exceed by more than 3 percent the actual participation rate of women in intercollegiate athletics at the University, excluding football participation from the comparison." Id. at , 740 P.2d at 1381. Similarly, the court ordered that women receive a specified percentage "of all money expended for scholarships, excluding funds expended for football scholarships." Id. at , 740 P.2d at 1381. This percentage is to increase yearly until it equals the percentage of women undergraduates. Finally, the University was ordered "to allow for increased participation opportunities until female participation, again excluding football participation from the comparison, reached a level commensurate with the proportion of female undergraduate students." Id. at , 740 P.2d at 1381.
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.
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.
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.'