The opinion of the court was delivered by: MCCUNE
This is a suit seeking injunctive relief brought for Pamela Magill, by her parents and natural guardians, alleging that the defendant Avonworth Baseball Conference (ABC) has unconstitutionally discriminated against her on the basis of her sex by refusing to permit her to play little league baseball.
The suit alleges violations of 42 U.S.C. §§ 1983 and 1985. Jurisdiction is predicated on 28 U.S.C. §§ 1343, 2201, and 2202.
On July 5, 1973, we held a consolidated hearing to consider motions for both preliminary and permanent injunctions. At the close of the testimony and arguments we refused to issue the injunctions and ordered the complaint dismissed. This written opinion will serve to amplify our oral opinion given from the bench. We stated from the bench that there were two problems involved, first, whether the action taken by the baseball conference was taken under color of state action and second, whether or not there had been unconstitutional discrimination. We will deal with the problems in that order.
On April 6, 1973, Mr. and Mrs. William Magill took their 10 year old daughter Pamela, allegedly a good baseball player, to a meeting in a Ben Avon Heights school to enroll her in the 1973 summer baseball programs of the ABC. The Magills completed an application and paid the $7.00 registration fee.
The following day an official of the baseball conference contacted William Magill and told him that Pamela would not be eligible to participate because the program was limited to boys. At Magill's request the matter was discussed at a meeting of the ABC Board of Directors and the directors unanimously voted to continue to limit the program to participation by boys only. The registration fee was subsequently returned to the Magills and this suit was instituted.
The ABC is a non-profit corporation chartered and organized under the non-profit corporation law of the Commonwealth of Pennsylvania. It administers an organized baseball program in an area which encompasses the geographic boundaries of the Avonworth School District which is north of Pittsburgh in Allegheny County. The ABC runs two leagues: The Minor League for youngsters aged 8 to 10; and the Little League for youngsters aged 11 to 13.
The ABC also sponsors Pony and Colt league teams for youngsters aged 14 through 17 which participate in the leagues of the North Boroughs Baseball Association. Approximately 220 boys participate in the various ABC programs. The Baseball Conference (ABC) is run by volunteers who coach and manage the boys teams. It has no money except what it raises in the community and the program is carried on each summer under the assumption that it is good for the community and the children. The volunteers do all of the work, solicit contributions and carry on a bake sale.
We note at the outset that it is agreed that Pamela has been denied the privilege of playing baseball in the conference because she is a girl and for no other reason. Sections 1983 and 1985 and the equal protection clause of the 14th Amendment, however, do not provide protection against all discrimination; only against discrimination which occurs under color of state law. The unlawful discrimination must result from the "(misuse) of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Henig v. Odorioso, 385 F.2d 491, 494 (3rd Cir. 1967) quoting from United States v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031, 85 L. Ed. 1368 (1941). "Civil rights, such as are guaranteed by the Constitution against state aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of laws, customs, or judicial or executive proceedings." Civil Rights Cases, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835 (1883). The 14th Amendment is directed only to state action and the invasion of the constitutional rights of one private individual by the actions of another private individual or private association is not within its purview. Williams v. Yellow Cab Co. of Pittsburgh, Pa., 200 F.2d 302 (3rd Cir. 1952); Civil Rights Cases, supra.
No clear rule exists to determine when there has been sufficient state involvement in private discrimination to meet the requirements of § 1983 and § 1985 of the Civil Rights Act. "Only by shifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance." Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961).
The discrimination involved here, was practiced by a private organization. We think that a shifting and weighing of the facts here compels the conclusion that the discrimination in no way arose under color of state law.
There are only four instances here which could be considered to constitute state action:
1. The state granted a charter to the Avonworth Baseball Conference.