Yellow Springs Exempted Village School Dist. Bd. of Ed. v. Ohio High School Athletic Ass'n

• Citation: 647 F.2d 651
• Decision Date: 28 April 1981
• Docket Number: 78-3132,Nos. 78-3131,s. 78-3131
• Parties: YELLOW SPRINGS EXEMPTED VILLAGE SCHOOL DISTRICT BOARD OF EDUCATION, et al., Plaintiffs-Appellees, v. OHIO HIGH SCHOOL ATHLETIC ASSOCIATION, et al., Defendants-Appellants. YELLOW SPRINGS EXEMPTED VILLAGE SCHOOL DISTRICT BOARD OF EDUCATION, et al., Plaintiffs-Appellees, v. OHIO STATE BOARD OF EDUCATION, et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 651

647 F.2d 651 YELLOW SPRINGS EXEMPTED VILLAGE SCHOOL DISTRICT BOARD OF
EDUCATION, et al., Plaintiffs-Appellees,
v.
OHIO HIGH SCHOOL ATHLETIC ASSOCIATION, et al.,
Defendants-Appellants.
YELLOW SPRINGS EXEMPTED VILLAGE SCHOOL DISTRICT BOARD OF
EDUCATION, et al., Plaintiffs-Appellees,
v.
OHIO STATE BOARD OF EDUCATION, et al., Defendants-Appellants. Nos. 78-3131, 78-3132. United States Court of Appeals,
Sixth Circuit. Argued Feb. 12, 1980.
Decided April 28, 1981.

Page 652

Henry Maser, Carlisle O. Dollings, Columbus, Ohio, for Ohio High School Athletic Assn.

Thomas F. Staub, Gary E. Brown, Thomas V. Martin, Asst. Attys. Gen., for Ohio State Bd. of Ed.

Randal S. Bloch, Wagner & Bloch, , Cincinnati, Ohio, Barbara Kaye Besser, Charles Guerrier, Jane M. Picker, Cleveland, Ohio, for plaintiffs-appellees.

Before BROWN, KENNEDY and JONES, Circuit Judges.

CORNELIA G. KENNEDY, Circuit Judge.

Appellee Yellow Springs filed suit against appellants, Ohio State Board of Education, its members, and Ohio High School Athletic Association (OHSAA), asking that the District Court declare a rule of the OHSAA proscribing coeducational teams in contact sports a violation of Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681 et seq., and unconstitutional and enjoin defendants from enforcing it. The District Court granted plaintiffs' motion for summary judgment, holding that the OHSAA's activities constituted state action; that the regulation, 45 C.F.R. § 86.41, on which the OHSAA asserted its rule was based was unconstitutional; and that the Ohio State Board of Education, the State Superintendent of Public Instruction and Robert Holland, Assistant Director of Health, Physical Education and Recreation at the Ohio Department of Education (hereinafter state defendants) were liable for the actions of the OHSAA and properly enjoined. Appellants, state defendants and the OHSAA, urge this court to reject each of these conclusions of law and reverse the judgment of the District Court.

Yellow Springs is a very small school district composed of 950 students, 220 of whom were in the middle school, at the time suit was filed. The school district determined that at the middle school level mixed-sex athletic teams have educational advantages and thus tried to emphasize coeducational activities in general. This decision was based on the school district's observation that girls and boys at this level have essentially the same athletic skills. However, Yellow Springs was unable to offer a coed basketball team, because the rules of the OHSAA prohibit coed teams in interscholastic contact sports, and basketball is defined as a contact sport. This practice was called into question when in the fall of 1974 two Yellow Springs middle school girls tried out for and made the boys' basketball team. They were not permitted to participate since if Yellow Springs attempted to field girl team members it would be prohibited by the OHSAA from participating in interscholastic competition. The school district then attempted to set up a girls' team; however, there were no other girls' teams against which it could play that year. It has since fielded a girls' team. Yellow Springs also attempted by a referendum of member schools of the OHSAA to change the rule to permit coed teams within an individual school's discretion but was unsuccessful. Fearing that compliance with the OHSAA rule violated federal law and might render it ineligible for federal funds, Yellow Springs filed this suit.

The OHSAA is a voluntary unincorporated association to which virtually all senior high schools (defined as schools which have seventh grade students and above) in Ohio belong. It therefore includes as members junior high school, middle schools, and senior

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high schools. It was organized in the 1920's by various school administrators who wanted to achieve many of the benefits of such a body since they were not provided by the State Board of Education. The OHSAA organizes competitions, sets up schedules, arranges places to play tournament games (including school facilities), and provides injury insurance. It also prescribes uniform rules of play and has the power to sanction schools which violate them. Schools belong as individuals, and both state-accredited private and public schools may be members. The overwhelming majority of members, approximately 90% from 1972 to 1976, are public schools.

