Appendix — Williams ex rel. Williams v. School District

er we

Filed July 6, 1983

UNITED STATES COURT“OF APPEALS

FOR THE THIRD CIRCUIT

NO. 92-1650

SARAH ANNE WILLIAMS; WAYNE WILLIAMS,

on behalf of their minor son,

JOHN WILLIAMS

Vv.

THE SCHOOL DISTRICT OF BETHLEHEM, PA,

Appellant

On appeal from the United States

District Court for the

Eastern District of Pennsylvania

(D.C. Civil No. 90-06448)

Argued February 23, 1983

Before: SLOVITER, Chief Judge, MANSMANN

and SCIRICA, Circuit Judges

(Opinion Filed: July 6, 1993)

-la-

Stuart L. Knade (Argued)

Cleckner & Fearen

Harrisburg, PA 17101

Attorney for Appellant

David Smith

Christina Rainville (Argued)

Barry L. Refsin

Schnader, Harrison, Segal &

Lewis

Attorneys for Appellees

OPINION OF THE COURT

SLOVITER, Chief Judge

Can high school field hockey be

considered a contact sport? The district

court held that it could not as a matter

of law. On this ground and others, we

disagree with the trial court's entry of

summary judgment against the School

District, and remand because there are

material fact issues to be resolved.

I.

Facts and Procedural History

When John Williams was fourteen

years old and in ninth grade, he pre-

sented himself for the girls' field

hockey team tryouts at Liberty High

School, a public school in the School

District of Bethlehem, Pennsylvania. He

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heieieieceecnatemeaaieanaan

had played intramural coed field hockey

when he was in eighth grade at a middle

school in the School District, but the

high school has only a girls' field

hockey team. After the tryouts, the

coach made tentative position and team

assignments based on each player's abili-

ties. John, whose skills were average,

would probably have played goalie on the

junior varsity team. However, after

school officials learned that John and

another boy had been issued uniforms, the

boys were instructed that they could not

play on the girls' field hockey team.’

John's parents, plaintiffs

Sarah and Wayne Williams filed this ac-

tion in October 1990 against the School

District of Bethlehem, challenging John's

1. The second boy is not a party to

this action.

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exclusion from the girls' field hockey

team. ‘They made claims alleging viola-

tions of title IX of the Education Amend-

ments of 1972, 20 U.S.C. § 1681 (1988),

and its implementing regulation, 34

C.F.R. § 106.41 (1990); the Equal protec-

tion and Due Process clauses of the fed-

eral Constitution, under 42. U.S.c.

§ 1983 (1988); and the Equal Rights

Amendment to the Pennsylvania Constitu-

tion (E.R.A.), Pa. Const. art. te S28.

Plaintiffs sought a permanent

injunction, attorneys'! fees, and costs.

While the litigation was pending, they

reached an agreement with the School

District that for the fall 1991 sports

season, John, then a sophomore, would be

permitted to practice with the girls'

field hockey team but not to play in

interscholastic games.

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Based on the undisputed facts

that the School District limits player

participation on the field hockey team to

females and that John was not permitted

to be a part of the Liberty High School

team only because of that policy, the

district court granted summary judgment

on July 14, 1992 in favor of the

plaintiffs, permanently enjoining the

School District form excluding John from

the Liberty High School girls' field

hockey team. In holding that the School

District violated title IX, the court

held as a matter of law that field hockey

is not a "contact sport" and that males

"have previously been denied athletic

opportunities," App. at 66, thereby hold-

ing inapplicable the exception in the

implementing regulation for those situa-

tions. See 34 C.F.R. § 106.4(b) (1990).

In sustaining the plaintiffs' federal

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aX

Equal Protection claim, the district

court held, inter alia, that the School

District's exclusionary policy was not

necessary to preserve girls' athletic

opportunities and that it was not jJusti-

fied by the goal of rectifying past dis-

crimination against girls in athletics. ?

In addition, without resolving

what standard of strutiny applied, the

district could held that the Pennsylvania

E.R.A. was violated because its coverage

is "at lease as stringent" as the federal

Equal Protection clause, which it had

already found violated. After the grant

of the permanent injunction, John, by

then a junior, rejoined the field hockey

Ze The court did not expressly address

the plaintiffs' federal Due Process

Claim.

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team as a full participant for the fall

1992 season.

The School District appeals,

We exercise plenary review over a dis-

trict court's grant of summary judgment.

Public Interest Research Group v. Powell

Duffryn Terminals, Inc., 913 F.2d 64, 76

(3d Cir. 1990), cert. denied, 111 S. Ct.

1018 (1991).

ey

Discussion

i

Title Ix

Title IX of the Education

Amendments of 1972, 20 U.S.C. § 1681

(1988), prohibits sex discrimination in

educational programs that receive federal

-8a-

funding.* The Department of Health,

Education, and Welfare (HEW) promulgated

regulations implementing this general

nondiscrimination principle.‘ These

3% Although the School District ini-

tially argued in the district court

that title IX does not apply to

athletic programs that do not them-

selves receive federal funds, it

eventually conceded, correctly, that

title IX applies whenever any part

of an educational program receives

federal funding, which is the case

here. See Civil Rights Restoration

Act of 1987, 20 U.S.C. § 1687

(1988).

4. This aspect of HEW's responsibili-

ties was taken over by the Depart-

ment of Education when it was cre-

ated in 1979.

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regulations, which appear in Part 106 of

the Code of Federal Regulations, bar sex

discrimination in a wide variety of edu-

cation programs and facilities, including

interscholastic athletics. Thereafter,

HEW issued its final Policy Interpreta-

tion of the regulation applicable to

athletics. Title Ix of the Education

Amendments of 1972; a Policy Interpreta-

tion; Title IX and Intercollegiate Ath-

letics, 44 Fed. Reg. 71,413 (Dec. 11,

1979) [hereinafter Policy Interpreta-

tion}. Although designed specifically

for intercollegiate athletics, Policy

Interpretation specifically states that

"its general principles will often apply

to ... interscholastic athletic programs

which are also covered by regulation,"

and may be used for guidance by the ad-

ministrators of such programs. Id. at

71, 413. We accord HEW's interpretation

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of the regulation "appreciable defer-

ence." Cohen v. Brown Univ., 991 F.2a

888, 895 (1st Cir. 1993); see Chevron,

U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 844 (1984).

Subsection (a) of the appli-

cable implementing regulation sets forth

the general principle that:

No person, shall, on the

basis of sex, be excluded from

participation in, be denied the

benefits of, be treated differ-

ently from another person or

otherwise be discriminated

against in any interscholastic

--. athletics offered by a

recipient [of federal funds],

and no recipient shall provide

any such athletics separately

on such basis.

34 C.F.R. § 106.41(a) (1990).

The School District does not

dispute that John Williams was excluded

from the Liberty High School field hockey

team solely on the basis of sex. It

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rr

argues instead that its policy prohibit-

ing boys from being members of the girls'

field hockey team falls within both of

the exceptions set forth in subsection

(b), that which provides that a team may

exclude members of one sex if the sport

is "a contact sport" and that which re-

quires try-outs by members of the exclud-

ed sex only when "athletic opportunities

for members of that sex have previously

been limited."

The text of subsection (b)

provides that notwithstanding the general

requirements of subsection (a),

a recipient may operate or

sponsor separate teams for

members of each sex where se-

lection for such teams is based

upon competitive skill or the

activity involved in a contact

sport. However, where a recip-

ient operates or sponsors a

team in a particular sport for

members of one sex but operates

or sponsors no such team for

members of the other sex have

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ee

previously been limited, mem-

bers of the excluded sex must

be allowed to try out for the

team offered unless the sport

involved is a contact sport.

For purposes of this part,

contact sports include boxing,

wrestling, rugby, ice hockey,

football, basketball and other

sports the purpose or major

activity of which involves

bodily contact.

Id. § 106.41(b).

Under the regulation, a school

has the general obligation to make ath-

letic opportunities available to boys and

girls. Insofar as this obligation ap-

pl tee to sponsorship of sports teams, the

regulation expressly contemplates situa-

tions where there will be some accommoda-

tion other than making each team equally

open to both sexes. As the Sixth Circuit

has explained, the provisions of the

title IX grant flexibility to the recipi-

ent of federal funds to Organize its

athletic program as it wishes, so long as

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the goal of equal athletic opportunity is

met. See Yellow Springs Exempted Village

School Dist. Bd. of Educ. v. Ohio High

School Athletic Ass’n, 647 F.2d 651, 656

(6th Cir. 1981)

The regulation does not pre-

clude a school from maintaining a team

for one sex only. Indeed, the Policy

Interpretation specifically states that

"In the selection of sports, the regula-

tion does not require institutions to

integrate their teams nor to provide

exactly the same choice of sports to men

and women." 44 Fed. Reg. at 71,417-18.

The touchstone of the regulation is to

"effectively accommodate[] the interests

and abilities of male and female ath-

letes" so that individuals of each sex

have the opportunity "to have competitive

team schedules which equally reflect

their abilities." Id. at 71,418. The

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regulation requires a school to permit a

member of the excluded sex to try out for

the single-sex team only if the athletic

opportunities of the excluded sex have

previously been limited. Even if they

have been so limited, exclusion is per-

mitted if the sport involved is a contact

sport. The contact sport exception is

thus the broadcast exception recognized

to the overarching goal of equal athletic

opportunity.

i. Contact Sport

Because field hockey is not one

of the sports expressly specified in the

regulation as a contact sport, whether it

can be so deemed depends on whether it is

a sport "the purpose or major activity of

which involves bodily contact." 34

C.F.R. § 106.419(b). Our task in review-

ing the grant of summary judgment is to

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ascertain whether the party against whom

judgment was granted created a genuine

issue of material fact. Martin v. United

Way, 829 F.2d 445, 452 (3d Cir. 1987).

In support of their motion for

summary judgment on the contact sport

prong of the title IX inquiry, plaintiffs

introduced the affidavits of four ex-

perts, each of whom concluded that field

hockey is not a contact sport. In her

affidavit, Lynn Ralston, Director of

Development and Marketing for the Field

Hockey Association of America, stated

that "([fJield hockey is technically, and

according to the national and interna-

tional rules which govern the play of the

game, a non-contact sport." App. at 182.

The affidavits of John Greer, Chairman of

the Umpire Association of the Field Hock-

ey Association of America, Richard

Purser, U.S.A. National Coach of the

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ST

|

Men's Field Hockey team, and Richard

Kentwell, U.S.A. National and Olympic

field hockey coach, and World Cup and

Olympic field hockey umpire, included the

Same conclusion.° All of these experts

- Plaintiffs also argue on appeal that

field hockey should not be con-

sidered a contact Sport because it

is played coed at the adult level

and because there will be no bodily

contact with John Williams, who

Plays goalie. Assuming arguendo

that John was slated as goalie on

the junior varsity team, a matter

which is not free from doubt,

neither argument is relevant to the

threshold question whether field

hockey is a contact Sport for pur-

poses of the implementing reguia-

tion.

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relied on the rules of play for field

hockey promulgated by the National Feder-

ation of State High School Associations,

which provide that almost all bodily

contact or threatened bodily contact

between players is a violation or foul.

In opposition to plaintiffs'

summary judgment motion, the School Dis-

trict offered the affidavit of its ex-

pert, Vonnie Gros, Head Coach of the

women's interscholastic field hockey team

at Ursinus College in Collegev'lle, Penn-

Sylvania. Gros was also Head Coach of

the United States Women's Olympic Field

Hockey Team from 1977 to 1984, of the

women's teams at West Chester State Uni-

versity for thirteen years, and of the

women's teams at Princeton University for

four years. She has played on women's as

well as coed teams. Based on her thirty

years' experience with the sport, Gros

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concluded that field hockey is a contact

sport. Gros explained that the major

activities of the sport of field hockey

included running up and down the field

attempting to score a goal or preventing

the other team from doing so. She stated

that these activities "inevitably pro-

duce and involve bodily contact," App. at

79, even though such contact is a viola-

tion of the rules of play. She concluded

that field hockey is a contact sport

because bodily contact "regularly occurs

throughout the course of any competitive

game." App. at 79.

The School District also relied

on the testimony of Dominic Villani,

Director of Athletics at Liberty High

School, given at the hearing on a tempo-

rary restraining order. Villani stated

that, based on his twenty-seven years of

experience as a physical educator and as

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a coach, field hockey is "definitely" a

contact sport. App. at 30. Villani

explained that a field hockey player is

"going to use any

skills and natural

attributes of power, speed and strength

to get to that ball. And because of

the nature of the game, there is going to

be contact. There is contact." App. at

30.

In holding that the School

District had not created a factual dis-

pute and that, as

a matter of law, field

hockey is not a contact sport, the dis-

trict court relied on the fact that field

hockey is not mentioned in the list of

contact sports in

though ice hockey

there are blanket

bodily contact in

rules. The court

of Vonnie Gros as

the regulation, even

is included, and that

prohibitions against

the national Federation

dismissed the affidavit

containing a legal

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conclusion. Although the court acknowl-

edged that some bodily contact may occur

during field hockey play, it found that

such contact was "incidental" only.

Finally, the court stated that "none of

the affiants asserted that bodily contact

is the purpose or a major activity of

field hockey." App. at 63 (emphasis

added).

All of the parties agree that

the "purpose" of field hockey, unlike

boxing, wrestling, or football, does not

involve bodily contact. We focus, there-

fore, on the alternative definition. We

conclude that the district court erred in

granting summary judgment on the basis of

the record before it.

We note first that the district

court may have misapprehended the legal

inquiry. The regulation defines a con-

tact sport as one "the purpose or major

-21a-

activity of which involves bodily con-

tact." There is a subtle but important

distinction between whether a major ac-

tivity of field hockey "involves bodily

contact" (the regulation's language) or

whether bodily contact "is the purpose or

major activity of field hockey," the

language used by the district court and

the plaintiffs. See App. at 63; Appel-

lees' Brief at 12, 13. The district

court's inquiry as to the major activity

suggests that bodily contact can be

deemed a "major activity" of a sport only

if it is sanctioned activity. We believe

that limiting the inquiry in that way

would be duplicative of the "purpose"

inquiry. Instead, the "major activity"

prong takes into account the realities of

the situation on the playing field.

Gros's affidavit and Villani's

testimony raised an issue of material

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fact about whether a major activity of

field hockey does indeed involve bodily

contact. We see no reason why the dis-

trict court labeled Gros's affidavit as a

legal conclusion, inasmuch as Gros gave a

reasoned explanation for her view in

light of the realities of play, whereas

the affidavits on behalf of Williams

merely asserted a conclusion without any

reference to actual activity during play.

It is not insignificant that

the National Federation rules, introduced

by the School District, require mouth

protectors and shin guards, prohibit

spiked shoes, require that artificial

limbs be padded, and prohibit wearing

jewelry. These rules Suggest that bodily

contact does in fact occur frequently and

is expected to occur during the game.

There is very sparse precedent

on this issue. In Kleczek v. Rhode

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Island Interscholastic League, 768 F.

