Opposition Brief — Williams ex rel. Williams v. School District

Bupreme Gout, B.S

FILED

No. 93-686 NOV 29 1993

| OFRIOE OF orem |

In The

Supreme Court of the United States

October Term, 1993

S

SARAH ANNE WILLIAMS, WAYNE WILLIAMS,

on behalf of their minor son,

JOHN WILLIAMS,

Petitioners,

THE SCHOOL DISTRICT OF-BETHLEHEM, PA.,

Respondent.

¢

On Petition For Writ Of Certiorari

To The United States Court Of

Appeals For The Third Circuit

*

RESPONDENT’S BRIEF IN OPPOSITION

¢

Stuart L. KNape, EsQuire

Counsel of Record

(CLECKNER AND FEAREN

31 North Second Street

Harrisburg, PA 17101

(717) 238-1731

Attorneys for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) Sa 2831

-_— ———

BEST AVAILABLE COPY?®

Nae

ih oe ‘

are ee ee

oo) Re en sce RY. -P***

COUNTER-STATEMENT OF

QUESTION PRESENTED FOR REVIEW

May the comprehensive equal protection remedies

intended by Congress to be available under Title IX to

victims of gender discrimination in federally-funded edu-

cational institutions be bypassed or duplicated by resort

to the catch-all provisions of 42 U.S.C. § 1983?

li

TABLE OF CONTENTS

Page

COUNTER-STATEMENT OF QUESTION PRE-

SEIU Lee? PO REV IGee ois ot nev ossvewressbawes ees i

TABLE OF AUTIIMAI Rite 6 cocs cc cceneees secede cess iii

COUNTER-STATEMENT OF THE CASE............ 1

REASONS FOR DENYING THE WRIT............. 4

SUMIPAAEY 6 co on ea nen che own sen epee eee eee 4

1. The Petition should be denied because of the

absence of any ongoing case or controversy... 5

2. The Court of Appeals correctly applied the Sea

Clammers doctrine to Title IX.......<......... 7

3. The decision below is not in conflict with deci-

sions of other courts of appeals.............. 13

CONCLUSION 6 occa tvadcuee pepe ee ee ee 16

ili

TABLE OF AUTHORITIES

Page

Cases

Bobal v. Renssalaer Polytechnic Institute, 916 F.2d

759 (2d Cir. 1990) (dismissed on rehearing), cert.

ae, Uo. 111 St 1406 (1991)......... 15

Cannon v. University of Chicago, 441 U.S. 677 (1989) 10, 11

Commonwealth by Packel v. Pennsylvania Inter-

scholastic Athletic Association, 18 Pa. Commw. Ct.

SE MO APOIO s oe eh ks scda se dcnvevesrevce 2

DeFunis v. Odegaard, 416 U.S. 312 (1974) (per cur-

he Od aio 4 ooo kk eb oe kat cab aberes 5, 6

Franklin v. Gwinnett County Public Schools, __ U.S.

SG | ee) 10, 13

Habetz v. Louisiana High School Athletic Association,

wee wee wee Cet Se, T9PO),... 6. cee ccc cee. 14, 15

Izquierdo Prieto v. Mercado Rosa, 894 F.2d 467 (1st

ESE Rr ek aah sy hoe kone hice tas K0bee ass 11

Lewis v. Continental Bank Corp., 494 U.S. 472 (1990) ..... 6

Middlesex County Sewerage Authority v. National Sea

Clammers Association, 453 U.S. 1 (1981)........ passim

Mississippi University for Women v. Hogan, 458 U.S.

a Ae er re ee ee 8

Murphy v. Hunt, 455 U.S. 478 (1982).................. 6

O'Connor v. Board of Education of School District 23,

449 U.S. 1301 (Stevens, Circuit Justice 1980)....... 12

Pfeiffer v. Marion Center Area School District, 917

ey Le” eS |) 6, 9, 10

Ring v. Crisp County Hospital Authority, 652 F.Supp.

