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October 30, 1987

Rollin Haffer, et al.
Temple University of the Commonwealth System of Higher Education , et al.

The opinion of the court was delivered by: LORD


 This is a class action alleging unlawful gender discrimination in Temple University's intercollegiate athletic program. The plaintiff class consists of "all current women students at Temple University who participate, or who are or have been deterred from participating because of sex discrimination in Temple's intercollegiate athletic program." Plaintiffs' claims focus on three basic areas: (a) the extent to which Temple affords women students fewer "opportunities to compete" in intercollegiate athletics; (b) the alleged disparity in resources allocated to the men's and women's intercollegiate athletic programs; and (c) the alleged disparity in the allocation of financial aid to male and female student athletes. Plaintiffs claim that the treatment of women student athletes in each of these areas violates the fourteenth amendment's equal protection clause *fn1" and the Pennsylvania Equal Rights Amendment. Plaintiffs also claim that the distribution of financial aid violates Title IX of the Education Amendments of 1972, 20 U.S.C. ยง 1681 et seq. ("Title IX"). *fn2"

 Defendants have moved for summary judgment. Defendants' motion is supported by a lengthy legal memorandum, two expert reports, numerous affidavits and well over fifteen hundred pages of deposition testimony. Plaintiffs have filed a motion, supported by over eight hundred pages of depositions and exhibits, to strike the expert reports. Plaintiffs' memorandum in opposition to defendants' motion for summary judgment ("Plaintiffs' memorandum") is supported by twenty-nine exhibits. In addition, defendants' reply memorandum and plaintiffs' memorandum of law in further opposition to defendants' motion for summary judgment are before me, as are exhibits and other evidence submitted in connection with plaintiffs' motion for a preliminary injunction. Review of this evidence reveals many genuine issues of material fact.

 As the parties advance radically divergent views of the law applicable to plaintiffs' federal constitutional claims, I will first discuss the applicable legal standards. I will then examine whether the evidence produced by plaintiff is sufficient to raise a genuine issue of material fact on these claims. Next, I will briefly discuss plaintiffs' state constitutional claims. Finally, I will consider plaintiffs' Title IX claim.

 Federal Constitutional Claims


 This appears to be the first case to challenge the operation of an intercollegiate athletic program on federal equal protection grounds. The existing case law, primarily involving equal protection challenges to various high school athletic programs, is of limited value. However, it is helpful to review briefly the reported cases, to extract certain principles courts have applied in these cases, and to identify certain arguments that courts generally accept.

 In Blair v. Washington State University, 108 Wash. 2d 558, 740 P.2d 1379 (1987) (en banc), plaintiffs alleged that defendants' intercollegiate athletic program discriminated against female student athletes in violation of state law. The trial court found that

The women's athletic program [received] inferior treatment in funding, fundraising efforts, publicity and promotions, scholarships, facilities, equipment, coaching, uniforms, practice clothing, awards, and administrative staff and support. During the 1980-81 school year . . . the total funding available to the men's athletic programs was $ 3,017,692, and for the women's programs was $ 689,757, roughly 23 percent of the men's . . . . Although the number of participation opportunities for men increased by 115 positions from 1973-74 to 1980-81, the opportunities made available for women decreased 9 positions during the same period.

 740 P.2d at 1380-81.

 Plaintiffs appealed various aspects of the trial court's order. The Washington Supreme Court held that the trial court abused its discretion in constructing remedies that excluded football from the relevant calculations. "The Equal Rights Amendment contains no exception for football." Id. at , 740 P.2d at 1383. However, the state Supreme Court refused to modify that portion of the order which permitted the University to exclude revenue generated by a particular sport from calculations of the University's overall financial support. The Court found that exclusion of such revenues was "neither required nor prohibited by applicable law," and specifically held that the trial court "acted within its discretion" in permitting such exclusions. Id. at , 740 P.2d at 1384.