Supp. 951 (D.R.I. 1991), the court denied

a preliminary injunction in similar cir-

cumstances, holding that a boy who sought

to play on his high schools' girls' field

hockey team was unlikely to succeed on

the merits of his title IX or constitu-

tional claims because even if bodily

contact is incidental there may be a lot

of it, and thus field hockey must be con-

Sidered a contact sport for purposes of

tile IX. Id. at 955-56;° cf. Gil v. New

6. Although the Kleczek court errone-

ously believed that tile IX applies

only where the athletic program

itself receives federal funds, see

note 3 supra, this was irrelevant to

its decision because the court as-

sumed that the title IX provisions

(continued...)

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ee

Hampshire Interscholastic Athletic

Ass’n., No. 85-E-646, Slip op. at 4 (N.H.

Super. Ct. filed Nov. 8, 1985) (unpub-

lished decision) ("contact is illegal,

[but] occasional forceful bodily contact

and rigorous pittings of strength do

occur"). Unlike the Kleczek court which,

as a trial court, could make its own

factfindings, we are not ina position to

hold that field hockey must be considered

a contact sport. We hold only that there

is sufficient evidence on this record to

preclude summary judgment for plaintiffs

on that issue.

6.(...continued)

applied before proceeding with the

analysis.

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a Previously Limited

Athletic Opportunities

If it is determined that field

hockey is a contact sport, no other in-

quiry is necessary because that will be

dispositive of the title IX claim. Even

if a sport is not a contact sport, and

there is no team for the other sex in

that sport, the implementing regulation

requires that members of the excluded sex

be permitted to try out for a single-sex

team only if their athletic opportunities

have "previously been limited." 34

C.F.R. § 106.41(b). In interpreting that

language, the district court considered

the composition of the athletic program

at Liberty High School, which mirrors the

team offerings in the School District of

Bethlehem overall. The court compared

the number of teams boys and those for

girls, noting that as of 1989, each of

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the two high schools in the School Dis-

trict has had ten boys! teams, ten girls’

teams, and two coed teams. The court

found that athletic opportunities for

girls have surpassed those of boys be-

cause girls are permitted to try out for

all twenty-two teams whereas boys may try

out for only twelve, and it thus con-

cluded that athletic opportunities for

boys have "previously been limited."

Plaintiffs argue that even if

we find that athletic opportunities for

boys at Liberty High School have not been

limited, the School District would still

be in violation of title IX because it is

clear that opportunities for boys in the

Sport of field hockey have previously

been limited. Plaintiffs thus would

interpret the regulation's inquiry with

respect to prior opportunities as sports-

specific, in this case focusing on boys!

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aie

opportunities in a traditionally female

sport. This reading of the regulation

language was adopted by the court in

Gomes v. Rhode Island Interscholastic

League, 469 F. Supp. 659, 664 (D.R.I.)

(holding that exclusion of boy from

girls' volleyball team impermissible

because boys' opportunities had been

limited in that sport), vacated as moot,

604 F.2d 733 (1st Cir. 1979).

We believe that the contrary

interpretation adopted by the New York

and New Hampshire courts is more persua-

Sive. In Mularadelis v. Haldane Central

School Board, 427 N.Y.S.2d 458, 461-64

(N.Y. App. Div. 1980), the court looked

at the phrase at issue in the context of

the entire regulation. The court noted

that the first clause expressly refers to

a "particular sport" ("where a recipient

operates or sponsors a team in a particu-

-28a-

lar sport"), and the second clause uses

broad and general language, defining the

inquiry as whether "athletic opportuni-

ties" for members of the excluded sex

have previously been limited. Id. If

Congress had intended the inquiry into

"athletic opportunities" to be limited to

a "particular sport," it would have so

Stated, particularly since the phrase

"particular sport" was used earlier in

the same sentence. Id.’

ae Moreover, HEWS's interpretation,

issued contemporaneously with the

regulation, requires inquiry into

athletic opportunities "at the in-

stitution in question" rather than

in the particular sport. The final

regulation was accompanied by expla-

nations addressing comments and

(continued...)

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This analysis convinced the

Superior Court of New Hampshire, which

adopted it in Gil v. New Hampshire Inter-

scholastic Athletic Association, No. 85-

E-646, slip op. at 31-32. We agree. As

the School District argues, if the plain-

tiffs' construction were adopted, there

could never be a situation in a non-con-

tact sport in which a team was limited to

a single sex without a corresponding team

7.(..-.continued)

questions received by the agency,

which stated, "if tennis is offered

for men and not for women and a

woman wishes to play on the tennis

team, if women’s sports have previ-

ously been limited at the institu-

tion in question that woman may com-

pete for a place in the 'men's'

team." See 40 Fed. Reg. 24,143

(June 4, 1975) (emphasis added).

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for the other sex because, by definition,

the opportunities in that particular

Sport will be limited for the excluded

sex. It would mean that boys will always

be able to argue that they had previous

limited athletic opportunities just be-

cause certain sports have traditionally

been considered women's Sports, such as

field hockey. This would render nugatory

the purpose of the phrase in question,

which was intended to authorize Single

sex teams in certain circumstances.

We believe the district court

was correct in implicitly rejecting the

plaintiffs' sports-specific interpreta-

tion, and in looking instead to the over-

all athletic opportunities.

We conclude, however, that the

district court applied a flawed analysis

in holding as a matter of law that ath-

letic opportunities for boys were previ-

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SENN ociitahate Somos aang aerate aap raceme er ee

ously limited at Liberty High School

because girls have been able to try out

for more teams than boys for almost two

decades. The mere opportunity to try out

for a team, which the district court

found tipped the balance in favor of

girls in the School District, is not

determinative of the question on "previ-

ously limited" athletic opportunities

under title IX. "Athletic opportunities"

means real opportunities, not illusory

ones. If, to satisfy title IX, all that

the School District were required to do

was to allow girls to try out for the

boys' teams, then it need not have made

efforts, only achieved in 1989, to equal-

ize the numbers of sports teams offered

for boys and girls.

The School District produced

evidence that its decision in or about

1975 to allow girls the right to try out

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for all twenty-two teams did not equalize

athletic opportunities between the sexes.

Dominic Villani testified: "I don't

believe that the fact that girls are

allowed to try out for boys['] sports

would help any problem of inequality. In

the 27 years I have been in this busi-

ness, I believe I have seen two girls

that had tried out for a given sport and

at best were carried on the team. It did

not displace any boys." App. at 28. He

concluded that "when you have girls in-

volved in boys['] sports with respect to

displacing someone, you are talking about

the exception. And exceptions are very,

very few." App. at 28-29.

Whether the opportunity for

girls to try out for a boys' team is a

realistic athletic Opportunity with re-

Spect to that particular Sport may turn

on whether there are real and Significant

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physical differences between boys and

girls in high school. There was con-

flicting evidence introduced by the par-

ties on this issue.

Plaintiffs offered evidence to

show that the physical differences be-

tween boys and girls of high school age

are negligible.*® In opposition, the

School District offered the affidavit of

its expert, Evan G. Pattishall III, M.D.,

8. For example, plaintiffs introduced

statistics from Current Pediatric

Diagnosis and Treatment (10th ed.

1991), which indicates that at age

14, 95% of boys weigh between 84 and

157 pounds and are between 58.2 and

69.2 inches tall, and 95% of the

girls weigh between 83 and 160

pounds and are between 58.4 and 67.3

inches tall. App. at 184, 185.

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Assistant Professor of Pediatrics at the

Medical School of Pennsylvania State

University, who testified that high

school boys on average have "greater

height, weight, total body strength,

upper body st[rjength and aerobic ca-

pacity .. . [as well as] a greater quan-

tity of lean body mass ... and sus-

tained muscle power and sustained physi-

cal activity." App. at 82.9

9. The School District also calls to

our attention other statistics in

Current Pediatric Diagnosis and

Treatment which reveals that size

and weight differences between boys

and girls become more pronounced

through the high school years. Ap-

pellant's Brief at 29-30 (citing

App. at 184, 185).

-35a-

It follows that in determining

whether boys' athletic opportunities at

Liberty have previously been limited, the

factfinder must decide whether meaningful

physiological differences between boys

and girls of high school age negate the

Significance of allowing girls to try out

for boys' teams but not allowing the

reverse.

Because the district court

erred in finding dispositive the mere

opportunity for girls to try out without

acknowledging that the School District

had created a material issue of fact as

to the effect of that opportunity, we

will reverse the grant of summary judg-

ment on the plaintiffs' title IX claim

and remand for further factual develop-

ment on the issue whether athletic oppor-

tunities for boys have previously been

limited.

-36a-

In this connection, we must

note that although title Ix ana the regu-

lation apply equally to boys as well as

girls, it would require blinders to ig-

nore that the motivation for promulgation

of the regulation on athletics was the

historic emphasis on boys' athletic pro-

grams to the exclusion of girls! athletic

programs in high schools as well as col-

leges. see, e.g-, Cohen, 991 F.2d at

892. Indeed, the Policy Interpretation

notes that "[p]articipation in intercol-

legiate sports has historically been

emphasized for men but not women." 44

Red. Reg. at 71,419. With Specific ref-

erence to high school athletics, the

Policy Interpretation states: "During

the period from 1971-1978 ... the num-

ber female participants in organized high

school sports increased from 294,000 to

2,083,000 - an increase of over 600 per-

-37a-

cent." Id. This growth was reflected in

increased athletic participation of women

on the campuses of the nation's colleges

and universities. Id. Despite this in-

creased participation, the Policy Inter-

pretation reflects concern over the ef-

fect of prior discrimination. The Policy

Interpretation requires continued affir-

mative steps, which "[{ijn most

cases .. . will entail development of

athletic programs that substantially

expand opportunities for women to par-

ticipate and compete at all levels." Id.

at 71,414. Thus it is clear that the

obligation of an educational institution

in complying with the requirements of

title IX in interscholastic athletics

cannot be measured simply by comparing

the number of teams available to each

sex, but instead must turn on "[w]jhether

disparities of a substantial and unjusti-

-38a-

fied nature exist in the benefits, treat-

ment, services, or Opportunities afforded

male and female athletes in the institut-

ion's program as a whole." Gs at

Ti 43%,

B.

Federal Constitutional] Claims

In an extended discussion, the

district court upheld the plaintiffs'

claim that the School District's policy

precluding boys from playing field hockey

violated the federal Constitution's Equal

Protection clause. The Schoo] District

argues that the plaintiffs' constitu-

tional claims under 42 U.S.C. § 1983 are

precluded because they are based on a

matter fully addressed by the comprehen-

Sive scheme in title Ix.

The Supreme Court has made

Clear that where a federa] statute pro-

-39a-

vides its own comprehensive enforcement

scheme, Congress intended to foreclosure

a right of action under section 1983.

Middlesex County Sewerage Auth. v. Na-

tional Sea Clammers Ass’n, 453 U.S. 1,

20-21 (1981).*° This court recently ad-

10. The plaintiffs argue that because

the School District did not rely on

Sea Clammers in the district court,

it should be precluded from doing so

here. We reject that contention

because of our strong duty to decide

a case on nonconstitutional grounds

whenever possible. As we have pre-

viously stated, "The Supreme Court

has on several occasions even ap-

plied the doctrine when the ncncon-

stitutional ground was not presented

by the parties but was first noticed

(continued...)

-40a=-

dressed the applicability of the Sea

Clammers doctrine to cases in which

plaintiff asserts a claim under title Ix

and the federal Constitution. In

Pfeiffer v. Marion Center Area School

District, 917 F.2a 749, F789 (3a Cir.

1990), we held that the constitutional

claims are "subsumed" in title Ix, and

that the district court, having addressed

the title IX clain, properly refused to

hear plaintiff's section 1983 claim.

10.(...continued)

by the Court itself." Allen Vv.

Aytch, 535 F.2d 817, 820 (3d Cir.

1976) (referring to Rosenberg v.

Fleuti, 374 U.S. 449 (1963)); see

Mackey v. Mendoza-Martinez, 362 U.S.

384 (1960) (per curiam); Neese v.

Southern Ry. Co., 350 U.S. 77 (1955)

(per curiam); Peters yv. Hobby, 349

U.S. 331 (1955).

-4la-

Plaintiffs argue that the Sea Clammers,

doctrine is inapplicable where an injunc-

tion is sought, but in Pfeiffer plaintiff

also sought an injunction, and we are

bound by that holding.

The district court in the in-

stant case acknowledged that Sea Clammers

rendered its discussion of the constitu-

tional claims unnecessary, but chose to

proceed, inter alia, "for the sake of

completeness." App. at 67 n.5. The

court should have been guided instead by

the Supreme Court's admonition that

courts should exercise restraint before

reaching federal constitutional claims.

We will therefore not reach the constitu-

tional issues, ane will vacate the dis-

trict court's judgment on the section

1983 claim.

-é2a-

Cc.

Pennsylvania Equal Rights Amendment

In granting the plaintiffs'

motion for summary judgment, the district

court did not separately discuss the

Pennsylvania E.R.A. claim because it con-

cluded that once it found that the School

District violated the federal Equal Pro-

tection clause, the School District nec-

essarily violated the Pennsylvania E.R.A.

We will therefore review the court's

federal Equal brobention analysis as if

it were made in the Pennsylvania E.R.A.

context, and apply the same plenary re-

view as we have done on the other claims.

-438a-

vides that

Pa. Const.

The Pennsylvania E.R.A. pre-

[fe]quality of rights

under the law shall

not be denied or

abridged in the Com-

monwealth of Pennsyl-

vania because of the

sex of the indi-

vidual.

art. I, § 28. The provision

applies. equally to men and to women, see

Swidzinski v. Schultz, 493 A.2d

93, 95-96

(Pa. Super. 1985), and, according to the

Supreme Court of Pennsylvania,

pose is

to insure equality of

rights under the law

and to eliminate sex

as a basis for dis-

tinction. The sex of

citizens of this Com-

monwealth is no

longer a permissible

factor in the deter-

mination of their

legal rights and

legal responsibili-

ties. The law will

-44a-

its pur-

not impose different

benefits or different

burdens upon the

members of a society

based on the fact

that they may be man

Or woman.

Henderson v. Henderson, 327 A.2a 60, 62

(Pa. 1974) (invalidating statute permit-

ting only women to receive alimony after

divorce).

The Court has stated, "In this

Commonwealth, sex may no longer be ac-

cepted as an exclusive Classifying tool."

Commonwealth v. Butler, 328 A.2d 851, 855

(Pa. 1974) (invalidating criminal statute

prohibiting minimum sentences for women

while allowing them for men); see also

Hartford Accident & Indem. Co. v. Insur-

ance Comm’r, 482 A.2d 542 (Pa. 1984)

(striking differential insurance rates

for the sexes); Commonwealth ex. rel.

Spriggs v. Carson, 368 A.2da 635 (Pa.

-45a-

1977) (abolishing "tender years" presump-

tion used in awarding custody to mother) ;

Commonwealth v. Santiago, 340 A.2d 440

(Pa. 1975) (invalidating presumption that

wife who commits crime in the presence of

her husand was coerced); Hopkins v.