OTD ce ea os 0c ke soe ewe cde dnc es 11

a

iV

TABLE OF AUTHORITIES —- Continued

Page

Rogers v. Exxon Research and Engineering Co., 550

F.2d 834 (3d Cir. 1977), cert. denied, 434 U.S. 1022

ROUEN Via a crc eee CET eee ee reeee 12

Rowley v. Board of Education of St. Vrain Valley

School District, 863 F.2d 39 (10th Cir. 1988),

vacated as moot and opinion withdrawn, 863 F.2d

I ee eee LN eR er oc gL 1 Cede gy Ta aI Pat Po 14

Smith v. Robinson, 468 U.S. 992 (1984)......... 9, 10, 11

United States v. Massachusetts Maritime Academy,

gk Sg eh A) | Ee aren at eee 15

Weinstein v. Bradford, 423 U.S. 147 (1975) (per cur-

SEG Cat R ea eta e ha Ren ER She THER Ga ED Re eee ee 5

Zombro v. Baltimore City Police Department, 868 F.2d

1364 (4th Cir. 1989), cert. denied, 493 U.S. 850

Pat ener Rare apa eat Nae eat at oak boda RD APTI ch te ge ee ar 11

CONSTITUTIONS, STATUTES, REGULATIONS AND RULES

Equal Rights Amendment to the Pennsylvania

Constuion, Fa. Comer. Art..1; 6 26 okie ccsces 2

Title IX of the Education Amendments of 1972.. passim

Se Rs EE CRED oa es eran cheer i ecarees 8, 15

Rs SO ROPE so ok ce kew be eras cee eee een 9, 10

Me AP ee as OO CE ori a a Voor ia ere tan eee des 9, 10

Civil Rights Restoration Act of 1987, 20 U.S.C.

AEC Se Rak Ct ets sey you er a ree ae. 14

Education of the Handicapped Act, 20 U.S.C.

S T605 (i9ee & See. TE GFT. ness eis eccesiis. 11

eo

v

TABLE OF AUTHORITIES - Continued

Page

Age Discrimination in Employment Act, 29 U.S.C.

§ 626 (1988 & Supp. IV 1992)...............0..... 11

Civil Rights Attorneys Fee Awards Act of 1976, 42

U.S.C. § 1988 (1988 & Supp. III 1991).......... 11, 15

Do Waa, BS UAT Sc becesceeen lee ene eeeeeeeres 11

Fo ins AEP COME 6 6s 54 co's cece ae ee 11

Cl UB. Biers eek noe eek cs eee passim

Title IV of the Civil Rights Act of 1964, 42 U.S.C.

Pe: er re rere Orie bese Moe Aa tn 15

we CR. & Te CI sk ic cee eae 2

United States Supreme Court Rule 10.1 .............. 7

No. 93-686

¢

In The

Supreme Court of the United States

October Term, 1993

.

SARAH ANNE WILLIAMS, WAYNE WILLIAMS,

on behalf of their minor son,

JOHN WILLIAMS,

Petitioners,

THE SCHOOL DISTRICT OF BETHLEHEM, PA.,

Respondent.

+

On Petition For Writ Of Certiorari

To The United States Court Of

Appeals For The Third Circuit

¢

RESPONDENT’S BRIEF IN OPPOSITION

¢

COUNTER-STATEMENT OF THE CASE

The Respondent School District of Bethlehem (here-

inafter “School District”) is a Pennsylvania public school

district which offers its male and female students the

opportunity to compete in a variety of interscholastic

sports. The School District offers teams for boys in ten

sports, teams for girls in ten sports, and co-ed teams in

two sports. However, this level of competitive oppor-

tunity for girls has existed only since 1989, and is the

result of continual efforts by the School District since

1968 to increase the range of opportunities for girls. Prior

1

to 1968, when nine sports teams were offered for boys,

basketball was the only sport offered for girls.

Prior to 1975, neither boys nor girls in the School

District were permitted to join teams designated for the

opposite sex. Since 1975, School District policy has per-

mitted girls to try out for and (if athletically qualified)

compete on boys’ teams, as is required under the ruling

of the Pennsylvania Commonwealth Court in Common-

wealth by Packel v. Pennsylvania Interscholastic Athletic

Association, 18 Pa. Commw. Ct. 45, 334 A.2d 839 (1975). In

Packel, the Commonwealth Court held that athletically

qualified girls who desire to face the disadvantages and

risks of competition on boys’ sports teams must, under

the Equal Rights Amendment to the Pennsylvania Consti-

tution, be permitted to do so.!

The Pennsylvania courts have not yet examined

whether Pennsylvania’s Equal Rights Amendment, Pa.

