Othen v. Ann Arbor Sch. Bd.
| Decision Date | 23 February 1981 |
| Docket Number | Civ. A. No. 79-73709. |
| Citation | 507 F. Supp. 1376 |
| Parties | Arthur Eugene OTHEN, next friend of his daughters, Pamela Evelyn Othen and Janice Julia Othen, Plaintiff, v. ANN ARBOR SCHOOL BOARD, a public body established under the laws of the State of Michigan, Defendant. |
| Court | U.S. District Court — Western District of Michigan |
Jean L. King, Ann Arbor, Mich., for plaintiff.
Edmond F. DeVine, Ann Arbor, Mich., for defendant.
Madeline Chun, Civ. Rights Div., U. S. Dept. of Justice, Washington, D. C., Charles E. Guerrier, Women's Law Fund, Inc., Cleveland, Ohio, for amicus.
This case forces the court to a decision on the validity of regulations of the Department of Health, Education and Welfare hereinafter "HEW"1 applying the department's anti-sex discrimination rules to athletic teams when the school district receives federal financial assistance for other programs but none for athletics.
The original complaint in this lawsuit was filed on September 21, 1979. It alleged sex discrimination against the defendant school board, charging that one of the plaintiff's daughters, Pamela, was "cut" from the Pioneer High School's golf team because of her sex. At that time, the school had one golf team. Among other things, the complaint sought a temporary restraining order to have the plaintiff's daughter restored to membership on the golf team. It also prayed for a permanent injunction prohibiting sexual discrimination in the golf team's selection process.
On September 28, 1979, the plaintiff made a motion for a preliminary injunction to require that his daughter be allowed to continue as a member of the 1979 Pioneer High School golf team. Other relief was also requested. On October 1, 1979, the plaintiff's motion for a preliminary injunction was argued before the court and evidence was taken. The motion was denied because the plaintiff failed to show the likelihood of success on the merits.
Thereafter, the plaintiff made a motion for permission to file an amended complaint which, among other things, sought to expand the relief requested to include a claim that the refusal of the school to provide a separate boys' and girls' golf team was a denial of his daughters' rights to equal education opportunities.2 In a May 1, 1980 order, after reviewing the complaint, the court ordered that the document entitled "Complaint Submitted in Substitution for Original Complaint" be docketed and treated as the complaint upon which the case would go forward. The amended complaint was permitted to be filed and the plaintiff dismissed the original claim.
The amended complaint alleged that the school board violated Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681. The complaint also alleged two state claims: (1) violation of Michigan's Elliot-Larsen Civil Rights Act of 1976, M.S.A. §§ 3.548(301), 3.548(302), 3.548(401), and 3.548(402), M.C.L.A. §§ 37.2301, 37.2401, 37.2402; and (2) violation of the Michigan Public Accommodations Act, M.S.A. § 28.334, M.C.L.A. § 750.139. The complaint prayed for: a declaratory judgment that Pioneer High School's interscholastic athletic program was not in compliance with Title IX; an order to require the defendant to develop an "equal" plan; an order requiring the defendant to implement a women's golf team; reimbursement of fees girls had allegedly expended to subsidize their own golfing; and attorney's fees.
Defendant made a motion to dismiss and for summary judgment. The United States Department of Justice filed an amicus brief on behalf of the United States, opposing the defendant's motion. In his answer to the defendant's motion, the plaintiff adopted the Justice Department's brief. (Therefore, the Justice Department's brief will be treated and referred to as the plaintiff's brief.) The Women's Law Fund also filed a motion to intervene as amicus curiae and an accompanying brief. In response to the detailed briefs filed by the Justice Department and the Women's Law Fund, the defendant filed a reply brief in support of its motion.