Bianco, 320 A.2d 139 (Pa. 1974) (extend-

ing to married women the right to claim

damages for loss of consortium).

Although the Supreme Court of

Pennsylvania has not addressed the E.R.A.

in the context of interscholastic ath-

letics, in a thoughtful opinion the Com-

monwealth Court made clear that if the

Classification between boys and girls in

connection with team sports is based on

impermissible assumptions and stereotypes

about the comparative characteristics or

abilities of boys and girls, the E.R.A.

Will be violated. Commonwealth ex. rel.

Packel v. Pennsylvania Interscholastic

-46a-

2. ee

Athletic Ass’n., 334 A.2d 839, 843 (Pa.

Commw. 1975) (athletic league provision

barrino girls from participating in

sports with boys violates E.R.A. because

it embodies the stereotype that girls are

generally weaker and boys generally more

skilled at athletics). However, after

the Commonwealth Court's decision in

Packel, the Pennsylvania Supreme Court

decided Fischer v. Department of Public

Welfare, 502 A.2d 114 (Pa. 1985), where

it accepted the view prevailing among

jurisdictions with a state E.R.A. that

the E.R.A. does not

prohibit differential

treatment among the

sexes when, as

here[,]) that treat-

ment is reasonably

and genuinely based

on physical charac-

teristics unique to

one sex.

Id. at 125 (quotation omitted).

-47a-

In defending the E.R.A. claim,

the School District argued that because

of the undeniable physical differences

between girls and boys of high school

age, sex was the only classification

feasible for accomplishing, inter alia,

the legitimate and substantial interest

of promoting athletic opportunities for

girls. As we noted in our discussion of

title IX, the parties introduced con-

flicting evidence on the extent of physi-

cal differences between boys and girls at

the high school level. Some of the evi-

dence supports the School District's

argument that the differences between the

sexes increase dramatically through high

school, and that by age sixteen, these

differences are substantial.

The validity of the School

District's policy excluding boys from the

field hockey team depends on whether

-48a-

there are "physical characteristics

unique to [boys]" which warrant differ-

ential treatment. If there are real

physical differences between high school

boys and high school girls, then the

sexes are "not similarly situated as they

enter into most athletic endeavors,"

Petrie v. Illinois High School Ass’n, 394

N.E. 2d 855, 863 (Ill. App. Ct. 1979),

and exclusion based on sex may be justi-

fied, see Bartholomew ex rel. Bartholomew

Vv. Foster, 541 A.2d 393, 397 (Pa. Commw.

1988) ("The only types of sexual discrim-

ination . . . permitted in this Common-

wealth are those which are reasonably and

genuinely based on physical characteris-

tics unique to one sex.") (quotation

omitted), aff’d without opinion, 563 A.2d

1390 (Pa. 1989).

The district court found reso-

lution of the dispute on physical differ-

-49a-

caine

ences "completely unnecessary" because

there was no evidence to suggest that

more than a handful of boys would ever

express interest in playing field hockey.

Only four girls have ever tried out for

boys' teams in the School District (two

for football and two for soccer), and

only two boys, including John Williams,

have tried out for girls' teams (field

hockey).

We believe that resolution of

this factual dispute cannot be avoided.

Whether boys will be interested in trying

out for the field hockey team is irrele-

vant to the issue whether real physical

differences between boys and girls

justify differential treatment, in this

case, the exclusion of boys' teams.

Under Pennsylvania law, as expressed most

recently by the state's Supreme Court in

Fischer, the legality of the School Dis-

-50a-

trict's policy can only be resolved by

deciding whether there are genuine physi-

cal differences between boys and girls or

whether, instead, the policy is based on

unwarranted and stereotyped assumptions

about the sexes. That issues raises a

fact question which precludes summary

Judgment.

A related dispute between the

parties concerns whether permitting boys

to play on the girls' teams will result

in boys' eclipsing girls' athletic oppor-

tunities in the School District. Plain-

tiffs pointed out, as noted above, that

few students have tried out for or joint

teams designated for the other sex. They

also contended that, far from negatively

affecting girls' athletic opportunities,

allowing boys on the team will increase

those opportunities because, during at

least one sports season, Liberty High

-31a-

ea.

=

School had "barely" the minimum number of

female players to field a team. Finally,

plaintiffs asserted that because field

hockey at Liberty High School is a "no

cut" team, boys can never displace girls

from the team.

The School District countered

with the argument that if more boys are

allowed on the team and permitted to

play, more girls will warm the bench

during the field hockey matches. It also

presented the testimony of Villani that

if positions on the field hockey team

were open to girls and boys, "eventually

boys would dominate, eliminating the

opportunities of females." App. at 28.

Gros agreed that male players' physical

characteristics give them a significant

competitive advantage over female play-

ers.

-52a-

Nonetheless, the district

court, again relying on the facts that

few boys have expressed an interest in

the sport and that no cuts are made from

the Liberty High School field hockey

team, found that admitting boys would not

displace girls from play. In our view,

the district court must resolve the fac-

tual issue as to physical differences

before it can determine whether boys are

likely to displace girls from the team.

Compare Cape v. Tennessee Secondary Sch.

Athletic Ass’n, 563 F.2d 793, 795 (6th

Cir. 1977) ("[ijt takes little imagina-

tion to realize that were play and compe-

tition not separated by sex, the great

bulk of the females would quickly be

eliminated from participation and denied

any meaningful Opportunity for athletic

involvement") and Gil, No. 85-E-646, Slip

Op. at 26 ("Boys, as a class, are un-

-53a-

j

doubtedly better physiologically equipped

to play field hockey than are girls.")

with Attorney Gen. v. Massachusetts

Interscholastic Athletic Ass’n, 393

N.E.2d 284, 293 (Mass. 1979) ("No doubt

biological circumstance does contribute

to some overall male advantages. But we

think the differences are not clear or

uniform as to justify a rule in which sex

is sought to be used as a kind of 'proxy'

for a functional classification"). For

reasons we have already explained, this

issue must be resolved at trial.

Ultimately, the validity of the

classification wiil depend on the rela-

tionship between the classification and

the government interest. Unfortunately,

the Supreme Court of Pennsylvania has not

yet addressed the proper level of

scrutiny under the E.R.A. The district

court wrote that the scrutiny must be "at

-34a-

least as stringent" as that under the

federal Equal Protection clause. App. at

77. Plaintiffs argue that the standard

must be more stringent, else there was no

reason for the Pennsylvania legislature

to adopt the equal rights amendment in

the first place. See Newberg v. Board of

Pub. Educ., 26 Pa. D. & C.3d 682, 710

(Ct. Com. Pl. 1983).

Although we do not agree that

this is the only reason for passage of

state equal rights amendments, see Chai

R. Feldblum, Nancy Fredman Krent, & Vir-

ginia G. Watkin, Legal Challenges to All-

Female Organizations, 21 Harv. C.R.-C.L.

L. Rev. 171 (1986), there is much to

commend application of heightened

scrutiny to sex-based Classifications.

However, we are hesitant to decide this

uniquely state law matter before the

State's highest court has done so unless

~55a-

aaa a

we have no other course. It is not clear

that the level of scrutiny will be dis-

positive in this case, because the School

District policy may be able to meet even

the strict scrutiny standard. See

Holdman v. Olim, 581 P.2d 1164, 1168

(Haw. 1978).

The School District argues that

the classification bears a substantial

relationship to an important governmental

interest, using the standard denominated

as intermediate and applied in cases such

as Craig v. Boren, 429 U.S. 190, 197

(1976). The plaintiffs' argument for a

strict scrutiny test would lead to the

inquiry whether the School District's

rule bears a necessary relationship to a

"Compelling state interest." See City of

Cleburne v. Cleburne Living Ctr., 473

U.S. 432, 40 (1985). We do not under-

stand the plaintiffs to argue that the

-56a-

School District's interest in maximizing

athletic opportunities for female stu-

dents would not satisfy strict scrutiny,

and thus in this case we need not dwell

on the difference, if any, between a

"Compelling" or "important" government

interest.

On the other hand, we cannot

avoid choosing the level of scrutiny

because the disposition could turn on

whether the classification bears a "nec-

essary" relationship rather than a "sub-

stantial" relationship to the goal.

Until the Pennsylvania Supreme Court has

spoken on that issue, it is the better

course to use the standard more favorable

to the plaintiff under the state E.R.A.

in light of the strong state policy to

equalize opportunities for the sexes.

The School District also prof-

fered the need to rectify past inequality

-57a-

i aa i

in competitive interscholastic athletic

opportunities for female students as a

legitimate goal for its policy limiting

the hockey team to girls. The district

court rejected the importance of this

goal on the ground that "most, if not

all, of [the Liberty High School stu-

dents] were not .. in existence" at the

time of the unequal past practices "in

the sixties and seventies." App. at 69.

This narrow view of the need to rectify

past discrimination overlooks the pos-

Sibility that the vestiges of longstand-

ing discriminatory practices may still

inhibit high school girls from actively

pursuing athletic opportunities.

Moreover, the record shows that

the discriminatory practices continued

far beyond the sixties and seventies. It

was not until 1989 that the School Dis-

trict finally had an equal number of

-~3S5a-

boys' and girls' teams. We agree with

the Ninth Circuit that "[t]here is no

question that [redressing past discrimi-

nation against women in athletics] is a

legitimate and important governmental

interest." Clark v. Arizona Inter-

scholastic Ass’n, 695 F.2d 1126, 1131-32

(9th Cir. 1982) (citing Petrie, 394

N.E.2d at 862), cert. denied, 464 U.S.

818 (1983); B.C. v. Board of Educ., 531

A.2d 1059, 1065 (N.J. Super. Ct. 1987).

We will therefore remand the

E.R.A. claim to the district court for

factfinding as to whether there are any

real physical differences between boys

and girls that warrant different treat-

ment, and whether boys are likely to

dominate the school's athletic program if

admitted to the girls' teams. Only then

will it be possible to determine whether

the School District's policy of excluding

-59a-

~

boys from girls' teams is necessary to

the School bisteict® recognized interest

in preserving meaningful athletic oppor-

tunities for girls, see Petrie, 394

N.E.2d at 862-64, and/or whether there is

a current need to rectify the admittedly

pervasive past discrimination against

female high school students with respect

to athletic opportunities, see Clark, 695

P.2¢ at 1131.

IIt.

Conclusion

In summary, the district

court's order granting summary judgment

for the plaintiffs will be reversed. We

do not foreclose the School District from

moving for summary judgment on the title

TX claim based on its affidavits, thereby |

sh.fting the burden to the plaintiffs to

produce evidence demonstrating a genuine

-60a-

issue of material fact precluding summary

judgment. If the district court deter-

mines that the School District is en-

titled to summary judgment on the title

IX claim, then our precedent would coun-

sel dismissal of the pendent E.R.A. claim

which could then be maintained in state

court.

SCIRICA, Circuit Judge, concur-

ring.

I join in the court's opinion,

but write separately because I believe in

the rules of field hockey and conclusory

opinions set forth in affidavits submit-

ted by Williams do not create a genuine

issue of material fact on whether field

hockey is a contact sport. Had the

School district moved for Summary judg-

-6la-

ment on the Title IX claim on this re-

cord,** I would have granted it.

This dispute centers on whether

a "major activity" of field hockey in-

volves bodily contact. Williams contends

field players who raise their sticks,

charge, push, trip, or personally handle

an opponent, or engage in "rough or

dangerous play," Nat'l Fed'n of State

High Sch. Ass'n, Field Hockey Rules 16-

17, 24-25 (1990-91).** In support,

ll. Of course, once a motion for summary

judgment is filed, the adverse party

may respond under Fed. R.-Civl. P.

56(e).

12. In rejecting the School District's

argument that field hockey is a

contact sport, the district court

held 34. C.F.R. § 106.4(b)'s failure

(continued...)

Williams produced the affidavits of four

experts, each of whom stated:

Field hockey is tech-

nically, and accord-

12.(...continued)

to include field hockey among its

examples of contact sports "sug-

gest[ed]) that this sport was not

recognized as a contact Sport when

the rule was drafted." But the

textual examples in the regulation

are illustrative, not inclusive.

The regulation does not mention

other contact sports such as

lacrosse, soccer, and water polo.

See 34 C.F.R. § 106.(b) ("contact

Sports include boxing, wrestling,

rugby, ice hockey, football, basket-

ball and other sports the purpose or

major activity of which involves

bodily contact").

-63a-

aii aa ial i

ing to the Rules of

the Game of Hockey, a

non-contact sport.

Unlike sports like

boxing, wrestling,

rugby, ice hockey,

football and basket-

ball, field hockey

does not involve

contact as its pur-

pose of major activ-

ity.

(emphasis added).

Whether field hockey is a con-

tact sport cannot turn solely on the

rules.’* The focus must be on the

13. The district court held: "[ijt

defies logic to conclude that bodily

contact is a purpose or major activ-

ity of field hockey when a team may

be penalized not only when its play-

ers or a ball hit by one of its

players contacts another player, but

also when such contact is threatened

or likely."

-64a-

realities of play. High school basket-

ball rules forbid a player from

"hold[ing], push[ing], trip[ping], [Jor

imped({ing] the progress of an opponent."

Nat'l Fed'n of State High Sch. Ass'n

Basketball Rules at 52-53 (1990) .*4 Yet

basketball is a contact sport and is

cited as such in 34 C.F.R. § 106.41(b).

Although basketball's rules penalize

charging into an opponent, collisions

occur aS players compete for possession

of the ball. Similarly, in field hockey,

players compete for possession of the

ball. Collisions occur and, for purposes

of § 106.41(b), it is of little conse-

quence that such conduct violates the

rules. That contact is penalized cannot

be dispositive.

14. The basketball rules are part of

this record.

-~65a-

|

Ld hd . i

Williams' experts' conclusions

that "field hockey does not involve con-

tact as its ... major activity" contains

another flaw. As the majority observes,

slip op. at 9, there is a subtle but

significant difference between asking

whether "field hockey ... involve[s]

contact as its major ... activity," the

language used in Williams' affidavits,

and asking whether "the major activity of

[field hockey] involves bodily contact,"

the language used in § 106.41(b). Major

activities of field hockey include run-

ning, advancing the ball, checking,

shooting and blocking. These activities

inevitably involve bodily contact.

In remarkable contrast to

Williams' affiants, the School District's

affiants emphasized the realities of the

-66a-

game. Vonnie Gros, a veteran coach and

player,’ testified:

The major activities

of the sport of field

hockey~ includ[e}

running up and down

the field in order to

move the ball towards

the opponent's goal

or to prevent the

opposing team from

doing so. These

activities inevitably

produce and involve

bodily contact, as

players compete at

close quarters for

possession or control

of the ball. Al-

though physical con-

tact is in most cases

a violation of the

rules for which the

official has the

option of calling a

penalty, such contact —

regularly occurs

throughout the course

of any competitive

game. Because its

major activities

15. As the majority notes, Gros coached

the U.S. Women's Olympic Field

Hockey Team from 1977 to 1984.

