Petrie v. Illinois High School Ass'n

Decision Date06 September 1979
Docket NumberP,No. 4,D,No. 15362,4,15362
Parties, 31 Ill.Dec. 653 Trent PETRIE, by his Parent and Next Friend, Pattsi Petrie, Plaintiff-Appellant, v. ILLINOIS HIGH SCHOOL ASSOCIATION, Joseph J. Sirchio, Don Mellon, John Dowling, Raymond E. Collier, John Lavelle, David McClintock, and Charles W. Smith, Individually, and as Directors of Illinois High School Association, and Lavere L. Astroth, Executive Secretary, Illinois High School Association, and Champaign Community Unit School Districteter Shoresman, George Wood, Philip Hopke, Lawrence O'Reilly, Virginia Perruca, and Verna Rowland, Individually, and as Members of the Board of Education of Champaign Community Unit School District, and Marshall Berner, Superintendent, Champaign Community Unit School Districtefendants-Appellees.
CourtUnited States Appellate Court of Illinois

Marc J. Ansel of Ansel, Eisenberg & Marsh, Champaign, for plaintiff-appellant.

Rooks, Pitts, Fullager & Poust, Chicago, Franklin, Flynn & Palmer Champaign, for defendants-appellees; John G. Poust, Wayne F. Plaza, Margaret S. Garvey, Chicago, John L. Franklin, Daniel A. Baechle, Champaign, of counsel.

GREEN, Justice:

Plaintiff Trent Petrie by his mother and next friend, Pattsi Petrie challenges (1) a rule of Champaign Central High School (Central) operated by defendant Champaign Community Unit School District No. 4 (Unit 4) which restricts membership on the sole volleyball team sponsored by the school to girls, and (2) rules of defendant Illinois High School Association (IHSA), a voluntary association of public and private high schools of the state, which restrict membership on the teams participating in the only volleyball tournament sponsored by it to girls.

On September 14, 1978, plaintiff brought suit in the circuit court of Champaign County seeking an injunction against Unit 4's enforcement of its rule which prohibited him from playing on the volleyball team and against IHSA rules which prevented him from competing in the only IHSA sponsored state volleyball tournament. During subsequent proceedings, a temporary restraining order and a preliminary injunction were denied. Later, after a hearing on the merits, plaintiff's suit was dismissed for want of equity. Plaintiff appeals from that order.

At the hearing on the merits, some of the evidence was received by stipulation, and the parties agreed that evidence received at the hearing on the request for preliminary injunction might be considered. Plaintiff was shown to then be a 16-year-old junior, 5'11 in height and 170 lbs. in weight, who had reported for the team and had been practicing with it when informed by school officials that he could not play in games with other schools because of defendants' rules. Much of the evidence including the matters set forth in the opening paragraph was not disputed. The other details of the evidence can best be discussed with the points of law to which they relate.

The trial court reasoned that the prohibitions against boys were classifications based on sex but were justified because they preserved, fostered and increased athletic competition for girls and prevented unfair competition that would arise from male dominance of the game. Defendants seek to support the decision on the same basis. Plaintiff agrees that there is a valid state interest in preserving, fostering and increasing athletic opportunities for girls but strongly disagrees that there is any important state interest in avoiding an imbalance in competition or preventing a male dominance. He also asserts that the classification is both overbroad and underbroad and uses sex as a proxy for the actual target as a mere matter of convenience. Although plaintiff does not concede that Central and IHSA may have separate volleyball teams and tournaments for boys and girls, the major thrust of his argument is that it is constitutionally impermissible to have volleyball teams and tournaments only for girls without opportunity for participation by boys.

There is no dispute that to be valid the regulations attacked must meet the requirements of the due process clause of the fourteenth amendment as well as article I, section 18, of the Illinois Constitution of 1970, which prohibits "the State or its units of local government and school districts" from denying or abridging equal protection of the laws on account of sex. Unit 4 is a school district and its action is state action regulated by the fourteenth amendment. IHSA's status is not as clear, but it concedes that because of its formation as an organization of schools, mostly public, its actions are also that of the State. Defendants also concede the applicability of section 27-1 of the School Code which states in part:

"No student shall, solely by reason of that person's sex, be denied equal access to physical education and interscholastic athletic programs or comparable programs supported from school district funds. Equal access to programs supported from school district funds and comparable programs will be defined in guidelines promulgated by the State Board of Education in consultation with the Illinois High School Association." Ill.Rev.Stat.1977, ch. 122, par. 27-1.

