AGO 1976 No. 8 - Mar 17 1976
DISTRICTS ‑- SCHOOLS ‑- ATHLETIC PROGRAMS ‑- EQUAL RIGHTS AMENDMENT ‑- CONSTITUTIONALITY OF SEPARATE ATHLETIC TEAMS FOR BOYS AND GIRLS
(1) Under Article XXXI, § 1 (Amendment 61) of the Washington constitution, commonly referred to as the state equal rights amendment, as construed and applied by the Washington supreme court in Darrin v. Gould, 85 Wn.2d 859, 540 P.2d 882 (1975), whenever within a school district in this state only a single public school athletic team or program exists in a given sport, whether it be interscholastic contact football or some other athletic activity, that single team or program must be equally open to participation by qualified members of both sexes.
(2) In accordance with RCW 28A.85.020, a school district may maintain separate teams for the members of each sex, but only if (a) it can clearly be shown, under all the factual circumstances involved in the particular case, that the maintenance of separate teams for boys and girls truly constitutes the best method of providing both sexes, as a whole, with an equal opportunity to participate in the sports or games of their choice and (b) at the same time, a test of substantial equality between the two programs can be found to have been met.
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March 17, 1976
Honorable Wayne Ehlers
State Representative, 2nd District
14301 Yakima Avenue South
Parkland, Washington 98444
Cite as: AGO 1976 No. 8
By letter previously acknowledged you have directed our attention to Article XXXI, § 1 (Amendment 61) of the Washington constitution, commonly referred to as the state equal rights amendment, and to the recent decision of our state supreme court inDarrin v. Gould, 85 Wn.2d 859, 540 P.2d 882 (1975). You have then asked us, in essence, the following questions:
[[Orig. Op. Page 2]]
(1) Do the constitutional principles established in Darrin v. Gould apply to all public school interscholastic or intramural athletic programs in Washington or only to interscholastic contact football at the single public high school which was actually involved in that case?
(2) In view ofDarrin v. Gould, may a school district adopt a "separate but equal" plan with respect to interscholastic or intramural sports activities whereby, so long as separate but equal teams are established in a given sport for boys and for girls, the members of one such sex may be excluded from participation on the team established for the other sex?
We answer your first question in the affirmative for the reasons set forth in our analysis. We also believe that an affirmative answer to your second question may be supported but only on the basis of an assumption of certain conditions as further explained below.
Article XXXI, § 1 (Amendment 61) of the Washington constitution, which was approved by the voters of our state at the 1972 general election, says, very briefly, that:
"Equality of rights and responsibility under the law shall not be denied or abridged on account of sex."
We will hereafter refer to this amendment by its common name, the state equal rights amendment. In addition there are two other constitutional provisions of which note should preliminarily be made in this opinion. The first of these is what is commonly referred to as the "equal protection" clause of the United States Constitution; i.e., so much of Amendment 14 to that constitution as says that:
". . . No state shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws."
The other constitutional restraint upon class legislation to be noted appears in a comparable section of our own state constitution as originally adopted at the time of statehood in 1889. We have reference to Article I, § 12 which says that:
[[Orig. Op. Page 3]]
"No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations."
InDarrin v. Gould, 85 Wn.2d 859, 540 P.2d 882 (1975), the basic question was whether any or all of these constitutional provisions were violated by a regulation of the Washington Interscholastic Activities Association (WIAA) prohibiting girls from participating in interscholastic contact football on boys' teams. Plaintiffs were two girls enrolled as students at the Wishkah Valley High School in Grays Harbor County. Defendants were the superintendent of schools of the Wishkah Valley School District, all three members of the school board, the president of the WIAA and, finally, the WIAA itself. Wishkah Valley High School had a tackle football team, all of the members of which were boys, that participated in interscholastic competition with other high schools. Because the plaintiffs wished to play contact football, and because the high school had no girls' contact football team, the plaintiffs therefore sought to become members of the boys' team. They were found by the football coach to be eligible and qualified in all respects to do so and, in fact, they participated in several practice sessions prior to the commencement of the organized football season itself during the fall of 1973. Then, according to the opinion of the supreme court as written by Justice Horowitz, the following transpired:
"Just prior to the start of the football season, WIAA informed the football coach that WIAA regulations prohibited girls from participating in interscholastic contact football on boys' teams. For that reason only, the school board of the Wishkah Valley School District prohibited the Darrin girls from playing on the high school team. . . ."
