DocketNumber: PC 91-5475
Judges: <underline>PFEIFFER, J.</underline>
Filed Date: 9/27/1991
Status: Non-Precedential
Modified Date: 4/18/2021
Kleczek decided in 1990 to try out for the girls' field hockey team at South Kingstown High School. His parents supported his decision. The coach of the team and the players are not opposed to Kleczek's participation on the team. The school sought permission from the League to permit Kleczek to play, but the League refused pointing to Article 25, Section 1 which limits field hockey competition to girls. A formal waiver of that rule was then requested of the League. After a hearing, the League denied the waiver. As a result, Kleczek was relegated to the sidelines in 1990 and in fact served as a manager to the team.
On February 12, 1991, plaintiffs brought an action in the United States District Court seeking redress on the basis of separate federal and state law grounds. The federal claims were based on Title IX of the Education Amendments of 1972,
An action was then commenced in this Court asserting among other claims that the Article 25, Section 1 ban on Kleczek's participation on the girls' field hockey team violates the R.I. Const. art. I § II (hereinafter referred to as "Article I, Section II"). Plaintiffs' request for a preliminary injunction was heard before this Court on September 3 and 4, 1991. By agreement of the parties the action on the merits was advanced and consolidated into that hearing.
Article I, Section II provides in part that "(n)o person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied equal protection of the laws". Id. In addition to the due process and equal protection language, that section further provides that "(n)o otherwise qualified person shall, solely by reason of race, gender or handicap be subject to discrimination by the state, its agents or any person or entity doing business with the state".Id.
The Court will evaluate Plaintiffs' constitutional claim in three parts:
(1) Is state action present under the facts of this case?
(2) If so, what standard of review is to be utilized in determining whether the restriction of the League violates Article I, Section II?
(3) When measured against said standard of review, is the League's restriction violative of Article I, Section II?
At the outset, the Court finds it helpful to categorize the standards of review that have been utilized with regard to the equal protection clause under the United States Constitution. Under federal equal protection theories three different standards of review are used depending on the classification drawn by the statute in question or the rights affected by the statute: strict scrutiny, intermediate, and rational relationship. State ERAS'Problems and Possibilities, 1989 U. Ill. L. Rev. 1123, 1132 (1989). The highest standard applies where a statute involves a "suspect" classification such as race. In such cases the statute is viewed with "strict scrutiny". Where a statute deals with a suspect class, the state must show a "compelling state interest" or the statute will be stricken as violative of the equal protection clause. Id. at 1132.
A second category of federal equal protection analysis involves statutes making distinctions based on sex. Such statutes are evaluated by considering whether the classification serves "important governmental objectives" which are "substantially related to achievement of those objectives". Id. at 1132 and 1133. The degree of scrutiny is often referred to as intermediate scrutiny.
The final category of review relates to statutes not involving suspect classifications such as economic classifications. Such statutes will be found to be valid if they are "rationally related" to any "legitimate interest". Id. at 1132.
Before the 1986 Rhode Island Constitutional Convention and the adoption of Article I, Section II, the Rhode Island Supreme Court adopted the intermediate approach to analyzing statutes drawing classifications based on sex. See, e.g., Waldeck v.Piner,
With the adoption of Article I, Section II, the question posed is whether strict judicial scrutiny is now required, rather than intermediate scrutiny.
Article I, Section II of the Rhode Island Constitution provides: "No person shall be deprived of life, liberty or property without due process of the laws, nor shall any person be denied equal protection of the laws". R.I. Const. art. I, § II. In addition to this specific due process and equal protection language, Article I, Section II also includes a "non-discrimination" provision in the areas of race, gender and handicap.
In that Article I, Section II is not just an "equal protection" and "due process" provision but is also a "non-discrimination" provision, the Court considers it helpful to examine the manner in which other states have interpreted their constitutional measures pertaining to equal rights. Approximately seventeen states have enacted some form of "equal rights" protection. At least eleven of those provisions have been interpreted by their highest court. 1989 U. Ill. L. Rev. at 1123. These states have applied three different standards of review: intermediate scrutiny, strict scrutiny and absolute bar.
Three states, Utah, Virginia, and Louisiana, have found their respective equal rights amendments to require an intermediate standard of review. Id. at 1133-34. Five states, Massachusetts, Texas, Connecticut, Colorado, and Illinois, have applied the strict scrutiny standard to their amendments. Id. at 1135. Three states, Washington, Pennsylvania, and Maryland, have absolutely barred gender discrimination. Id. at 1137.
The equal rights amendments that have been interpreted to apply an intermediate standard of review are distinguishable from the "non-discrimination" provision of Article I, Section II. It should be noted that Utah adopted its ERA in 1896. Through aGlass Darkly: A Look at State Equal Rights Amendments, 12 U. Suffolk L. Rev. 1282, 1311 (1978). Such a fact casts doubt upon its mandate to create true equality given historical gender discrimination. The language used by Louisiana and Virginia is less direct and demanding than the language of other "equal rights" provisions. For example, Louisiana's amendment provides that discrimination is impermissible only if conducted arbitrarily, capriciously, or unreasonably. Id. at 1310. Virginia singles gender out from among the other protected classes and specifies that the mere separation of the sexes may not be considered discrimination. Id. at 1311. Clearly, the provisions in these three states do not equate to the unconditional "non-discrimination" provision adopted in 1986 as Article I, Section II.
