Mularadelis v. Haldane Central School Bd.

• Decision Date: 05 May 1980
• Citation: 74 A.D.2d 248,427 N.Y.S.2d 458
• Parties: In the Matter of Chris MULARADELIS et al., Respondents, v. HALDANE CENTRAL SCHOOL BOARD et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 458

427 N.Y.S.2d 458

74 A.D.2d 248

In the Matter of Chris MULARADELIS et al., Respondents, v. HALDANE CENTRAL SCHOOL BOARD et al., Appellants.

Supreme Court, Appellate Division, Second Department.

May 5, 1980.

Plunkett & Jaffe, White Plains (Phyllis S. Jaffe, White Plains, of counsel), for appellants.

Constantine Mularadelis, Cold Spring, for respondents.

Before HOPKINS, J. P., and TITONE, GULOTTA and COHALAN, JJ.

TITONE, Justice.

The issue presented on appeal is whether, under Title IX of the Education Amendments of 1972, (U.S.Code, tit. 20, § 1681 et seq.), regulations promulgated thereunder (45 CFR 86.31, 86.34, 86.41(a), (b)) and under the circumstances of this case, the student petitioner should have been afforded the opportunity to become a member of the girls' tennis team at the high school of the appellant school board. Subdivision (a) of section 1681 of Title 20 of the United States Code provides, inter alia :

"(a) No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance".

Regulations enacted by the Department of Health, Education and Welfare (HEW) for administering the educational amendments to Title IX are comprehensive and far reaching (45 CFR 86.1-86.71). With respect to physical education programs or activities operated by institutions receiving Federal financial assistance, sections 86.31, 86.34, and 86.41 of the Code of Federal Regulations provide, inter alia, as follows:

"86.31. Education programs and activities

"(a) General * * * no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular * * * or other education program or activity operated by a recipient which receives (or) benefits from Federal financial assistance."

"86.34. Access to course offerings

"A recipient shall not provide any course or otherwise carry out any of its education program or activity separately on the basis of sex, or require or refuse participation therein by any of its students on such basis, including * * * physical education * * *.

"(c) This section does not prohibit separation of students by sex within physical education classes or activities during participation in wrestling, boxing, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact."

"86.41. Athletics

"(a) General. No person shall, on the basis of sex, be excluded from participation in * * * or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.

"(b) Separate Teams. Notwithstanding the requirements of paragraph (a) of this section, a recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport. However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport * * *

"(c) Equal opportunity. A recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes. In determining whether equal opportunities are available the Director will consider, among other factors:

"(1) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes " (emphasis supplied).

In the spring term of the 1977-1978 scholastic year, petitioner Chris Mularadelis, then a tenth-year student at the high school of the Haldane Central School District, was one of the two male members of the school's 12-member girls' tennis team. Over the years efforts by school administrative officers to encourage a sufficient number of male students to participate in a tennis program and to form a male team in that sport were unsuccessful.

However, during the 1978-1979 school year, and specifically on March 6, 1979, the petitioner student, then an eleventh-year student, was informed by the head of the school's male coaches that he would not be permitted to participate on the girls' tennis team during the spring term on the ground that such participation would violate Title IX of the Education Amendments of 1972 (see U.S.Code, tit. 20, § 1681 et seq.). On March 8 a school athletic policy was established which stated, inter alia, that "(s)ince the opportunities for girls to participate were more limited than for boys, the school district shall prohibit the participation of boys on teams and in leagues organized to provide competition among girls."

At the time of the adoption of the aforesaid policy, the petitioner student was ranked number two singles player on the girls' tennis team. Such ranking effectively denied another female student an opportunity to become a member of the girls' tennis team. Moreover, the appellant school district was then sponsoring 11 boys' teams, providing more than 180 positions for male students, and 6 girls' teams, providing only 74 positions for female students. There are approximately the same number of boys and girls in the district's junior-senior high school.

Special Term vacated the school board's determination precluding the petitioner student from playing on the girls' high school tennis team. It was of the view that notwithstanding the greater number of male athletic teams in the Haldane Central School District, refusing an opportunity to play on the girls' tennis team was not within either the letter or spirit of Title IX. Special Term also concluded that it was unfair to keep the petitioner student from engaging in a sport in which he has proven ability, especially since he was permitted to play on the girls' tennis team the previous year.

The dispute in this instance centers upon the interpretation to be given the underlined portion of subdivision (b) of 45 CFR 86.41, promulgated under Title IX, which explicitly covers separate sex teams in school athletics, to wit:

"However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport." (Emphasis supplied.)

Appellants argue in effect that the phrase "athletic opportunities for members of that (excluded) sex have previously been limited" should be interpreted in a general sense, namely that where overall athletic opportunities for members of a sex excluded from participation in a particular sport have been limited in the past, members of the excluded sex must be allowed to try out for the team from which they are now excluded. Thus, because only women previously suffered limited athletic opportunities, the phrase in dispute refers only to women. Such interpretation in this instance would permit the formation of a separate female tennis team without, inter alia, males being allowed to try out for such female team because overall athletic opportunities for males have not been limited in the past. As the record indicates, just prior to this dispute the subject high school had 11 boys' teams and only 6 girls' teams.

On the other hand petitioners contend, in effect, that the phrase means opportunity in a particular sport. Thus, in view of the fact, inter alia, that athletic opportunities in tennis, a noncontact sport, have been previously limited at the high school of the appellant school district, petitioners argue that the petitioner male student must be permitted to try out for the girls' tennis team.

Petitioners find support for their position in Gomes v. Rhode Island Interscholastic League, 469 F.Supp. 659 (D.C.R.I.). In Gomes, the plaintiff student, Donald M. Gomes, wished to become a member of the all female volleyball team of the high school he attended. There was not sufficient interest among other boys at the school to warrant fielding a male volleyball team. Although he succeeded in making the female team, Gomes, because of his sex, was not allowed to play in interscholastic league games. Gomes brought his action for a preliminary injunction under Title IX (U.S.Code, tit. 20, § 1681 et seq.). In construing 45 CFR 86.41(b), set forth above, the United States District Court for Rhode Island held (at pp. 664-666) that the phrase "and athletic opportunities for members of that (excluded) sex have previously been limited", referred to the particular sport under consideration. Although the Federal court found that both the broad and narrow interpretations of the regulation were plausible, it chose plaintiff's because it believed that defendant's approach might run afoul of the equal protection clause. As the court viewed it, the establishment of an all female team in a particular sport which totally excluded males from playing and in which males only have limited opportunities to play, was not directed toward the special disadvantages women have suffered in that sport, and may be impermissibly overbroad (469 F.Supp. at p. 664). ^* I disagree with the interpretation given regulation 86.41 both by Special Term and the Federal court in Gomes.

In my opinion, an interpretation that the regulations quoted above apply to opportunities in a particular sport does not...