YELLOW SP. EXEMPTED VIL. SCH. DIST. v. OHIO H. SCH., ETC.

• Decision Date: 09 January 1978
• Docket Number: No. C-3-76-205.,C-3-76-205.
• Citation: YELLOW SP. EXEMPTED VIL. SCH. DIST. v. OHIO H. SCH., ETC., 443 F.Supp. 753 (S.D. Ohio 1978)
• Parties: YELLOW SPRINGS EXEMPTED VILLAGE SCHOOL DISTRICT BOARD OF EDUCATION et al., Plaintiffs, v. OHIO HIGH SCHOOL ATHLETIC ASSOCIATION et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

443 F. Supp. 753

YELLOW SPRINGS EXEMPTED VILLAGE SCHOOL DISTRICT BOARD OF EDUCATION et al., Plaintiffs, v. OHIO HIGH SCHOOL ATHLETIC ASSOCIATION et al., Defendants.

No. C-3-76-205.

United States District Court, S. D. Ohio, W. D.

January 9, 1978.

Randal S. Bloch, Cincinnati, Ohio, Barbara Kaye Besser, Cleveland, Ohio, for plaintiffs.

Henry Maser and Carlisle Dollings, Columbus, Ohio (Ohio Athletic Ass'n), Roy F. Martin and Thomas F. Staub, Asst. Attys. Gen., Columbus, Ohio, for defendants.

ORDER

CARL B. RUBIN, District Judge.

This matter is before the Court on cross motions for summary judgment. By agreement counsel have submitted legal memoranda and stipulations in lieu of evidence and testimony.

In accordance with Rule 52 of the Federal Rules of Civil Procedure, the Court does submit herewith its Findings of Fact and Conclusions of Law.

I

FACTS

1. Three groups of litigants are involved in this action: The Ohio High School Athletic Association (Association); Robert Holland, Assistant Director of Health, Physical Education and Recreation, Ohio Department of Education, Franklin B. Walter, Superintendent of Public Instruction, Ohio Department of Education, and the Ohio Board of Education (State Defendants); and The Yellow Springs Exempted School District Board of Education (Board).

2. The Association is a nonprofit organization¹ which coordinates interscholastic athletic activity among secondary schools in Ohio.² It is composed of approximately 830 secondary schools, most of which are public,³ and it is supported by gate receipts collected at sports tournaments that are held at public school facilities.⁴ Membership is voluntary⁵ and is available to any secondary school accredited by the Ohio Department of Education.⁶

3. The Association administers interscholastic athletic programs through its scheduling and rule-making functions. The rules which it promulgates are binding upon its members and may not be waived.⁷ Members who disregard them are subject to suspension from the Association.⁸ Such suspension, in effect, eliminates a school from any interscholastic athletic competition since Association members are prohibited from competing against nonmembers.⁹

4. The State defendants are charged with establishing and implementing minimum standards for secondary schools in Ohio. The Ohio Board of Education exercises the "policy forming, planning and evaluative function for the public schools of the state."¹⁰ Alternatively, the Ohio Department of Education is the administrative unit and organization through which the policies, directives, and powers of the state board of education . . . are administered."¹¹

5. The State defendants do not exercise direct control over interscholastic athletic competition within Ohio. Although an Assistant Director of the Ohio Department of Education is an ex officio member of the Association's governing board,¹² he cannot vote.¹³ The State defendants do not have a duty to enforce Association rules since athletics are not a minimum requirement for public schools.¹⁴ Insofar as the Ohio Board of Education controls local school district policy through financial leverage,¹⁵ the State defendants can indirectly control Association policy since the Association's governing board is composed of representatives from the six District Boards of Education.¹⁶

6. The Board operates a public school system in Yellow Springs, Ohio. It is given approximately 1.5 million dollars annually¹⁷ to educate 950 students.¹⁸ Although local taxes are a major source of income,¹⁹ the State of Ohio contributes $375,000 per year to the Board,²⁰ while between $40,000 and $50,000 is received from the federal government.²¹ Because the Board uses three-quarters of this latter sum to run general programs, including athletics,²² the Board is subject to the requirements of Title IX of the Education Amendments of 1972.²³ Since some of the schools within its jurisdiction belong to the Association,²⁴ the Board is also sensitive to Association requirements.