 Numerous cases have challenged regulations that prohibit girls from participating in a particular high school sport or sports. In general, courts have had little difficulty in concluding that such regulations deny girls the equal protection of the laws. See Hoover v. Meiklejohn, 430 F. Supp. 164 (D. Colo. 1977) (striking a regulation prohibiting girls from playing on high school soccer team); Brenden v. Independent School Dist., 477 F.2d 1292 (8th Cir. 1973) (striking a regulation barring girls from competing against boys in tennis, cross country skiing and cross country running). See also Morris v. Michigan State Board of Education, 472 F.2d 1207 (6th Cir. 1973) (affirming preliminary injunction striking regulation prohibiting girls from competing on tennis team); Force by Force v. Pierce City R-VI School Dist., 570 F. Supp. 1020 (W.D. Mo. 1983) (striking rule prohibiting females from trying out for football team); Leffel v. Wisconsin Interscholastic Athletic Ass'n, 444 F. Supp. 1117 (E.D. Wis 1978) (striking regulation prohibiting girls from trying out for boy's teams); Carnes v. Tennessee Secondary School Athletics Ass'n, 415 F. Supp. 569 (E.D. Tenn. 1976) (preliminarily enjoining enforcement of rule prohibiting girls from playing on baseball team); Clinton v. Nagy, 411 F. Supp. 1396 (N.D. Ohio 1974) (granting temporary restraining order against enforcement of rule prohibiting girls from playing football); National Organization for Women v. Little League Baseball, Inc., 127 N.J. Super. 522, 318 A.2d 33, aff'd, 67 N.J. 320, 338 A.2d 198 (1974) (striking rule prohibiting girls from participating in little league baseball).

 Courts have had more difficulty with rules prohibiting boys from participating on girl's teams. In Clark v. Arizona Interscholastic Ass'n, 695 F.2d 1126 (9th Cir. 1982), cert. denied, 464 U.S. 818, 104 S. Ct. 79, 78 L. Ed. 2d 90 (1983), Petrie v. Ill. High School Athletic Ass'n, 75 Ill. App. 3rd 980, 31 Ill. Dec. 653, 394 N.E.2d 855 (1979) and Mularadelis v. Haldane Central School Board, 74 A.D.2d 248, 427 N.Y.S.2d 458 (1980) such rules were upheld. These courts relied on the arguments that such regulations were substantially related to the important governmental interests in promoting overall equality of athletic opportunity, and in redressing past discrimination against women in athletics. But see Gomes v. Rhode Island Interscholastic League, 469 F. Supp. 659 (D.R.I.), vacated as moot by time of appeal, 604 F.2d 733 (1st Cir. 1979) (exclusion of boys from volley ball team violates Title IX); Attorney General v. Mass. Interscholastic Athletic Ass'n, 378 Mass. 342, 393 N.E. 2d 284 (1979) (exclusion of boys from girl's team violates state equal rights amendment).

  The reported decisions reveal a heightened sensitivity to the history of sex discrimination in athletics, see, e.g., Yellow Springs v. Ohio High School Athletic Ass'n, 647 F.2d 651, 669-675 (6th Cir. 1981), and a judicial endorsement of the policy of maximizing athletic opportunity for females. Although differential treatment, with respect to a particular sport, is permitted when the record reveals relevant physical differences, Clark, 695 F.2d at 1127, Lafler v. Athletic Board of Control, 536 F. Supp. 104, 106 (W.D. Mich. 1982), overbroad and unsupported generalizations regarding the relative athletic abilities of males and females will be rejected. Yellow Springs, 647 F.2d at 657; Brenden, 477 F.2d at 1300-1301. Excluding girls from participation in particular sports for their own "safety" does not pass constitutional muster. Force by Force, 570 F. Supp. at 1030; Fortin v. Darlington Little League, Inc., 514 F.2d 344 (1st Cir. 1975). It is clear that the overall governmental goal to be achieved is equality of athletic opportunity for both sexes. Clark, 695 F.2d at 1132; Gomes, 469 F. Supp. at 666.


