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The Equal Rights Amendment, Pa. Const. art. I, § 28, does not prohibit differential treatment among the sexes when that treatment is reasonably and genuinely based on physical characteristics unique to one sex.
When John Williams was fourteen years old and in ninth grade, he presented himself for the girls' field hockey team tryouts at Liberty High School, a public school in the School District of Bethlehem, Pennsylvania. He 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 abilities. 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 action in October 1990 against the School District of Bethlehem, challenging John's exclusion from the girls' field hockey team. They made claims alleging violations of title IX of the Education Amendments of 1972, and its implementing regulation; the Equal Protection and Due Process clauses of the federal Constitution, under 42 U.S.C. § 1983 (1988); and the Equal Rights Amendment to the Pennsylvania Constitution (E.R.A.). 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. 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 from 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," thereby holding inapplicable the exception in the implementing regulation for those situations. In sustaining the plaintiffs' federal 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 justified by the goal of rectifying past discrimination against girls in athletics. In addition, without resolving what standard of scrutiny applied, the district court held that the Pennsylvania E.R.A. was violated because its coverage is "at least as stringent" as the federal Equal Protection clause, which it had already found was violated. After the grant of the permanent injunction, John, by then a junior, rejoined the field hockey team as a full participant for the fall 1992 season.
Did the court err in granting summary judgment on the ground that the Pennsylvania ERA was violated?
The district court found resolution of the dispute on physical differences "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). This resolution of this factual dispute cannot be avoided. Whether boys will be interested in trying out for the field hockey team is irrelevant to the issue whether real physical differences between boys and girls justify differential treatment, in this case, the exclusion of boys from the girls' teams but not girls from the boys' teams. Under Pennsylvania law, as expressed most recently by the state's Supreme Court in Fischer, the legality of the School District's policy can only be resolved by deciding whether there are genuine physical differences between boys and girls or whether, instead, the policy is based on unwarranted and stereotyped assumptions about the sexes. That issue 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 opportunities in the School District. 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 factual issue as to physical differences before it can determine whether boys are likely to displace girls from the team. For reasons already explained, this issue must be resolved at trial.
Ultimately, the validity of the classification will depend on the relationship 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 least as stringent" as that under the federal Equal Protection clause. 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. Although the court does not agree that this is the only reason for passage of state equal rights amendments, there is much to commend application of heightened scrutiny to sex-based classifications. However, the court is hesitant to decide this uniquely state law matter before the state's highest court has done so unless it has no other course. It is not clear that the level of scrutiny will be dispositive in this case, because the School District policy may be able to meet even the strict scrutiny standard. 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. 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." The court does not understand the plaintiffs to argue that the School District's interest in maximizing athletic opportunities for female students would not satisfy strict scrutiny, and thus in this case it need not dwell on the difference, if any, between a "compelling" or "important" government interest. On the other hand, the court cannot avoid choosing the level of scrutiny because the disposition could turn on whether the classification bears a "necessary" relationship rather than a "substantial" 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 proffered the need to rectify past inequality 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 students] were not . . . in existence" at the time of the unequal past practices "in the sixties and seventies." This narrow view of the need to rectify past discrimination overlooks the possibility that the vestiges of longstanding 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 District finally had an equal number of boys' and girls' teams. The Ninth Circuit is correct in holding that "there is no question that [redressing past discrimination against women in athletics] is a legitimate and important governmental interest.”
It is thus necessary to 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 treatment, 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 boys from girls' teams is necessary to the School District's recognized interest in preserving meaningful athletic opportunities for girls, 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.