7. The activity which forged this dispute occurred in 1974. Two female students, who were enrolled in a school within the Board's jurisdiction,²⁵ competed for and were awarded positions on the school's interscholastic basketball team.²⁶ Because of their sex, the Board excluded them from the team²⁷ and, instead, created a separate girls' basketball team on which they could participate.²⁸

By so doing, the Board complied with Association Rule 1, § 6,²⁹ which prohibits mixed gender interscholastic athletic competition in contact sports, such as basketball. A failure of such exclusion would place in jeopardy membership in the Association and would exclude the basketball team from interscholastic competition.³⁰

OPINION

These questions require determination:

A. Are the State defendants proper parties?

B. Is State action present?

C. Have the State defendants and the Association violated the Fourteenth Amendment of the United States Constitution?

Although the Board also is claiming under Title 42, United States Code, Section 1983, that claim is subsumed under the Fourteenth Amendment claim.³¹

A. Proper Party Determination

The State defendants contend that they neither directly nor indirectly promote Association policy and therefore are not responsible for it. Interscholastic athletic policy allegedly is formulated by the Association alone. Although an Assistant Director of the State Department of Education is an ex officio member of the Association's governing board, he may not vote on policy matters. Moreover, the State defendants urge that they do not indirectly enforce Association policy. Since interscholastic athletics is not a minimum educational requirement of the State, membership in the only organization which provides for it allegedly is not compelled by State policy.

Before a State officer may be sued in an action to enjoin the enforcement of an allegedly unconstitutional regulation, the plaintiff must show that the officer either had a duty to enforce the challenged regulation, Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Fitts v. McGhee, 172 U.S. 516, 19 S.Ct. 269, 43 L.Ed. 535 (1966); McCrimmon v. Daley, 418 F.2d 366 (7th Cir. 1969); Coon v. Tingle, 277 F.Supp. 304 (N.D.Ga.1967), or that he had a duty to prevent its enforcement by subordinates, Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939); Lewis v. Kugler, 446 F.2d 1343 (3rd Cir. 1971); Schnell v. City of Chicago, 407 F.2d 1084 (7th Cir. 1969); Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966); Boyd v. Gullett, 64 F.R.D. 169 (D.Md.1974); Wheeler v. Goodman, 298 F.Supp. 935 (D.N.C.1969).

If the State defendants were judged solely by the first standard, they would be improper parties. The Board has not established that the State defendants have enforced a technically non-governmental regulation, let alone that they are charged with its enforcement. Moreover, this is not a situation in which the State has relied upon a non-governmental entity to enforce State standards. The absence of minimum standards for athletics demonstrates that the State does not compel membership in the Association and compliance with its rules.

However, it is equally well-settled that a claim is stated against State supervisory personnel if they knew, or should have known, of allegedly unconstitutional action by their subordinates and encouraged it or took no steps to prevent it. Hague, supra; Lewis, supra; Schnell, supra; Lankford, supra; Boyd, supra; Wheeler, supra. "In either situation, if the . . . officials had a duty . . . to prevent the officer under their direction from committing (the allegedly unconstitutional acts), they are proper defendants." Schnell, supra, at 1086.

This is the case here.³² First of all, there is a supervisor/subordinate relationship between the State defendants and the Board. The State exercises limited control over local school districts by its financial support of school programs³³ and by its ability to revoke school charters for non-compliance with minimum educational requirements.³⁴ Moreover, it is clear that the State defendants knew their subordinates were implementing Association rules since an Assistant Director of the State Department of Education is an ex officio member of the Association's governing board. Finally, a duty to prevent the allegedly unconstitutional conduct of the local schools can be constructed. The school desegregation cases teach that state officers are obligated to eliminate an allegedly unconstitutional impediment if they substantially contributed to its creation. Bradley v. Milliken, 540 F.2d 229 (6th Cir. 1976). Accordingly, since Association revenue is contingent upon State consent to use public facilities to hold Association sponsored tournaments, the State defendants are proper parties to a lawsuit which alleges that they failed to end unconstitutional conduct of their subordinates.³⁵

B. State Action

The determination of whether a State athletic association's conduct constitutes State action is factually based. Louisiana High School Athletic Ass'n. v. St. Augustine High School, 396 F.2d 224 (5th Cir. 1968). Of the many indicia of State action, four are especially probative: association dependence upon the State for operating revenue, Louisiana, supra; Reed v. Nebraska School Activities Ass'n., 341 F.Supp. 258 (D. Neb.1972); Oklahoma High School Athletic Ass'n. v. Bray, 321 F.2d 269 (10th Cir. 1963); involvement by school officials in the decision-making process of the association, Reed, supra; Brenden v. Independent School District 742, 342 F.Supp. 1224 (D.Minn.1972); predominance of public schools within association membership, Louisiana, supra; and association ability to impose sanctions upon State schools, i.e., State agencies, for non-compliance with association mandates, Louisiana, supra; Oklahoma, supra; Reed, supra.

Given these criteria, there can be no doubt that the Association has been acting as an...