Sarah Anne Williams Wayne Williams, on Behalf of Their Minor Son, John Williams v. The School District of Bethlehem, Pa

America, F.2d Bank original action].” Nelson, F.2d 345; Mayock v. cf. Cir.1991) Free- (9th (“rights [the under dimin- are neither Act] of Information

dom litigation-generated enhanced

ished nor documents”) (quotation agency need for

omitted). collater- imposed discovery stay

The change this litigation does al securities could, consistent as Burstein Just

result. order, to research stay continue

with the in libraries his claim underpinning

factual publicly available where

or other institutions inspect stored, may also he so

information which records copy those to view. right has a public of the

member scope to consider no occasion

We have order, us. We before stay which the sealed extent that merely that to the

hold law subject to the common

materials all; access, open to there is they are right of Burstein upon basis principled

no them. copying inspecting and barred

III. above, we will forth reasons set

For the denying Bur- court’s order district

vacate the for further and remand intervention

stein’s opinion. with consistent

proceedings Wayne WILLIAMS; Anne

Sarah

Williams, behalf their son,

minor John Williams , DISTRICT SCHOOL BETHLEHEM,

OF

PA, Appellant.

No. 92-1650. Appeals, Court of States

United Circuit.

Third 23, 1993.

Argued Feb. July

Decided 30, 1993. Rehearing July

Sur Petition (Argued), L. Knade

Stuart Cleckner & Fearen, PA, Harrisburg, appellant. n Smith, (Argued), David Christina Rainville Refsin, Schnader, Harrison, Barry Segal L. Lewis, PA, Philadelphia, appellees. & SLOVITER, Judge, Before: Chief SCIRICA, MANSMANN Circuit Judges.

OPINION OF THE COURT SLOVITER, Judge. Chief Can school field be considered sport? a contact The district court held that it could not as a matter of law. On others, ground disagree we with the trial entry summary judgment against court’s part of the be a permitted to was riot John District, and remand only because of team Liberty High School resolved. to be fact issues are material granted sum- policy, district 14, in of July 1992 favor judgment on mary I. enjoiriing the permanently plaintiffs, the History excluding from the John and Procedural District from Facts School hockey team. girls’ field Liberty High School years fourteen was John Williams When holding that the School F.Supp. In 799 513. presented himself he grade, in ninth old and IX, a held as the court title violated District tryouts at hockey team girls’ field for the hockey not a that field of law matter the School, school in public Liberty High previ- “have and that males sport” “contact Bethlehem, Pennsylvania. of District School opportunities,” ously denied athletic been hockey field coed played intramural He had 66, holding inapplicable the thereby App. at at a middle eighth gradé he was when regulation for implementing exception the District, but the in the School school 106.41(b) § See 34 situations. C.F.R. those hockey team. only girls’ field has school (1990). plaintiffs’ federal sustaining the tentative coach made tryouts, the the After claim, court district the Equal Protection on each assignments based team position and alia, District’s held, the School that inter John, whose skills were player’s abilities. necessary pre- exclusionary policy was not goalie played probably have average, would that it opportunities and girls’ athletic serve However, after varsity -junior team. on the rectifying goal of justified by the was that John and another officials learned against girls in athletics.2 past discrimination uniforms, were boy been issued had they play on resolving could not addition, what stan- instructed without hockey team.1 girls’ scrutiny applied, the district of dard Pennsylvania E.R.A. was violat- that the held Wayne parents, plaintiffs Sarah John’s as strin- coverage is “at least ed Williams, 1990 action October filed this clause, Equal Protection as the gent” federal Bethlehem, of District against Af- already was violated. found it had which girls’ from the exclusion challenging John’s injunction, permanent grant ter the of alleg They claims made team. rejoined John, junior, then IX title of Education ing of violations fall participant for the a full team as § 1681 20 U.S.C. Amendments 1992 season. 34 regulation, (1988), implementing and its (1990); Equal Protection § appeals. 106.41 We exercise C.F.R. School District The federal grant clauses of the Con Due Process court’s a district plenary review over (1988); and stitution, § 1983 Re under 42 U.S.C. summary judgment. Interest Public Terminals, the Penn Amendment to Rights Duffryn Equal Group v. Powell search (E.R.A.), (3d Cir.1990), Pa. Const. sylvania cert. Inc., Constitution F.2d I, denied, 112 L.Ed.2d art. 28. 498 U.S. (1991). injunction, permanent sought a Plaintiffs litiga- fees, costs. attorneys’ While II. agreement they an reached pending,

