Israel by Israel v. West Virginia Secondary Schools Activities Com'n

• Decision Date: 20 December 1989
• Docket Number: No. 18904,18904
• Parties: , 58 Ed. Law Rep. 795 Erin ISRAEL, by her Next Friend, Patricia ISRAEL v. WEST VIRGINIA SECONDARY SCHOOLS ACTIVITIES COMMISSION and the Board of Education of Pleasants County.
• Court: West Virginia Supreme Court

Page 480

388 S.E.2d 480

182 W.Va. 454, 58 Ed. Law Rep. 795

Erin ISRAEL, by her Next Friend, Patricia ISRAEL v. WEST VIRGINIA SECONDARY SCHOOLS ACTIVITIES COMMISSION and the Board of Education of Pleasants County.

No. 18904.

Supreme Court of Appeals of

West Virginia.

Dec. 20, 1989.

[182 W.Va. 455] Syllabus by the Court

1. Three factors to be considered in deciding whether to address technically moot issues are as follows: first, the court will determine whether sufficient collateral consequences will result from determination of the questions presented so as to justify relief; second, while technically moot in the immediate context, questions of great public interest may nevertheless be addressed for the future guidance of the bar and of the public; and third, issues which may be repeatedly presented to the trial court, yet escape review at the appellate level because of their fleeting and determinate nature, may appropriately be decided.

2. Equal protection of the law is implicated when a classification treats similarly situated persons in a disadvantageous manner. The claimed discrimination must be a product of state action as distinguished from a purely private activity.

3. Under equal protection principles, classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives in order to withstand an equal protection challenge.

4. West Virginia's constitutional equal protection principle is a part of the Due Process Clause found in Article III, Section 10 of the West Virginia Constitution.

5. A gender-based classification challenged as denying equal protection under Article III, Section 10 of the West Virginia Constitution can be upheld only if the classification serves an important governmental objective and is substantially related to the achievement of that objective. To the extent that Syllabus Point 2 of Peters v. Narick, 165 W.Va. 622, 270 S.E.2d 760 (1980), differs from this rule, it is modified.

Christine M. Hedges, Hedges, Jones, Whittier & Hedges, Spencer, for Erin Israel.

Richard A. Hayhurst, Parkersburg, for Bd. of Educ. of County of Pleasants.

William R. Wooton, Wooton, Wooton & Fragile, Beckley, for W.Va. Secondary Schools Activities Com'n.

MILLER, Justice:

Erin Israel, by her next friend, Patricia Israel, appeals from a final order of the Circuit Court of Pleasants County, entered February 11, 1988, denying her request for a declaratory judgment, injunctive relief, and damages on the basis of alleged gender Ms. Israel has a great deal of experience playing baseball. She began playing baseball at the age of six in the local park and recreation league where she learned the basic fundamentals of the game. At the age of nine, Ms. Israel progressed into the Little League system. Her Little League coach testified that Ms. Israel's skills were always above average. He stated that "[s]he was very aggressive, understood the game, its concepts, and its technique." While playing Little League, Ms. Israel was nominated for every all-star team. At the age of thirteen, she became the first female to ever play on a Pony League team in Pleasants County. When Ms. Israel was a freshman at St. Marys High School, and expressed a desire to play on the all-male baseball team, the high school baseball coach told her he had no objections to her playing for him and promised to give her a fair tryout. In February, 1984, Ms. Israel tried out for the all-male high school baseball team. She was prohibited from playing on the team because of a regulation promulgated by the Secondary Schools Activities Commission (SSAC).

[182 W.Va. 456] discrimination. On appeal, Ms. Israel asserts that she was discriminated against in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and its state counterpart, Article III, Section 17 of the West Virginia Constitution, as well as the Human Rights Act, W.Va.Code, 5-11-1, et seq. (1987). We have reviewed the record and find reversible error; therefore, we reverse the judgment of the Circuit Court of Pleasants County and remand the case for further proceedings consistent with this opinion.

The Board of Education of the County of Pleasants (Board) is a member of the SSAC. The SSAC is a nonprofit organization created by W.Va.Code, 18-2-25 (1967), which authorizes county boards of education to delegate their supervisory authority over interscholastic athletic events and band activities to the SSAC. ¹ It is not disputed that every county board of education in West Virginia has delegated this responsibility and authority to the SSAC. In the exercise of its delegated authority, the SSAC adopted Rule No. 3.9, ² which provides:

"If a school maintains separate teams in the same or related sports (example: baseball or softball) for girls and boys during the school year, regardless of the sports season, girls may not participate on boys' teams and boys may not participate on girls' teams. However, should a school not maintain separate teams in the same or related sports for boys and girls, then boys and girls may participate on the same team except in contact sports such as football and wrestling."