The United States Supreme Court has never treated classifications based on gender as suspect and subject to strict scrutiny as it has done with those based on such factors as race, alienage and nationality. (In re Griffiths (1973), 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910.) Rather, it has held in Craig v. Boren (1976), 429 U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397, 407, that gender based classifications "must serve important governmental objectives and must be substantially related to achievement of those objectives." A similar statement has also been applied in Orr v. Orr (1979), 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306; Califano v. Webster (1977), 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360; and Califano v. Goldfarb (1977), 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270.

The provision of article I, section 18, of the Illinois Constitution of 1970, prohibiting a denial of equal protection because of sex was first interpreted and applied by the Illinois Supreme Court in People v. Ellis (1974), 57 Ill.2d 127, 311 N.E.2d 98. The court found to be invalid section 2-7(1) of the Juvenile Court Act (Ill.Rev.Stat.1971, ch. 37, par. 702-7(1) ) which at the time the offenses charged were committed provided that no boy under 17 and no girl under 18 at the time of the alleged offense could be prosecuted under the criminal laws of the state.

The court referred to the debate which occurred when section 18 was proposed on the floor of the convention as an amendment to the report of the Bill of Rights Committee. Proponents of the amendment had argued that courts had interpreted the general equal protection clause in such a manner that classifications based on sex were common and proper so that the proponents felt that such an amendment was necessary in order to guarantee women the same type of equality granted, for example, to blacks. (5 Record of Proceedings, Sixth Illinois Constitutional Convention 3669, 3675-76.) In view of the debates and the specific language of the provision, the court found "inescapable" the conclusion that section 18 was intended to supplement and expand the guarantees of the general equal protection clause and, therefore, ruled that "a classification based on sex is a 'suspect classification' which, to be held valid, must withstand 'strict judicial scrutiny.' " 57 Ill.2d 127, 132-33, 311 N.E.2d 98, 101.

The state interest required to meet the federal "strict scrutiny" standard has been described by the United States Supreme Court as "overriding" (Loving v. Virginia (1967), 388 U.S. 1, 11, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010, 1017); "compelling" (Graham v. Richardson (1971), 403 U.S. 365, 375, 91 S.Ct. 1848, 1854, 29 L.Ed.2d 534, 544); or "substantial" (In re Griffiths (1973), 413 U.S. 717, 722, 93 S.Ct. 2851, 2855, 37 L.Ed.2d 910, 915). The Ellis court found "no compelling state interest" which justified the disparate treatment. Necessity to accomplish the government interest has also been stated to be a required element in meeting the Federal "strict scrutiny" standard (E. g., In re Griffiths; Loving ). Ellis did not discuss this factor.

Illinois supreme court cases subsequent to Ellis Have not further explained the "strict scrutiny" standard as it is to be applied in Illinois. In People v. Boyer (1976), 63 Ill.2d 433, 349 N.E.2d 50, Cert. denied, 429 U.S. 1063, 97 S.Ct. 789, 50 L.Ed.2d 779, sections 11-10 and 11-11 of the Criminal Code (Ill.Rev.Stat.1973, ch. 38, pars. 11-10, 11-11), which make incest committed by a father with a daughter a more serious offense than that committed by a mother with a son, were held to be valid. The court reasoned that the child was the victim of incest, and that when the victim was a female who could become pregnant, the damage was greater than when the victim was a male. The court questioned whether the classification was one based entirely on gender but stated that if it was, the foregoing reasoning justified it under the strict scrutiny standard. Again, the element of necessity was not discussed.

Neither the United States Supreme Court nor the courts of review of this state have previously dealt with gender based classifications as related to eligibility to participate on athletic teams or in athletic events. Cases from other jurisdictions are of recent origin. In Brenden v. Independent School Dist. 742 (8th Cir. 1973), 477 F.2d 1292; Morris v. Michigan State Bd. of Educ. (6th Cir. 1973), 472 F.2d 1207; Gilpin v. Kansas State High School Activities Ass'n., Inc. (D.Kan.1973), 377 F.Supp. 1233; Reed v. Nebraska School Activities Ass'n. (D.Neb.1972), 341 F.Supp. 258; and Haas v. South Bend Community School Corp. (1972), 259 Ind. 515, 289 N.E.2d 495, rules prohibiting capable girls from playing on boys'...

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