# Appendix — Williams ex rel. Williams v. School District > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1854%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1994 - **Citation:** 510 U.S. 1043 ## Text 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 -3a- 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. -4a- 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. -5a- 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 -6a- 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. -Ja- 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. -9a- 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 -10a- 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 =—1ia- 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 -l2a- 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 -13a- 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 -l14a- 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 -154- 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 -l16a- 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. -~l7a- 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 -18a- 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 -19a- 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 -20a- 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 -22a- 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 -23a- 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...) -24a- 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. -25a- 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 ~26a- 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! -27a- 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...) -29a- 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). -30a~ 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- -3la- 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 “320- 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 -33a- 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. -34a- 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- > 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 TEX [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1854%3A2. Public record. Not legal advice.