 Turning to the instant case, to prove a fourteenth amendment violation plaintiffs must demonstrate not only that they have been adversely affected by state action, but that the disparate impact resulted from an invidious intent to discriminate. Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976). Although the fourteenth amendment "does not take from the State all power of classification . . . certain classifications . . . in themselves supply a reason to infer antipathy." Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 271, 272, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979). As "classifications based upon gender, not unlike those based upon race, have traditionally been the touchstone for pervasive and often subtle discrimination," id. at 273, they receive heightened judicial scrutiny. Thus, a threshold issue in this case is whether defendants' athletic program establishes a gender based classification.

 At oral argument on plaintiffs' motion for a preliminary injunction, defendants' counsel strenuously argued that all teams were open to women, and that, in addition, certain teams were open to women only. Plaintiffs introduced many University publications discussing and listing "men's" and "women's" athletic teams, and pointed out that, in fact, all of Temple's intercollegiate athletic teams are and have been either exclusively male or exclusively female. *fn3" It appears that, for purposes of the instant motion, defendants concede "the fact that Temple sponsors separate teams for men and women." Memorandum of law in support of defendants' motion for summary judgment at 53. See also defendants' reply memorandum at 8 n.8. The analysis that follows is based upon the assumption that Temple's intercollegiate athletic program explicitly classifies on the basis of gender. *fn4"

 If plaintiffs can establish discriminatory treatment, then the fact that the challenged program is explicitly gender-based shifts the legal focus to defendants:

The party seeking to uphold [state action] that classifies individuals on the basis of their gender must carry the burden of showing an 'exceedingly persuasive justification' for the classification. The burden is met only by showing at least that the classification serves 'important governmental objectives and that the discriminatory means employed' are 'substantially related to the achievement of those objectives.'

  Mississippi University for Women v. Hogan, 458 U.S. 718, 724, 102 S. Ct. 3331, 73 L. Ed. 2d 1090 (1982) (citations omitted).

 Defendants argue that, if all of Temple's intercollegiate athletic teams were open to both men and women, the overwhelming majority of team members would be men. *fn5" Plaintiffs point to no evidence that contests this assertion. Sponsoring separate men's and women's teams therefore appears to expand substantially the opportunity for women to participate in intercollegiate athletics. Case law establishes that expanding the number and quality of athletic opportunities available to women is an important governmental interest. O'Conner v. Board of Education of School Dist. No. 23, 645 F.2d 578, 581 (7th Cir.), cert. denied, 454 U.S. 1084, 102 S. Ct. 641, 70 L. Ed. 2d 691 (1981), on remand, 545 F. Supp. 376 (N.D. Ill. 1982); Hoover, 430 F. Supp. at 170.

 The question presented is whether there are constitutional limitations on the means Temple uses to pursue this interest. To be sure, Temple is not obligated to sponsor an intercollegiate athletic program, just as the state is under no constitutional obligation to provide public education. However, since Temple has decided to sponsor intercollegiate athletics as part of its educational offerings, this program "must be made available to all on equal terms." Brown v. Board of Education, 347 U.S. 483, 493, 74 S. Ct. 686, 98 L. Ed. 873 (1954). Although the mere fact of gender specific teams does not violate the fourteenth amendment, the equal protection clause mandates that Temple's programs may not be operated in a discriminatory fashion. In considering athletic programs courts have repeatedly observed, although none has squarely held, that separate and equal athletic programs are constitutionally permissible. O'Conner, 645 F.2d at 581; Gomes, 469 F. Supp. at 664; Hoover, 430 F. Supp. at 170, Ritacco v. Norwin School Dist., 361 F. Supp. 930 (W.D. Pa. 1973). See also O'Conner, 545 F. Supp. at 381 n.7; Leffel, 444 F. Supp. at 1121. This circuit has held that the provision of separate and equal high schools for males and females is constitutionally permissible. Vorchheimer v. School Dist. of Phila., 532 F.2d 880 (3d Cir. 1976), aff'd by equally divided court, 430 U.S. 703, 97 S. Ct. 1671, 51 L. Ed. 2d 750 (1977) (per curiam). This court's task is to define the "equality" that is required, and then to determine whether defendants offer equivalent athletic programs to men and women student athletes. See Hoover, 430 F. Supp. at 170 (separate teams meet the constitutional requirement of equal opportunity if the teams were given substantially equal support and if they had substantially comparable programs . . . . "The standard should be one of comparability not absolute equality"); Leffel, 444 F. Supp. at 1122 (same). The complaint alleges that Temple's separate programs are unequal in almost every conceivable area, including the allocation of opportunities to compete, expenditures, recruiting, coaching, travel and per diem allowances, uniforms, equipment, supplies, training facilities and services, housing and dining facilities, academic tutoring, and publicity. With a few exceptions, the reams of evidence submitted by plaintiffs and defendants raise genuine issues of material fact with respect to whether class members have been discriminated against in the provision of these resources. I will outline many of these factual disputes below.