Const. Art. 1, § 28, requires that boys be allowed to try

out for and compete on girls’ teams. Present School Dis-

trict policy does not permit boys to try out for and

compete on teams which are designated for girls. The

School District maintains this policy because of the gross

physiological differences between high school age males

and females which provide males an unfair competitive

advantage in athletic competition, an advantage which is

most pronounced in contact sports such as field hockey.

! The Packel ruling, as a matter of state law, effectively

prohibits the School District from applying the contact sport

rule contained in Title IX’s implementing regulations at 34

C.F.R. § 106.41(b) to exclude girls from boys’ teams in contact

sports.

a

The School District believes that its policy is neces-

sary to create and preserve an equal opportunity for girls

to participate in interscholastic athletic competition, and

to prevent boys from displacing girls from the available

team positions and playing time. The School District also

believes that its efforts to remedy previous inequity in its

sports program would be set back if girls were forced to

compete with boys for places on the girls’ teams.

Petitioner John Williams is a high school senior who

wants to play on the School District’s girls’ field hockey

team, but who is ineligible for the team under the School

District’s policy because he is a boy. Williams tried to join

the team in August, 1990, but was told he was ineligible

for it in accordance with the School District policy. The

School District does not have a boys’ field hockey team.

After Williams brought suit to challenge the policy in

October 1990, the District Court denied Williams’ request

for a preliminary injunction. In July, 1991, Williams

moved for summary judgment in his favor, which the

District Court granted on July 14, 1992, permanently

enjoining the School District from excluding Williams

from the field hockey team solely on account of his gen-

der. 779 F.Supp. 513 (E.D. Pa. 1992). The School District

appealed the District Court’s decision to the United

States Court of Appeals for the Third Circuit, which on

July 6, 1992 reversed the decision of the District Court

and remanded the matter for trial on disputed factual

issues. 998 F.2d 168 (3d Cir. 1993).

The Court of Appeals denied Williams’ petition for

rehearing and rehearing en banc on July 30, 1993, and

denied Williams’ motion for stay of mandate on August

13, 1993. Williams’ further application to this Court for a

stay of the Court of Appeals’ mandate was denied on

September 15, 1993 by Justice David H. Souter, sitting as

Circuit Justice. There have been no further proceedings in

the District Court since the issuance of the Court of

Appeals’ mandate on August 13, 1993. The School Dis-

trict’s girls’ field hockey team played the last game of its

1993 season on October 20, 1993.

REASONS FOR DENYING THE WRIT

Summary.

The end of the final field hockey season in which the

relief sought by Williams could benefit him has rendered

this action moot, and the review Williams seeks can no

longer produce anything but an advisory opinion. Even

were this not the case, further examination of the decision

below is unwarranted.

The statutory and regulatory structure of Title IX,

including broad private remedies as well as detailed

administrative mechanisms, creates a comprehensive and

effective enforcement scheme carefully tailored to fully

serve equal protection interests in the educational set-

tings to which it applies. Unfocused and parallel private

remedies under § 1983 are both unnecessary and damag-

ing to Title IX’s fulfiilment of the purposes intended by

Congress.

The Court of Appeals’ conclusion that additional

§ 1983 remedies are not available to those benefited by

Title IX is fully in accord with the previous pronounce-

ments of this Court regarding the comprehensiveness of

Title IX and the intention of Congress that such context-

specific remedies be the exclusive means of equal protec-

tion enforcement. No other circuit court has concluded to

the contrary. Accordingly, the Petition for Writ of Cer-

tiorari should be denied.

1. The Petition Should Be Denied Because of the

Absence of any Ongoing Case or Controversy.

The first obstacle to proper review in this case is that

Williams’ claim of entitlement to membership on the

School District’s girls’ field hockey team has become

moot. The last high school field hockey season in which

Williams, a senior, might have participated is over. Wil-

liams cannot benefit from the injunctive relief he seeks,

and the policy he challenges can never again exclude him

from the School District’s field hockey team.

Contrary to Williams’ argument, the dispute in this

case may not properly be described as capable of repeti-

tion yet evading review. The issues are not capable of

repetition because there can be no reasonable expectation

that Williams himself will be subject again to exclusion

from the field hockey team pursuant to the School Dis-

trict’s policy, and because Williams has never sought to

represent a class of similarly situated persons. See,

DeFunis v. Odegaard, 416 U.S. 312, 317 (1974) (per curiam);

Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per cur-

iam). This conclusion is not altered by Williams’ specula-

tive assertion that he may someday be denied

membership, due to his gender, on a field hockey team at

an as-yet unknown university. This case concerned the

validity of the School District’s policy as it applies to high

school athletes, and cannot be a proper basis for a purely

prospective analysis of other policies and factual con-

texts.