tion was fall 1991 that for the District School with the Discussion John, sophomore, season, then a practice girls’ with permitted to would A. play in inter- not to hockey team but IX Title games. scholastic Amend the Education Title IX of undisputed facts Based (1988), pro § 1681 U.S.C. on ments participation player limits pro- educational discrimination sex and that hibits hockey team females the field plain- expressly address the court did party this The boy action. is not second The Process claim. federal Due tiffs’ funding.3* federal grams that receive team falls within both of Health, Education, Department exceptions (b), Wel set- forth in subsection (HEW) promulgated regulations imple provides fare that which that a team exclude menting general princ nondiscrimination members of one sex if-the is “a contact iple.4 regulations, appear sport” requires These and that which try-outs by Regulations, Part 106 of the Code Federal members of the excluded sex when “ath- variety in a bar sex discrimination wide letic for members of that sex facilities, programs including previously education been limited.” Thereafter, interscholastic athletics. HEW (b) The text of provides subsection Policy Interpretation issued its final notwithstanding general requirements regulation applicable to athletics. Title IX of (a), subsection 1972; the Education Amendments' a Poli- of recipient may operate sponsor sepa- or cy Interpretation; Intercollegi Title IX and rate teams for members of each sex where (Dec. Athletics, 71,413 Fed.Reg. ate 44 selection for such upon teams is based 1979) Policy Interpretation]. [hereinafter competitive activity skill or the involved is Although designed specifically for intercolle sport. However, a contact recipi- where a athletics, giate Policy Interpretation spe operates sponsors ent par- or a team in a cifically general principles that “its states will sport ticular for members of one sex but apply often to interscholastic athletic operates sponsors no such team for or. programs by regula which also covered sex, members of the other and athletic tion,” guidance by be used opportunities for members of that sex have 71,- programs. of such Id. at administrators limited, previously been members of the interpretation 413. We accord HEW’s of the try-out excluded sex must be allowed to regulation “appreciable deference.” Cohen v. team offered unless the involved (1st Univ., Brown 991 F.2d Cir. purposes is a contact For of this Chevron, 1993); see U.S.A. Inc. v. Natural part, sports boxing, contact include wres- Council, Inc., Resources 467 U.S. Defense football, tling, rugby, hockey, ice basket- 844, 104 2778, 2782, S.Ct. 81 L.Ed.2d 694 sports major ball and other the purpose or (1984). activity bodily of which involves contact. (a) applicable-implement- of the Subsection 106.41(b). § Id. ing regulation general principle sets forth the regulation, Under the a school has the that: general obligation opportu to make athletic shall, person sex, No on the of basis girls. nities available to Insofar as in, participation excluded from be denied obligation applies sponsorship to of of, differently the benefits be treated from teams, sports regulation expressly con person another or otherwise be discrimi- templates situations where will be against nated interscholastic ... making some accommodation other than each by recipient athletics offered [of federal equally open team to both sexes. As the funds], recipient provide any no shall explained, provisions Sixth Circuit has of separately such athletics on such basis. flexibility grant recipient title IX to the 106.41(a) (1990). § 34 C.F.R. organize program federal funds to its athletic wishes, dispute long The School goal equal District does not as it so as the Liberty opportunity John Williams was excluded from the athletic is met. See Yellow High solely Springs Exempted Village School field team on the School Dist. Bd. argues policy High basis of sex. It instead that v. Ohio School Athletic of Educ. (6th Cir.1981). prohibiting boys being from of the 647 F.2d members initially argued Rights the School District which is the case here. See Civil Restora- (1988). apply tion Act of 20 U.S.C. the district court that title IX does not to programs athletic that do not themselves receive funds, conceded, eventually correctly, federal it aspect responsibilities 4. This of HEW's was taken (cid:127) applies any part that title Department DC whenever of an over of Education when it program funding, educational receives federal was created in 1979. game, a non-contact play govern the a school preclude does regulation of John affidavits App. at 182. The only. sport.” sex for one maintaining a team Umpire Association Greer, of- specifically Chairman Interpretation Indeed, Policy America, Hockey Field sports, the of the the selection Association.of “In states that Purser, Coach institutions to Richard U.S.A. National require regulation does team, Richard exactly Hockey provide Field the Men’s nor teams integrate their Olympic field Kentwell, to men and wom- National U.S.A. choice the same Olympic coach, Cup and 71,417-18. The touch- and World Fed.Reg. at en.” “effectively ac- con- umpire, included the same is to regulation stone experts and abilities relied interests of these clusion.5 All commodate[] hockey promulgated that individuals so play athletes” rules of male and female High “to have opportunity of State Federation of each sex the National equally re- Associations, which all provide that almost competitive team schedules 71,418. The bodily Id. contact abilities.” bodily flect or threatened their permit a requires a school regulation violation foul. players is a between try out for the sex to of the excluded member summary judg- plaintiffs’ opposition opportuni- only the single-sex team the motion, offered District the School ment previously been have sex of excluded ties the Gros, Head expert, Vonnie of affidavit limited, they been so Even limited. field interscholastic of women’s Coach the is sport involved permitted if the is exclusion College- College hockey team at Ursinus exception sport The contact sport. a contact Head ville, Pennsylvania. was also Gros recognized to exception thus the broadest is Olympic Women’s of the United States Coach oppor- goal equal of overarching the the of Hockey Team from Field tunity. State Uni- Chester teams West women’s wom- years, and of the versity thirteen Sport 1. Contact University four teams at Princeton en’s of the hockey is not one field Because as as well played women’s years. She has on regulation in the specified sports expressly years’ thirty ex- on her Based coed teams. it so can be sport, whether a contact as that sport, concluded the Gros perience with sport it is “the a depends on whether deemed sport. ex- hockey a Gros is contact activity involves major of which purpose or sport major of the the activities plained that 106.41(b). Our bodily contact.” C.F.R. running up down and hockey include of field summary judg- grant of reviewing the task goal pre- a attempting to score the field party the whether is to ascertain ment doing so. She venting team from other granted created judgment was against whom “inevitably pro- activities these stated that Martin v. fact. of material genuine a issue contact,” bodily App. at duce involve Cir.1987). (3d 445, 452 Way, 829 F.2d United a of though is violation such contact even summary motion for of their support that hock- concluded play. of She rules sport prong of contact judgment on the bodily contact ey because is a contact the affi- plaintiffs introduced inquiry, IX title course of throughout “regularly occurs conclud- each of whom experts, four of davits App. at game.” any competitive sport. a hockey is not contact ed that field testi- relied on the Ralston, The School also affidavit, Director Lynn In her Villani, Athlet- Director of mony of Dominic Marketing for the Field Development and School, given at High Liberty ics at America, Hockey stated Association of order. restraining hearing temporary aon “[fjield according technically, hockey is twenty-seven that, his on Villani stated based rules and international to the national team, varsity is free a matter which hockey appeal argue that field on also Plaintiffs doubt, thresh- argument relevant is sport because a contact neither be considered should not contact is adult level and played question coed at whether field it is old. sport bodily