On appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 90-06448).
Before: Sloviter, Chief Judge, Mansmann and Scirica, Circuit Judges.
Can high school field hockey be considered a contact sport? The district court held that it could not as a matter of law. On this ground and others, we disagree with the trial court's entry of summary judgment against the School District, and remand because there are material fact issues to be resolved.
Facts and Procedural History
When John Williams was fourteen years old and in ninth grade, he presented himself for the girls' field hockey team tryouts at Liberty High School, a public school in the School District of Bethlehem, Pennsylvania. He had played intramural coed field hockey when he was in eighth grade at a middle school in the School District, but the high school has only a girls' field hockey team. After the tryouts, the coach made tentative position and team assignments based on each player's abilities. John, whose skills were average, would probably have played goalie on the junior varsity team. However, after school officials learned that John and another boy had been issued uniforms, the boys were instructed that they could not play on the girls' field hockey team.*fn1
John's parents, plaintiffs Sarah and Wayne Williams, filed this action in October 1990 against the School District of Bethlehem, challenging John's exclusion from the girls' field hockey team. They made claims alleging violations of title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 (1988), and its implementing regulation, 34 C.F.R. § 106.41 (1990); the Equal Protection and Due Process clauses of the federal Constitution, under 42 U.S.C. § 1983 (1988); and the Equal Rights Amendment to the Pennsylvania Constitution (E.R.A.), Pa. Const. art. I, § 28.
Plaintiffs sought a permanent injunction, attorneys' fees, and costs. While the litigation was pending, they reached an agreement with the School District that for the fall 1991 sports season, John, then a sophomore, would be permitted to practice with the girls' field hockey team but not to play in interscholastic games.
Based on the undisputed facts that the School District limits player participation on the field hockey team to females and that John was not permitted to be a part of the Liberty High School team only because of that policy, the district court granted summary judgment on July 14, 1992 in favor of the plaintiffs, permanently enjoining the School District from excluding John from the Liberty High School girls' field hockey team. In holding that the School District violated title IX, the court held as a matter of law that field hockey is not a "contact sport" and that males "have previously been denied athletic opportunities," App. at 66, thereby holding inapplicable the exception in the implementing regulation for those situations. See 34 C.F.R. § 106.41(b) (1990). In sustaining the plaintiffs' federal Equal Protection claim, the district court held, inter alia, that the School District's exclusionary policy was not necessary to preserve girls' athletic opportunities and that it was not justified by the goal of rectifying past discrimination against girls in athletics.*fn2
In addition, without resolving what standard of scrutiny applied, the district court held that the Pennsylvania E.R.A. was violated because its coverage is "at least as stringent" as the federal Equal Protection clause, which it had already found was violated. After the grant of the permanent injunction, John, by then a junior, rejoined the field hockey team as a full participant for the fall 1992 season.
The School District appeals. We exercise plenary review over a district court's grant of summary judgment. Public Interest Research Group v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 76 (3d Cir. 1990), cert. denied, 498 U.S. 1109, 111 S. Ct. 1018, 112 L. Ed. 2d 1100 (1991).
Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 (1988), prohibits sex discrimination in educational programs that receive federal funding.*fn3 The Department of Health, Education, and Welfare (HEW) promulgated regulations implementing this general nondiscrimination principle.*fn4 These regulations, which appear in Part 106 of the Code of Federal Regulations, bar sex discrimination in a wide variety of education programs and facilities, including interscholastic athletics. Thereafter, HEW issued its final Policy Interpretation of the regulation applicable to athletics. Title IX of the Education Amendments of 1972; a Policy Interpretation; Title IX and Intercollegiate Athletics, 44 Fed. Reg. 71,413 (Dec. 11, 1979) [hereinafter Policy Interpretation ]. Although designed specifically for intercollegiate athletics, the Policy Interpretation specifically states that "its general principles will often apply to . . . interscholastic athletic programs which are also covered by regulation," and may be used for guidance by the administrators of such programs. Id. at 71,413. We accord HEW's interpretation of the regulation "appreciable deference." Cohen v. Brown Univ., 991 F.2d 888, 895 (1st Cir. 1993); see Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984).
Subsection (a) of the applicable implementing regulation sets forth the general principle 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 otherwise be discriminated against in any interscholastic . . . athletics offered by a recipient [of federal funds], and no recipient shall provide any such athletics separately on such basis.
34 C.F.R. § 106.41(a) (1990).
The School District does not dispute that John Williams was excluded from the Liberty High School field hockey team solely on the basis of sex. It argues instead that its policy prohibiting boys from being members of the girls' field hockey team falls within both of the exceptions set forth in subsection (b), that which provides that a team may exclude members of one sex if the sport is "a contact sport" and that which requires try-outs by members of the excluded sex only when "athletic opportunities for members of that sex have previously been limited."
The text of subsection (b) provides that notwithstanding the general requirements of subsection (a),
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 involved 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.
Under the regulation, a school has the general obligation to make athletic opportunities available to boys and girls. Insofar as this obligation applies to sponsorship of sports teams, the regulation expressly contemplates situations where there will be some accommodation other than making each team equally open to both sexes. As the Sixth Circuit has explained, the provisions of title IX grant flexibility to the recipient of federal funds to organize its athletic program as it wishes, so long as the goal of equal athletic opportunity is met. See Yellow Springs Exempted Village School Dist. Bd. of Educ. v. Ohio High School Athletic Ass'n, 647 F.2d 651, 656 (6th Cir. 1981).
The regulation does not preclude a school from maintaining a team for one sex only. Indeed, the Policy Interpretation specifically states that "In the selection of sports, the regulation does not require institutions to integrate their teams nor to provide exactly the same choice of sports to men and women." 44 Fed. Reg. at 71,417-18. The touchstone of the regulation is to "effectively accommodate the interests and abilities of male and female athletes" so that individuals of each sex have the opportunity "to have competitive team schedules which equally reflect their abilities." Id. at 71,418. The regulation requires a school to permit a member of the excluded sex to try out for the single-sex team only if the athletic opportunities of the excluded sex have previously been limited. Even if they have been so limited, exclusion is permitted if the sport involved is a contact sport. The contact sport exception is thus the broadest exception recognized to the overarching goal of equal athletic opportunity.
Because field hockey is not one of the sports expressly specified in the regulation as a contact sport, whether it can be so deemed depends on whether it is a sport "the purpose or major activity of which involves bodily contact." 34 C.F.R. § 106.41(b). Our task in reviewing the grant of summary judgment is to ascertain whether the party against whom judgment was granted created a genuine issue of material fact. Martin v. United Way, 829 F.2d 445, 452 (3d Cir. 1987).
In support of their motion for summary judgment on the contact sport prong of the title IX inquiry, plaintiffs introduced the affidavits of four experts, each of whom concluded that field hockey is not a contact sport. In her affidavit, Lynn Ralston, Director of Development and Marketing for the Field Hockey Association of America, stated that "field hockey is technically, and according to the national and international rules which govern the play of the game, a non-contact sport." App. at 182. The affidavits of John Greer, Chairman of the Umpire Association of the Field Hockey Association of America, Richard Purser, U.S.A. National Coach of the Men's Field Hockey team, and Richard Kentwell, U.S.A. National and Olympic field hockey coach, and World Cup and Olympic field hockey umpire, included the same Conclusion.*fn5 All of these experts relied on the ...