This case is not of a nature that can be said to evade

review, because neither Williams’ claim nor the long-

standing policy he challenges are so inherently short-

lived that full review may never be had. The span of a

high school athletic career is at least as long as the three

years needed to enter and complete law school, a period

not considered to be so short as to prevent review.

DeFunis, 416 U.S. at 319.

Williams’ interest in seeking attorneys’ fees does not

render dismissal for mootness any less appropriate. Lewis

v. Continental Bank Corp., 494 U.S. 472, 480 (1990). The

School District further submits that Williams should not

now be permitted, after his claim has expired, to resusci-

tate this action by promising to later amend his complaint

to include a damages claim. Although a properly pleaded

claim for damages may avoid mootness, See, Murphy v.

Hunt, 455 U.S. 478, 482 (1982), the School District is aware

of no authority for the proposition that mootness may be

reversed by claiming damages after the fact. Williams

offers no reason why he did not claim damages under

§ 1983 at the outset of this action, nor why he has not

amended his complaint to claim damages under Title IX

since the Third Circuit’s decision in December 1990 that

such damages were available. Pfeiffer v. Marion Center

Area School Dist., 917 F.2d 779 (3d Cir. 1990).

Lacking any further personal stake in the outcome of

this action, Williams essentially invites this Court to pro-

vide an advisory opinion speaking to policies and cir-

cumstances whose contours may only be surmised. Such

an invitation should be refused.

2. The Court of Appeals Correctly Applied the Sea

Clammers Doctrine to Title IX.

Mootness aside, the review requested by the Petition

is not justified by any of the circumstances described in

Supreme Court Rule 10.1. There is no conflict between the

decision below and the decisions of other courts of

appeals, nor is there a present need for this Court to

elaborate further on the guidance, correctly applied

below, provided in Middlesex County Sewerage Authority v.

National Sea Clammers Association, 453 U.S. 1 (1981).

Of initial importance is the recognition that the in

terrorem assertions made in the Petition are rooted in a

distorted statement of the relevant inquiry. The primary

question presented is not, as Williams contends, whether

Congress intended to extinguish the right of individuals

to sue to enforce equal protection rights. Correctly

viewed, the question is instead whether Congress, in

establishing a means of enforcing the Equal Protection

Clause applicable to certain educational institutions,

intended that the persons benefited thereby should be

able to choose to bypass or duplicate such remedies by

resort to the catch-all provisions of § 1983.

The Petition further clouds the issue by reference to

situations involving institutions to which the prohibitions

of Title IX of the Education Amendments of 1972, 20 U.S.

§ 1681 (1988) do not apply by virtue of specific statutory

exemption. The question here is not whether Congress,

by enacting Title IX and the limitations to its scope, had

the intent or power to deny equal protection or a means

of enforcing it to those specifically left outside the reach

of Title IX. This Court answered that question in the

negative in Mississippi University for Women v. Hogan, 458

U.S. 718 (1982), also stating that “[i]t is far from clear that

Congress intended, through Section 901(a)(5), to exempt

MUW from any constitutional obligation. Rather, Con-

gress apparently intended, at most, to exempt MUW from

the requirements of Title IX.” 458 U.S. at 732. It is not the

issue here, where the focus must be instead upon institu-

tions such as the School District to which Title IX’s pro-

tections do apply.

The Petition attempts to lead this Court further from

the proper focus by mischaracterizing the decision below

as one which may mean that “Title IX does not protect

John Williams.” Petition at 15. In deciding that Williams

was not entitled to summary judgment on his Title IX

claim under a proper reading of the statute’s implement-

ing regulations, the Court of Appeals raised no question

as to whether Title IX “protects” Williams from unlawful

gender discrimination. Since the School District is

unquestionably an institution to which the protections of

Title IX apply, Title IX clearly does protect Williams from

such discrimination. The question the Court of Appeals

remanded for trial is whether Title IX, in prohibiting

gender discrimination, necessarily entitled Williams to be

allowed to play field hockey under the circumstances of

this case. This is a vastly different inquiry.

em

Once these pitfalls of reasoning are illuminated, it is

easier to recognize the soundness of the Court of

Appeals’ earlier decision in Pfieffer v. Marion Center Area

School District that resort to § 1983 is not available to a

plaintiff whose equal protection interests may be

enforced under Title IX. 917 F.2d at 789. It is the Pfieffer

decision which the Court of Appeals followed in this

case, without further analysis. Court of Appeals Opinion,

Petition at 39a-42a, 998 F.2d at 176.