regula- with John implementing contact be no purposes there will of the Williams, Assuming arguendo goalie. plays who tion. goalie junior on was that John slated physical activity. is years experience as a educator sanctioned We believe that limit- coach, “definitely” hockey is ing inquiry way as a in that duplica- would be App. explained at 30. Villani Instead, contact “purpose” inquiry. tive Jfie hockey player “going to use that a field “major activity” prong into takes account the power, any skills and natural attributes playing realities the situation on the field. get speed strength to that ball. testimony Gros’s affidavit and Villani’s game, of the nature of the And because raised an issue of material fact about wheth- contact.” going to be contact. There is major activity er a of field does in- App. at 30. bodily deed involve contact. We see no rea- holding that the School District had not why son the district court labeled Gros’s that, dispute and as a mat- created a factual conclusion, legal affidavit as a inasmuch as law, sport, ter of is not a contact gave explanation Gros reasoned for her relied on the fact that field the district court light play, view in realities whereas contact hockey is not mentioned the list of merely affidavits behalf Williams regulation, though ice sports in the even asserted a conclusion without reference included, hockey is and that there are blan- activity during play. to actual against bodily prohibitions ket contact Federation rules. The court dis- National insignificant It is not the National as con- the affidavit of Vonnie Gros missed rules, Federation introduced taining legal conclusion. District, require protectors mouth and shin acknowledged bodily contact that some shoes,. guards, prohibit spiked require that during hockey play, it occur found padded, prohibit artificial limbs be wear- only. Fi- “incidental” that such was ing jewelry. suggest bodily These rules nally, the court stated that “none of the frequently does in fact occur contact is bodily affiants asserted that contact is expected during game. to occur purpose major activity hockey.” of field or a added). (emphasis App. at 63 very sparse precedent There is on this parties agree “purpose” All of the that the issue. Kleczek v. Rhode Island Interscho wrestling, hockey, boxing, unlike or (D.R.I.1991), League, F.Supp. lastic football, bodily does not contact. We involve preliminary injunction a the court denied focus, therefore, on the alternative definition. circumstances, boy holding similar that a who that court erred in We conclude the district sought play girls’ on his school’s granting summary judgment on the basis of hockey unlikely team was to succeed on the the record before it. title IX or claims merits of his constitutional bodily even if contact is incidental because We note first that the district court it, may a lot of be thus may misapprehended legal inquiry. have sport pur a for must be considered contact regulation sport a defines contact as one poses 56;6 of title IX. Id. at Gil v. major purpose activity “the or of which in 956— cf. Hampshire New Interscholastic Athletic bodily volves contact.” There is a subtle but (N.H.Su 85-E-646, slip op. at 4 No. important distinction a' ma between whether 1986) 8, per.Ct. (unpublished Nov. deci filed jor activity bodily of field “involves sion) (“contact (the illegal, occasional [but] regulation’s language) contact” or pittings bodily rigorous forceful contact and bodily purpose whether contact “is the occur”). strength do Unlike the Kleczek major activity hockey,” language which, court, a trial could make its court as plaintiffs. used the district court and the 63; factfindings, position we are not in a own App. Appellees’ See at Brief at 13. hockey must considered a inquiry major hold that field be The district court’s as to the only there is activity suggests bodily can contact We hold that contact “major only preclude activity” sport of a if it sufficient evidence on this record deemed erroneously was irrelevant to decision because court be- note Kleczek provisions applies only the title IX lieved that title IX where the athletic the court assumed that funds, analysis. program supra applied proceeding with the itself receives federal see before impermissible volleyball team boy girls’ on that is- plaintiffs judgment for summary limited had been boys’ opportunities because sue. moot, F.2d 733 sport), in that vacated Opportuni- Athletic Previously Limited Cir.1979). (1st ties contrary interpretation that the We believe hockey is a If it is determined Hamp New York and adopted the New necessary inquiry no other sport, persuasive. In Mulara is more shire courts IX the title dispositive of bewill because that Board, 74 v. Haldane Central delis sport, a contact is not if a claim. Even (1980), 461-64 427 N.Y.S.2d A.D.2d the other sex in team for there is no phrase at issue looked at the the court regulation requires implementing sport, the The court regulation. of the context entire permit sex be of the excluded that members expressly refers to clause the first noted that only if team try single-sex for a out ted to (“where oper recipient sport” “particular “previously have opportunities their athletic particular in a sponsors team 106.41(b). ates or C.F.R. been limited.” uses broad and clause sport”), and second district court language, the interpreting that defining inquiry as language, composition general of the athletic considered School, mir High which Liberty for members program opportunities” “athletic whether offerings the School District previously been rors team excluded sex have compared overall. The of Bethlehem Congress If had intended Id. limited. boys and teams for those the number to be opportunities” into “athletic inquiry two each of the noting that as girls, sport,” it would have “particular ato limited has had high schools “par stated, phrase particularly since the so teams, teams, two ten boys’ ten in the same earlier sport” was used ticular found that athletic The court coed teams. Id.7 sentence. surpassed those have opportunities Superior Court analysis convinced This try permitted to out girls are boys adopted in Gil Hampshire, it New twenty-two whereas for all teams Athletic As- Hampshire Interscholastic twelve, New it thus concluded try out 85-E-646, sociation, op. slip at 31-32. No. that athletic argues, if the agree. limited.” As School “previously been We adopted, were plaintiffs’ the construction if find argue that even we Plaintiffs a non- a situation in could never be boys at Liber opportunities for that athletic limited to team was sport in which a limited, the High have not been ty School team for corresponding single sex without a in of violation would still School District definition, op- because, by the the other sex opportunities that it is title IX clear sport will be in that portunities particular hockey have boys the of in It mean sex. would for the excluded limited thus Plaintiffs previously limited. been argue that to boys always be able will inquiry with regulation’s interpret the would opportuni- athletic previous they limited had sports-spe opportunities as prior respect to tradi- sports just have ties because certain boys’ opportuni cific, focusing on in case sports, women’s tionally been considered This traditionally sport. female in a ties hockey. render This would such as language was regulation reading the of ques- in phrase purpose of nugatory by Gomes Rhode adopted the court in single- tion, authorize intended to was which F.Supp. League, 469 Island Interscholastic circumstances. in certain (D.R.I.) of sex teams (holding that exclusion and a for women Moreover, for men not con- and interpretation, issued offered HEW’s team, play on the tennis requires wishes to regulation, in- woman temporaneously with the previously limited at sports been have opportunities "at the women’s quiry athletic institu- into question com- that woman particular in the institution question” rather than tion in place See by pete in ‘men’s’ team." accompanied for a regulation was final 4, 1975) 24,143 (June (emphasis add- Fed.Reg. ed). questions addressing and explanations comments stated, tennis agency, “If received boys in girls high believe the district court was correct We school. There was rejecting plaintiffs’ sports-spe- implicitly conflicting evidence parties introduced interpretation, looking and in to cific instead on this issue. opportunities.