Most states have applied a more demanding standard of review. Most of these have applied the strict scrutiny test which requires that the classification serve a "compelling governmental interest". Attorney General v. Massachusetts ScholasticAthletic Association,
Other states, Washington, Pennsylvania, and Maryland, have interpreted their ERA's to absolutely bar gender discrimination. 1989 U. Ill. L. Rev. at 1138. Under this interpretation, no classification based on gender is permitted. Darrin v. Gould,
The Court rejects the position that the "non-discrimination" provision in Article I, Section II should operate as an absolute bar to gender discrimination. It is hard to believe the Rhode Island Supreme Court would adopt such a rigid position. At the same time, it is now unreasonable in view of the adoption of Article I, Section II that an intermediate standard of review continues to be utilized. Protection from discrimination on the basis of gender is now constitutionally mandated, not merely conferred by statute. Further, such protection against discrimination on this basis is placed alongside race thus making it a suspect classification. It seems illogical that given Article I, Section II that the standard of review should not be that presently existing with respect to race. Moreover, to apply intermediate review with respect to a gender classification, as was historically done under equal protection analysis, would ignore the unequivocal "non- discrimination" provision contained in Article I, Section II. Accordingly, this Court concludes a strict scrutiny standard should be applied with respect to gender classifications — i.e. a compelling state interest must be shown to justify a classification on the basis of gender.
Contrary to defendants' assertion, this Court is not creating rights not conferred under the Rhode Island Constitution. While defendants claim that Article I, Section II is simply a "due process" and "equal protection" measure, that assertion ignores the fact that said section's title labels it a "discrimination" measure as well.1 More importantly, that provision unequivocally bars discrimination on the basis of race, gender or handicap. Whether that sentence of the section is labeled an "equal rights" or "non-discrimination" measure is unimportant.2 If a "non-discrimination" clause such as that found in Article I, Section II were included by amendment into the equal protection clause of the federal constitution, it strains belief that the federal courts would not view the classification by gender as suspect requiring strict scrutiny as the standard of review.
In that regard, the issue under consideration by the Court is the same issue that was presented to the Supreme Judicial Court of Massachusetts. That court ruled that classifications based on gender without reference to actual skill echoes "archaic and overbroad generalizations". Attorney General, 393 N.E.2d at 293. The court further reasoned that less offensive and better calculated alternatives exist for promoting the purported interest in advancing girls' athletics, than a blanket ban on boys' participation. Id. at 294. For example, the court stated categorization based on height, weight or skill, rather than gender, could be applied to the same purpose.3 Id. at 295. Also, the court noted a system of handicapping or a rule limiting the number of boys on girls' teams could be employed to accomplish the same goals. Id. at 296. Finally, the court concluded that its decision would avoid the long term harmful effects of perpetuating a psychology of "romantic paternalism" brought about by the "no boys" rule. Id.
The issue in this case is classification based on gender. The League's policy is not insulated from scrutiny simply because it discriminates against males rather than females. See,Mississippi University for Women v. Hogan,
While there is no general right to play field hockey, once it is made available as part of defendants' programs, it must be open to all. See, Brown v. Board of Education,
Where the governmental objective of a rule reflects "archaic and stereotypical notions" to "`protect' members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate".Mississippi University for Women, 458 U.S. at 725 (emphasis added).
Of course there are physical differences in athletic potential between high school aged boys and girls. Boys may tend to be bigger and stronger, girls may have better balance and agility. Nevertheless, whatever the League or the other defendants have proffered as justification for the ban of boys is based on archaic and overbroad generalizations and assumptions about female athletic ability.
Providing girl-only competition in field hockey through a blanket exclusion of boys does nothing to benefit girls. If anything, it is counterproductive and simply reinforces the insidious notion of female inferiority. In any case, the objective of increasing female participation through a measure of "affirmative action" is not viable justification at this time. In 1971 there were no girls' interscholastic sports in Rhode Island. Today thousands of Rhode Island high school girls compete in a wide variety of sports. A complete bar to boys' participation in girls' field hockey is totally out of proportion to any danger of girls being displaced from athletics. The Court certainly cannot accept such a disfavored classification under Article I, Section II when less offensive and more reasonably calculated alternatives exist. Attorney General, 393 N.E.2d at 294.
Field hockey is a unique sport, one which Brian Kleczek has a sincere interest in pursuing. It is clear that he presently has no opportunity within Rhode Island to participate in an organized student field hockey program. His only opportunity in that regard is through the girls' team at South Kingstown High School which engages competition through the League. Barring him from participating causes him harm which cannot be cured by any action at law.
Since the defendants have not offered any compelling state interest for the outright ban on boys' participation in the girls' field hockey team, Kleczek cannot be barred because he is male. Kleczek is entitled to try out and, if selected, to participate on the team. The public interest is served by affording Kleczek his constitutional rights in that regard.
1. restrained and enjoined from prohibiting Kleczek's participation in interscholastic field hockey, and
2. restrained and enjoined from prohibiting the South Kingstown High School field hockey team from participation in interscholastic competition in the event Kleczek becomes a member of said team.
Counsel shall prepare a form of judgment consistent with the Court's decision.
Donald M. Gomes v. Rhode Island Interscholastic League , 604 F.2d 733 ( 1979 )
Waldeck v. Piner , 488 A.2d 1218 ( 1985 )
State v. Ware , 418 A.2d 1 ( 1980 )
Brown v. Board of Education , 74 S. Ct. 686 ( 1954 )
Mississippi University for Women v. Hogan , 102 S. Ct. 3331 ( 1982 )