As this Court explained in Smith v. Robinson, 468 U.S.

992 (1984), § 1983 is a statutory remedy which Congress

may replace with an alternative remedy. 468 U.S. at 1012.

“The crucial consideration is what Congress intended.”

Id. In determining whether Congress intended to fore-

close action under § 1983 when it provides a separate

enforcement mechanism for a certain class of persons, it

is not necessary that there have been an express statutory

provision precluding resort to Section 1983; this intent

may also be demonstrated where the alternative remedial

scheme is sufficiently comprehensive. Sea Clammers, 453

U.S. at 20.

In protesting that this standard cannot be met by

Title IX, Williams actually goes so far as to claim that

Congress provided no express remedial scheme what-

soever. Petition at 11. The funding cut-off and other

express enforcement mechanisms found at 20 U.S.C

§§ 1682 and 1683 (1988) amply demonstrate that this is

simply untrue. With respect to the absence of express

authorization for private causes of action, Williams then

fails to recognize that this Court has already answered

the crucial question of what Congress intended Title IX to

provide.

10

In Cannon v. University of Chicago, 441 U.S. 677 (1979),

this Court had little difficulty concluding that “the his-

tory of Title IX rather plainly indicates that Congress

intended to create such a remedy.” 441 U.S. at 694. In

reaching this conclusion, the Court gave significant

weight to the drafters’ view of Title IX as a “strong and

comprehensive measure.” Id. at 704 n. 36 (quoting com-

ments of Senator Bayh, at 118 Cong. Rec. 5806-5807

(1972)), as well as similar “authoritative expressions con-

cerning the scope and purpose of Title 1X and its place

within the ‘civil rights enforcement scheme’... ”. Id. at

687 n. 7.

This Court subsequently clarified just how compre-

hensive Congress intended the private remedies under

Title IX to be, when it explained in Franklin v. Gwinnett

County Public Schools, __ U.S. ___, 112 S.Ct. 1028 (1992),

that Congress intended that a private cause of action for

compensatory damages be available under Title IX in

addition to actions for injunctive relief. 112 S.Ct. at

1035-36. In so ruling, this Court found itself in agreement

with the conclusion on that point reached by the Third

Circuit in Pfeiffer, 917 F.2d at 787-789. Franklin, 112 S.Ct. at

1032.

It is the combined comprehensiveness of the express

mechanisms contained in Title IX at 20 U.S.C. §§ 1682 and

1683, coupled with the private causes of action also

intended by Congress, which demonstrates that Title IX

was intended to supplant rather than supplement

remedies under § 1983 with respect to sex discrimination

in federally funded educational institutions. Taken as a

whole, Title IX is not unlike the statutory and regulatory

schemes addressed in Sea Clammers and Smith v. Robinson.

a

11

In one very important sense, remedies under Title IX

may be said to be even more complete and effective in

accomplishing their goals. In Title IX suits, Congress

expressly authorized awards of attorneys’ fees to prevail-

ing plaintiffs when it enacted the Civil Rights Attorneys’

Fees Award Act of 1976, 42 U.S.C. § 1988 (1988 & Supp. III

1991), a remedy considered by Title IX’s drafters as

“essential” to private enforcement. Cannon, 441 U.S. 677,

685-687 nn. 6-7. By contrast, the Education of the Hand-

_ icapped Act, 20 U.S.C. § 1415 (1988 & Supp. III 1991), did

not provide for either a damages remedy or awards of

attorneys’ fees at the time it was examined by this Court

in Smith v. Robinson and nevertheless found sufficiently

comprehensive to preclude resort to § 1983. Smith v. Rob-

inson, 468 U.S. at 1020. Similarly, because it provides a

compensatory damages remedy, Title IX may also be

viewed as a more comprehensive and complete remedy

than the citizen suit provisions at issue in Sea Clammers,

which permitted only prospective injunctive relief. Sea

Clammers, 453 U.S. at 6; 33 U.S.C. §§ 1365(a), 1415(g)

(1988).