In order to be a member of the OHSAA, a school must be accredited by the State Board of Education. Membership in the OHSAA is a virtual necessity, since the State Board does not provide any interscholastic athletic programs although it has the authority to do so. Considering the importance of athletics to a well-rounded education, it is evident that individual schools or school districts would be required to find a replacement for the OHSAA's activities if the OHSAA did not exist. There has naturally grown up an entanglement, both actual and perceived, between individual schools and the OHSAA. For example, throughout his deposition, Dr. Harold Meyers, OHSAA Commissioner, referred to the schools' coaches as "our coaches." Individual schools may vote on and approve rules and regulations of the OHSAA and may also be expelled from membership if they do not comply. School budgets provide funding for training and travel to OHSAA meets, and the OHSAA returns some money to schools if it operates with a surplus in a particular year. Most of the OHSAA's budget of approximately one million dollars is generated through tournaments, many of which are held on school or public property. Local school board members have an interest in and have participated voluntarily in governing the OHSAA.

Although state law provides no authority for the State Board to engage in activities such as those of the OHSAA, the State Board does participate in and has influenced the OHSAA's activities. It cooperates by providing information concerning school eligibility while individual schools provide similar information concerning students. The State Board provides one of its assistant members, who also oversees extracurricular athletics, as a member ex officio of the OHSAA Board of Commissioners. He has no vote, but he does provide advice to the OHSAA and reports back to the State Board. In fact it was the State Board member who earlier advised the OHSAA that another of its rules (which was thereafter changed) might not be in compliance with the regulations under Title IX.

The District Judge found that the OHSAA's activities constituted state action. He found that the OHSAA was dependent on the use of public facilities for its operating revenue and noted the involvement of public officials in OHSAA decisionmaking. The trial judge found that public schools predominated in its membership. Finally, the District Judge found significant the OHSAA's ability to sanction state schools for noncompliance with its rules, a role which permitted "a technically non-governmental entity to dictate terms to a state entity." For example, its rules have provided that the school administrator must assume the financial responsibility for interscholastic athletics and may not delegate the responsibility to other members of the staff except under certain conditions.

The rules even regulate school participation in non-OHSAA meets. The judge concluded that the OHSAA functioned as an instrumentality of the state and as an agent of the schools. The OHSAA's character as a semi-official in its activities and its symbiotic relationship with the state, Fortin v. Darlington Little League, Inc., 514 F.2d 344, 347 (1st Cir. 1975), lead to the conclusion that the trial judge correctly found state action. See Gilpin v. Kansas State High School Activities Association, 377 F.Supp. 1233, 1237 (D.Kan.1973); Bucha v. Illinois High School Association, 351 F.Supp. 69, 73 (N.D.Ill.1972); Reed v. Nebraska School Activities Association, 341 F.Supp. 258, 260-61 (D.Neb.1972).

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The trial judge held that the state defendants were proper parties to be enjoined. He held that in order to enjoin the state it must be shown that state officials either have a duty to enforce a challenged rule or a duty to prevent its enforcement by subordinates. He held that a cause of action exists under the second standard if the state defendants either knew or should have known of allegedly unconstitutional activity of their subordinates and encouraged it or took no steps to prevent it. The trial judge found that the state defendants do exercise some control over local boards of education and that they knew the local boards were implementing the rules of the OHSAA. He found that the state defendants substantially contributed to the creation of the unconstitutional rule by permitting the OHSAA to use public facilities and thus had a duty to end it.

This Court has dealt more specifically with state board of education liability in discrimination cases since the trial judge wrote his opinion. In Penick v. Columbus Board of Education, 583 F.2d 787 (6th Cir. 1978), aff'd, 443 U.S. 449, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979), although the District Judge had found intentional support for segregation in a state board's failure to take action to end the segregation, this Court found it necessary to remand for more detailed fact-finding on the following specific issues: (1) the state board's knowledge of intentional practices by the local board; (2) the state board's failure to protest or restrain the local board; (3) the state board's continuing support of the local board in the face of such knowledge; (4) the motivation of the state board in failing to investigate; and (5) the effect of findings under (1) through (4). Id. at 818; accord, Reed v. Rhodes, 607 F.2d 714, 718 (6th Cir. 1979), cert. denied, 445 U.S. 935, 100 S.Ct. 1329, 63 L.Ed.2d 770 (1980). We conclude that under the teachings of Penick and Reed we must remand. These questions cannot be answered on the...