Plaintiffs, Concerned Parents, Inc. and Mary Jane, a high school student in State who is a member of the girls' City High School Basketball team filed this action against the State Athletic Association (The SAA membership is comprised of over 700 state high schools, over 80 percent of which are public). While SSA is not a government agency, State law provides that the SSA is the only body regulating high school sports.
Players in a sanctioned sport receive coaching, use of training facilities, physical therapy facilities and are entitled to early enrollment and credit for participation. In addition the SSA undertakes publicity, promotion, travel arrangements and to organize tournaments on behalf of sanctioned sports. The SAA sanctions 10 male sports: football, baseball, golf, swimming, soccer, basketball, volleyball, wrestling, gymnastics, tennis and bowling. It sanctions 6 female sports: basketball, swimming, cheerleading, volleyball, fast pitch softball and soccer. Students and parents have, nonetheless, organized gymnastics and wrestling teams for women, but the SSA has refused to sanction these teams/leagues. There are no mixed gender sports. Girls are ineligible to play for any male sport and visa- versa.
All of these girls' sports are scheduled for play in a non-traditional season, i.e., a season of the year different from when the sport is typically played. In all cases the male sports are scheduled in the traditional season of play. Basketball, for example, is traditionally played in the winter. Played in the winter a team gets to share in the publicity, and excitement surrounding " March Madness." Played in the fall the tournament happens amidst the Christmas season when it must compete not only with Christmas and school breaks, but also the fever of NFL playoffs. The SSA schedules girls' basketball in the fall and men's basketball in the winter.
The male sports are typically also scheduled in "prime-time" - those days of the week and hours of the day that are historically better attended and interfere less commonly with other school activities. Because Friday nights are dedicated to boys' football in the fall, girls often must play basketball during school nights on Tuesdays and Thursdays.
SSA also determines the facilities used for the inter school games and provides professional referees. The state girl's basketball facility holds fewer than five thousand fans in a twenty-year-old structure. Boys' basketball tournaments are played in a facility seating twelve thousand built five years ago.
It is difficult if not impossible for the SSA to schedule games concurrently for boys and girls because there are insufficient gymnasiums, soccer fields and pools. It asserts that the motivation for its actions are to ensure the greatest number of participation opportunities for children in interscholastic sports.
1. May the federal district court hear this case? Discuss
2. Will Concerned Parents, Inc. and Mary Jane succeed if they assert a claim under equal protection?