At the hearing on the motion, the court was informed by the plaintiff that the school board had recently provided for and formed a separate golf team for girls, and that the plaintiff was satisfied and desired to drop all claims against the defendant except the claim for attorney fees for plaintiff's attorney.3 Thus, in determining whether the plaintiff is entitled to recover attorney fees, the court must examine the law and regulations to determine whether the plaintiff could have prevailed under the law and whether the defendant could have been forced to take the action prayed for by the plaintiff in his complaint. If the law would not permit the court to require such action, the plaintiff could not have prevailed and attorney fees should not be awarded.4
During the past 20 years, this country has finally begun to understand and has attempted to alleviate not only blatant and overt discrimination on the basis of sex, but also the subtle ways in which women are treated as less than equal. The struggle by women for equality continues to be one of the most important unfinished problems facing our society in the 1980s. Even though it has received a vast amount of attention by the public and on the part of Congress, the executive, and the courts, and even though leadership among women championing the cause is of high quality, women are not as yet in many walks of life treated in the same way as are their brothers.
This case is but a very small part of that struggle. Girls historically have not received the same attention as have boys, and have not had the same support (both in money and in field level coaching) in scholastic athletic programs. Here two gifted female children are asking for the same attention that is received by their brothers.5 When a possible future Patti Berg or Nancy Lopez reaches out to the courts for help, the court must examine its power and authority carefully to see if there is a way to help.
On the other hand, the judge must remember that he is but one part of a complex governmental structure and that he must act within the framework of assigned governmental power. In the same way, a judge has the responsibility to see that other governmental agents or agencies do not act beyond their power, to see that laws and actions of the executive do not contradict the Constitution, and to see that the various agencies of government do not act beyond the powers given them by the duly elected policymakers of Congress.
No one in this case is contending that the Constitution of the United States has been violated by the action of Pioneer High School in not having a girls' golf team. But the plaintiff does contend that a regulation of HEW has been violated, and the defendant contends that the regulation was not a valid regulation because it extends further than permitted by the law passed by Congress.
Resolution of this novel issue calls for the court to construe Title IX, codified at 20 U.S.C. §§ 1681-1686 hereinafter "Title IX" or 20 U.S.C. §§ 1681-1686, which provides that "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 ...." 20 U.S.C. § 1681(a). Nine exceptions to the statutory right to equal educational benefits are listed, and these exceptions refer generally to activities of institutions and organizations which have traditionally offered admission or membership only to persons of one sex.6
In determining whether the plaintiff's daughters were discriminated against, denied benefits, or refused participation, the court must construe the following key words of the statute: "... under any education program or activity receiving Federal financial assistance ...."
The heart of the defendant's theory is that the requirements of Title IX are programmatic in nature and impose statutory obligations as to only those specific programs or activities which receive direct federal financial assistance. Since the defendant asserts that none of the athletic programs or activities within the Ann Arbor School System has received federal financial assistance in any form,7 it contends that it is not required to have a women's athletic program or activity.
In contrast, the plaintiff asserts that the strictures of Title IX are to be applied on an institutional basis. Plaintiff argues that because the Ann Arbor School Board receives financial assistance for other activities, regulations may prohibit the Board from discriminating against or denying benefits to or excluding girls from golf when there is a boys' team. The plaintiff's theory is predicated on his contention that Title IX applies to any program or activity of any institution which receives federal financial assistance, regardless of whether or not the particular program under attack receives direct federal funding.
For the reasons which will be fully enumerated below, the court finds that the reach of Title IX extends only to those education programs or activities which receive direct federal financial assistance. Inasmuch as the athletic programs within the Ann Arbor Public Schools do not receive federal assistance, Title IX and the regulations passed thereunder by HEW cannot be invoked by the plaintiff in this case.
Although the court is acutely aware of the need for equality among the sexes, within and without educational institutions, the court remains duty bound to apply the laws of Congress only as broadly as they were drafted and only so far as Congress intended them to be applied. The court is also bound by the holdings and reasoning of higher courts which have touched on this issue. Those opinions support the holding this court announces today.
Under 20 U.S.C. § 1682, the Secretary is authorized to promulgate "rules, regulations, or orders of...
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