the overall athletic Plaintiffs offered evidence to show that the physical conclude, however, boys girls differences between We that the dis high age of school negligible.8 opposi- applied analysis trict court a flawed in hold tion, the School opportuni District offered the ing as a matter of law that athletic affidavit III, expert, M.D., of its boys previously ties for were limited at Lib Evan G. Pattishall erty High girls Assistant Professor of School because have Pediatrics at the been Med- try boys Pennsylvania able to out for more teams than ical School of University, State opportunity high who boys almost two decades. The mere testified that school on aver- team, try age “greater to out for a which the district court height, weight, body have total girls tipped strength, upper body found the balance favor of st[r]ength and aerobic District, is not determinative capacity School greater quantity [as as] well question “previously limited” athletic body lean mass ... [which translate into] opportunities op title IX. under “Athletic greater ability explosive to create and sus- portunities” opportunities, real not il means power physical tained muscle and sustained If, IX, lusory satisfy all ones. to title activity.” App. at 82.9 required District were to do was School It determining follows that whether teams, girls try boys’ allow out for the to to boys’ opportunities Liberty athletic at have efforts, only then it need not have made limited, previously been the factfinder must equalize achieved in to the numbers of meaningful physiological decide whether dif- sports boys girls. teams offered for girls ferences between produced The School District evidence that age negate significance allowing girls its decision 1975to allow about girls try boys’ out for teams but not right try twenty-two out for all teams did allowing the reverse. equalize opportunities athletic between Because the district court in finding erred the sexes. Dominic Villani “I don’t testified: dispositive opportunity girls the mere girls believe that the fact that are allowed to try acknowledging out without try boys[’] help out for would District had created a material issue problem inequality. years the 27 I opportunity, of fact as to the effect of that we business, have in this I believe I have been grant summary judgment reverse the will girls given seen two that had tried out for a plaintiffs’ title IX claim remand sport and at best were carried on the team. development for further factual on the issue displace any boys.” App. It did whether have you He concluded that “when in- previously been limited. boys[’] in sports respect volved with to dis- someone, placing you talking are about the connection, In this we must note that exception. exceptions very, very And are although regulation apply title IX the and App. few.” at 28-29. girls, equally to as well as it would opportunity girls try require ignore the to to that the motivation Whether blinders boys’ promulgation regulation out for a team is a realistic athletic of the on athlet emphasis boys’ opportunity respect particular with to that ics was the historic on athlet sport may programs turn there are real ic to the exclusion of athletic on whether high colleges. significant physical programs and in schools as well as differences between example, plaintiffs District also to our 8. For introduced statistics The School calls attention Diagnosis Current Diagnosis from Pediatric and Treatment other statistics in Current Pediatric and (10th 1991), age which indicates that at ed. weight which reveal that size and dif- Treatment boys weigh pounds between 84 and 157 95% ferences between and become more tall, are and between 58.2 and 69.2 inches high years. pronounced through Ap- the school girls weigh pounds between 83 and 160 95% 184, 185). (citing pellant's App. Brief at 29-30 at App. and are between inches tall. 58.4 67.3 at they a mat- Indeed, based on Cohen, precluded because See, F.2d at 892. e.g., comprehensive fully the “[par- ter addressed notes that Interpretation Policy the in IX. scheme title intercollegiate sports has histori- ticipation in wom- for men but not cally emphasized been made clear Supreme The has Court 71,419. specific Fed.Reg. at With en.” provides its own a federal that where statute athletics, Policy high to school reference scheme, Con comprehensive enforcement period “During the Interpretation states: right of action to foreclose a gress intended of female the number from 1971-1978 County Middlesex Sew under section 1983. participants organized in National Sea Clammers erage Auth. 294,000 2,088,000 in- increased —an 1, 20-21, 101 S.Ct. 453 U.S. This percent.” Id. crease of over 600 (1981).10 2626-27, This court 69 L.Ed.2d 435 in increased growth was reflected applicability recently addressed campuses participation of women in which doctrine cases Sea Clammers Id. colleges and universities. the nation’s IX title plaintiff asserts a claim under Poli- participation, the Despite this increased v. Mar Constitution. federal Pfeiffer over the Interpretation reflects concern cy District, 917 F.2d Area School ion Center Policy The prior discrimination. effect (3d Cir.1990), that the con we held requires continued affirmative Interpretation IX, in title claims are “subsumed” stitutional ... will entail steps, most cases “[i]n court, having addressed that the district programs that sub- development of athletic claim, properly refused to hear the title IX opportunities for stantially expand women Plaintiffs ar plaintiffs 1983 claim. section compete at all levels.” Id. participate and inap gue that the Sea Clammers doctrine 71,414. obligation that the Thus it is clear injunction sought, in an but plicable where complying with institution an educational injunction, sought an plaintiff also Pfeiffer of title IX interscholastic requirements holding. by that and we are bound simply com- be measured athletics cannot to each of teams available paring the number instant case ac- The court district “[wjhether sex, must turn on but instead rendered knowledged Sea Clammers unjustified disparities of substantial claims unnec- of the constitutional discussion treatment, benefits, alia, ser- nature exist proceed, inter “for essary, chose to but vices, male and fe- opportunities afforded App. at 67 n. 5. completeness.” the sake of program as institution’s male athletes guided instead have been The court should 71,417. Id. at a whole.” Supreme admonition by the Court’s before reach- exercise restraint