-67a-

involve bodily con-

tact, I consider

field hockey to be a

"contact sport."

Field hockey cer-

tainly cannot be

called a "non-con-

tact" sport.

Similarly, Dominic Villani, Director of

Athletics at Liberty High School, stated

that players positioning for the ball

will "bump [and] joust ... [in] a small

area. So there is [sic] going to be

collisions." Based on twenty-seven years

of coaching experience Villani testified:

[Yjou Know, [as

player] I have every

right to that ball as

the opponent does and

I am going to use any

skills and natural

attributes of power,

speed and strength

to get to that

ball. And because of

the nature of the

game, there is going

to be contact. There

is contact.

-68a-

And I would make the

analogy, as Title Ix

does, they label

basketball as a con-

tact sport. And I

have observed many

basketball games, and

I have observed a

number of field

hockey games. And

taken in that con-

text, field hockey -

girls' field hockey

would definitely be a

contact sport.

The girls' field hockey coach, Martin

Romeril, also emphasized the realities of

the game:

There is contact in

field hockey because

you have players

occupying potentially

the same space. This

would happen in any

sport when two play-

ers want to occupy

the same space, obvi-

ously, there's going

to be contact so

there is some contact

in field hockey.

-69a-

As the majority observes, the

"affidavits on behalf of Williams merely

asserted a conclusion without any refer-

ence to actual activity during play."

Slip op. at 9. In my view, this evidence

fails to create a genuine issue of ma-

terial fact.

A True Copy:

Teste:

Clerk of the United States Court of

Appeals for the Third Circuit

-70a-

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

SARA ANNE and CIVIL ACTION

WAYNE WILLIAMS

on behalf of their

minor son,

JOHN WILLIAMS,

NO. 90-6448

Plaintiffs

vs.

)

)

)

)

)

)

)

)

)

)

THE SCHOOL DISTRICT )

OF BETHLEHEM, PA., )

)

Defendant )

TROUTMAN, S.J.

ORDER

And now, this 9th day of July,

1992, upon consideration of plaintiffs'

Motion for Summary Judgment, (Doc. #13),

and defendant's response thereto, IT IS

HEREBY ORDERED that the motion is

GRANTED.

-7la-

IT IS FURTHER ORDERED that

judgment is entered in favor of the

plaintiff and against the defendant.

IT IS FURTHER ORDERED that the

Bethlehem School District is permanently

enjoined from excluding John Williams

from the field hockey team based solely

upon his gender.

/s/

-72a-

EASTERN DISTRICT OF PENNSYLVANIA

SARA ANNE and CIVIL ACTION

WAYNE WILLIAMS

on behalf of their

minor son,

JOHN WILLIAMS,

NO. 90-6448

VS.

)

)

)

)

)

)

Plaintiffs )

)

)

)

THE SCHOOL DISTRICT )

OF BETHLEHEM, PA., )

)

Defendant )

TROUTMAN, S.J.

MEMORANDUM

Plaintiff John Williams is a

male student at Liberty High School in

the Bethlehem School District. In Au-

gust, 1990, at age 14, John Williams and

another male student tried out for the

School's field hockey team, which partic-

ipates in an interscholastic schedule of

games. Williams was selected for the

-73a-

junior varsity squad as a goalie and

began practicing with the team. He was

issued equipment and a team uniform. At

the end of August, however, the school

district notified the coach that boys are

not permitted to play on the girls' field

hockey team and ordered that Williams

neither practice with the team nor par-

ticipate in the games.

The instant action by Sarah and

Wayne Williams to restore their son to

the Liberty High School field hockey team

was commenced on October 5, 1990, accom-

panied by a Motion for Preliminary In-

junction. Subsequently, on October 15,

1990, plaintiff filed a Motion for Tempo-

rary Restraining Order. That motion was

joined with the preliminary injunction

motion and heard on October 16, 1990.

The preliminary injunction/temporary

restraining order was denied on the

-s4a~-

record upon the Court's conclusion that

plaintiffs had failed to prove irrepara-

ble harm, a necessary element of the

emergency equitable relief sought in the

motions. (Hearing Transcript, Doc. #8,

Be Skis

Thereafter, the case proceeded

through discovery and the parties were

able to reach a partial compromise for

the 1991 field hockey season whereby John

Williams was permitted to practice with

the team but not permitted to play in the

interscholastic games. Presently before

the court is plaintiffs' motion for sum-

mary judgment, which should dispose of

the case in time for the 1992 scholastic

field hockey season.

Plaintiffs assert that the

defendant's exclusion of John Williams

from the girls' field hockey team, which

effectively bars him from playing that

-75a-

sport since there is no school field

hockey team for boys, violates Title IX

of the Education Amendments of 1972, (20

U.S.C. §1681, et seg.), and its imple-

menting regulations, the Pennsylvania

Constitution, specifically the Equal

Rights Amendment thereof, and both the

Equal Protection and Due Process clauses

of the Fourteenth Amendment to the United

States Constitution.

It is undisputed that the de-

fendant school district limits player

participation on the field hockey team to

female students’? and that John Williams

1. It appears that male students can be

non-playing managers of the field

hockey team, can perform such func-

tions as time-keepers and score-

keepers, and that John Williams has

(continued...)

-76a-

was dismissed from his position on the

Liberty High School junior varsity field

hockey team only because of that schoo]

district policy. Thus, it is undisputed

that John Williams has been prevented

from playing interscholastic field hockey

solely on the basis of his gender. The

ultimate issue before the Court, there-

fore, is whether the school district's

action was proper in light of the laws

applicable to gender classifications in

Scholastic athletic programs. We will

begin our consideration of this issue

with plaintiffs' federal statutory

claims, and will address defendant's

1.(...Ccontinued)

continued to participate in the

field hockey program in these ca-

pacities since his exclusion as a

player. (See, Complaint, Doc. #1,

"3 21; 27).

-77a-

tia iia

arguments that disputed issues of materi-

al fact preclude summary judgment as such

arguments become relevant to the legal

issues.

oe Title IX of The Education

Amendments of 1972

Pursuant to 20 U.S.C. §1681(a),

popularly known and hereafter referred to

as Title IX, students are protected from

gender discrimination in educational

programs and activities which receive

federal financial assistance. Plaintiffs

here contend that the Bethlehem School

District athletic programs are subject to

the Title IX prohibition against discrim-

ination on the basis of sex and that the

defendant's announced policy of pre-

venting males from player participation

on the field hockey team, which is desig-

-78a>

nated as a girls' sports team, violates

that statute.

Defendant first argued that

Title IX is inapplicable in that its

athletic programs do not receive federal

financial assistance, but now concedes

that the Civil Rights Restoration Act of

1987, 20 U.S.C. §1687, specifies that

Title IX is fully operative when any part

of an educational program or any local or

state educational entity receives federal

financial assistance. Defendant, there-

fore, further concedes that its argument

concerning the applicability of Title IX

has been vitiated insofar as that argu-

ment was based upon the absence of feder-

al money for its athletic programs.

(See, Addendum to Brief of Defendant in

Opposition to Plaintiff's Summary Judg-

ment Motion, Doc. #26 at 2). Defendant

continues to argue, however, that its

-79a-

<

policy of prohibiting boys from playing

on the field hockey team does not violate

a Title IX in that field hockey is a

contact sport and athletic opportunities

for boys have not previously been limited

in the Bethlehem School District. et BF

These arguments arise from the

defendant's interpretation of the portion

of Title IX's implementing regulations

which address athletic programs, found at

34 CFR §106.41. In subparagraph (a)

thereof, the rule states the general

proposition that,

No person shall, on

the basis of sex, be

excluded from partic-

ipation in, be denied

the benefits of, be

treated differently

from another person

or otherwise be dis-

criminated against in

any interscholastic,

intercollegiate, club

or intramural athlet-

ics offered by the

recipient, and no

-80a-

recipient shall pro-

vide any such athlet-

ics separately on

such basis.

This general rule is qualified

by subparagraph (b), however, to permit

separate teams under certain conditions,

ey -

<i /

Notwithstanding the

requirements of para-

graph (a) of this

section, a receipt

may operate or spon-

sor separate teams

for members of each

sex where selection

for such teams is

based upon competi-

tive skill or the

activity involved is

a contact sport.

However, where a

recipient operates or

sponsors a team in a

particular sport for

members of one sex

~-but:--operates or spon-

sors no such team for

members of the other

sex, and athletic

opportunities for

members of that sex

have previously been

limited, members of

the excluded sex must

be allowed to try-out

for the team offered

unless the sport is a

contact sport. For

purposes of this

part, contact sports

include boxing, wres-

tling, rugby, ice

hockey, football,

basketball and other

sports the purpose or

major activity of

which involves bodily

contact.

As noted, the defendant here

relied upon the provisions of §106.41(b)

to support its policy of prohibiting boys

from playing on the designated girls'

teams. In their motion for summary judg-

ment plaintiffs contend that the school

district's policy with respect to the

field hockey team is a blatant and obvi-

ous violation of Title IX and the fore-

going rule, and that the Court can so

determine as a matter of law. In re-

sponse to the motion, defendant argues

-$2a-

that there are issues of material fact in

dispute, specifically, in this context,

whether field hockey is a contact sport

and whether athletic opportunities for

boys have previously been limited.’

ri We recognize that defendant has

identified other issues of material

fact which it contends are disputed

and relevant to the issues before

the Court. As noted above, the

contentions concerning material

facts in dispute will be considered

in the context of our discussion of

the various legal issues. We con-

clude that these are the facts which

are relevant and material to our

discussion of Title IX. Insofar as

these facts may also have an impact

on other legal issues to be dis-

(continued...)

-83a-

As is obvious from the plain

language of the applicable regulation,

the defendant cannot lawfully exclude

boys from the field hockey team unless we

determine that field hockey 1s a contact

sport, and that boys' athletic opportuni-

ties have not been previously limited,

since a boys' field hockey team is not

offered. Pursuant to §106.41(b), the

school district is required to permit

boys to try-out for a girls' team if

there is no boys' team for the particular

sport, which is here admitted, if the

sport is not a contact sport and if ath-

letic activities for the excluded sex,

here the boys, have previously been lim-

ited.

2.(...continued)

cussed, such facts will likewise be

considered in those contexts.

-84a-

Despite defendant's vigorous

attempt to create an issue of fact for

trial concerning whether field hockey is

a contact sport, we conclude that it is

not for purposes of the athletic regula-

tions under Title Ix. In the first in-

stance, a number of contact sports are

enumerated in §106.41(b), including ice

hockey. The omission of field hockey

suggests that this sport was not recog-

nized as a contact sport when the rule

was drafted.

Second, the rules of play for

high school field hockey define as a

violation or foul virtually every activi-

ty on the field which involves bodily

contact between field hockey players or

between a player's body and the ball, as

well as practices which could lead to

bodily contact or which threatens such

contact, e.g., raising the stick during

-85a-

play and hitting the ball in a manner

which might cause it to be propelled

through the air. (See, Exhibit J to

Plaintiffs' Motion for Summary Judgment,

Doc.’ #13). It defies logic to conclude

that bodily contact is a purpose or major

activity of field hockey when a team may

be penalized not only when its players or

a ball hit by one of its players contacts

another player, but also when such con-

tact is threatened or likely.

Finally, although it is clear

from the affidavits of experienced

piayers and coaches given on behalf of

both sides that some bodily contact will

inevitably occur in the heat of a field

hockey game, none of the affiants as-

serted that bodily contact is the purpose

-86a-

or a major activity of field hockey.?

a3 We recognize, of course, that the

Ursinus College field hockey coach,

Vonni Gros, took an affidavit in

which she states that she considers

field hockey a contact sport and

that bodily contact regularly occurs

in the course of field hockey games.

We note, however, that, for purposes

of our inquiry, her opinion with

respect to whether field hockey is a

contact sport amounts to legal con-

clusion, which we are not obliged to

accept. Moreover, her conclusion is

not supported by the plain language

of the regulation. It is clear that

the description of a conitact sport

under §106.41(b) does not include a

(continued...)

-6/a-

Thus, we conclude that field hockey is

not a contact sport as that term is de-

fined in §106.41(b) of the regulations

implementing Titie IX.”

3.(...continued)

sport in which bodily contact is

incidental to the purpose or to the

major activities thereof, as stated

in the Gros affidavit. Rather, for

purposes of the regulation, the

issue is whether bodily contact is

involved in the purpose or ina

major activity of the sport Thus,

we do not consider the opinions

expressed in the Gros affidavit to

create a genuine issue of material

fact.

>>

In addition, we note in passing that

although the defendant here relies

- upon the contact sports exception to

(continued...)

-88a-

2

.continued)

the general requirement of equal

opportunity and non-discrimination

in sports programs to support its

policy of keeping a boy from par-

ticipating as a player on a girl,s'

team, this exception is not applied

in the case of girls trying out for

the boys' teams, including those

identified as contact sports in

§106.41(b). (See, Preliminary In-

ee)

junction Hearing Transcript, Doc. #

at 31). Obviously, therefore, the

defendant uses a "double standard",

based on gender, in applying Title

IX to its sports teams. It is doub-

tful whether such blatantly unequal

application of the same regulation

to boys and girls is lawful. It

(continued...)

-89a-

4.(...continued)

appears to the Court that if pro-

concern of the school district, it

would invoke the contact sports

exception with respect to girls

trying out for the football and

wrestling teams, as permitted by the

regulation, whether or not there has

been past limitatior of athletic

opportunities for girls. Instead,

the defendant school district ap-

pears to believe that it may legiti-

mately apply the literal terms of

§106.41(b), a regulation designed to

eliminate gender discrimination in

athletic programs, to support gen-

der-based discrimination in its

(continued...)

a

(

e))

!

Next, we must determine whether

the second Title IX criterion supports

the defendant's policy of excluding boys

from the field hockey team by considering

whether athletic opportunities for males,

the sex excluded from the field hockey

team, have previously been limited.

Defendant assumes, without presenting any

evidence in support thereof, that athlet-

ic opportunities for boys at Liberty High

School have been limited. The evidence,

however belies that unsupported conclu-

sion.

In testimony concerning past

limitations of athletic opportunities,

the defendant's Director of Athletic

Plant Management, Dominic Villani, re-

4.(...continued)

sports program when, as and if de-

fendant concludes that such discrinm-

ination is warranted.

-9la-

a

ferred to the situation in the late six-

ties and early seventies when girls had

limited athletic opportunities. Now,

however, according to Villani, the defen-

dant is proud of having equalized athlet-

ic opportunity by creating an equal num-

ber of teams for boys and girls at Liber-

ty High School and by permitting girls to

try-out for all of the boys' teams as

well as all of the girls' teams. (See,

Doc. #8 at 20, 31).

