from the facts of Burton and Evans. There the state agencies were actively engaged in establishing or maintaining facilities operated in a discriminatory manner.
Accordingly, we find that there is no state action involved, that an essential element of an action brought under §§ 1983 and 1985 is therefore absent and the complaint must be dismissed.
Assuming that state action exists, however, we still decline to issue the injunctions. We do not believe the action of the conference unreasonable or discriminatory in light of the circumstances. In other words, the classification was rational.
The directors of the baseball conference assign two reasons for their action. First, that they believe that young girls would be endangered physically if allowed to compete with the boys in organized baseball and second, that to permit the girls to compete would destroy the program already underway because the boys would drop out.
The directors, male and female, were unanimous in their opinions that baseball is a contact sport at times and at times the contact is violent. We can take judicial notice of that fact and find that baseball is a contact sport. There is no question that a runner who tries to beat a throw to the plate is frequently blocked by a catcher. The contact is severe if not violent. The directors spoke of their concern with wild pitchers and, of course, we know the consequences of trying to steal second or third. The directors have had a great deal of experience with boy's baseball and have formed the opinion after mature consideration that girls would not fare well in physical contact with the boys. They admit that there are excellent girl athletes but contend that they should not be placed in physical contact with boys. This is a class action intended to force integration of the sexes generally in the baseball program and the directors believe this unwise.
In Bucha, et al. v. Illinois High School Association, et al., 351 F. Supp. 69 (N.D.Ill.1972) the court held the rule to be rational which prohibited girls competing with boys in interscholastic swimming. The court there took judicial notice of the records of men and women athletes at the Olympic games as evidence that men's record times are consistently better than women's and thus that men are generally faster and stronger in athletic competition than women. Citing Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971) the Court held that the relevant inquiry, respecting equal protection of the law, was whether the challenged classification was rational. For purposes of the sport of swimming a classification based upon sex was found to be rational.
In Brenden, et al. v. Independent School District, 342 F. Supp. 1224 (D.Minn., 4th Div. 1972) aff'd, 477 F.2d 1292 (8th Cir. 1973), a contrary result was reached with respect to tennis, cross country running and cross country skiing although the court was careful to limit its holding to two young women athletes who had proven to be excellent athletes in a school district where no sports for girls existed.
No class action was involved. The Circuit reserved decision on contact sports quite carefully. Girls were admitted to a boy's golf team in Reed, et al. v. The Nebraska School Activities Association, 341 F. Supp. 258 (D.Neb.1972) but there was no other opportunity for girls to play golf. In Haas v. South Bend Community School Corp., et al., 259 Ind. 515, 289 N.E.2d 495 (Supreme Court of Indiana, 1972) a girl was permitted to play golf on a boy's golf team but again a distinction was recognized for contact sports. There the plaintiffs conceded that a male-female classification is reasonable if it applies to sports involving physical contact between the contestants and the court specifically recognized the distinction.
Finally, the Sixth Circuit has recognized a distinction for contact sports. In Morris v. Michigan State Board of Education, 472 F.2d 1207 (1973) the trial court had issued an injunction invalidating Rule 5 of the Michigan High School Athletic Association which prohibited girls engaging in interscholastic athletic contests when the teams were composed of boys. The Circuit directed that the injunction be amended to specifically eliminate from its language teams engaged in contact sports.
Thus, it seems to us, the distinction for contact sports has been widely recognized.
We are aware of the holding of the Supreme Court in Frontiero et vir. v. Richardson, Sec. of Defense, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583, decided May 14, 1973, that sex is a suspect classification but that case involved the economic benefits to which a female army officer was entitled compared with those of a male army officer and we do not believe it controlling here.
Accordingly, we hold that sex is a rational distinction where a contact sport is involved. The complaint is therefore dismissed for this reason as well.
We do not believe it necessary to discuss the second reason assigned by the directors of ABC for refusing to allow girls to play on the boys' teams.
This opinion shall be deemed to comply with Rule 52. It is accordingly ordered that the complaint be dismissed.