Thereupon, the girls sued, seeking an injunction to prevent the defendants from enforcing those regulations on the ground that they violated all three of the constitutional restrictions quoted above. They lost in the trial court, but on appeal to the state supreme court they won. The WIAA regulations and their enforcement by the defendant school district were held to be unconstitutional. It is important to note, however, [[Orig. Op. Page 4]] that this victory flowed primarily from what the court viewed to be the unqualified dictate of the state equal rights amendment rather than from either the state or federal equal protection clauses upon which the girls had also based their arguments. While the five members of the court who signed the majority opinion as written by Justice Horowitz did not necessarily deny the possible applicability of those other constitutional provisions as well, the basis for their holding was explained, at pages 877-878, as follows:
"In sum, the WIAA rule discriminating against girls on account of their sex violates Const. Art. 31, if not the equal protection clause of the Fourteenth Amendment, Const. Art. 1, § 12 and Const. Art. 9, § 1. No compelling state interest requires a holding to the contrary. The overriding compelling state interest as adopted by the people of this state in 1972 is that: 'Equality of rights and responsibility under the law shall not be denied or abridged on account of sex.' See also RCW 49.60.010 and .030 [[RCW 49.60.030]]. We agree with the rationale ofCommonwealth v. Pennsylvania Interscholastic Athletic Ass'n,supra, that under our ERA discrimination on account of sex is forbidden. The WIAA rule forbidding qualified girls from playing on the high school football team in interscholastic competition cannot be used to deny the Darrin girls, and girls like them, the right to participate as members of that team. This is all the more so when the school provides no corresponding girls' football team on which girls may participate as players."
The remaining four members of the court, in signing a concurring opinion written by Justice Hamilton, took further pains to limit the constitutional basis for the court's decision by saying, at p. 878:
". . . With some qualms I concur in the result reached by the majority. I do so, however, exclusively upon the basis that the result is dictated by the broad and mandatory language of Const. Art. 31, § 1, Washington's Equal Rights Amendment (ERA). Whether the [[Orig. Op. Page 5]] people in enacting the ERA fully contemplated and appreciated the result here reached, coupled with its prospective variations, may be questionable. Nevertheless, in sweeping language they embedded the principle of the ERA in our constitution, and it is beyond the authority of this court to modify the people's will. So be it."
We turn, now, to your specific questions:
Your first question apparently stems from a confused notion on the part of some school district administrators and athletic coaches that Darrin v. Gould, supra, can, somehow, be ignored or disregarded (a) by school districts other than the one which was actually involved in the case ‑ the Wishkah Valley School District in Grays Harbor County ‑ and/or (b) by all school districts in the case of athletic programs other than interscholastic contact football.
This view, however, is in our judgment wholly unsustainable. First, the directive of our state equal rights amendment against any state or local governmental action discriminating against persons because of their sex is, under the reasoning of the court's decision in the Darrin case, equally applicable to every public school district in the state of Washington and not merely to one small district in a single county. Moreover, in any event, the court's decision itself invalidated more than merely a policy of the governing body of that one school district. In addition, as applied to the factual situation before it, the court struck down a general regulation of statewide effect which had been promulgated by the Washington Interscholastic Activities Association,
". . . an association of approximately 600 high school and junior high schools, comprising most, if not all, the high schools in the state. . . ."
". . . the member schools have adopted rules and regulations governing sports and other activities. . . ." 85 Wn.2d at 861.
[[Orig. Op. Page 6]]
Thus, even in technical procedural terms, the court's decision obviously extends well beyond the limited boundaries of the Wishkah Valley School District. Furthermore, it should also be noted in this same regard that the Darrin case was brought as a class action. The class, as described by the court, consisted of
"all present or future junior and senior high school girls in this state who either now or in the future shall desire to participate in interscholastic contact football on the boys' teams. . ." (Emphasis supplied.)
and who are qualified to play. 85 Wn.2d at 863.
The supreme court then said:
"With the class so defined, the answers to the two basic questions involved will be the same whether the action be treated as a class action or one brought on behalf of the Darrin girls individually." Id.