Title IX is quite similar in its approach to the enforce-

ment mechanisms established in the Age Discrimination

in Employment Act [“ADEA”], 29 U.S.C. § 626 (1988 &

Supp. IV 1992), which have been found by the First and

Fourth Circuits to be sufficiently comprehensive to pre-

clude resort to remedies under § 1983. Zombro v. Baltimore

City Police Dept., 868 F.2d 1364, 1366-67 (4th Cir. 1989),

cert. denied, 493 U.S. 850 (1989); Izquierdo Prieto v. Mercado

Rosa, 894 F.2d 467 (1st Cir. 1990); accord, Ring v. Crisp

County Hosp. Auth., 652 F.Supp. 477 (M.D. Ga. 1987). Once

a

12

again, Title IX should actually be viewed as more compre-

hensive than the remedies provided by the ADEA, under

which general compensatory damages are not recover-

able. See, Rogers v. Exxon Research and Eng’g Co., 550 F.2d

834, 840 (3d Cir. 1977), cert. denied, 434 U.S. 1022 (1978).

There is no merit in Williams’ contention-that Title IX

and its regulations, as construed by the Court of Appeals

in this case, fail to adequately serve equal protection

interests. There is no constitutional infirmity in Title IX’s

recognition that male and female students are not sim-

ilarly situated when they enter athletic competition. See,

e.g., O'Connor v. Board of Educ. of School Dist. 23, 449 U.S.

1301, 1307 (Stevens, Circuit Justice 1980) (“Without a

gender-based classification in competitive contact sports,

there would be a substantial risk that boys would domi-

nate the girls’ programs and deny them an equal oppor-

tunity to compete in interscholastic events.”). Nor would

the Equal Protection Clause invalidate a scheme that

refuses to allow males, who have long enjoyed greater

athletic emphasis and opportunity, to wield their physi-

ological advantages in programs set aside for the histori-

cally disadvantaged sex in order to rectify such

inequality.

Permitting girls to voluntarily face the risks and dis-

advantages of competition on boys’ teams is vastly differ-

ent from allowing boys to join girls’ teams in contact

sports where such risks and disadvantages would be

involuntarily imposed upon other female team members

who have nowhere else to compete. Rules that recognize

this are more likely to be required by the Equal Protection

Clause than condemned by it.

ae

13

Title IX and its regulatory structure are carefully

tailored to address the particular concerns of avoiding

and remedying gender discrimination in the context of

educational programs. It would make no sense for Con-

gress to have intended that sex-discrimination claims in

educational settings could nevertheless be litigated under

§ 1983 without reference to that context-specific enforce-

ment scheme. If Title IX is not the exclusive remedy for

such claims, its mechanisms are rendered superfluous

and the detailed guidance it provides to educators is of

little practical value. This Court should not accept Wil-

liams’ invitation to foster such absurdity.

3. The Decision Below is Not in Conflict with Deci-

sions of Other Courts of Appeal.

After acknowledging that no other circuit court of

appeals has yet addressed the application of Sea Clammers

to Title IX, Williams nonetheless posits that a conflict

among the circuits exists in this regard. Petition at 20-22.

Not even an exceedingly strained reading of the cases

* Williams’ argument that a different result is required by

this Court’s holding in Franklin v. Gwinnett County Public Schools

misconstrues the plain language and limited extent of that deci-

sion. The Court’s conclusion therein that “Congress did not

intend to limit the remedies available in a suit brought under Title

IX,” 112 S.Ct. at 1036 (emphasis added), reaches no further than

the remedial scope of Title IX itself, and implies nothing about

what alternative statutory remedies may be combined with a

cause of action under Title IX. Only the relief available under

Title IX, the sole grounds invoked by the plaintiff for her suit,

was at issue in Franklin.

14

Williams cites on this point can provide any basis what-

soever for the remarkable assertion that the circuits

involved have “disagreed” with the Third Circuit on this

issue.