Shortly after Ms. Israel tried out to play on the baseball team, she was informed by St. Marys' assistant principal that she was ineligible to play on the baseball team because St. Marys had a girls' softball team. ³

[182 W.Va. 457] The assistant principal explained that if the school allowed Ms. Israel to play baseball, it would be in violation of Rule 3.9 and would be barred from playing in state tournaments. After numerous futile efforts to have the rule changed through the internal mechanisms provided by the SSAC, Ms. Israel filed a complaint with the Human Rights Commission (Commission).

The Commission issued Ms. Israel a right-to-sue letter, and she filed this action against the SSAC and the Board on April 18, 1986, in the Circuit Court of Pleasants County. The circuit court exonerated the Board, finding that it had made a good-faith effort to have the SSAC change the rule and that if the Board had ignored Rule 3.9, it would have been subject to severe sanctions by the SSAC. Ms. Israel does not appeal this ruling. She does appeal the circuit court's decision that the SSAC rule was valid.

I. MOOTNESS

Initially, the SSAC argues that because Ms. Israel has graduated from high school, her claims for injunctive and declaratory relief are now moot. " 'Moot questions or abstract propositions, the decision of which would avail nothing in the determination of controverted rights of persons or of property, are not properly cognizable by a court.' " State ex rel. West Virginia Secondary Schools Activities Comm'n v. Oakley, 152 W.Va. 533, 537, 164 S.E.2d 775, 778 (1968), quoting Syllabus Point 1, State ex rel. Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873 (1908).

However, we, along with most courts, have tempered the inflexibility of mootness jurisprudence in recent years. In State ex rel. M.C.H. v. Kinder, 173 W.Va. 387, 390, 317 S.E.2d 150, 153 (1984), we quoted and adopted from State v. Gleason, 404 A.2d 573, 578 (Me.1979), three factors to be considered in deciding whether to address technically moot issues:

" 'First, the court will determine whether sufficient collateral consequences will result from determination of the questions presented so as to justify relief.... Second, while technically moot in the immediate context, questions of great public interest may nevertheless be addressed for the future guidance of the bar and of the public.... Third, issues which may be repeatedly presented to the trial court, yet escape review at the appellate level because of their fleeting and determinate nature, may appropriately be decided....' " (Citations omitted).

See also Hairston v. Lipscomb, 178 W.Va. 343, 359 S.E.2d 571 (1987); Christie v. West Virginia Health Care Cost Review Auth., 176 W.Va. 420, 345 S.E.2d 22 (1986); State ex rel. McGraw v. Willis, 174 W.Va. 118, 323 S.E.2d 600 (1984); Rissler v. Giardina, 169 W.Va. 558, 289 S.E.2d 180 (1982). See also In the Matter of Sedlacek v. South Dakota Teener Baseball Program, 437 N.W.2d 866 (S.D.1989).

Application of these considerations to the instant matter counsels us not to dismiss this appeal as moot. First, we take note that West Virginia's climate and early-June graduation combine to make the spring high school baseball season a brief affair. It is quite unlikely, if not impossible, that a fully litigated case on this issue could reach us before becoming "moot." That the issue is capable of repetition is self-evident. Moreover, deciding the validity of SSAC Rule 3.9 will have sufficient collateral consequences that our decision on the issue will not be a vain exercise. Finally, this question "undisputably involves a most vital public function--education of our youth. Because it is foreseeable that it will arise again, we find the question remains justiciable for future guidance." White by White v. Linkinoggor, 176 W.Va. 410, 412, 344 S.E.2d 633, 635 (1986). (Citations omitted).

II. EQUAL PROTECTION

Equal protection of the law is implicated when a classification treats similarly situated persons in a disadvantageous manner. Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 253-54, 30 L.Ed.2d 225, 229 (1971). The claimed discrimination must be a product of state action ⁴ as distinguished from a purely private activity. See Burton v. Wilmington Parking Auth., 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961).

A. Fourteenth Amendment Equal Protection

In analyzing gender-based discrimination, the United States Supreme Court has been willing to take into account actual differences between the sexes, including physical ones. In Michael M. v. Sonoma County, Superior Court, 450 U.S. 464, 469, 101 S.Ct. 1200, 1204, 67 L.Ed.2d 437, 442 (1981), the Court explained that it has "consistently upheld statutes where the gender-based...