Petrie v. Illinois High School Ass'n

Mr. JUSTICE CRAVEN, dissenting:

The question presented by this case is whether a public school in Illinois may deny a boy a chance to compete for membership on its volleyball team solely on the basis of his sex when all girls are eligible to so compete and no boys’ team is provided. The answer must be “no.”

Even the Federal cases, relying upon the general due process and equal protection clauses of the United States Constitution, have narrowly limited sex-based discrimination. The United States Supreme Court has stated that “ ‘ “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” ’ ” (Orr v. Orr (1979), 440 U.S. 268, 279 , 59 L. Ed. 2d 306, 319 , 99 S. Ct. 1102, 1111 .) In Illinois, in view of our specific constitutional mandate against sex discrimination, the prohibition is even stronger. In upholding this court’s rejection of a State statute which discriminated against males by subjecting them to criminal prosecution at an age younger than that for criminal prosecution of females, the Illinois Supreme Court said:

“[W]e find inescapable the conclusion that it [article I, sec. 18, of the Constitution of 1970] was intended to supplement and expand the guaranties of the equal protection provision of the Bill of Rights and requires us to hold that a classification based on sex is a ‘suspect classification’ which, to be held valid, must withstand ‘strict judicial scrutiny.’ ” People v. Ellis (1974), 57 Ill. 2d 127, 132-33 , 311 N.E.2d 98, 101 .

The rule which bars plaintiff Petrie from competing at volleyball in this case is not really even a school regulation. Rather, the school is denying this young man access to athletic competition in deference to the rules of the Illinois High School Association (IHSA), a private organization which for practical purposes appears to be setting public educational policy. It behooves the court and the member schools to ask by what warrant the IHSA from its position of anonymity determines which of our young men and women shall be allowed access to the rights and privileges of public education.

It appears from the pleadings that IHSA is funded by public funds— membership fees from the schools derived from taxes, and receipts from athletic contests on school or other public property. IHSA seems to enjoy the best of both worlds — use of public funds and public facilities and, indeed, effective control of educational policy in the field of athletics, yet it enjoys immunity from public control and even from public scrutiny. The IHSA seems to be performing in an area that even a beginning civics student would think government would have sole responsibility. Perhaps at least one affirmative benefit of this litigation will be legislative examination of this unique and powerful role by a private organization in governmental affairs.

Can this privately adopted and imposed classification by sex withstand “strict scrutiny” after it is implemented by the defendant school board? The Federal courts have long rejected categorizations based upon outmoded concepts of the respective capabilities and inclinations of the sexes. Reed v. Reed (1971), 404 U.S. 71 , 30 L. Ed. 2d 225 , 92 S. Ct. 251 (invalidating an Idaho statute that gave mandatory preference to males over females in the appointment of estate administrators); Stanley v. Illinois (1972), 405 U.S. 645 , 31 L. Ed. 2d 551 , 92 S. Ct. 1208 (overturning an Illinois statute which effectively presumed the unfitness of unmarried fathers to care for their children in the event of the mother’s death); Frontiero v. Richardson (1973), 411 U.S. 677 , 36 L. Ed. 2d 583 , 93 S. Ct. 1764 (overturning a Federal statute limiting the right of a female member of the uniformed services to claim her spouse as a dependent, where males were subject to no such limitations); Weinberger v. Wiesenfeld (1975), 420 U.S. 636 , 43 L. Ed. 2d 514 , 95 S. Ct. 1225 (invalidating a social security provision denying insurance benefits to surviving widowers with children in their care while authorizing benefits to widows with children in their care); Stanton v. Stanton (1975), 421 U.S. 7 , 43 L. Ed. 2d 688 , 95 S. Ct. 1373 (declaring invalid a State statute that provided for support payments to a female child of a divorced parent until age 18 while providing for the same payments to a male child until age 21); Craig v. Boren (1976), 429 U.S. 190 , 50 L. Ed. 2d 397 , 97 S. Ct. 451 (overturning an Oklahoma statute prohibiting the sale of 3.2 percent beer to males under the age of 21 while allowing its sale to females of age 18 and above); Califano v. Goldfarb (1977), 430 U.S. 199 , 51 L. Ed. 2d 270 , 97 S. Ct. 1021 (rejecting the payment, under the Federal Old-Age, Survivors, and Disability Insurance Benefits law, of benefits to all eligible widows but to widowers only where the widower had received at least one-half of his support from his deceased wife); Orr v. Orr (1979), 440 U.S. 268 , 59 L. Ed. 2d 306 , 99 S. Ct. 1102 (overturning an Alabama statute that said only women could claim alimony after a divorce).