We understand this to mean that the court's decision in Darrin declares the rights of all girls in this state. For football, at least, the right ofall qualified junior and senior high school girls to participate on the same teams as boys where only a single team exists has thus been adjudicated. The girls have that right, by virtue of the equal rights amendment.
Likewise, in the case of other sports, a further affirmative answer to your initial question also appears to us to be required. Although theDarrin case itself only involved interscholastic contact football, we can perceive of no legitimate basis for limiting the applicability of the constitutional principles established by the court in that case to this one athletic activity alone. While football was, in fact, the particular sport which was involved in the case, the rationale of the court's decision is equally applicable to any other public school athletic or sports activity programs, whether interscholastic or intramural in scope. Therefore, in short, whatDarrin v. Gould means, in our opinion, is that henceforth, whenever within this state only a single public school athletic team or program exists in a given sport, whether it be interscholastic contact football or some other athletic activity, that single team or program must be equally open [[Orig. Op. Page 7]] to participation by qualified members of both sexes.1/
This leads us to a more difficult aspect of your request; namely, the validity of a "separate but equal" approach to interscholastic or intramural sports activities. Under this plan separate teams or programs would be maintained for boys and for girls in each sport with the members of each sex then being excluded from participation on the teams or in the programs established for the other. Your second question asks whether such an approach is presently permissible in the light of the equal rights amendment as construed and applied in Darrin v. Gould,supra.
We must begin our response to this question by noting a basic policy consideration insofar as any attorney general's opinion is concerned. During its 1975 session, while the Darrin case was still pending before the court, the Washington legislature passed a law which, on its face, expressly permits the maintenance of separate teams for boys and girls. See, chapter 226, Laws of 1975, 1st Ex. Sess. Section 1 of that act, which took effect on September 8, 1975 (approximately two weeks before theDarrin decision was filed) and since has been codified as RCW 28A.85.010, providing that:
"Inequality in the educational opportunities afforded women and girls at all levels of the public schools in Washington state is a breach of Article XXXI, section 1, Amendment 61, of the Washington state Constitution, requiring equal treatment of all citizens regardless of sex. This violation of rights has had a deleterious effect on the individuals affected and on society. Recognizing the benefit to our state and nation of equal educational opportunities for all students, discrimination on the basis of sex for any student in grades K-12 of the Washington public schools is prohibited."
Section 2 (now RCW 28A.85.020), however, then goes on to [[Orig. Op. Page 8]] specify certain things which schools can or cannot do under this overall directive ‑ and in subsection (3) of that section the following appears:
"(3) Specifically with respect to recreational and athletic activities, they shall be offered to all students without regard to sex. Schools may provide separate teams for each sex. Schools which provide the following shall do so with no disparities based on sex: Equipment and supplies; medical care; services and insurance; transportation and per diem allowances; opportunities to receive coaching and instruction; laundry services; assignment of game officials; opportunities for competition, publicity and awards; scheduling of games and practice times including use of courts, gyms, and pools: PROVIDED, That such scheduling of games and practice times shall be determined by local administrative authorities after consideration of the public and student interest in attending and participating in various recreational and athletic activities. Each school which provides showers, toilets, or training room facilities for athletic purposes shall provide comparable facilities for both sexes. Such facilities may be provided either as separate facilities or shall be scheduled and used separately by each sex." (Emphasis supplied.)
Since its inception in 1889 it has been the uniform policy of this office, over the years and under various attorneys general, to presume all duly enacted state statutes such as this to be constitutional until declared otherwise by a court of competent jurisdiction. Perhaps the most succinct explanation of this policy appears in AGO 1945-46, page 269 [[to John T. Welsh, Prosecuting Attorney, Pacific County on July 17, 1945]], as follows:
". . . The power to declare an act constitutional or unconstitutional is vested solely in the courts. Consequently, nothing can be gained by this office expressing an opinion as to the constitutionality of a statute. A pronouncement of unconstitutionality would merely cause confusion and disorder among the [[Orig. Op. Page 9]] administrative officers whose duty it is to give effect to the presumption of constitutionality which attaches to all laws until declared otherwise by a court of competent jurisdiction."
See, also, AGLO 1971 No. 12 [[to August P. Mardesich, State Senator on January 27, 1971 an Informal Opinion, AIR-71512]]. Based upon such considerations as these we have, accordingly, consistently refrained in the past from any attempt to declare the constitutionality of an enacted statute such as RCW 28A.85.020,supra, in an attorney general's opinion.2/ Instead, as above indicated, we have presumed any such statute to be valid until the court rules otherwise.
