individuals in both sexes is greater than the average differences between the sexes. The association has not established any eligibility criteria for participation in interscholastic soccer, excepting for sex. Accordingly, any male of any size and weight has the opportunity to be on an interscholastic team and no female is allowed to play, regardless of her size, weight, condition or skill.

Interscholastic athletic competition is an integral part of the educational program of public high schools in Colorado. The prevalent view is set forth in Section 1 of the association's by-laws:

The program of the interscholastic athletics in high schools shall be so organized and administered as to contribute to the health, worthy use of leisure time, citizenship and character objectives of secondary education.

The defendants on the board of education and the professional educators in control of the activities association have concluded that the game of soccer is among those which serve an educational purpose and governmental funds have been provided for it. It is a matter of common knowledge that athletics are a recognized aspect of the educational program offered at American colleges and universities and that many of them offer scholarships to males and females for their agreement to participate in intercollegiate sports competition. Such offers result from organized recruiting programs directed toward those who have demonstrated their abilities on high school teams. Accordingly, the chance to play in athletic games may have an importance to the individual far greater than the obvious momentary pleasure of the game.

Accordingly, the claim of the plaintiff class in this case is properly characterized as a denial of an equal educational opportunity. The United States Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) recognized the importance of a right to equal availability of what the state chooses to provide in the schools:

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. 347 U.S. at 493, 74 S.Ct. at 691.

Brown held that blacks were denied a constitutionally protected equality when they were forced to attend schools established only for those of the same race. As suggested by Justice Brennan in Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 1770, 36 L.Ed.2d 583 (1973), a classification according to sex is comparable to race in that it is "an immutable characteristic determined solely by the accident of birth."

This case has been presented and argued by both counsel within the framework of the two-tiered analysis familiar to equal protection decisions. If a "fundamental" right or interest is denied or impaired or if a classification is made on a "suspect" basis, the court must look with "strict scrutiny" to determine whether there is justification by a "compelling" state interest. Where there is neither a "fundamental" interest nor a "suspect" classification, a difference in the effects of state...