courts should We will ing federal constitutional claims. B. issues, not reach constitutional therefore judgment Federal Constitutional Claims district court’s and will vacate the 1983 claim. on the section discussion, the district In an extended plaintiffs’ claim that upheld C. boys from policy precluding District’s School federal Con- hockey violated the playing field Equal Rights Amendment Pennsylvania Equal Protection clause. stitution’s plaintiffs’ for sum- granting motion plaintiffs’ con- argues that the did not mary judgment, the district court § are 42 1988 claims under U.S.C. stitutional 817, (3d Aytch, 820 535 F.2d itself.” Allen v. argue School plaintiffs that because the 10. The Fleuti, rely Cir.1976) (referring Rosenberg 374 on Sea Clammers v. District did not court, doing precluded 1804, 449, from district it should be 1000 83 10 L.Ed.2d U.S. S.Ct. reject of that contention because Mendoza-Martinez, so here. Wc (1963)); Mackey 362 v. see strong duty to a case on nonconstitu- our decide (1960) 785, 384, (per 4 812 S.Ct. L.Ed.2d U.S. curiam); 80 possible. grounds As we whenever tional Co., 77, Ry. 350 U.S. Neese v. Southern stated, Supreme Court has on previously "The curiam); (1955) 131, (per 60 100 L.Ed. 76 S.Ct. applied when occasions even doctrine several the nonconstitutional the 790, 331, Hobby, U.S. 75 S.Ct. 99 349 Peters v. ground presented was not (1955). 1129 L.Ed. Court parties first noticed but was the