In the instant case, however, we believe a somewhat more substantial response is called for. In view of the statute and our policy with respect thereto, our ultimate answer to your second question must, in the final analysis, be an affirmative one. But this should not be taken to mean either:
(1) That without RCW 28A.85.020 our answer, instead, would have had to be in the negative (i.e., a rejection of the "separate but equal" concept); or
(2) Conversely, that merely because of RCW 28A.85.020 a school district will be free to maintain separate teams in any manner it chooses ‑ without regard to the basic purposes of the equal rights amendment.
We will devote the remainder of this opinion to an elaboration upon these two points with the sincere hope that our efforts in that regard will be of assistance to you and to the school districts of our state in dealing with this difficult subject.
In posing your question, although you have not mentioned RCW 28A.85.020,supra, youhave noted the fact that the concept of separate programs remains valid in certain circumstances under Title IX of the federal education act amendments of 1972 (20 U.S.C. § 1681, et seq.). While the federal [[Orig. Op. Page 10]] statutes prohibit discrimination because of sex in any educational program or activity receiving federal financial assistance an implementing regulation, 45 CRF § 86.41 (40 Fed. Reg. 24137 at 24142), nevertheless permits a recipient of such assistance to have separate teams for specified "contact" sports. The full text of this regulation reads as follows:
"(a)General. 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, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.
"(b)Separate teams. 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 involved is a contact sport. For the purposes of this part, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose of major activity of which involves bodily contact."
Because this federal regulation does not require separate teams but only says that such teams are not prohibited under specified circumstances as a condition of federal financial assistance it does not, of course, afford a solution to our state constitutional problem under principles related to [[Orig. Op. Page 11]] federal supremacy.3/ But like the legislative policy enunciated by RCW 28A.85.020, there would seem also to be implicit in the federal rule a recognition that in a given case the manifest objective of both our state equal rights amendment and Title IX,supra ‑ equal opportunities for the members of both sexes ‑ may better be achieved at a level of athletic competition resulting from the establishment of separate teams.
The difficulty is that there are really two distinct types of discrimination which must be addressed in dealing with the impact of our state equal rights amendment upon public school athletic programs. The first is the type with which the court was concerned in the Darrin case; that is, discrimination against an individual on the basis of sex without regard for the individual's ability. As was observed by the Pennsylvania court in Commonwealth v. Pennsylvania Interscholastic Athletic Assn, 18 Pa.C. 45, 334 A.2d 839 (1975), a case relied upon by our court inDarrin,
". . . Moreover, even where separate teams are offered for boys and girls in the same sport, the most talented girls still may be denied the right to play at that level of competition which their ability might otherwise permit them. For a girl in that position, who has been relegated to the 'girls' team', solely because of her sex, 'equality under the law' has been denied."4/
[[Orig. Op. Page 12]]
The second type of discrimination, on the other hand, is that resulting from a course of conduct which, by reason of the criteria applied, tends to exclude all but a few members of a given sex from participating in a particular athletic or other program. While the establishment of a single high school football, basketball or baseball team equally open to members of both sexes, for example, may provide the most talented girls with an opportunity to play at the level of their abilities without regard to their sex, it most assuredly will also deny to most girls within the school the opportunity to play at all for, in the words of two other recent court decisions regarding the subject of female participation in school athletic activities:
"There are, of course, substantial physiological differences between males and females . . . [M]en are taller than women, stronger than women by reason of a greater muscle mass; have larger hearts than women and a deeper breathing capacity, enabling them to utilize oxygen more efficiently than women, run faster, based upon the construction of the pelvic area, which, when women reach puberty, widens, causing the femur to bend outward, rendering the female incapable of running as efficiently as a male. These physiological differences may, on the average, prevent a great majority of women from competing on an equal level with the great majority of males. . . ."