Moreover, numerous Federal decisions stand for the specific proposition that students may not be denied access to the full range of the public school athletic program solely on the basis of sex. Brenden v. Independent School District 742 (8th Cir. 1973), 477 F.2d 1292 ; Gomes v. Rhode Island Interscholastic League (D. R.I. 1979), 469 F. Supp. 659 (subsequently declared moot by the United States Court of Appeals, First Circuit, Docket No. 79-1181, August 31, 1979); Yellow Springs Exempted Village School District Board of Education v. Ohio High School Athletic Association (S.D. Ohio 1978), 443 F. Supp. 753 ; Hoover v. Meiklejohn (D. Colo. 1977), 430 F. Supp. 164 ; Cape v. Tennessee Secondary School Athletic Association (E.D. Tenn. 1976), 424 F. Supp. 632 ; Gilpin v. Kansas State High School Activities Association, Inc. (D. Kan. 1973), 377 F. Supp. 1233 .

Though the defendants in this case have made much of the fact that most of the athletic cases involve suits by girls who have been excluded from boys’ teams, there can no longer be any question but that freedom from discrimination is a two-way door. As the Supreme Court noted with reference to racial discrimination in Regents of the University of California v. Rakke (1978), 438 U.S. 265, 290 , 57 L. Ed. 2d 750, 771 , 98 S. Ct. 2733, 2748 , “If both are not accorded the same protection, then it is not equal”; or, as Justice Powell stated in his concurring opinion:

“It is far too late to argue that the guarantee of equal protection to all persons permits the recognition of special wards entitled to a degree of protection greater than that accorded others.” ( 438 U.S. 265, 295 , 57 L. Ed. 2d 750, 774 , 98 S. Ct. 2733, 2751 .)

Stanley, Weinberger, Craig, Goldfarb, and Orr all overturned statutes discriminating against men and in favor of women. In Hoover, where the complainants happened to be female students excluded from the soccer team, the court noted that numerous sports not involved in the litigation were sex segregated, among them the all-girl volleyball competition, but nevertheless ruled: “What is required is that whatever opportunity is made available be open to all on equal terms.” ( 430 F. Supp. 164, 171 .) In Gomes, which arose from a fact situation virtually identical with that in the instant case, the Federal District Court for the District of Rhode Island ordered that a qualified male be allowed to compete for a space on the formerly all-girl volleyball team.

The difficulty with the defendants’ position is that they are attempting to achieve a laudable goal — ensuring a chance for athletic competition to both large and small, strong and weak students — by an impermissible means. While it may in fact be true that most boys are generally larger and stronger than most girls, due process bars classifications based upon such permanent presumptions where individual determinations may, and in fact do, rebut them. (Yellow Springs; Hoover.) Sex-based generalizations have been discarded in many cases where there was statistical support for the presumption upon which the classifications were based. In Reed, for instance, the court was unwilling to tolerate a mandatory preference for males over females as estate administrators, even while acknowledging that men, as a class, may indeed be more conversant with business. In Frontiero, Goldfarb, Stanton, and Weinberger, classifications based upon the presumption that men are more likely than women to be the support of their families were overturned, even though, as the court noted in Weinberger, there is some empirical support for that generalization. ( 420 U.S. 636, 645 , 43 L. Ed. 2d 514, 523 , 95 S. Ct. 1225, 1231-32 .) In fact, as the court noted in Craig, where the necessity of barring the sale of 3.2 percent beer to males under 21 and females only under 18 was urged in reliance on traffic safety and arrest statistics, the weakness of such statistics as predictors of any one individual’s behavior “merely illustrates that proving broad sociological propositions by statistics is a dubious business, and one that inevitably is in tension with the normative philosophy that underlies the Equal Protection Clause.” 429 U.S. 190, 204 , 50 L. Ed. 2d 397, 411 , 97 S. Ct. 451, 460 .