177 coerced); Blanco, 90, Pennsylvania Hopkins E.R.A. separately discuss the v. 457 Pa. 320 (1974) it (extending it concluded that once found A.2d 139 claim because married women right damages violated the federal to claim that the School District of consor loss tium). clause, Equal , District Protection necessarily Pennsylvania E.R.A. violated Supreme Court of therefore review the court’s federal We will Pennsylvania has not addressed the E.R.A. Equal analysis Protection as if it were made athletics, in the context of interscholastic in a context, Pennsylvania ap- E.R.A. and thoughtful opinion the Commonwealth Court ply plenary review as we have done the same made clear that the classification between on the other claims. boys girls in and connection with team sports Pennsylvania provides E.R.A. impermissible assumptions is based on and that stereotypes comparative about the character boys girls, of istics or abilities and the E.R.A.

[e]quality rights of under the law shall not will be violated. Commonwealth ex rel. abridged denied or in the Common- be Pennsylvania Packel v. Interscholastic Ath Pennsylvania because of the sex wealth 839, 45, letic 18 Pa.Cmwlth. 334 A.2d of the individual. (1975) (athletic league provision barring 843 I, applies provision Pa. art. 28. The Const. girls participating boys with women, equally to men and to see Swidzinski violates E.R.A. because it the ster embodies Schultz, 422, 93, Pa.Super. v. 342 493 A.2d eotype generally that weaker and (1985), and, according Supreme 95-96 athletics). boys generally more skilled at Pennsylvania, purpose Court of However, after the Commonwealth Court’s equality rights to insure under the law Packel, Pennsylvania decision in Su to eliminate sex as a basis for distinc- preme Department decided Fischer v. Court tion. The sex of citizens of this Common- 293, Welfare, Public 509 Pa. 502 A.2d 114 longer permissible no factor in wealth is (1985), accepted prevailing where it the view legal rights of their determination jurisdictions among 'with a state E.R.A. that responsibilities. legal The law will not im- prohibit the E.R.A. does not differential pose different benefits or different burdens when, among treatment the s'exes society upon the of a based on members here[,'] reasonably treatment they may the fact that be man or woman. genuinely physical based on characteristics Henderson, 97, v. Pa. 327 Henderson unique to one sex. (1974) (invalidating per- A.2d statute omitted). (quotation Id. 502 A.2d at 125 mitting only alimony after women to receive claim, defending the E.R.A. the School divorce). argued that because of the undenia- stated, “In The Court has this Common- physical girls and ble differences between wealth, longer accepted sex no as an age, high sex was the classifying exclusive tool.” Commonwealth accomplishing, inter classification feasible Butler, Pa. v. 328 A.2d alia, legitimate and substantial interest (1974) (invalidating prohibit- criminal statute promoting girls. ing minimum while al- sentences women IX, As we noted our discussion title men); lowing them for see also Hartford parties conflicting introduced evidence Comm’r, Accident & Indem. Co. v. Insurance physical extent of differences between (1984) (striking 505 Pa. 482 A.2d 542 girls at the school level. Some sexes); rates for the differential insurance supports District’s the evidence Carson, Spriggs ex rel. Commonwealth argument the differences between (1977) (abolishing Pa. 368 A.2d 635 through high dramatically sexes increase presumption awarding years” “tender used school, sixteen, by' age these differ- mother); custody to Commonwealth v. San substantial. ences are (1975) (inval 216, tiago, Pa. 440 462 340 A.2d policy validity of the District’s idating presumption that wife who commits School hockey excluding boys,from the field team in her was presence crime husband 178 joined or out for have tried students char few “physical there are depends on whether They other sex. designated for the teams [boys]” warrant unique to acteristics that, negatively from af- far contended there are real also If treatment. differential allowing opportunities, girls’ high fecting athletic school between physical differences opportu- those will increase boys are the team girls, then the sexes on boys and because, during at least one they into enter similarly as nities situated “not “barely” the endeavors,” season, had Liberty High v. Illinois School Petrie athletic most 980, a players to field Ass’n, Ill. Ill.App.3d 31 number of female 75 minimum

High School (1979), 855, that be- 653, 661, Finally, plaintiffs 863 asserted N.E.2d 394 team. Dec. justified, Liberty High be School hockey on sex based field exclusion cause and team, displace girls v. Fos boys rel. Bartholomew never ex can Bartholomew cut” “no see 393, 397 541 A.2d ter, Pa.Cmwlth. the team. 115 from (“The (1988) types sexual only discrimina countered with ar- District The School are in this Commonwealth permitted tion boys allowed on the are gument that more genuinely reasonably and are those which girls will play, more permitted to team and unique to physical characteristics based hockey field during the the bench warm omitted), sex.”) without (quotation one aff'd testimony of presented also matches. It (1989). A.2d 1390 Pa. opinion, hockey positions on the that if Villani resolution court found The district boys, girls and “eventual- open to team were “completely physical differences dispute on dominate, op- eliminating the ly boys would was no evidence unnecessary” App. at 28. Gros portunities females.” boys more than a handful suggest that to character- players’ physical that male agreed playing express interest ever would competitive ad- give significant them a istics out ever tried Only girls four have hockey. players. vantage over female (two in the boys’ teams School court, Nonetheless, rely- again the district soccer), only two and two football expressed boys have facts that ing on the few Williams, tried out boys, including John no cuts are sport and that an interest (field hockey). girls’ teams Liberty High School made from of this resolution believe that We team, admitting boys found Whether avoided. dispute cannot be factual play. displace our girls from would trying out for interested boys will be fac- view, resolve the must the district court to the issue irrelevant team is it before to differences physical tual issue as between physical differences real whether likely boys are to determine whether can treatment, justify boys girls differential Compare Cape displace girls from the team. case, from the exclusion of Ass’n, Secondary Athletic Sch. v. Tennessee boys’ from the but not' girls’ teams (“[i]t (6th Cir.1977) takes 563 F.2d law, as ex Pennsylvania Under teams. play were realize that imagination to little recently by state’s Su pressed most sex, separated competition not Fischer, legality preme Court quickly.be would great bulk of the females resolved policy can District’s and denied participation eliminated physi genuine deciding are whether there athletic involve meaningful opportunity for girls or boys and between differences cal 85-E-646, ment”) Gil, slip op. at 26 No. instead, on un whether, is based policy undoubtedly class, better (“Boys, are as assumptions stereotyped warranted play equipped physiologically a fact issue raises the sexes. That about Attorney v. Mas girls.”) Gen. with than summary judg precludes question which Athletic Interscholastic sachusetts ment. (1979) (“No 393 N.E.2d Mass. does contribute biological circumstance parties con- doubt dispute A related between advantages. But we male to some overall play permitting whether cerns clear are not so think the differences boys’ eclipsing result in girls’ teams will justify rule in which sex uniform as District. ‘proxy’ for a kind of above, used out, sought to be as pointed noted Plaintiffs