Ritacco v. Norwin School Dist., 361 F.Supp. 930 (U.S. D.C. W.D. Pa. 1973), quoting fromBrenden v. Independent School Dist. 742, 342 F.Supp. 124 (U.S. D.C. Minn., 1972). Moreover, while both of these cases involved claims by girls of [[Orig. Op. Page 13]] a right to participate on boys' athletic teams under the federal equal protection clause,supra, rather than a more specific "equal rights amendment" like that involved inDarrin v. Gould or the Pennsylvania Interscholastic Athletic Assn case,supra, the two decisions themselves are quite interesting. First, notwithstanding its above quoted description of the differences between boys and girls, the court inBrenden ruled in favor of the plaintiffs' efforts to become members of their high school tennis and cross-country teams, saying
"It must be emphasized in this case, however, that these physiological differences, insofar as they render the great majority of females unable to compete as effectively as males, have little relevance to Tony St. Pierre and Peggy Brenden. Because of their level of achievement in competitive sports, Tony and Peggy have overcome these physiological disabilities. . . ."5/
But in that case, as inDarrin v. Gould, there were no equivalent teams for girls only. On the other hand, in theRitacco case where there were separate teams for boys and girls in the sports involved (tennis, gymnastics and swimming), the court, after quoting fromBrenden, supra, ruled against the girls and upheld the defendant school district's refusal to allow them to compete on the boys' teams, saying:
"The Court is conviced [convinced] that the prime purpose behind the no-mixed-sex-competition rule is a valid one seeking to enhance the quality, quantity, and caliber of interscholastic sports opportunities for girls and boys in Pennsylvania."6/
This brings us to the crux of the matter ‑ for the "rule" behind the school district policy which was thus upheld on equal protection grounds by the federal district court in Ritacco was, it turns out, precisely the same PIAA regulation that, three years later, was held to be unconstitutional [[Orig. Op. Page 14]] in state court under the Pennsylvania equal rights amendment in Commonwealth v. PIAA, supra. Thus, at least as construed by the federal court which decided the earlier of those cases, the equal protection clause of the federal constitution permits the maintenance of separate "boys' only" and "girls' only" athletic teams as a legitimate answer to the problem posed by the second of the two types of sex discrimination above outlined. However, as viewed by the state court which ruled in the later case,7/ an equal rights amendment such as our Amendment 61,supra, may bar that very same approach to the problem of discrimination against girls as a class because of its resulting establishment of thefirst type of discrimination ‑ that which operates against an individual on the basis of sex without regard for the individual's ability.
How will the Washington court rule when, and if, it gets the issue in the context of "separate but equal" boys' and girls' teams in a given sport at a particular public school?8/ This, [[Orig. Op. Page 15]] of course, is the ultimate question presented by your request; and it can only be decided by the court itself in a specific, contested case ‑ presumably involving a school district proceeding in reliance upon the apparent permissive sanction of RCW 28A.85.020, supra.
One obvious difficulty, of course, is that either qualitatively or quantitatively, or both, equality may be quite difficult to attain. We do not mean to suggest that separateness will be taken to denote inherent inequity even when viewed from the standpoint of sexual as opposed to racial classification,9/ because men and women do differ anatomically while races do not ‑ which differences may give rise to a recognition of constitutionally protected rights. York v. Story, 324 F.2d 450 (9th Cir. 1963), cert. den. 376 U.S. 939 (1964); cf.,Griswold v. Connecticut, 381 U.S. 479, 14 L. ed [[L.Ed.]]2d 510, 85 S.Ct. 1678 (1965).10/ But even so, we would not expect such factors to be relied upon [[Orig. Op. Page 16]] by the court to justify anything beyond the most unavoidable distinctions between any publicly provided separate athletic facilities or programs for males and females, whether adults or children. In short, in order for the concept of separate teams to be sustainable there would have to be maintained a real equality between the two athletic programs taken as a whole. Among the factors to be taken into consideration would be the relationship between skill and compensation of the coaching staffs, the size of their budgets, the quality of competition and game schedules, uniforms, equipment and facilities and, finally, sufficient numbers of participants to warrant separate teams. And, of course, only if a school district could thus show that its boys' and girls' overall athletic opportunities were substantially equal in most of those respects would this approach to the problem, in any event, be within the permissive scope of our statute, RCW 28A.85.020,supra, for it must be recalled that this statute, after sanctioning separate teams for each sex, goes on to state that:
"Schools which provide the following shall do so with no disparities based on sex: Equipment and supplies; medical care; services and insurance; transportation and per diem allowances; opportunities to receive coaching and instruction; laundry services; assignment of game officials; opportunities for competition, publicity and awards; scheduling of games and practice times including use of courts, gyms, and pools; . . ."