In fact, the record demon-

strates that as a consequence of this

plan for expanding opportunities for

girls in athletics, such opportunities

are now limited for boys and have been

Since 1973 when the new athletic policies

were implemented. (Id.). In an effort

to comply with Title Ix, the defendant

has established at Liberty High School

ten sports teams which are exclusively

-92a-

|

for girls, ten teams designated as boys'

teams but for which the girls may also

try-out, and two teams designated as co-

ed. (Id.; Deposition of Dominic Villani

at 58, 59, Exh. C to Defendant's Brief in

Opposition to Plaintiff's Motion for

Summary Judgment, Doc. #24). Thus, since

the new policies were implemented, boys

have been permitted to try-out for twelve

teams, while girls could try-out for all

twenty-two teams offered at Liberty High

School. (Id.). Moreovér, a girl who is

good enough could play ona boys' team

for which there is no comparable girls'

team, such as wrestling, as well as ona

boys' team in a sport for which there is

also a girls' team, such as basketball.

On the other hand, a boy such as the

plaintiff in this case, who wishes to

play a non-contact sport for which a

-93a-

boys' team is not offered, may not try-

out or play for the girls' team.

The question arises whether

after at least eighteen years of giving

girls more athletic opportunities than

offered to the boys, the defendant can

reasonably base its athletic policies

upon the assumption that boys have not

"previously" been denied opportunities in

athletics, and, therefore, whether the

defendant can maintain an exclusively

girls' team for a non-contact sport when

no comparable boys' team exists. It

appears to the Court that the term "pre-

viously" refers to a reasonable time in

the past, and does not hearken back to

the beginning of interscholastic athletic

programs. In addition, it is reasonable

to construe the term "previously" to

include current limitations on athletic

opportunities. Thus, it further appears

-94a-

that where there has been at least eigh-

teen years of limitations on athletic

opportunities for boys and that such

limitations are presently in force, the

Title IX requirement of previous limita-

tion on athletic participation for the

excluded sex has been met.

We conclude, therefore, that,

in this instance, defendant is violating

Title IX by excluding boys from the field

hockey team since there is no boys' team

for that sport, field hockey is a non-

contact sport and the excluded sex,

males, have previously been denied ath-

letic opportunities.

-95a-

II. §1983 Claims?

Having already decided that the

defendant violated a federal

statute, Title IX, by barring John

Williams from the field hockey team,

and because the statute "provides

its own comprehensive enforcement

scheme,", we are not required to

address plaintiff's constitutional

claims. Pfeiffer v. School Board

for Marion Center Area, 917 F.2d

779, 789 (3d Cir. 1990), quoting

Middlesex County Sewerage Authority

v. National Sea Clammers Associa-

tion, 453 U.8. 1, 101 §S.Ct.. 2615, 69

L.Ed.2d 435 (1981). We @o so, how-

ever, for the sake of completeness.

(continued...)

-96a-

A. Equal Protection

There appears to be no dispute

between the parties concerning the stan-

dard for determining whether defendant's

admitted gender discrimination denies

male students equal protection of the

law. Since there is no dispute that male

5.(...continued).

Moreover, we consider the Fourteenth

Amendment Equal Protection analysis

particularly useful in guiding our

consideration of plaintiffs' pendent

Claim under the Equal Rights Amend-

ment to the Pennsylvania Constitu-

tion, although the latter may re-

quire a higher degree of scrutiny of

gender classification than the Equal

Protection clause. Haffer v. Temple

University, 678 F. Supp. 517 (E.D.

Pa. 1987).

~97/a-

and female students are treated differ-

ently in defendant's athletic program,

the burden is on defendant to justify its

gender-based classification by demon-

strating that the policy it seeks to

uphold serves important governmental

objectives and that barring boys from the

field hockey team is substantially re-

lated to achieving such objectives.

Haffer v. Temple University, 678 F. Supp.

517 (E.D. Pa. 1987).

Plaintiffs contend that the

school district's policy of keeping John

Williams from playing on the Liberty High

School field hockey team violates the

Equal Protection clause of the Fourteenth

Amendment in that its gender-based dis-

crimination is not substantially related

to any important government interest.

In the first instance, plain-

tiffs do not agree that the reasons de-

-98a-

fendant cites to support gender classifi-

cations in athletics are important enough

to justify discrimination against boys.

Plaintiffs also argue that the school

district's policy of barring boys from

the field hockey team is not substan-

tially related to achieving the defen-

dant's asserted goals of remedying past

discrimination against girls in the de-

fendant's athletic opportunities for

female students, even if such interests

are sufficiently important to justify

some disparate treatment of male students

with respect to athletic programs.

We note that defendant has

identified several factual issues which

it contends are both disputed and materi-

al to the determination whether the in-

terests it asserts are important enough

to justify its policy of prohibiting boys

from the field hockey team, as well as

-99a-

whether such policy is substantially

related to furthering those interests.

The purported factual disputes include

the extent of the physiological differ-

ences between boys and girls at the high

school level, the degree to which permit-

ting boys on the field hockey team would

reduce opportunities for girls to play,

the extent to which girls experienced

past discrimination and the extent to

which alternative to banning boys from

the field hockey team would be practical,

workable and effective to remedy the

asserted past discrimination and to as-

sure continued equality of opportunity in

athletics. As will become clear in our

discussion of the defendant's justifica-

tion of its policy, however, these issues

are not really in dispute, and/or are not

actually material in that there is insuf-

ficient justification for the defendant's

-100a-

gender discrimination regardless of

whether such issues might be resolved in

favor of the defendant at a later trial.

We consider first defendant's

contention that its present policy is

justified as a remedy for past discrimi-

nation against girls in its athletic

program. Based upon our prior analysis

of the relative athletic opportunities

currently offered by defendant to boys

and girls in connection with plaintiff's

Title IX claim, we reject defendant's

contention that it is currently proper to

limit opportunities for boys in its

sports programs.

Our earlier comments, con-

cerning the need to select a reasonable

time-frame as a reference for determining

whether past practices justify present

policies, apply with equal force in this

context. The defendant supports its

-10l1a-

a

admittedly discriminatory policy of

prohibiting boys from playing on the

field hockey team by the purported need

to redress problems which existed in the

sixties and seventies. For the current

students of Liberty High School the years

for which the school district is still

trying to make amends is equivalent to

prehistoric times, since most, if not

all, of them were not then in existence.

Thus, we conclude that with respect to

Liberty High School, providing a remedy

for past discrimination against girls in

athletics does not presently constitute a

government interest important enough to

justify the current and continuing policy

of prohibiting male students from trying

out and playing for designated girls'

teams when no comparable boys' team is

offered. We do not, therefore, need to

determine whether there is a substantial

-102a-

relationship between this objective and

the means chosen to address it.

Our conclusion is different,

however, with respect to defendant's

announced concern with maintaining oppor-

tunities for girls to participate in

athletics. Defendant argues, and we

accept as a truism which hardly needs

extensive evidentiary Support, that boys,

on average, have a size and weight advan-

tage over girls at the high school level,

and that such advantage increases between

ages fourteen and eighteen, the usual

span encompassed by the high school

years. Moreover, we recognize that a

rule of law which permits absolutely no

distinctions in high school sports pro-

grams in order to accommodate such dif- .

ferences might ultimately restrict ath-

letic opportunities for girls and,

therefore, create a new imbalance in

-103a-

sports programs in favor of male stu-

dents.

Nevertheless, the facts that

awareness of and accommodation to biolog-

ical differences between males and fe-

males in high school athletic programs

may, in appropriate circumstances, be

substantially related to the important

government interest of maintaining equal-

ity of athletic opportunity does not here

establish that the defendant's policy of

absolutely prohibiting any boy from par-

ticipating on any team designated as a

girls' team is substantially related to

furthering the identified interest. As

noted in Haffer, 678 F. Supp. at 524,

"Although differential treatment, with

respect to a particular sport, is permit-

ted when the record reveals relevant

physical differences, overbroad and un-

supported generalizations regarding the

-~104a-

icine eeieaaal

athletic abilities of males and females

will be rejected.” (Citations omitted).

This is so because reliance

upon such overbroad generalizations often

. leads to the type of overbroad policy,

such as that at issue here, which repre-

sents a government entity's attempt to

develop a formula to be applied by rote

as a substitute for thoughtful consider-

ation of specific situations and evalua-

tion and adjustment of actions and prac-

tices as necessary to assure equal oppor-

tunity. kegardless of the value of that

goal, policies based upon stereotypes are

not the appropriate means for reaching

it, and, moreover, provide no assurance

that the desired objective will thereby

be achieved.

With respect to the defendant's

reliance upon undeniable physical

difference between boys and girls as a

-105a-

ee

rationale for prohibiting all boys from

participating on all designated girls'

teams, it is clear from the evidence

produced by the defendant in opposition

to summary judgment that unsupported

assumptions and broad generalizations

underlie that policy. The substance of

defendant's argument is that the average

boy is bigger, stronger, faster and has a

longer reach than the average girl.

Permitting any boy, therefore, to try-out

and play for the field hockey team will

have the effect of flooding the team with

boys, who will then certainly dominate it

to the exclusion of girls who wish to

play field hockey.

The small amount of evidence in

this record which is based upon past and

current facts rather than upon assump-

tions and speculation concerning future

developments does not, however, support

-106a-

defendant's contention. The defendant's

experience, based upon the history of the

number of girls trying out for boys'

teams compared to the number of boys who

have sought to try-out for the girls'

field hockey team, indicates that the

interest among boys and girls in playing

on a team designed for the opposite sex

is both small and approximately equal.

According to the testimony of Dominic

Villani, two girls have gone out for

boys' teams in such cross try-outs have

been permitted at Liberty High School.

(See, Doc. #8 at 24; Exh C to Doc. #24 at

16). As noted, another boy tried out for

the field hockey team in 1990 along with

John Williams, (See, Testimony of John

William, Doc. #8 at 5), and Villani tes-

tified that he thought two boys had pre-

viously tried out for a girls' team,

although it is somewhat unclear whether

-107a-

that number referred specifically to the

field hockey team and whether the other

boy who tried out for the team in 1990

was included. Although Villani expressed

his personal opinion that if boys are

permitted to play on the field hockey

team the number of boys desiring to do so

would increase over the years, he gave no

basis for such opinion and it is obvious

that it is not based upon his experiences

in the Bethlehem School District or upon

his knowledge of the level of interest in

field hockey among boys.

The only other evidence con-

cerning the general interest of boys in

playing field hockey in the Bethlehem

School District suggests that Villani's

speculation is nothing more than a base-

less attempt to justify a discriminatory

policy. Villani himself testified that

there is insufficient interest among boys

-108a-

to justify an attempt to Organize a boys'

field hockey team in the district. (Doc.

#8 at 20, 21; Exh. C at Doc. #24 at 16,

17). Moreover, it is obvious that this

lack of interest among boys does not

arise from lack of opportunity for boys

to familiarize themselves with the sport,

Since the school district offers a coed

field hockey program at the junior high

level. (Doc. #8 at 4). Finally, Villani

testified that even if the Bethlehem

School District offered a boys' field

hockey team, there would be no other

teams against which to compte. Thus, it

appears that lack of interest in field

hockey among boys is common. This infer-

ence is supported by the affidavit of

Lynn Ralston, Director of Development of

the Field Hockey Association of America,

who stated that because field hockey has

traditionally been perceived as a women's

-109a-

sport, the biggest obstacle in promoting

the sport generally lies in convincing

boys that they can play. (Exh. 8 to

Plaintiffs' Motion for Summary Judgment,

Doc. #13).

It appears from all of the

foregoing facts and reasonable inferences

to be drawn therefrom that there is a

demonstrated lack of interest in playing

on girls' teams in general among males at

Liberty High School, as well as a general

lack of interest among males in playing

field hockey at all.

Moreover, defendant's assertion

that permitting boys to play on the

girls' field hockey team would certainly

deprive at least one girl of the oppor-

tunity to play is likewise unsupported by

the evidence. First, according to the

uncontradicted testimony of the Liberty

High School field hockey coach, Martin

-110a-

Romeril, girls' interest in field hockey

fluctuates. (Exh. D. to Doc. #13 at 25).

In one season, there were only eleven

girls on the junior varsity squad, barely

enough to field a team. (id.})}. Thus, in

any given year, it is possible that the

presence of one or more boys on the field

hockey team could enhance girls' opportu-

nities to play by assuring that there are

sufficient players on the team.

Second, the coach testified

that it was his policy to permit all

potential players who try-out for the

team to join, and to play in the games,

at least on the junior varsity level.

(Id., at 41). As a general proposition,

therefore, defendant's assertion that

having even one boy on the field hockey

team would absolutely diminish opportun-

ities for girls to play is based upon

Speculation and assumptions of a worst

-llla-

case scenario rather than upon experience

or reasonable expectations.

We conclude that the evidence

of record establishes that defendant's

fears concerning the purported potential

of boys to dominate the field hockey team

to the detriment of girls' athletic op-

portunities are completely unfounded or

so ephemeral as to be insufficient justi-

fication for a policy which discriminates

against boys in order to protect equal

athletic opportunities for girls. With

respect to this issue, defendant has

relied entirely upon opinions which have

no identifiable underlying factual sup-

port as its basis for asserting that

disputed issues of material fact preclude

summary judgment, or upon undisputed

facts which are immaterial to the as-

serted interest. It is completely

unnecessary, e.g., to determine the ex-

-l112a-

tent of the physiological differences

between boys and girls at the high school

level. Although, on average, such dif-

ferences may be substantial, that fact is

no material to the defendant's position

in light of the lack of evidence sup-

porting defendant's assertions that per-

mitting boys on the field hockey team

would lead to dramatic increase in the

number of boys who wish to play field

hockey and thereby reduce opportunities

for girls to play. Likewise, although

the question whether the average physio-

logical differences between boys and

girls might give boys a competitive ad-

vantage over girls in playing field

hockey could be considered a disputed

issue of fact, it is immaterial for the

same reason.

We further conclude that it is

unnecessary to determine the extent to

-l113a-

which alternatives to banning boys from

the girls' field hockey team would be

feasible as a means to further the defen-

dant's interest in maintaining equal

athletic opportunities since there is no

evidence to support the proposition that

permitting boys to play for the field

hockey team would impact that interest.

B. Due Process

Having already concluded that

defendant's policy of banning boys from

the field hockey team constitutes a vio-

lation of the Equal Protection clause in

that defendant cannot demonstrate that

such policy is substantially related to

an important government interest, we find

it necessary to address in detail

plaintiff's argument with respect to the

Gue Process clause.

-l1l4a-

We note, however, that we find

somewhat problematic the question whether

affording the plaintiff notice and an

opportunity to be heard before banning

him from the field hockey team would have

made any difference to him. He was unde-

niably cut from the team on the basis of

a school district policy which was in

effect at the time, and could not have

prevailed at a hearing, after notice that

he was in jeopardy of being dismissed

from the team, absent a determination

that the policy upon which his dismissal

was based is unlawful. Thus, although

defendant's actions may constitute a due

process violation, it is questionable

-115a-

whether such a finding would lead to an

effective remedy in this case.