179 classification.”)- difference, functional For reasons case we need not dwell on the if we already explained, any, have this issue must be “compelling” “important” between at government resolved trial. interest. Ultimately, validity of the classi hand, On the other we cannot avoid choos- depend relationship will on the fication be ing scrutiny disposi- level of because the government tween the classification and the tion turn could on whether the classification Unfortunately, Supreme interest. Court “necessary” bears a relationship rather than Pennsylvania yet has not addressed the relationship goal. “substantial” to the Un- proper scrutiny level of under the E.R.A. Pennsylvania til the Supreme spo- Court has scrutiny The district court wrote issue, ken on that it is the better course to stringent” must be “at least as as that under use the plain- standard more favorable to the Equal App. the federal Protection clause. at tiff under the state light E.R.A. in argue 77. Plaintiffs that the standard must strong policy equalize state to opportunities stringent, be more else there was no reason for the sexes. Pennsylvania legislature adopt for the to proffered The School District also the need equal rights place. amendment first rectify past inequality competitive inter- Educ., Newberg See v. Board Pub. 26 opportunities scholastic athletic for female (Ct.Com.Pl.1983). 682, Pa.D. & C.3d 710 legitimate goal students as a policy for its agree we not do that this is the limiting girls. team to The dis- passage equal rights reason for of state rejected importance trict court of this amendments, Feldblum, Nancy see Chai R. goal ground “most, all, Krent, Watkin, Virginia Legal Fredman & G. Liberty High [the School students] were not Challenges Organizations, to All-Female 21 unequal existence” the time of the (1986), 171 Harv.C.R.-C.L.L.Rev. there is past practices “in the sixties and seventies.” application heightened much to commend App. at 69. This narrow view of the need to scrutiny to classifications. sex-based Howev- rectify past pos- discrimination overlooks the er, uniquely we are hesitant to decide this sibility vestiges longstanding that the dis- highest state law matter before the state’s criminatory practices may still inhibit court has done so unless we no other actively pursuing course. It is not clear that the level of opportunities. ease, scrutiny dispositive will be- Moreover, the record that the shows dis- policy may cause the School District be able criminatory practices beyond continued far scrutiny to meet even the strict standard. the sixties and seventies. It was not until Olim, 346, See Holdman v. 59 Haw. 581 P.2d finally 1989 that the had an (1978). 1164, 1168 equal boys’ number of teams. We argues The School District that the classi agree with the Ninth Circuit that “[t]here relationship fication bears a substantial to an question [redressing past no discrimina- interest, important governmental using the against legiti- tion women is a athletics] standard denominated as intermediate and important governmental mate and interest.” Boren, applied Craig in cases such as v. 429 Clark v. Arizona Interscholastic 695 190, 197, 451, 456, U.S. 97 S.Ct. 50 L.Ed.2d (9th Cir.1982) 1126, (citing F.2d 1131-32 Pe (1976). plaintiffs’ argument for a trie, 660, 862), 31 Ill.Dec. at 394 N.E.2d at scrutiny inquiry strict test would lead to the denied, cert. 464 U.S. 104 S.Ct. whether the School District’s rule bears a (1983); Educ., L.Ed.2d 90 B.C. v. Board of necessary relationship “compelling to a state N.J.Super. A.2d City interest.” See Cleburne Cleburne (1987). Ctr., 432, 440, 105

Living 473 U.S. S.Ct. (1985). 3254, 87 L.Ed.2d 313 We do not We will therefore remand the E.R.A. claim factfinding plaintiffs argue understand that the court for as to the district maximizing physical School District’s interest ath whether there are real differ- girls that letic for female students would ences between warrant n treatment, satisfy scrutiny, strict and thus in this different and whether record,11 would Title IX claim on this pro- athletic the school’s likely to dominate granted it. Only have teams. gram -if admitted to determine whether possible it be then will “major a dispute centers on whether This excluding boys policy of District’s the School hockey bodily con- activity” involves of field necessary to the School girls’ teams is from hockey is not a field tact. Williams contends preserving recognized interest District’s penalize play- rules sport because its contact girls, for meaningful athletic sticks, trip, charge, push, their ers who raise 660-62, N.E.2d Petrie, at Ill.Dec. see opponent, engage or personally handle an or 862-64, there is a current whether and/or dangerous play,” Nat’l Fed’n “rough or admittedly pervasive past rectify the need to Hockey Rules High Field Sch. State high school stu- against female discrimination (1990-91).2 support, 16-17, In 24-25 opportunities, respect dents with of four ex- produced the affidavits Williams Clark, F.2d at 1131. see each of whom stated: perts, according hockey technically, is Field III. Hockey, a non- Rules of the Game to the sport. contact Conclusion wrestling, rug- boxing, sports like Unlike order the district court’s summary, basketball, hockey, by, football and ice plain- summary judgment for granting hockey involve contact as its does not We do foreclose will be reversed. tiffs major activity. purpose or summary moving from the School added). IX claim based on its on the title judgment (emphasis affidavits, thereby shifting to the the burden hockey sport is contact Whether demonstrating produce evidence plaintiffs to solely the rules.3 The focus turn cannot material fact genuine precluding issue of High play. on the realities must be summary judgment. If the district player basketball rules forbid District is enti- that the School determines trip[ping,] ]or “holding], push[ing], [ the title IX summary judgment on tled progress opponent.” an impeding,] claim, counsel dis- precedent our would then Ass’n, Basket High Sch. Nat’l Fed’n of State E.R.A. claim which perident missal (1990).4 Yet basketball is Rules at 52-53 ball court. maintained in state could then be in 34 sport and is cited as such a contact 106.41(b). Although § basketball’s C.F.R.

