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July 14, 1992

SARA ANNE and WAYNE WILLIAMS on behalf of their minor son, JOHN WILLIAMS, Plaintiffs

The opinion of the court was delivered by: E. MAC TROUTMAN

 Plaintiff John Williams is a male student at Liberty High School in the Bethlehem School District. In August, 1990, at age 14, John Williams and another male student tried out for the school's field hockey team, which participates in an interscholastic schedule of games. Williams was selected for the junior varsity squad as a goalie and began practicing with the team. He was issued equipment and a team uniform. At the end of August, however, the school district notified the coach that boys are not permitted to play on the girls' field hockey team and ordered that Williams neither practice with the team nor participate in the games.

 Thereafter, the case proceeded through discovery and the parties were able to reach a partial compromise for the 1991 field hockey season whereby John Williams was permitted to practice with the team but not permitted to play in the interscholastic games. Presently before the court is plaintiffs' motion for summary judgment, which should dispose of the case in time for the 1992 scholastic field hockey season.

 Plaintiffs assert that the defendant's exclusion of John Williams from the girls' field hockey team, which effectively bars him from playing that sport since there is no school field hockey team for boys, violates Title IX of the Education Amendments of 1972, (20 U.S.C. § 1681, et seq.), and its implementing regulations, the Pennsylvania Constitution, specifically the Equal Rights Amendment thereof, and both the Equal Protection and Due Process clauses of the Fourteenth Amendment to the United States Constitution.

 It is undisputed that the defendant school district limits player participation on the field hockey team to female students *fn1" and that John Williams was dismissed from his position on the Liberty High School junior varsity field hockey team only because of that school district policy. Thus, it is undisputed that John Williams has been prevented from playing interscholastic field hockey solely on the basis of his gender. The ultimate issue before the Court, therefore, is whether the school district's action was proper in light of the laws applicable to gender classifications in scholastic athletic programs. We will begin our consideration of this issue with plaintiffs' federal statutory claims, and will address defendant's arguments that disputed issues of material fact preclude summary judgment as such arguments become relevant to the legal issues.

 I. Title IX of The Education Amendments of 1972

 Pursuant to 20 U.S.C. § 1681(a), popularly known and hereafter referred to as Title IX, students are protected from gender discrimination in educational programs and activities which receive federal financial assistance. Plaintiffs here contend that the Bethlehem School District athletic programs are subject to the Title IX prohibition against discrimination on the basis of sex and that the defendant's announced policy of preventing males from player participation on the field hockey team, which is designated as a girls's sports team, violates that statute.

 Defendant first argued that Title IX is inapplicable in that its athletic programs do not receive federal financial assistance, but now concedes that the Civil Rights Restoration Act of 1987, 20 U.S.C. § 1687, specifies that Title IX is fully operative when any part of an educational program or any local or state educational entity receives federal financial assistance. Defendant, therefore, further concedes that its argument concerning the applicability of Title IX has been vitiated insofar as that argument was based upon the absence of federal money for its athletic programs. (See, Addendum to Brief of Defendant in Opposition to Plaintiff's Summary Judgment Motion, Doc. #26 at 2). Defendant continues to argue, however, that its policy of prohibiting boys from playing on the field hockey team does not violate Title IX in that field hockey is a contact sport and athletic opportunities for boys have not previously been limited in the Bethlehem School District. (Id.).

 These arguments arise from the defendant's interpretation of the portion of Title IX's implementing regulations which address athletic programs, found at 34 CFR § 106.41. In subparagraph (a) thereof, the rule states the general proposition that,

 No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwse be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by the recipient, and no recipient shall provide any such athletics separately on such basis.

 This general rule is qualified by subparagraph (b), however, to permit separate teams under certain conditions, i.e.,

 Notwithstanding the requirements of paragraph (a) of this section, a recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport. However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport is a contact sport. For purposes of this part, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact.

 As noted, the defendant here relies upon the provisions of § 106.41(b) to support its policy of prohibiting boys from playing on the designated girls' teams. In their motion for summary judgment plaintiffs contend that the school district's policy with respect to the field hockey team is a blatant and obvious violation of Title IX and the foregoing rule, and that the Court can so determine as a matter of law. In response to the motion, defendant argues that there are issues of material fact in dispute, specifically, in this context, whether field hockey is a contact sport and whether athletic opportunities for boys have previously been limited. *fn2"

 As is obvious from the plain language of the applicable regulation, the defendant cannot lawfully exclude boys from the field hockey team unless we determine that field hockey is a contact sport, and that boys' athletic opportunities have not been previously limited, since a boys' field hockey team is not offered. Pursuant to § 106.41(b), the school district is required to permit boys to try-out for a girls' team if there is no boys' team for the particular sport, which is here admitted, if the sport is not a contact sport and if athletic activities for the excluded sex, here the boys, have previously been limited.

 Despite defendant's vigorous attempt to create an issue of fact for trial concerning whether field hockey is a contact sport, we conclude that it is not for purposes of the athletic regulations under Title IX. In the first instance, a number of contact sports are enumerated in § 106.41(b), including ice hockey. The omission of field hockey suggests that this sport was not recognized as a contact sport when the rule was drafted.

 Second, the rules of play for high school field hockey define as a violation or foul virtually every activity on the field which involves bodily contact between field hockey players or between a player's body and the ball, as well as practices which could lead to bodily contact or which threatens such contact, e.g., raising the stick during play and hitting the ball in a manner which might cause it to be propelled through the air. (See, Exhibit J to Plaintiffs' Motion for Summary Judgment, Doc. #13). It defies logic to conclude that bodily contact is a purpose or major activity of field hockey when a team may ...

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