III. Equal Rights Amendment to the

Pennsylvania Constitution

It appears that in the absence

of a definitive pronouncement by the

Pennsylvania Supreme Court, the lower

courts have had some difficulty in deter-

mining the appropriate standard to apply

in assessing whether a gender-based poli-

cy such as that at issue here violates

the Pennsylvania Equal Rights Amendment

(ERA). See, e.g., Haffer v. Temple Uni-

versity, 678 F. Supp. at 534-536. It

further appears, however, that the level

of scrutiny to be applied is at least as

stringent as that applicable to analysis

-116a-

of claims under the Equal Protection

clause. Indeed, that is the standard

which defendant assets ought to be ap-

plied to plaintiff's ERA claim.

We have no difficulty, there-

fore, in concluding that if defendant's

policy violates the Equal Protection

clause, it likewise violates the Pennsyl-

vania ERA.

LV. Summary

Since we have concluded that

defendant's policy of banning boys from

the field hockey team at Liberty High

School on the basis that it is a desig-

nated girls' team is unsupportable under

Title IX of the Education Amendments of

1972, an, in addition, that it violates

both the Equal Protection clause of the

United States Constitution and the Penn-

sylvania Equal Rights Amendment, we will

-117a-

alee

enter judgment in favor of the plaintiffs

and order that John Williams be permitted

to participate in field hockey at Liberty

High School on the same basis as female

students.

-118a-

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 92-1650

SARAH ANNE WILLIAMS; WAYNE WILLIAMS,

on behalf of their minor son,

JOHN WILLIAMS

Vv.

THE SCHOOL DISTRICT OF BETHLEHEM, PA,

SUR PETITION FOR REHEARING

Present: SLOVITER, Chief Judge, BECKER,

STAPLETON, MANSMANN,

GREENBERG, HUTCHINSON, SCIRICA,

COWEN, NYGAARD, ALITO,

ROTH and LEWIS, Circuit Judges

The petition for rehearing

filed by Appellees Sarah Anne Williams

and Wayne Williams in the above-entitled

case having been submitted to the judges

who participated in the decision of this

court and to all the other available

circuit judges of the circuit in regular

active service, and no judge who con-

-119a-

curred in the decision having asked for

rehearing, and a majority of the circuit

judges of the circuit in regular active

service not having voted for rehearing by

the court in banc, the petition for

rehearing is denied.

By the Court,

Chief Judge

Dated: July 30, 1993

-120a-

7 CFR § 1548.7)

§ 15a.71 Interim procedures.

For the purposes of implementing

this part during the period between its

effective date and the final issuance by

the Department of a consolidated pro-

cedural regulation applicable to Title Ix

and other civil rights authorities admin-

istered by the Department, the procedural

provisions applicable to Title VI of the

Civil Rights Act of 1964 are hereby

adopted and incorporated herein by refer-

ence. These procedures may be found at 7

CFR 15.5-15.11 and 7 CFR 15.60 et seq.

-~l12la-

7 CFR. § 155.42

§ 15b.42 Procedures.

The procedurai provisions applicable

to Title VI of the Civil Rights Act of

1964 apply to this part. These proce-

Gures are found in 7 CFR 15.5-15.11 and

15.60-15.143. _

-l122a-

20 U.S.C. § 1415

§ 1415. Procedural safeguards

(a) Establishment and maintenance

Any State educational agency, any

local educational agency, and any inter-

mediate educational unit which receives

assistance under this subchapter shall

establish and maintain procedures in ac-

cordance with subsection (b) through sub-

section (e) of this section to assure

that handicapped children and their

parents or guardians are guaranteed pro-

cedural safeguards with respect to the

provision of free appropriate public

education by such agencies and units.

(b) Required procedures; hearing

(1) The procedures required by this

section shall include, but shall not be

limited to--

(A) an opportunity for the

parents or guardian of a handicapped

“Leu”

child to examine all relevant

records with respect to the

identification, evaluation, and

educational placement of the child,

and the provision of a free appro-

priate public education to such

child, and to obtain an independent

educational evaluation of the child;

(B) procedures to protect the

rights of the child whenever the

parents or guardian of the child are

not known, unavailable, or the child

is a ward of the State, including

the assignment of an individual (who

shall not be an employee of the

State educational agency, local

educational agency, or intermediate

educational unit involved in the

education or care of the child) to

act as a surrogate for the parents

or guardian;

-124a-

(C) written prior notice to

the parents or guardian of the child

whenever such agency or unit --

(i) proposes to initiate

or change, or

(ii) refuses to initiate

or change,

the identification, evaluation, or

education placement of the child or

the provision of a free appropriate

public education to the child;

(D) procedures designed to

assure that the notice required by

clause (C) fully informs the parents

Or guardian, in the parents' or

guardian's native language, unless

it clearly is not feasible to do so,

of all procedures available pursuant

to this section; and

(E) an opportunity to present

complaints with respect to any mat-

-129a-

ter relating to the identification,

evaluation, or educational placement

of the child, or the provision of a

free appropriate public education to

such child.

(2) Whenever a complaint has been

received under paragraph (1) of this sub-

section, the parents or guardian shall

have an opportunity for an impartial due

process hearing which shall be conducted

by the State educational agency or by the

local educational agency or intermediate

educational unit, as determined by State

law or by the State educational agency.

No hearing conducted pursuant to the re-

quirements of this paragraph shall be

conducted by an employee of such agency

or unit involved in the education or care

of the child.

(c) Review of local decision by State

educational agency

~1268a-

If the hearing required in paragraph

(2) of subsection (b) of this section is

conducted by a local educational agency

or an intermediate educational unit, any

party aggrieved by the findings and deci-

sion rendered in such a hearing may

appeal to the State educational agency

which shall conduct an impartial review

of such hearing. The officer conducting

such review shall make an independent

decision upon completion of such review.

(d) Enumeration of rights accorded

parties to hearings

Any party to any hearing conducted

pursuant to subsections (b) and (c) of

this section shall be accorded --

(1) the right to be accom-

panied and advised by counsel and by

individuals with special knowledge

or training with respect to the

problems of handicapped children.

-12 78>

(2) the right to present evi-

dence and confront, cross-examine,

and compel the attendance of wit-

nesses,

(3) the right to a written or

electronic verbatim record of such

hearing, and

(4) the right to written find-

ings of fact and decisions (which

findings and decisions shall be made

available to the public consistent

with the requirements of section

1417(c) of this title and shall also

be transmitted to the advisory panel

established pursuant to section

1413(a) (12) of this title).

(e) Civil action; jurisdiction

(1) A decision made in a hearing

conducted pursuant to paragraph (2) of

subsection (b) of this section shall be

final, except that any party involved in

-128a-

such hearing may appeal such decision

under the provisions of subsection (c)

and paragraph (2) of this subsection. A

decision made under subsection (c) of

this section shall be final, except that

any party may bring an action under para-

graph (2) of this subsection.

(2) Any party aggrieved by the

findings and decision made under subsec-

tion (b) of this section who does not

have the right to an appeal under subsec-

tion (c) of this secticn, and any party

aggrieved by the findings and decision

under subsection (c) of this section,

shall have the right to bring a civil

action with respect to the complaint

presented pursuant to this section, which

action may be brought in any State court

of competent jurisdiction or ina dis-

trict court of the United States without

regard to the amount in controversy. In

-i129a-

any action brought under this paragraph

the court shall receive the records of

the administrative proceedings, shall

hear additional evidence at the request

of a party, and, basing its decision on

the preponderance of the evidence, shall

grant such relieve as the court deter-

mines iS appropriate.

(3) During the pendency of any pro-

ceedings conducted pursuant to this sec-

tion, unless the State or local educa-

tional agency and the parents or guardian

otherwise agree, the child shall remain

in the then current educational placement

of such child, or, if applying for ini-

tial admission to a public school, shall,

with the consent of the parents or

guardian, be placed in the public school

program until all such proceedings have

been completed.

-130a-

(4) (A) The district courts of the

United States shall have the jurisdiction

of actions brought under this subsection

without regard to the amount in con-

troversy.

(B) In any action or proceed-

ing brought under this subsection, the

court, in its discretion, may award rea-

sonable attorneys' fees as part of the

costs to the parents or guardian of a

handicapped child or youth who is the

prevailing party.

(C) For the purpose of his

Subsection, fees awarded under this sub-

section shall be based on rates prevail-

ing in the community in which the action

Or proceeding arose for the kind and

quality of services furnished. No bonus

or multiplier may be used in calculating

the fees awarded under this subsection.

-l3ila-

(D) No award of attorneys'

fees and related costs may be made in any

action or proceeding under this subsec-

tion for services performed subsequent to

the time of a written offer of settlement

to a parent or guardian, if --

(i) the offer is made

within the time prescribed by Rule

68 of the Federal Rules of Civil

Procedure or, in the case of an

administrative proceeding, at any

time more than ten days before the

proceeding begins;

(ii) the offer is not ac-

cepted within ten days; and

(iii) the court or

administrative officer finds that

the relief finally obtained by the

parents or guardian.is not more

favorable to the parents or guardian

than the offer of settlement.

-l132a-

(E) Notwithstanding the provi-

Sions of Subparagraph (D), an award of

attorneys' fees and related costs may be

made to a parent or guardian who is the

prevailing party and who was substan-

tially justified in rejecting the settle-

ment offer.

(F) Whenever the court finds

that --

(i) the parent or

guardian, during the course of the

action or proceeding, unreasonably

protracted the final resolution of

the controversy;

(ii) the amount of the

attorneys' fees otherwise authorized

to be awarded unreasonably exceeds

the hourly rate prevailing in the

community for similar services by

attorneys of reasonably comparable

-133a-

skill, experience, and reputation;

or

(iii) the time spent and

legal services furnished were exces-

sive considering the nature of the

action or proceeding,

the court shall reduce, accordingly, the

amount of the attorneys' fees awarded

under this subsection.

(G) The provisions of subparagraph

(F) shall not apply in any action or pro-

ceeding if the court finds that the State

or local educational agency unreasonably

protracted the final resolution of the

action or proceeding or there was a vio-

lation of this section.

(f) Effect on other laws

Nothing in this chapter shall be

construed to restrict or limit the

rights, procedures, and remedies avail-

able under the Constitution, title V of

-134a-

the Rehabilitation Act of 1973 [29

U.S.C.A. § 790 et seq.], or other Federal

statutes protecting the rights of handi-

capped children and youth, except that

before the filing of a civil action under

such laws seeking relief that is also

available under this subchapter, the

procedures under subsections (b) (2) and

(c) of this section shall be exhausted to

the same extent as would be required had

tne action been brought under this sub-

chapter.

-135a-

20. U.S.C. § 168)

§ 1681. Sex

(a) Prohibition against discrimination;

exceptions

No person in the United States

shall, on the basis of sex, be excluded

from participation in, be denied the

benefits of, or be subjected to discrimi-

nation under any education program or

activity receiving Federal financial

assistance, except that:

(1) Classes of education institu-

tions subject to prohibition

in regard to admissions to edu-

cational institutions, this section

shall aeniy: onky to institutions of

vocational education, professional

education, and graduate higher edu-

cation, and to public institutions

of undergraduate higher education;

(2) Educational institutions com-

mencing planned change in

admissions

-136a-

in regard to admissions to edu-

cational institutions, this section

shall not apply (A) for one year

from June 23, 1972, nor for six

years after June 23, 1972, in the

case of an educational institution

which has begun the process of chan-

ging from being an institution which

admits only students of one sex to

being an institution which admits

students of both sexes, but only if

it is carrying out a plan for such a

change which is approved by the

Secretary of Education or (B) for

seven years from the date an educa-

tional institution begins the pro-

cess of changing from being an

institution which admits only

students of only one sex to being an

institution which admits students of

both sexes, but only if it is

“13 7a-

carrying out a plan for such a

change which is approved by the Sec-

retary of Education, whichever is

later;

(3) Educational institutions of

religious organizations with

contrary religious tenets

this section shall not apply to

an educational institution which is

controlled by a religious organiza-

tion if the application of this sub-

section would not be consistent with

the religious tenets of such organi-

zation;

(4) Educational institutions train-

ing individuals for military

service or merchant marine

this section shall not apply to

an educational institution whose

primary purpose is the training of

individuals for the military

services of the United States, or

the merchant marine;

_ --138a-

(5S) Public educational institutions

with traditional and continuing

admissions policy

in regard to admissions this

section shall not apply to any

public institution of undergraduate

higher education which is an

institution that traditionally and

continually from its establishment

has had a policy of admitting only

students of one sex;

(6) Social fraternities or sorori-

ties; voluntary youth service

organizations

this section shall not apply to

membership practices--

(A) of a social fraternity or

social sorority which is exempt from

taxation under section 501l(a) of

Title 26, the active membership of

which consists primarily of students

in attendance at an institution of

higher education, or

-i39a°

(B) of the Young Men's

Christian Association, Young Women's

Christian Association, Girl Scouts,

Boy Scouts, Camp Fire Girls, and

voluntary youth service

organizations which are so exempt,

the membership of which has

traditionally been limited to

persons of one sex and prircipally

to persons of less than nineteen

years of age;

(7) Boy or Girl conferences

this section shall not apply

to-= |

(A) any program or activity of

the American Legion undertaken in

connection with the organization or

operation of any Boys State confer-

ence, Boys Nation conference, Girls

State conference, or Girls Nation

conference; or

-140a-

(B) any program or activity of

any secondary school or educational

institution specifically for--

(1) the promotion of any

Boys State conference, Boys

Nation conference, Girls State

conference, or Girls Nation

conference; or

(ii) the selection of stu-

dents to attend any such

conference;

(8) Father-son or mother-daughter

activities at educational

institutions

this section shall not preclude

father-son or mother-daughter

activities at an educational

institution, but if such activities

are provided for students of one

sex, Opportunities for reasonably

comparable activities shall be

-14la-

provided for students of the other

sex; and

(9) Institution of higher education

scholarship awards in "beauty"

pageants

this section shall not apply

with respect to any scholarships or

other financial assistance awarded

by an institution of higher

education to any individual because

such individual has received such

award in any pageant in which the

attainment of such award is based

upon a combination of factors

related to the personal appearance,

poise, and talent of such individual

and in which participation is

limited to individuals of one sex

only, so long as such pageant is in

compliance with other

nondiscrimination provisions of

Federal law.

-142a-

(b) Preferential or disparate treatment

because of imbalance in

participation or receipt of Federal

benefits; statistical evidence of

imbalance

Nothing contained in subsection (a)

of this section shall be interpreted to

require any educational institution to

grant preferential or disparate treatment

to the renee of one sex on account of

an imbalance which may exist with respect

to the total number or percentage of

persons of that sex participating in or

receiving the benefits of any federally

supported program or activity, in

comparison with the total number or

percentage of persons of that sex in any

community, State, section, or other area:

Provided, That this subsection shall not

be construed to prevent the consideration

in any hearing or proceeding under this

chapter of statistical evidence tending

to show that such an imbalance exists

-143a-

with respect to the participation in, or

receipt of the benefits of, any such

program or activity by the members of one

sex.

