concluding that the administration of interscholastic athletics by the IHSAA should be considered "state action" within the meaning of the Fourteenth Amendment
How later courts described this case
- concluding that the administration of interscholastic athletics by the IHSAA should be considered "state action" within the meaning of the Fourteenth Amendment
- IHSAA rule prohibiting participation of females in male athletic contests violates equal protection if there is no female athletic program
- “It is well established that the rights intended to be protected under both constitutional provisions are identical.”
- “The enforcement of the rules promulgated by the IHSAA and adopted by the member schools may have a substantial impact upon the rights of students enrolled in these tax supported institutions, and we conclude, therefore, that the administration of interseholastic athletics by the IHSAA should be considered to be ‘state action’ within the meaning of the Fourteenth Amendment.”
Written by the judges who cited it.
The opinion
Dissenting Opinion
Arterburn, C.J.
I concur in the main tenor of the majority opinion, but not in the result. The Indiana High School Athletic Association, I would agree, is a quasi-public organization which has monopolistic control over the interscholastic athletic activities of practically all the high schools in Indiana. This control is such that no school, from a practical point of view,: can participate in any interscholastic athletic contest except as a member of the Association. Where such control is exercised over public functions, such an organization becomes public in a de facto sense and can not act arbitrarily or capriciously in violation of the public interest. The Association’s rulings in such cases, if unreasonable, are *529 subject to court review, as any other administrative body is so subject.
In this case I do not feel that the rule or policy of the Association which segregates athletic contests or activities on the basis of sex is unreasonable or arbitrary. The majority opinion appears to limit such segregation to physical contact athletic games. I think there are other reasons than mere physical contact which would be the basis for separating the girls from the boys in athletic activities. There are many factors, such as physical conditions of school plants, trainers, coaches, as well as financial situations, of which we on a court can not be fully aware, that would warrant separation of sexes in athletic activities. There is nothing wrong with the rule under the Indiana High School Athletic Association or its application in providing for separation of sexes. What is apparently wrong is that the school does not furnish equal, separate opportunity for girls in golf. However, this action now before us was not brought for that remedy-, but was actually brought to force a violation of the rule which is said to be reasonable and to compel mixed participation of boys and girls. That is the result of the majority opinion.
The majority opinion states that the trial court found that “the classification was reasonable because of the difference in athletic ability between boys and girls.” The majority opinion further observes that the rule of the Association that prohibits mixed participation of boys and girls in the same sport is reasonable since girls have no greater rights than boys. If girls have a constitutional right to play on boys’ teams, then boys have the same right to play on girls’ teams. As a practical matter “mixed athletic teams” would result, as the majority opinion states, in the practical elimination of girls from all the teams.
I part ways with the majority opinion when it states that although the rule is reasonable in principle “it is unreasonable in its application.” If it is unreasonable in its application there *530 is a remedy other than taking this ease and making a “backhanded” ruling to achieve a certain result. There is no showing here that a demand has ever been made upon these school authorities for a girls’ golf team or athletic program and that after a demand there has been a denial. If such proof were before this court and an action brought to compel equal opportunity for the girls, showing that all they ask is the same as that afforded the boys, in my opinion we would have a case properly here for consideration. Proof that there was a boys’ golf athletic program in evidence should have great weight under a contention that it could not be financially afforded for girls.
To make the rule of “separation” of sexes applicable only to “physical contact sports” will prove troublesome in its application. It may kill the non-contact sports. I think the school authorities know what is best better than we do. We are judges, not school board members or athletic officials. We should avoid substituting our judgment for that of officials and parties possessing special knowledge of school conditions. We, as judges, should not sit on the school board.
I would affirm the judgment of the trial court.
Givan, J., concurs.
Note.—Reported in 289 N. E. 2d 495 .