Lavin v. Illinois High School Ass'n

• Decision Date: 29 August 1975
• Docket Number: No. 74--1829,74--1829
• Citation: 527 F.2d 58
• Parties: Rachel LAVIN, etc., Plaintiff-Appellant, v. ILLINOIS HIGH SCHOOL ASSOCIATION and Board of Education of the City of Chicago, etc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 58

527 F.2d 58

Rachel LAVIN, etc., Plaintiff-Appellant, v. ILLINOIS HIGH SCHOOL ASSOCIATION and Board of Education of

the City of Chicago, etc., et al., Defendants-Appellees.

No. 74--1829.

United States Court of Appeals, Seventh Circuit.

Argued April 22, 1975.

Decided Aug. 29, 1975.

Lawrence Schlam, Chicago, Ill., for plaintiff-appellant.

Michael J. Murray, Patricia Whitten, Chicago, Ill., for defendants-appellees.

Before SWYGERT and PELL, Circuit Judges, and GRANT, Senior District Judge. ^*

PER CURIAM.

This appeal presents a question of whether procedurally and substantively it was proper to grant a summary judgment in favor of defendants.

Plaintiff-appellant Rachel Lavin filed this action on behalf of herself and all other high school women in the State of Illinois 'who are, have been, and will continue to be denied participation in interscholastic athletic programs solely because they are female.' The second amended complaint seeks injunctive and declaratory relief as well as damages for defendants' alleged denied to the named plaintiffs ¹ and the class, solely because they are female, of the right to participate 'on high school varsity athletic teams on which men are allowed' and the right to participate 'in high school programs in a manner which provides as full and equal an educational opportunity as that provided men.' The primary claim is that the denial of these rights on the basis of plaintiffs' sex violates the Equal Protection Clause of the Fourteenth Amendment.

The complaint alleges that Lavin, who was a senior at Mather High School in Chicago, Illinois 'tried out,' with another woman student, for the Mather High School varsity basketball team. Those who show sufficient skill at the 'tryouts' are called back for 'preliminaries.' The varsity team is chosen from those students participating in the 'preliminaries.' In response to Lavin's question as to why neither were asked back, Donald Fontana, athletic coach of Mather High School, informed her 'that he would and could not as he was bound by Division A, Art. II, § 24 of the By-Laws of the IHSA (Illinois High School Association) which states: 'No school belonging to this Association shall permit boys and girls to participate with or against members of the opposite sex in the same interscholastic athletic activity." The complaint specifically alleges that Lavin was 'eligible, ready, willing and able to participate in high school interscholastic varsity basketball.'

Lavin requested a preliminary injunction and in support of defendants' opposition to the granting of such relief the affidavit of coach Fontana was filed. In his affidavit Fontana stated that in a conversation with Lavin he had shown her 'the Chicago Public High School Athletic Association's Basketball Rules and Regulations, 1973--1974 which state in part: 'Varsity Teams: Shall consist of all boys eligible under the rules of the Board of Control." Fontana further stated that he had not told either of the women

that in the absence of the applicable rule that they would have been called back for the next level of the tryouts, and, in fact, in the absence of such rule they would not have been called back for the next level of tryouts because neither possessed the necessary ability to participate on the school's varsity basketball team.

A motion to dismiss the second amended complaint for a failure to state a cause of action or in the alternative for a grant of summary judgment was filed on behalf of defendant Illinois High School Association. ² Motions to dismiss for lack of jurisdiction and failure to state a claim upon which relief can be granted, to strike the complaint, and for summary judgment were filed on behalf of defendants Chicago Board of Education and James F. Redmond, Superintendent of the Chicago Board of Education. No affidavits accompanied any of these motions.

At a hearing concerning a briefing schedule for memoranda regarding these motions the attorney for plaintiff requested additional time to respond because there were both motions to dismiss and summary judgment motions pending. The district judge replied that he would 'put the motion for summary judgment aside for the time being until I decide the motions to dismiss.' The district judge ended the hearing by saying: 'So I will consider the motions to dismiss or strike along with any affidavits that may be submitted in support of that type of motion and will delay any decision on motion for summary judgment until I decide the other motions first.'

When the district judge did rule, his judgment granted the 'defendants' motion for summary judgment with respect to complaint of Rachel Lavin.' The memorandum opinion indicated that Fontana's affidavit filed in regard to the preliminary injunction motion, had stated that Lavin would not have been called back for further proceedings because she lacked the necessary ability. Since this affidavit was not countered, the district judge found there was 'no genuine issue of material fact.' He concluded that: 'In the absence of an actual case or controversy, this Court lacks jurisdiction, and the defendants' motion will be granted as one for summary judgment.'

I

The first question we must address is whether this case is moot since plaintiff Lavin has graduated from high school. She had already graduated by the time that the district court ruled, but that court held that the case was not moot. We agree that the matter is not moot since the complaint seeks damages. ³

II

We turn to the question of whether the district court's decision was proper. Defendants seem to contend that the ruling was actually not a grant of summary judgment, but rather a dismissal for either lack or standing or lack of a case or controversy. We cannot agree with this analysis. Admittedly, the district court apparently decided that Lavin would not have been able to play on the varsity basketball team even if she were male and therefore suffered no harm herself as a result of a rule prohibiting females. But such a finding was a factual one. The complaint clearly alleges contrary facts that show that Lavin was harmed by this rule and that a controversy other this alleged sex discrimination does exist. The district court's decision must be viewed as one granting summary judgment.

The issue then becomes whether summary judgment should have been granted. We find that it should not have been. Even on the basis of Fontana's affidavit alone we do not think it is clear that there is no genuine issue as to any material fact. Lavin's complaint alleges that Fontana told her that 'he would and could not' ask her back for 'preliminaries' because 'he was bound' by the by-laws of IHSA. Moreover, she alleges that she was 'ready, willing and able to participate in high school interscholastic varsity basketball.' Coach Fontana's affidavit only says that in the absence of the rule Lavin would not have been called back. It does not state that his decision not to ask her back was made without consideration of the rule or the fact that she was female.

More importantly, Lavin was not given an adequate opportunity to counter this affidavit. Based on the district judge's statement that he was not going to consider the summary judgment motions at that time, there was no obligation on Lavin to file counter-affidavits or request discovery. Since the district judge said he was only going to rule on the motions to dismiss he must have decided to treat the Fed.R.Civ.P. 12(b)(6) motion as a Fed.R.Civ.P. 56 summary judgment motion. But he surely failed to give Lavin a ...