a women's sport, the biggest obstacle in promoting the sport generally lies in convincing boys that they can play. (Exh. B to Plaintiffs' Motion for Summary Judgment, Doc. #13).
It appears from all of the foregoing facts and reasonable inferences to be drawn therefrom that there is a demonstrated lack of interest in playing on girls' teams in general among males at Liberty High School, as well as a general lack of interest among males in playing field hockey at all.
Moreover, defendant's assertion that permitting boys to play on the girls' field hockey team would certainly deprive at least one girl of the opportunity to play is likewise unsupported by the evidence. First, according to the uncontradicted testimony of the Liberty High School field hockey coach, Martin Romeril, girls' interest in field hockey fluctuates. (Exh. D to Doc. #13 at 25). In one season, there were only eleven girls on the junior varsity squad, barely enough to field a team. (Id.). Thus, in any given year, it is possible that the presence of one or more boys on the field hockey team could enhance girls' opportunities to play by assuring that there are sufficient players on the team.
Second, the coach testified that it was his policy to permit all potential players who try-out for the team to join, and to play in the games, at least on the junior varsity level. (Id., at 41). As a general proposition, therefore, defendant's assertion that having even one boy on the field hockey team would absolutely diminish opportunities for girls to play is based upon speculation and assumptions of a worst case scenario rather than upon experience or reasonable expectations.
We conclude that the evidence of record establishes that defendant's fears concerning the purported potential of boys to dominate the field hockey team to the detriment of girls' athletic opportunities are completely unfounded or so ephemeral as to be insufficient justification for a policy which discriminates against boys in order to protect equal athletic opportunities for girls. With respect to this issue, defendant has relied entirely upon opinions which have no identifiable underlying factual support as its basis for asserting that disputed issues of material fact preclude summary judgment, or upon undisputed facts which are immaterial to the asserted interest. It is completely unnecessary, e.g., to determine the extent of the physiological differences between boys and girls at the high school level. Although, on average, such differences may be substantial, that fact is not material to the defendant's position in light of the lack of evidence supporting defendant's assertions that permitting boys on the field hockey team would lead to dramatic increase in the number of boys who wish to play field hockey and thereby reduce opportunities for girls to play. Likewise, although the question whether the average physiological differences between boys and girls might give boys a competitive advantage over girls in playing field hockey could be considered a disputed issue of fact, it is immaterial for the same reason.
We further conclude that it is unnecessary to determine the extent to which alternatives to banning boys from the girls' field hockey team would be feasible as a means to further the defendant's interest in maintaining equal athletic opportunities since there is no evidence to support the proposition that permitting boys to play for the field hockey team would impact that interest.
B. Due Process
Having already concluded that defendant's policy of banning boys from the field hockey team constitutes a violation of the Equal Protection clause in that defendant cannot demonstrate that such policy is substantially related to an important government interest, we find it unnecessary to address in detail plaintiff's argument with respect to the Due Process clause.
We note, however, that we find somewhat problematic the question whether affording the plaintiff notice and an opportunity to be heard before banning him from the field hockey team would have made any difference to him. He was undeniably cut from the team on the basis of a school district policy which was in effect at the time, and could not have prevailed at a hearing, after notice that he was in jeopardy of being dismissed from the team, absent a determination that the policy was either unlawful or unnecessary. Realistically, it does not appear that he could have obtained the relief he sought without a judicial determination that the policy upon which his dismissal was based is unlawful. Thus, although defendant's actions may constitute a due process violation, it is questionable whether such a finding would lead to an effective remedy in this case.
III. EQUAL RIGHTS AMENDMENT TO THE PENNSYLVANIA CONSTITUTION
It appears that in the absence of a definitive pronouncement by the Pennsylvania Supreme Court, the lower courts have had some difficulty in determining the appropriate standard to apply in assessing whether a gender-based policy such as that at issue here violates the Pennsylvania Equal Rights Amendment (EPA). See, e.g., Haffer v. Temple University, 678 F. Supp. at 534--536. It further appears, however, that the level of scrutiny to be applied is at least as stringent as that applicable to analysis of claims under the Equal Protection clause. Indeed, that is the standard which defendant asserts ought to be applied to plaintiffs' EPA claim.
We have no difficulty, therefore, in concluding that if defendant's policy violates the Equal Protection clause, it likewise violates the Pennsylvania EPA.
Since we have concluded that defendant's policy of banning boys from the field hockey team at Liberty High School on the basis that it is a designated girls' team is unsupportable under Title IX of the Education Amendments of 1972, and, in addition, that it violates both the Equal Protection clause of the United States Constitution and the Pennsylvania Equal Rights Amendment, we will enter judgment in favor of the plaintiffs and order that John Williams be permitted to participate in field hockey at Liberty High School on the same basis as female students.
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 799 F. Supp. 513.
ORDER - July 14, 1992, Filed
And now, this 9th day of July, 1992, upon consideration of plaintiffs' Motion for Summary Judgment, (Doc. #13), and defendant's response thereto, IT IS HEREBY ORDERED that the motion is GRANTED.
IT IS FURTHER ORDERED that judgment is entered in favor of the plaintiff and against the defendant.
IT IS FURTHER ORDERED that the Bethlehem School District is permanently enjoined from excluding John Williams from the field hockey team based solely upon his gender.
E. Mac Troutman