 A). Opportunities to compete.

 The gravamen of plaintiffs' complaint is that, despite the fact that Temple's student body is approximately fifty percent female, approximately one-third of the participants in Temple's intercollegiate athletic program are women. Figures produced by defendants in discovery reveal that approximately 450 men and 200 women participate in Temple's intercollegiate athletic program. See Plaintiffs' memorandum, Exhibit C. Temple concedes, arguendo, that its decisions as to the selection of teams and the allocation of resources predetermine the participation rates of men and women in intercollegiate athletics. That is, by sponsoring more women's teams and/or fewer men's teams, Temple could increase the participation rate of females in the University's athletic program to 50, 75, or even 100%.

 However, defendants claim that plaintiffs have failed to establish that this participation rate is evidence of gender discrimination. Temple argues that the general student population does not constitute a relevant pool. Rather, Temple contends, the relevant pool consists of "those potential students who possess the special abilities and interests to compete in sports at the Division I intercollegiate level." Temple's argument rests upon the proposition that there is no reason to believe that equal numbers of male and female college students possess the exceptional skills and interests required for Division I intercollegiate athletics.

 Although it is true that "when special qualifications are required to fill particular jobs, comparisons to the general population (rather than to the smaller group of individuals who possess the necessary qualifications) may have little probative value," Hazelwood School Dist. v. United States, 433 U.S. 299, 308 n.13, 97 S. Ct. 2736, 53 L. Ed. 2d 768 (1977), there exists a genuine issue whether the figures produced by plaintiff evidence a discriminatory impact against women. This is so for at least two reasons. There is evidence that the number of male and female student athletes at Temple who possess the skills and interest required for intercollegiate athletics is not independent of the money Temple devotes to athletic scholarships and recruiting, and the resources devoted to advertising, promotion and sports information activities. See Christine Grant affirmation filed in connection with plaintiffs' motion for preliminary injunction; White deposition at 349. Plaintiffs have introduced evidence from which a fact finder could find that defendants discriminate by gender in the provision of these funds and resources. Second, although the relevant pool must possess special qualifications, the record before me does not establish that the population pool is not a proxy for the distribution of athletic talents and interests. Defendants have submitted the National Federation of High School Association's 1986 Sports Participation Survey, a compilation of data received from all fifty state high school athletic associations regarding the number of high school students who participate in interscholastic sports. This survey *fn6" reveals that approximately 34 % of those who participate in interscholastic sports are girls. *fn7" As the present record does not reveal the percentage of intercollegiate athletes that participated in interscholastic athletics, I am unable to assess fully the significance of the Sports Participation Survey. Plaintiffs have introduced evidence that some intercollegiate athletes did not compete in interscholastic sports, and that "certain sports found at the college level are often organized for high school aged athletes . . . through privately sponsored classes and/or privately sponsored competitions, country clubs, Y's, etc." Plaintiffs' memorandum, Exhibit B. On the record before me, I am unable to appraise fully the significance of this evidence. The present record compels me to conclude that there exists a genuine issue of material fact with respect to the relevant pool. *fn8" Finally, plaintiffs have produced evidence that talented and interested women student athletes to fill expanded women's teams at Temple "abound," and that Temple could, if it provided the opportunities and devoted the resources, "field an outstanding women's program twice the size of the program it has historically fielded." Plaintiffs' memorandum, Exhibit E. On this record, viewing all inferences to be drawn from the evidence in the light most favorable to plaintiffs, Continental Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982), and resolving all doubts as to the existence of genuine issues of material fact against the defendants, id., I am unable to conclude that defendants are entitled to judgment as a matter of law on this claim.