Rowley v. Board of Education of St. Vrain Valley School

District, 863 F.2d 39 (10th Cir. 1988), vacated as moot and

opinion withdrawn, 863 F.2d at 41, was a challenge brought

by a male student to the Colorado High School Activities

Association’s rules prohibiting boys from competing on

girls’ volleyball teams. The court of appeals reversed a

preliminary injunction granted in favor of the plaintiff,

because the district court applied a more stringent equal

protection test than was appropriate for a gender-based

classification. Id. at 40. Although the action was brought

under both Title IX and § 1983, the court makes no

mention of the Sea Clammers doctrine, an issue that was

apparently not raised.

The remaining decisions relied on by Williams are

similarly devoid of any discussion of the Sea Clammers

doctrine, and cannot even be described as Title IX cases.

In Habetz v. Louisiana High School Athletic Association, 915

F.2d 164 (5th Cir. 1990), the court considered a petition for

attorney’s fees filed by the female plaintiff after the

merits of her challenge were rendered moot by the athle-

tic association’s amendment to its rule prohibiting girls

from playing on boys’ sports teams. The action was

brought solely under § 1983, and could not have been a

“Title IX case”, because Habetz brought her challenge

before the enactment of the Civil Rights Restoration Act

of 1987, P.L. 100-259, 107 Stat. 28 (20 U.S.C. § 1687 (1988))

might have subjected the association to suits under Title

IX. In reversing the district court’s determination that it

eo

15

— oe

lacked jurisdiction to consider her petition because the

association was not a state actor, the Fifth Circuit

expressly declined to reach Habetz’s contention that the

intervening passage of the Civil Rights Restoration Act

provided an alternative jurisdictional basis under Title IX

for the district court to consider her petition for attor-

ney’s fees under 42 U.S.C. § 1988. 915 F.2d at 166. The

court of appeals ruled only that Habetz’s jurisdictional

claims under § 1983 were sufficiently colorable to warrant

further determination by the district court of which party,

if any, should be considered the prevailing party for

§ 1988 fee purposes. 915 F.2d at 167.

In United States v. Massachusetts Maritime Academy,

762 F.2d 142 (1st Cir. 1985), an action brought by the

United States Attorney General under Title IV of the Civil

Rights Act of 1964, 42 U.S.C. Section 2000c et seq. (1988),

the question was whether the academy’s exclusion from

the reach of Title IX under the statutory exemption con-

tained at 20 U.S.C. § 1681(a)(4) should also be read into

Title IV as a limit on the Attorney General’s powers

under Title IV. 762 F.2d 142 at 147. There was no issue as

to whether the existence of a Title IX remedy foreclosed

resort to § 1983, because the institution in question was

clearly exempted from the reach of Title IX, and no

remedies existed under Title IX for anyone.

In Bobal v. Rensselaer Polytechnic Institute, 916 F.2d 759

(2d Cir. 1990) (dismissed on rehearing due to plaintiff’s

refusal to comply with procedural orders), cert. denied, __

U.S. __,, 111 S.Ct. 1404 (1991), the Second Circuit upheld

the district court’s dismissal of the female plaintiff’s dis-

crimination claims under § 1983 because she could not

properly allege any state action. 916 F.2d at 763. The court

16

nevertheless speculated that the plaintiff might conceiva-

bly be able to plead a cause of action under Title IX

(although she had not yet attempted to do so) and ini-

tially held that she should be afforded the opportunity to

amend her complaint accordingly. Id. Once again, since

the absence of state action prevented resort to § 1983 in

the first place, there could be no issue of whether that

remedy was foreclosed by the possible existence of a Title

IX remedy.

It is clear that the decisions described above do not

demonstrate any disagreement with che conclusions of

the Third Circuit in this case. It is likewise clear that there

is no merit to the Petition’s prayer for review on that

basis.

CONCLUSION

The comprehensiveness of Title IX’s enforcement

scheme and the exclusive nature such remedies must

enjoy to serve their intended purposes are principles

firmly established by the previous teachings of this

Court. The decision of the Third Circuit Court of Appeals

in this case, thus far unquestioned by any other circuit

court of appeals, reflects faithful adherence to that guid-

ance.

In such circumstances, particularly where Petitioners

can no longer benefit from the sole relief sought, it is

unnecessary and inappropriate for this Court to exercise

its powers of review. Accordingly, the School District

|

17

respectfully requests that this Court deny the Petition for

Writ of Certiorari.

Respectfully submitted, |

Stuart L. KNape, Esquire

Counsel of Record

CLECKNER and FEAREN |

31 North Second Street

Harrisburg, PA 17101

(717) 238-1731

Attorneys for Respondent