Additionally, while it is true that the Washington court has not yet passed upon the validity of a "boys' only" athletic team in a school which also maintains a separate "girls' only" team, the court has, in Darrin v. Gould, quite clearly indicated that it views the state equal rights amendment as being more stringent than is either the federal equal [[Orig. Op. Page 17]] protection clause or our own counterpart in Article I, § 12,supra. See, 85 Wn.2d at 871, where the court said:
"Const. Art. 31, provided the latest expression of the constitutional law of the state, dealing with sex discrimination, as adopted by the people themselves. Presumably the people in adopting Const. Art. 31 intended to do more than repeat what was already contained in the otherwise governing constitutional provisions, federal and state, by which discrimination based on sex was permissible under the rational relationship and strict scrutiny tests. Any other view would mean the people intended to accomplish no change in the existing constitutional law governing sex discrimination, except possibly to make the validity of a classification based on sex come within the suspect class under Const. Art. 1, § 12. See footnote 7,supra. Had such a limited purpose been intended, there would have been no necessity to resort to the broad, sweeping, mandatory language of the Equal Rights Amendment. See Comment,Sex Discrimination in Interscholastic High School Athletics, 25 Syracuse L.Rev. 535, 570-74 (1974)."
Thus, the bare fact that separate boys' and girls' teams have been upheld by other courts under the equal protection clause in cases such as Ritacco v. Norwin School Dist., supra,11/ is not by itself likely to be very persuasive if and when the question is squarely presented to our court under Amendment 61,supra, instead. Something more, probably in the form of a well structured argument showing both (1) the detrimental effect of a single team or program for both sexes upon an overwhelming majority of the less qualified girls enrolled in the particular school and (2) the clear nonavailability, for economic or practical reasons, of any reasonable alternative, will undoubtedly be necessary.
[[Orig. Op. Page 18]]
The ease or difficulty with which either of these showings can be made may very well differ depending upon the particular sport involved; e.g., football or basketball, on the one hand (traditional boys' sports in which both the learned skills and anatomically related abilities of most boys exceed those of most girls) as opposed to swimming, diving or gymnastics, on the other.12/
Clearly, whatever course is taken by a given school district, the basic objective of any public school district's interscholastic or intramural athletic program under the equal rights amendment must be to afford an equal opportunity to engage in athletic competition to both boys and girls. From this it necessarily follows, in line with the Darrin case, that if during a certain season of the year only a single athletic team exists at a particular school (e.g., only a football team in the fall) then both boys and girls must be allowed to try out for that team and, if qualified, become team members. Conceivably, however, a school district under RCW 28A.85.020 could maintain a "boys' only" football team if, during the same season, it also offered (for example) a "girls' only" volley ball team of sufficient stature to balance, in terms of overall opportunities for girls, the boys' football team; i.e., so long as the overall opportunities for girls under the program remain equal to those of the boys. At least this door, like that of separate but equal teams in the same sport, has not yet been totally closed by theDarrin decision ‑ although we would only think the approach to be at all viable as an alternative to a single, co-ed, team in a sport such as contact football which, because of its nature, might be incapable of duplication with equality for boys and girls separately.
Where, on the other hand, it is possible for a school district having teams for boys in a given sport to establish separate but substantially equal teams for girls in that [[Orig. Op. Page 19]] same sport we have earlier suggested that a failure to do so (at least in those sports in which girls as a class are not generally able to be competitive with boys) would also be vulnerable to a constitutional challenge; namely, a challenge by girls representing a class not able to make any team unless separate teams for girls are maintained. And along a similar line, while (as above explained) the permissive federal policy under Title IX,supra, will not excuse a school district in our state from complying with the equal rights amendment to the extent that this provision may ultimately be construed by the Washington supreme court to prohibit such separate teams, that policywould, nevertheless, appear to constitute a recognition that the establishment of separate teams for the members of each sex may, in a given factual situation, represent the best means of affording both sexes, as a class, an equal opportunity to compete in interscholastic or intramural athletics at the public school which they attend. Accord, as we have also suggested earlier, the policy behind our own legislature's enactment of RCW 28A.85.020, supra.