(c) “Educational institution" defined

For purposes of this chapter an edu-

cational institution means any public or

private preschool, elementary, or second-

ary school, or any institution of voca-

tional, professicnal, or higher

education, except that in the case of an

educational institution composed of more

than one school, college, or department

which are administratively separate

units, sucn term means each such school,

college, or department.

-144a-

28 U.S.C. § 1254

§ 1254. Court of appeals; certiorari;

certified questions

Cases in the courts of appeals may

be reviewed by the Supreme Court by the

following methods:

(1) By writ of certiorari

granted upon the petition of any

party to any civil or criminal case,

before or after rendition of judg-

ment or decree;

(2) By certification at any

time by a court of appeals of any

question of law in any civil or

Criminal case as to which instruc-

tions are desired, and upon such

certification the Supreme Court may

give binding instructions or require

the entire record to be sent up for

decision of the entire matter in

controversy.

-145a-

28 U.S.C. § 1331

§ 1331. Federal question

The district courts shall have

original jurisdiction of all civil

actions arising under the Constitution,

laws, or treaties of the United States.

-146a-

§ 626. Recordkeeping, investigation,

and enforcement

(a) Attendance of witnesses, inves-

tigations, inspections,

records, and homework

regulations

The Equal Employment Opportunity

Commission shall have the power to make

investigations and require the keeping of

records necessary or appropriate for the

administration of this Chapter in accor-

dance with the powers and procedures pro-

vided in sections 209 and 211 of this

citis.

(b) Enforcement; prohibition of age

discrimination under fair labor

Standards; unpaid minimum wages

and unpaid overtime compensa-

tion; liquidated damages; judi-

cial relief; conciliation,

conference, and persuasion

The provisions of this chapter shal]

be enforced in accordance with the

powers, remedies, and procedures provided

in sections 211(b), 216 (except for

-147a-

subsection (a) thereof), and 217 of this

title, and subsection (c) of this

section. Any act prohibited under

section 623 of this title shall be deemed

to be a prohibited act under section 215

of this title. Amounts owing to a person

as a result of a violation of this

chapter shall be deemed to be unpaid

minimum wages or unpaid overtime

compensation for purposes of sections 216

and 217 of this title: Provided, That

liquidated damages shall be payable only

in cases of willful violations of this

chapter. In any action brought to

enforce this chapter the court shall have

jurisdiction to grant such legal or

equitable relief as may be appropriate to

effectuate the purposes of this chapter,

including without limitation judgments

compelling employment, reinstatement or

promotion, or enforcing the liability for

-148a-

amounts deemed to be unpaid minimum wages

Or unpaid overtime compensation under

this section. Before instituting any

action under this section, the Equal

Employment Opportunity Commission shall

attempt to eliminate the discriminatory

practice or practices alleged, and to

effect voluntary compliance with the

requirements of this chapter through

informal methods of conciliation,

conference, and persuasion.

(c) Civil actions; persons ag-

grieved; jurisdiction; judicial

relief; termination of

individual action upon

commencement of action by

Commission; jury trial

(1) Any persons aggrieved may bring

a Civil action in any court of competent

Jurisdiction for such legal or equitable

relief as will effectuate the purposes of

this chapter: Provided, That the right

of any person to bring such action shall

-149a-

—a

terminate upon the commencement of an

action by the Equal Employment

Opportunity Commission to enforce the

right of such employee under this

chapter.

(2) In an action brought under

paragraph (1), a person shall be entitled

to a trial by jury of any issue of fact

in any such action for recovery of

amounts owing as a result of a violation

of this chapter, regardless of whether

equitable relief is sought by any party

in such action.

(d) Filing of charge with Commis-

sion; timeliness; conciliation,

conference, and persuasion.

No civil action may be commenced by

an individual under this section until 60

days after a charge alleging unlawful 7

discrimination ian been filed with the

Equal Employment Opportunity Commission.

Such a charge shall be filed --

~150a~

(1) within 180 days after the

alleged unlawful practice occurred;

or

(2) in a case to which section

633(b) of this title applies, within

300 days after the alleged unlawful

practice occurred, or within 30 days

after receipt by the individual of

notice of termination of proceedings

under State law, whichever is earli-

er.

Upon receiving such a charge, the Commis-

Sion shall promptly notify all persons

named in such charge as prospective

defendants in the action and shall

promptly seek to eliminate any alleged

unlawful practice by informal methods of

conciliation, conference, and persuasion.

(e) Statute of limitations;

reliance in future on

-~151la-

administrative ruling, etc.;

tolling

(1) Sections 255 and 259 of this

title shall apply to actions under this

chapter.

(2) For the period during which the

Equal Employment Opportunity Commission

is attempting to effect voluntary

compliance with requirements of this

chapter through informal methods of

conciliation, conference, and persuasion

pursuant to subsection (b) of this

section, the statute of limitations as

provided in section 255 of this title

shall be tolled, but in no event for a

period in excess of one year.

-152a-

29 U.S.C. § 794

§ 794. Nondiscrimination under Federal

grants and programs; promulga-

tion of rules and regulations

No otherwise qualified handicapped

individual in the United States, as de-

fined in section 706(7) of this title,

Shall, solely by reason of his handicap,

be excluded from the participation in, be

denied the benefits of, or be subjected

to discrimination under any program or

activity receiving Federal financial

assistance or under any program or

activity conducted by any Executive

agency or by the United States Postal

Service. The head of each such agency

Shall promulgate such regulations as may

be necessary to carry out the amendments

to this section made by the

Rehabilitation, Comprehensive Services,

and Developmental Disabilities Act of

1978. Copies of any proposed regulation

-153a-

shall be submitted to appropriate autho-

rizing committees of the Congress, and

such regulation may take effect no ,

earlier than the thirtieth day after the

date on which such regulation is so

submitted to such committees.

2,340"

42 U.S.C. § 2000d, et seg.

§ 2000d-1. Federal authority and

financial assistance to programs or

activities by way of grant, loan, or

contract other than contract of in-

surance or guaranty; rules and regu-

lations; approval by President; com-

pliance with requirements; reports

to Congressional committees; effec-

tive date of administrative action

Each Federal department and agency

which is empowered to extend Federal fi-

nancial assistance to any program or ac-

tivity, by way of grant, loan, or con-

tract other than a contract of insurance

Or guaranty, is authorized and directed

to effectuate the provisions of section

2000d of this title with respect to such

program or activity by issuing rules,

regulations, or orders of general appli-

cability which shall be consistent with

achievement of the objectives of the

Statute authorizing the financial assis-

tance in connection with which the action

is taken. No such rule, regulation, or

-155a-

order shall become effective unless and

until approved by the President. Compli-

ance with any requirement adopted pursu-

ant to this section may be effected (1)

by the termination of or refusal to grant

or to continue assistance under such pro-

gram or activity to any recipient as to

whom there has been an express finding on

the record, after opportunity for hear-

ing, of a failure to comply with such

requirement, but such termination or

rerusal shall be limited to the particu-

lar program, or part thereof, in which

such noncompliance has been so found, or

(2) by any other means authorized by law:

Provided, however, That no such action

shall be taken until the department or

agency concerned has advised the appro-

priate person or persons of the failure

to comply with the requirement and has

determined that compliance cannot be

-156a-

secured by voluntary means. In the case

of any action terminating, or refusing to

grant or continue, assistance because of

failure to comply with a requirement

imposed pursuant to this section, the

head of the Federal department or agency

Shall file with the committees of the

House and Senate having legislative ju-

risdiction over the program or activity

involved a full written report of the

circumstances and the grounds to such

action. No such action shall become

effective until thirty days have elapsed

after the filing of such report.

(Pub L. 35-352, tities VI, § 602, July 2,

1964, 78 Stat. Boe e)

DELEGATION OF FUNCTIONS

Function of the President relating

to approval of rules, regulations, and

orders of general applicability under

this section, delegated to the Attorney

-157a-

General, see section 1-101 of Ex. Ord.

No. 12250, Nov. 2, 1980, 45 F.R. 72995,

set out as a note below.

EQUAL OPPORTUNITY IN FEDERAL EMPLOYMENT

Nondiscrimination in government

employment and in employment by govern-

ment contractors and subcontractors, see

Ex. Ord. No. 11246, eff. Sept. 24, 1965,

30 F.R. 12319, and Ex. Ord. No. 11476,

eff. Aug. 8, 1969, 34 F.R. 12985, set out

as notes under section 2000e of this

title.

EXECUTIVE ORDER NO. 11247

Ex. Ord. No. 11247, eff. Sept. 24,

1965, 30 F.R. 12327, which related to the

enforcement of coordination of nondis-

crimination in federally assisted pro-

grams, was superseded by Ex. Ord. No.

11764, eff. Jan. 21, 1974, 39 F.R. 2575,

formerly set out as a note below.

-158a-

EXECUTIVE ORDER NO. 11764

Ex. Ord. No. 11764, Jan. 21, 1974,

39 F.R. 2575, which related to coordina-

tion of enforcement of the provisions of

this subchapter, was revoked by section

1-501 of Ex. Ord. No. 12250, Nov. 2,

1980, 45 F.R. 72996, set out as a note

below.

Ex. Ord. No. 12250. Leadership and Coor-

dination of Implementation and Enforce-

ment of Nondiscrimination Laws

Ex. Ord. No. 12250, Nov. 2, 1980, 45

F.R. 72995, provided:

By the authority vested in me as

President by the Constitution and stat-

utes of the United States of America,

including section 602 of the Civil Rights

Act of 1964 (42 U.S.c. 2000d-1), Section

902 of the Education Amendments of 1972

(20 U.S.C. 1682), and Section 301 of

Title 3 of the United States Code, and in

Order to provide, under the leadership of

-159a-

the Attorney General, for the consistent

and effective implementation of various

laws prohibiting discriminatory practices

in Federal programs and programs receiv-

ing Federal financial assistance, it is

hereby ordered as follows:

1-1. DELEGATION OF FUNCTION

1-101. The function vested in the

President by Section 602 of the Civil

Rights Act of 1964 (42 U.S.C. 2000d-1),

relating to the approval of rules, regu-

lations, and orders of general applica-

bility, is hereby delegated to the Attor-

ney General.

1-102. The function vested in the

President by Section 902 of the Education

Amendments of 1972 (20 U.S.C. 1682),

relating to the approval of rules, regu-

lations, and orders cf general applica-

-160a-

bility, is hereby delegated to the Attor-

ney General.

1-2. COORDINATION OF NONDISCRIMINATION

PROVISIONS

1-201. The Attorney General shall

_____coordinate the implementation and en-

forcement by Executive agencies of vari-

ous nondiscrimination provisions of the

following laws:

(a) Title Vi of the Civil Rights

Act of 1964 (42 U.S.C. 2000d et seq.).

(b) Title IX of the Education

Amendments of 1972 (20 U.S.c. 1681 et

seq.).

(C) Section 504 of the Rehabilita-

tion Act of 1973, as amended (23 U.8.¢C.

794).

(d) Any other provision of Federal

Statutory law which provides, in whole or

in part, that no person in the United

States shall on the ground of race,

-16la-

color, national origin, handicap, reli-

gion, or sex, be excluded from participa-

tion in, be denied the benefits of, or be

subject to discrimination under any pro-

gram or activity receiving Federal finan-

cial assistance.

1-202. In furtherance of the Attor-

ney General's responsibility for the co-

ordination of the implementation and

enforcement of the nondiscrimination pro-

visions of laws covered by this Order,

the Attorney General shall review the

existing and proposed rules, regulations,

and orders of general applicability of

the Executive agencies in order to iden-

tify those which are inadequate, unclear

or unnecessarily inconsistent.

1-203. The Attorney General shall

develop standards and procedures for tak-

ing enforcement actions and for con-

-162a-

ducting investigations and compliance

reviews.

1-204. The Attorney General shall

issue guidelines for establishing reason-

able time limits on efforts to secure

voluntary compliance, on the initiation

of sanctions, and for referral to the

Department of Justice for enforcement

where there is noncompliance.

1-205. The Attorney General shall

establish and implement a schedule for

the review of the agencies’ regulations

which implement the various nondiscrimi-

nation laws covered by this Order.

1-206. The Attorney General shall

establish guidelines and standards for

the development of consistent and effec-

tive recordkeeping and reporting require-

ments by Executive agencies; for the

Sharing and exchange by agencies of com-

pliance records, findings, and Supporting

-163a-

documentation; for the development of

comprehensive employee training programs;

for the development of effective informa-

tion programs; and for the development of

cooperative programs with State and local

agencies, including sharing of informa-

tion, deferring of enforcement activi-

ties, and providing technical assistance.

1-207. The Attorney General shall

initiate cooperative programs between and

among agencies, including the development

of sample memoranda of understanding,

designed to improve the coordination of

the laws covered by this Order.

1-3. IMPLEMENTATION BY THE ATTORNEY

GENERAL

1-301. In consultation with the

affected agencies, the Attorney General

shall promptly prepare a plan for the

—_—— ——

implementation of this Order. This plan

-~164a-

Shall be submitted to the Director of the

Office of Management and Budget.

1-302. The Attorney General shall

periodically evaluate the implementation

of the nondiscrimination provisions of

the laws covered by this Order, and ad-

vise the heads of the agencies concerned

on the results of such evaluations as to

recommendations for needed improvement in

implementation or enforcement.

1-303. The Attorney General shall

carry out his functions under this Order,

including the issuance of such regula-

tions as he deems necessary, in consulta-

tion with affected agencies.

1-304. The Attorney General shall

annually report to the President through

the Director of the Office of Management

and Budget on the progress in achieving

the purposes of this Order. This report

Shall include any recommendations for

-165a-

changes in the implementation or enforce-

ment of the nondiscrimination provisions

of the laws covered by this Order.

1-305. The Attorney General shall

chair the Interagency Coordinating Coun-

cil established by Section 507 of the

Rehabilitation Act of 1973, as amended

(29 U.S.C. 794c).

1-4. AGENCY IMPLEMENTATION

1-401. Each Executive agency shall

cooperate with the Attorney General in

the performance of the Attorney General

functions under this Order and shall,

unless prohibited by law, furnish such

reports and information as the Attorney

General may request.

1-402. Each Executive agency re-

sponsible for implementing a nondiscrimi-

nation provision of a law covered by this

Order shall issue appropriate implement-

ing directives (whether in the nature of

-166a-

regulations or policy guidance). To the

extent permitted by law, they shall be

consistent with the requirements pre-

scribed by the Attorney General pursuant

to this Order and shall be subject to the

approval of the Attorney General, who may

require that some or all of them be sub-

mitted for approval before taking effect.

1-403. Within 60 days after a day

set by tne Attorney General, Executive

agencies shall submit to the Attorney

General their plans for implementing

their responsibilities under this Order.

1-5. GENERAL PROVISIONS

1-501. Executive Order No. 11764 is

revoked. The present regulations of the

Attorney General relating to the coordi-

nation of enforcement of Title VI of the

Civil Rights Act of 1964 [this subchap-

ter] shall continue in effect until re-

voked or modified (28 CFR 42.401 to

42.415).