SCIRICA, concurring. Judge, Circuit charging opponent, into an penalize rules compete pos players as collisions occur opinion, write join I the court’s but hockey, Similarly, in field of the ball. session I believe the rules separately because compete possession of the ball. players conclusory opinions set forth in hockey and and, § purposes of 106.- cre- Collisions occur do not submitted Williams affidavits 41(b), consequence that such it is of little fact on wheth- genuine issue of material ate a That contact is the rules. conduct violates hockey sport. a contact Had is er field dispositive. penalized cannot be summary judgment moved for school district football, rugby, hockey, course, ing, wrestling, basket- judg- ice summary a motion for 1. Of once filed, may respond major party sports purpose activi- adverse or ball and other ment 56(e). contact”). bodily ty under Fed.R.Civ.P. involves of which argument rejecting District’s logic to "[i]t held: defies 3. The district court sport, the district court a contact purpose bodily contact is conclude 106.41(b)’s § include failure to 34 C.F.R. held major activity when a team of field hockey among examples its of contact players or a ball penalized not when its recog- sport "suggested] was not that this player, players another its contacts hit one of was when the rule nized as a contact threatened or when contact is but also such regula- examples in the But the textual drafted.” likely.” illustrative, regula- The not inclusive. tion are sports such mention other contact tion does not soccer, lacrosse, polo. See 34 and water as part of this record. rules are basketball 106.41(b) ("contact sports include box- C.F.R. experts’ I analogy, conclusions that “field And would make the Williams’ as Title IX does, they does involve label basketball as a contact flaw; activity” major another As And I many contains have observed basket- observes, majority games, there is ball and I have observed a number significant hockey games. subtle but difference between ask- of field And taken in that context, ing hockey ... con- hockey girls’ hockey involve[s] whether “field field field — major activity,” language definitely ... sport. tact as its would be a contact affidavits, asking used in Williams’ coach, hockey The field Martin Romer- major activity hockey] [field whether “the il, emphasized game: also the realities of the contact,” bodily language in involves used There in hockey is contact 106.41(b). Major activities you players occupying potentially the ball, running, advancing checking, include space. happen any same This would in shooting blocking. These activities inev- sport players when occupy two want to bodily itably involve contact. space, obviously, going same there’s to be In remarkable contrast to Williams’ affi- contact so there is some contact ants, empha- the School District’s affiants hockey. Gros, game. sized the realities of the Vonnie observes, majority As the the “affidavits testified; player,5 a veteran coach and merely behalf asserted a con- Williams major The activities of the of field any clusion without reference to actual activi- running up and down the includ[e] ty view, during my At play.” 173. In order to move the ball towards the genuine evidence fails to create issue of opponent’s goal prevent opposing or to material fact. doing team from so. These activities inevi- contact, tably produce bodily and involve SUR PETITION FOR REHEARING players compete quarters at close for possession or control of the ball. July physical contact is in most cases a violation SLOVITER, Judge, Present: Chief of the rules for which the official has the BECKER, STAPLETON, MANSMANN, option calling penalty, such GREENBERG, HUTCHINSON, SCIRICA, regularly throughout occurs the course of COWEN, NYGAARD, ALITO, ROTH and major any competitive game. Because its LEWIS, Judges. Circuit contact, bodily activities I involve consider sport.” petition rehearing by Appel- be a “contact Field filed hockey certainly cannot be called a “non- Wayne Anne lees Sarah Williams and contact” having in the above-entitled case Williams judges participad been submitted to the who Villani, Similarly, Dominie Director of Athlet- ed in the decision of this court and to all the School, Liberty High play- ics at stated that judges avapable other circuit of the circuit positioning “bump ers for the ball will [and] service, judge regular active and no who joust_ a small area. there is [in] [sic] So having concurred the decision asked going twenty- to be collisions.” Based on rehearing, majority and a of the circuit years coaching experience seven Villani judges regular circuit in active service testified: having rehearing voted the court know, player] every I have [Y]ou [as banc, petition rehearing is denied. right opponent to that as the does and ball going I am to use skills and natural power, speed strength

attributes of get to that ball. And because of the game, going

nature of the there is to be

contact. There is contact. notes, majority 5. As the Gros coached the U.S. to 1984. Olympic Hockey Womens’ Field Team from 1977

Case Details

Case Name: Sarah Anne Williams Wayne Williams, on Behalf of Their Minor Son, John Williams v. The School District of Bethlehem, Pa

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 30, 1993

Citation: 998 F.2d 168

Docket Number: 92-1650

Court Abbreviation: 3rd Cir.