Defendants here argue that boys must be excluded from the all-girl volleyball team in order to allow the girls a fair chance to compete. In support of their position, they cite statistics on the relative height, strength, and physical development of the average male and the average female of high school age. In short, their position is actually not that they are protecting girls from boys or vice versa, but rather that they are protecting weaker from stronger athletes. The fallacy in their position is revealed by the fact that, although the differences in size and strength within each sex are shown by the evidence to be greater than the differences between the averages for the two sexes, no provision has been made to protect smaller, weaker females from competition with larger, stronger females, or smaller, weaker males from competition with larger, stronger males. It was just such a failure which prompted the court in Hoover to reject the school district’s alleged rationale for its sexually discriminatory policy.

In rejecting a high school athletic association rule barring mixed sex competition in Pennsylvania, the court, ruling on the basis of a constitutional prohibition against sex discrimination very much like ours, noted:

“The existence of certain characteristics to a greater degree in one sex does not justify classification by sex rather than by the particular characteristic.” (Commonwealth of Pennsylvania v. Pennsylvania Interscholastic Athletic Association (1975), 18 Pa. Commw. 45, 52 , 334 A. 2d 839, 843 .)

Similar sentiments were expressed in Hoover, Yellow Springs, Gilpin, and Brenden.

Surely, not even the majority here, nor society generally, would condone the exclusion of blacks from an all-white basketball team on the grounds that blacks generally are more skilled at the game than whites and might tend to dominate it. Nor would we tolerate an exclusion of Catholics from an all-Protestant high school soccer team on the grounds that Catholic elementary schools have traditionally emphasized that sport so as to give their graduates an unfair advantage. Yet the constitutional prohibition against sex discrimination in Illinois is more specific than that against either racial or religious discrimination. There are legally tolerable means of categorizing athletes by size, strength, and ability. To adopt sex as a proxy for more precisely defined means of leveling off competition is both illegal and irrational. It is simply foolish to perpetuate the fear of equality between sexes. It is more than foolish to justify discrimination upon the asserted basis of protection and allowing “catch up” time.

This litigation started to see whether Trent Petrie could play volleyball when the only volleyball team available was one limited to girls. Ironically, the majority opinion of Mr. Justice Green recognizes that some girls may be better volleyball players than some boys, and indeed on this particular team such may be the fact. Trent Petrie may not have made the team based upon criteria unrelated to sex. The majority opinion is but a labored effort to defend and approve a classification that is proscribed. As Mr. Justice Stevens stated in City of Los Angeles v. Manhart (1978), 435 U.S. 702, 708-09 , 55 L. Ed. 2d 657, 665-66 , 98 S. Ct. 1370, 1375-76 , in speaking of a statute that proscribed discrimination based on sex:

“It precludes treatment of individuals as simply components of a racial, religious, sexual, or national class. If height is required for a job, a tall woman may not be refused employment merely because, on the average, women are too short. Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply.

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Even if the statutory language were less clear, the basic policy of the statute requires that we focus on fairness to individuals rather than fairness to classes.”

Finally, the ultimate cruel element in the discrimination approved is that the majority seeks to “protect” - females because of an implied conclusion that “they” are again to be classified as weak and inferior. Because females are deemed to be weak and inferior, the majority concludes that they need to be special wards protected by this misplaced, gratuitous, judicial benevolence. I prefer to be identified with such reasoning only in dissent.