1-502. Executive Order No. 11914 is

revoked. The present regulations of the

Secretary of Health and Human Services

relating to the coordination of the im-

plementation of Section 504 of the Reha-

bilitation Act of 1973, as amended [29

U.S.C. 794], shall be deemed to have been

issued by the Attorney General.

1-503. Nothing in this Order shall

vest the Attorney General with the au-

thority to coordinate the implementation

and enforcement by Executive agencies of

statutory provisions relating to equal

employment.

1-504. Existing agency regulations

implementing the nondiscrimination provi-

Sions of laws covered by this Order shall

continue in effect until revoked or modi-

fied.

-16Sa~-

Jimmy Carter.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sec-

tions 2000d-2, 2000d-5, 5057, 9821, 9849

of this title; title 39 section 410.

§ 2000d-2. Judicial review; administra-

tive procedure provisions

Any department or agency action

taken pursuant to section 2000d-1 of this

title shall be subject to such judicial

review as may otherwise be provided by

law or agency on other grounds. [In the

case of action, not otherwise Subject to

judicial review, terminating or refusing

to grant or to continue financial assis-

tance upon a finding of failure to comply

with any requirement imposed pursuant to

section 2000d-1 of this title, any person

aggrieved (including any State or politi-

cal subdivision thereof and any agency of

either) may obtain judicial review of

-169a-

such action in accordance with chapter 7

of title 5, and such action shall not be

deemed committed to unreviewable agency

discretion within the meaning of that

chapter.

(Pub. L. 88-352, title VI, § 603, July 2,

1964, 78 Stat. 253.)

CODIFICATION

"Chapter 7 of title 5" and "that

chapter" were substituted for "section 10

of the Administrative Procedure Act" and

"that section", respectively, on au-

thority of Pub. L. 89-554, § 7(b), Sept.

6, 1966, 80 Stat. 631, the first section

of which enacted Title 5, Government

Organization and Employees. Prior to the

enactment of Title 5, section 10 of the

Administrative Procedure Act was classi-

fied to section 1009 of Title 5.

-i70a-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sec-

tions 2930c, 2971c, 2985g, 5057, 9821,

9849 of this title; title 39 section 410.

§ 2000d-3. Construction of provisions

not to authorize administrative

action with respect to employment

practices except where primary ob-

jective of Federal financial assis-

tance is to provide employment

Nothing contained in this subchapter

Shall be construed to authorize action

under this Subchapter by any department

Or agency with respect to any employment

practice of any employer, employment

agency, or labor organization except

where a primary objective of the Federal

financial assistance is to provide em-

ployment.

(Pub. L. 88-352, title VI, § 604, July 2,

1964, 78 Stat. £03 =)

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title

39 section 410.

§ 2000d-4. Federal authority and

financial assistance to programs or

activities by way of contract of in-

surance or guaranty

Nothing in this subchapter shall add

to or detract from any existing authority

with respect to any program or activity

under which Federal financial assistance

is extended by way of a contract of in-

surance or guaranty.

(Pub. L. 88-352, title VI, § 605, July 2,

1964, 78 Stat. 253.)

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title

39 section 410.

-172a~

§ 2000d-5. Prohibited deferral of action

on applications by local educational

agencies seeking Federal funds for

alleged noncompliance with Civil

Rights Act

The Secretary of Education shall not

defer action or order action deferred on

any application by a local educational

agency for funds authorized to be appro-

priated by this Act, by the Elementary

and Secondary Education Act of 1965 [20

U.S.C. 2701 et seq.], by the Act of Sep-

tember 30, 1950 (Public Law 874, Eighty-

first Congress) [20 U.S.C. 236 et seq.],

by the Act of September 23, 1950 (Public

Law 815, Eighty-first Congress) [20

U.S.C. 631 et seq.], or by the Coopera-

tive Research Act [20 U.S.C. 331 et

seq-], on the basis of alleged noncompli-

ance with the provisions of this subchap-

ter for more than sixty days after notice

is given to such local agency of such

deferral unless such local agency is

-1738a"

given the opportunity for a hearing as

provided in section 2000d-1 of this ti-

tle, such hearing to be held within sixty

days of such notice, unless the time for

such hearing is extended by mutual con-

sent of such local agency and the Secre-

tary, and such deferral shall not con-

tinue for more than thirty days after the

close of any such hearing unless there

has been an express finding on tise record

of such hearing that such local educa-

tional agency has failed to comply with

the provisions of this subchapter: Pro-

vided, That, for the purpose of determin-

ing weather a local educational agency is

in compliance with this subchapter, com-

pliance by such agency with a final order

or judgment of a Federal court for the

desegregation of the school or school

system operated by such agency shall be

deemed to be compliance with this sub-

-174a-

chapter, insofar as the matters covered

in the order or judgment are concerned.

(Pub. L. 59-750, title I, § 182, Nov. a

1966, 80 Stat. 1209; Pub. L. 90-247,

title I, § 112, Jan. 2, 1968, 81 Stat.

787; Pub. L. 96-88, title bees

§ 301(a)(1), title v, § 507, oct. 7.

1979, 93 Stat. 677, 692.)

REFERENCES IN TEXT

This Act, referred to in text, is

rup,. i. 89-750, Nov. 3, 1966, 80 Stat.

1191, as amended, known as the Elementary

and Secondary Education Amendments of

1965. For complete Classification of

that Act to the Code, see Short Title of

1966 Amendment note set out under section

2701 of Title 20, Education, and Tables.

The Elementary and Secondary Educa-

tion Act of 1965, referred to in text, is

Pub. L. 89-10, Apr. 11, 1965, 79 Stat.

-175a-

27, aS amended generally by Pub. L. 95-

561, Nov. 1, 1978, 92 Stat. 2152, which

is classified generally to chapter 47

(§ 2701 et seq.) of Title 20, Education.

For complete classification of this Act

to the Code, see Short Title note set out

under section 2701 of Title 20 and

Tables.

The Act of September 30, 1950, re-

ferred to in text, is act Sept. 30, 1950,

ch. 1124, 64 Stat. 1100, as amended,

popularly Known as the Educational Agen-

cies Financial Aid Act, which is classi-

fied generally to chapter 13 (§ 236 et

seq.) of Title 20, Education. For com-

plete classification of this Act to the

Code, see Short Title note set out under

section 236 of Title 20 and Tables.

The Act of September 23, 1950, re-

ferred to in text, is act Sept. 23, 1950,

ch. 995, as amended generally by Aug. 12,

-176a-

4958, Pub. tL. 85-620, title I, 72 Stat.

5948, which is classified generally to

chapter 19 (§ 631 et seq.) of Title 20,

Education. For complete Classification

of this Act to the Code, see Tables.

The Cooperative Research Act, re-

ferred to in text, is act July 26, 1954,

ch. 576, 68 Stat. 533, which was classi-

fied generally to chapter 15 (§ 331 et

seq.) of Title 209, Education, and ter-

minated on July 1, 1975, under provisions

of section 402(c) (1) of Pub. L. 93-380,

title Iv, Aug. 21, 1974, 88 Stat. 544.

See section 1851 et seq. of this title.

For complete classification of this Act

to the Code, see Tables.

CODIFICATION

Section was enacted as part of the

Elementary and Secondary Education Amend-

ments of 1966, and not as part of the

-177a-

Civil Rights Act of 1964, title VI of

which comprises this subchapter.

AMENDMENTS

1968-Pub. L. 90-247 added to the

proviso to this section.

EFFECTIVE DATE

Section 191 of Pub. L. 89-750 pro-

vided that: "The provisions of this

title [enacting this section and sections

241m, 871 to 880, and 886 of Title 20,

Education, amending sections 241b, 24lc,

24le, 241f, 241g, 241h, 2413, 241k, 2411,

244, 3318, 3328, 3340; @21, GAea, Bass

841, 842, 843, 844, 861, 862, 863, 864,

883, and 884 of Title 20, repealing sec-

tion 241d of Title 20, and enacting pro-

visions set out as notes under sections

24la, 241b, and 241c of Title 20] shall

be effective with respect to fiscal years

beginning after June 30, 1966, except as

specifically provided otherwise."

-178a~

TRANSFER OF FUNCTIONS

"Secretary of Education" and "Secre-

tary", were substituted for "Commissioner

of Education" and "Commissioner" pursuant

to sections 301(a)(1) and 507 of Pub. bL.

96-88, which are classified to sections

3441(a)(1) and 3507 of Title 20, Educa-

tion, and which transferred all functions

of the Commissioner of Education of the

Department of Health, Education, and

Welfare, to the Secretary of Education.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sec-

tion 2000d-6 of this title.

§ 2000d-6. Policy of United States as to

application of nondiscrimination

provisions in schools of local

educational agencies

(a) Declaration of uniform policy

It is the policy of the United

States that guidelines and criteria es-

tablished pursuant to title VI of the

-17/79a-

Civil Rights Act of 1964 [42 U.S.C. 2000da

et seq.] and section 182 of the Elemen-

tary and Secondary Education Amendments

of 1966 [42 U.S.C. 2000d-5] dealing with

conditions of segregation by race,

whether de jure or de facto, in the

schools of the local educational agencies

of any State shall be applied uniformly

in all regions of the United States what-

ever the origin or cause of such segrega-

tion.

(b) Nature of uniformity

Such uniformity refers to one policy

applied uniformly to de jure segregation

wherever found and such other policy as

may be provided pursuant to law applied

uniformly to de facto segregation

wherever found.

-180a-

'

(c) Prohibition of construction for

diminution of obligation for en-

forcement or compliance with non-

discrimination requirements

Nothing in this section shall be

construed to diminish the obligation of

responsible officials to enforce or com-

Ply with such guidelines and criteria in

order to eliminate discrimination in

federally assisted programs and activi-

ties as required by title VI of the Civil

Rights Act of 1964 [42 U.S.C. 20004 et

seq. ]

(d) Additional funds

It is the sense of the Congress that

the Department of Justice and the Secre-

tary of Education should request such

additional funds as may be necessary to

apply the policy set forth in this sec-

tion throughout the United States.

(Pub. L. Fi~230, § Z, Apr. 13, 1970, 84

Stat. 121; Pub. L. 96-88, title III,

-18la-

§ 301, title V, § 507, Oct. 17, 1979, 93

Stat. 677, 692.)

REFERENCES IN TEXT

The Civil Rights Act of 1964, re-

ferred to in subsecs. (a) and (c), is

Pub. L. 88-352, July 2, 1964, 78 Stat.

241, as amended. Title VI of the Civil

Rights Act of 1964 is classified gen-

erally to this subchapter (§ 2000d et

seq.). For complete classification of

this Act to the Code, see Short Title

note set out under section 2000a of this

title and Tables.

CODIFICATION

Section was enacted as part of the

Elementary and Secondary Education Amend-

ments of 1969, and not as part of the

Civil Rights Act of 1964, title VI of

which comprises this subchapter.

-182a-

TRANSFER OF FUNCTIONS

"Secretary of Education" Was substi-

tuted for "Department of Health, Educa-

tion, and Welfare" in Subsec. (d) pur-

Suant to sections 301 and 507 of Pub. L.

96-88, which are classified to sections

3441 and 3507 of Title 20, Education, and

which transferred functions and offices

(relating to education) of the Department

and Secretary of Health, Education, and

Welfare to the Secretary of Education.

-183a-

34 CFR § 101.1 et seg.

§ 101.1 Scope of Rules.

The rules of procedure in this part

supplement §§ 100.9 and 100.10 of this

subtitle and govern the practice for

hearings, decisions, and administrative

review conducted by the Department of

Education, pursuant to Title VI of the

Civil Rights Act of 1964 (section 602, 78

Stat. 252) and part 100 of this subtitle.

-184a-

34 CFR § 104.61

§ 104.61 Procedures.

The procedural provisions applicable

to title VI of the Civil Rights Act of

1964 apply to this part. These proce-

dures are found in §§ 100.6-100.10 and

part 101 of this title.

-185a-

34 CFR § 106.41

§ 106.41 Athletics.

(a) General. No person shall,

on the basis of sex, be excluded from

participation in, be denied the benefits

of, be treated differently from another

person or otherwise be discriminated

against in any interscholastic, intercol-

legiate, club or intramural athletics

offered by a recipient, and no recipient

shall provide any such athletics sep-

arately on such basis.

(b) Separate teams. Notwithstand-

ing the requirements of paragraph (a) of

this section, a recipient may operate or

sponsor separate teams for members of

each sex where selection for such teams

is based upon competitive skill or the

activity involved is a contact sport.

However, where a recipient operates or

sponsors a team in a particular sport for

-~186a-

members of one sex but operates or spon-

sors no such team for members of the

opposite sex, and athletic opportunities

for members of that sex have previously

been limited, members of the excluded sex

must be allowed to try-out for the team

offered unless the sport involved is a

contact sport. For the purposes of this

part, contact sports include boxing,

wrestling, rugby, ice hockey, football,

basketball and other sports the purpose

or major activity of which involves

bodily contact.

(C) Equal opportunity. A recipient

which operates or sponsors interscholas-

tic, intercollegiate, club or intramural

athletics shall provide equal athletic

Opportunity for members of both sexes.

In determining whether equal opportuni-

ties are available the Director will

consider, among other factors:

-187a-

(1) Whether the selection of

sports and levels of competition effec-

tively accommodate the interests and

abilities of members of both sexes;

(2) The provision of equipment

and supplies;

(3) Scheduling of games and

practice time;

(4) Travel and per diem allow-

ance;

(5) Opportunity to receive

coaching and academic tutoring;

(6) Assignment and compensa-

tion of coaches and tutors;

(7) Provision of locker rooms,

practice and competitive facilities;

(8) Provision of medical and

training facilities and services;

(9) Provision of housing and

dining facilities and services;

(10) Publicity.

-~188a-

Unequal aggregate expenditures for mem-

bers of each sex or unequal expenditures

for male and female teams if a recipient

operates or sponsors separate teams wil]

not constitute noncompliance with this

section, but the Assistant Secretary may

consider the failure to provide necessary

funds for teams for one sex in assessing

equality of opportunity for members of

each sex.

(d) Adjustment period. A recipient

which operates or sponscrs interscholas-

tic, intercollegiate, club or intramural

athletics at the elementary school level

Shall comply fully with this section as

expeditiously as possible but in no event

later than one year from the effective

date of this regulation. A recipient

which operates or Sponsors interscholas-

tic, intercollegiate, club or intramural

athletics at the secondary or post-

-189a-

secondary level shall comply fully with

this section as expeditiously as possible

but in no event later than three years

from the effective date of this regula-

tion.

-190a-

45 CFR § 86.71

§ 86.71 Interim procedures.

For the purposes of implementing

this part during the period between its

effective date and the final issuance by

the Department of a consolidated pro-

cedural regulation applicable to title IX

and other civil rights authorities admin-

istered by the Department, the procedural

provisions applicable to title VI of the

Civil Rights Act of 1964 are hereby

adopted and incorporated hereby by

reference. These procedures may be found

at 45 CFR 80-6 through 80-11 and 45 CFR

Part 8l.

-19la-