It is on this basis that we finally come to what we believe to be the proper answer to your second question. A school district which maintains separate teams for the sexes will not be home free, legally speaking, simply because of this 1975 statute. But, nevertheless, weighing all of the above arguments and considerations it is, in the final analysis, our opinion (or prediction) that the court may well find this approach to be constitutionally valid when and if the question is presented to it, assuming, however, that:
(1) It is clearly shown, under all of the factual circumstances involved in the particular case, that the maintenance of separate teams for boys and girls does truly constitute the best method of providing both sexes, as a whole, with an equal opportunity to participate in the sports or games of their choice; and
(2) At the same time, the test of substantial equality, as we have above outlined it, is found to have been met.
Conversely, even with RCW 28A.85.020 a school district program involving separate teams for the sexes will not be sustainable in those instances where substantial equality [[Orig. Op. Page 20]] is not found to exist between the sports programs offered for girls and boys in a given school system or where no valid justification can be presented in support of separate teams because of the nature of a particular sport. In such cases, therefore,Darrin v. Gould will control and thus require the school district involved to allow qualified members of both sexes an equal opportunity to make the team of their choice, regardless of sex.
It is hoped that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
CAROL A. SMITH
Assistant Attorney General
*** FOOTNOTES ***
1/Conversely, private schools not acting under authority of law or significantly involved with others who are so acting are not bound by the Darrin decision because their actions are not covered by the equal rights amendment.
2/Contrast, however, our policy of advising members of the legislature regarding the constitutionality of proposed legislation prior to its passage by the legislature.
3/See, so much of Article VI of the United States Constitution as provides that:
"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding."
4/334 A.2d at 842. At issue in that case was the constitutionality, under the Pennsylvania equal rights amendment (identical to ours), of a regulation of the defendant association which stated, unequivocally, that "girls shall not compete or practice against boys in any athletic contest." Because of its impact on given individuals, by reason of their sex, without regard to their particular athletic abilities, the regulation was held to be invalid.
5/342 F.Supp. at p. 1223.
6/361 F.Supp. at p. 932.
7/The Commonwealth Court of Pennsylvania acting as a general trial court in a civil proceeding against the Commonwealth.
8/The fact that Darrin v. Gould,supra, did not present this issue, regardless of the court's reliance therein uponCommonwealth v. PIAA, supra, stems, of course, from the premise that the ruling in that case involved a factual situation where the only football team was the boys' team. Note, again, the above quoted portion of the court's majority opinion, this time with emphasis on the final sentence thereof:
"In sum, the WIAA rule discriminating against girls on account of their sex violates Const. Art. 31, if not the equal protection clause of the Fourteenth Amendment, Const. Art. 1, § 12 and Const. Art. 9, § 1. No compelling state interest requires a holding to the contrary. The overriding compelling state interest as adopted by the people of this state in 1972 is that: 'Equality of rights and responsibility under the law shall not be denied or abridged on account of sex.' See also RCW 49.60.010 and .030 [[RCW 49.60.030]]. We agree with the rationale of Commonwealth v. Pennsylvania Interscholastic Athletic Ass'n,supra, that under our ERA discrimination on account of sex is forbidden. The WIAA rule forbidding qualified girls from playing on the high school football team in interscholastic competition cannot be used to deny the Darrin girls, and girls like them, the right to participate as members of that team. This is all the more so when the school provides no corresponding girls' football team on which girls may participate as players." (Emphasis supplied.)
9/See, Brown v. Bd. of Education, 347 U.S. 483, 98 L.ed. [[L.Ed.]]873, 74 S.Ct. 686 (1954), overruling Plessy v. Ferguson, 163 U.S. 537, 41 L. ed. [[L.Ed.]]256, 16 S.Ct. 1138 (1896), and saying, with respect to separate schools for persons of different races,
"We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. . . ."
10/The fallacy of rejecting anything at all that smacks of "separate but equal" is well demonstrated by considering locker or shower facilities. No court today would tolerate separate shower facilities on the basis of race but few persons at this time desire to do away with separate shower facilities for the sexes.
11/See, also, Bucha v. Illinois High School Assn., 351 F.Supp. 69 (N.D. Ill. 1972).
12/One problem, of course, is that, historically, most sports which are popular today were originally invented or developed by men for men ‑ and thus if girls are successfully to compete they must, at least for now, do so at their own level (meaning, essentially, on teams with other girls).