 Defendants argue, at some length, that plaintiffs cannot prove an intent to discriminate against women on this claim because "Temple's program constitutes discrimination in favor of, and not against, women." Defendants' motion at 61. Temple argues as follows. If the University sponsored a unisex sports program virtually no women would participate in intercollegiate athletics. Therefore the existence of a separate women's program is a form of preferential treatment. Temple analogizes to a hypothetical case in the racial area:

Suppose, for example, that Temple had an overall enrollment which was sixteen percent black but, finding that virtually no black students were able to meet the regular admissions standards for the physics program, instituted a special admissions track to increase the number of black students in that program from zero to ten percent. Could black applicants then successfully challenge this effort as a violation of the Equal Protection Clause[?] . . . . The plaintiffs are challenging Temple's affirmative efforts in extending benefits to women on the theory that Temple has not gone far enough.

 This argument misses the mark. In the above example, black students were not precluded from applying to the regular admissions program. The separate track represents an additional opportunity to join the physics program. However, the physics program and the men's athletic program are not analogous: both black and white students may apply to the general physics program; only men may try out for the men's sports teams. Thus, the women's teams do not represent an additional opportunity for women to play intercollegiate sports, but rather the only opportunity for women to play intercollegiate sports.

 Here the "intent" that Temple urges does not exist is provided by Temple's explicit classification of intercollegiate athletic teams on the basis of gender. See Leffel, 444 F. Supp. at 1121. In this respect, this case is fundamentally different from Feeney which defendants repeatedly cite. The state program challenged in Feeney granted veterans a lifetime preference for state employment. The Court found that the classification at issue -- between veterans and non-veterans -- was not gender based, as there were both female veterans and male non-veterans. The fact that the overwhelming majority of veterans were male was not controlling. Here, in contrast, the classification is explicitly gender based. In this regard, the case is similar to Hogan, supra (state nursing school explicitly classifies on basis of gender), Michael M. v. Sonoma County Superior Court, 450 U.S. 464, 101 S. Ct. 1200, 67 L. Ed. 2d 437 (1981) (state statutory rape statute explicitly classifies on basis of gender) and Craig, supra (state statute explicitly classifies on basis of gender).

 B). Expenditures.

 Plaintiffs claim that the differences in expenditures for the men's and women's intercollegiate athletic programs violate the equal protection clause. *fn9" Temple presently spends approximately $ 2,100 more per male student athlete than per female student athlete.

 In addition, some evidence suggests that each of the women's teams engages in fund raising, while only the men's crew and baseball teams raise funds. Plaintiffs' memorandum, Exhibits DD at 26-27; EE at 27; GG at 24, 31-2; HH at 19. Other evidence suggests that several men's teams engage in fund raising. See White deposition at 125-27; 129-31; 132-33; 148-49. There is conflicting evidence regarding which teams find it necessary to engage in fund raising. A finding that substantially all of the women's teams and few of the men's teams engage in fund raising would support plaintiffs' claim of disparate impact in the area of expenditures.

 Defendants argue that there is no gender discrimination because the women student athletes outperform the men student athletes and the "expenditure patterns reflect Temple's policy of operating a unified athletics program while promoting at a higher level its three revenue producing teams."

 Defendants' first argument is that because the women's teams, collectively, have a higher winning percentage than the men's teams, collectively, and because the women student athletes have a higher mean cumulative grade point average than do the men student athletes, Temple's spending policies do not adversely affect women. Plaintiffs have introduced evidence that it is difficult to compare sensibly the winning percentage of one team with that of another, particularly when looking at different sports. Plaintiffs' memorandum, Exhibit B. Moreover, I do not accept the proposition that teams or programs with comparable win-loss records have necessarily been treated equally in terms of expenditures. *fn10" Similarly, the fact that women student athletes have a ...

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