ISRAEL v. SECONDARY SCHOOLS ACT. COM'N

MILLER, Justice:

Erin Israel, by her next friend, Patricia Israel, appeals from a final order of the Circuit Court of Pleasants County, entered February 11, 1988, denying her request for a declaratory judgment, injunctive relief, and damages on the basis of alleged gender discrimination. On appeal, Ms. Israel asserts that she was discriminated against in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and its state counterpart, Article III, Section 17 of the West Virginia Constitution, as well as the Human Rights Act, W.Va.Code, 5-11-1, et seq. (1987). We have reviewed the record and find reversible error; therefore, we reverse the judgment of the Circuit Court of Pleasants County and remand the case for further proceedings consistent with this opinion.

Ms. Israel has a great deal of experience playing baseball. She began playing baseball at the age of six in the local park and recreation league where she learned the basic fundamentals of the game. At the age of nine, Ms. Israel progressed into the Little League system. Her Little League coach testified that Ms. Israel's skills were always above average. He stated that "[s]he was very aggressive, understood the game, its concepts, and its technique." While playing Little League, Ms. Israel was nominated for every all-star team. At the age of thirteen, she became the first female to ever play on a Pony League team in Pleasants County. When Ms. Israel was a freshman at St. Marys High School, and expressed a desire to play on the all-male baseball team, the high school baseball coach told her he had no objections to her playing for him and promised to give her a fair tryout. In February, 1984, Ms. Israel tried out for the all-male high school base-ball team. She was prohibited from playing on the team because of a regulation promulgated by the Secondary Schools Activities Commission (SSAC).

The Board of Education of the County of Pleasants (Board) is a member of the SSAC. The SSAC is a nonprofit organization created by W.Va.Code, 18-2-25 (1967), which authorizes county boards of education to delegate their supervisory authority over interscholastic athletic events and band activities to the SSAC.1 It is not disputed that every county board of education in West Virginia has delegated this responsibility and authority to the SSAC. In the exercise of its delegated authority, the SSAC adopted Rule No. 3.9,2 which provides:

Shortly after Ms. Israel tried out to play on the baseball team, she was informed by St. Marys' assistant principal that she was ineligible to play on the baseball team because St. Marys had a girls' softball team.3 The assistant principal explained that if the school allowed Ms. Israel to play baseball, it would be in violation of Rule 3.9 and would be barred from playing in state tournaments. After numerous futile efforts to have the rule changed through the internal mechanisms provided by the SSAC, Ms. Israel filed a complaint with the Human Rights Commission (Commission).

The Commission issued Ms. Israel a right-to-sue letter, and she filed this action against the SSAC and the Board on April 18, 1986, in the Circuit Court of Pleasants County. The circuit court exonerated the Board, finding that it had made a good-faith effort to have the SSAC change the rule and that if the Board had ignored Rule 3.9, it would have been subject to severe sanctions by the SSAC. Ms. Israel does not appeal this ruling. She does appeal the circuit court's decision that the SSAC rule was valid.

I.

MOOTNESS

Initially, the SSAC argues that because Ms. Israel has graduated from high school, her claims for injunctive and declaratory relief are now moot. "`Moot questions or abstract propositions, the decision of which would avail nothing in the determination of controverted rights of persons or of property, are not properly cognizable by a court.'" State ex rel. West Virginia Secondary Schools Activities Comm'n v. Oakley, 152 W.Va. 533, 537, 164 S.E.2d 775, 778 (1968), quoting Syllabus Point 1, State ex rel. Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873 (1908).

However, we, along with most courts, have tempered the inflexibility of mootness jurisprudence in recent years. In State ex rel. M.C.H. v. Kinder, ___ W.Va. ___, ___, 317 S.E.2d 150, 153 (1984), we quoted and adopted from State v. Gleason, 404 A.2d 573, 578 (Me. 1979), three factors to be considered in deciding whether to address technically moot issues:

"`First, the court will determine whether sufficient collateral consequences will result from determination of the questions presented so as to justify relief.... Second, while technically moot in the immediate context, questions of great public interest may nevertheless be addressed for the future guidance of the bar and of the public.... Third, issues which may be repeatedly presented to the trial court, yet escape review at the appellate level because of their fleeting and determinate nature, may appropriately be decided....' " (Citations omitted).

See also Hairston v. Lipscomb, ___ W.Va. ___, 359 S.E.2d 571 (1987); Christie v. West Virginia Health Care Cost Review Auth., ___ W.Va. ___, 345 S.E.2d 22 (1986); State ex rel. McGraw v. Willis, ___ W.Va. ___, 323 S.E.2d 600 (1984); Rissler v. Giardina, 169 W.Va. 558, 289 S.E.2d 180 (1982). See also In the Matter of Sedlacek v. South Dakota Teener Baseball Program, 437 N.W.2d 866 (S.D.1989).

Application of these considerations to the instant matter counsels us not to dismiss this appeal as moot. First, we take note that West Virginia's climate and early-June graduation combine to make the spring high school baseball season a brief affair. It is quite unlikely, if not impossible, that a fully litigated case on this issue could reach us before becoming "moot." That the issue is capable of repetition is self-evident. Moreover, deciding the validity of SSAC Rule 3.9 will have sufficient collateral consequences that our decision on the issue will not be a vain exercise. Finally, this question "undisputably involves a most vital public function—education of our youth. Because it is foreseeable that it will arise again, we find the question remains justiciable for future guidance." White by White v. Linkinoggor, ___ W.Va. ___, ___, 344 S.E.2d 633, 635 (1986). (Citations omitted).

II.

EQUAL PROTECTION

Equal protection of the law is implicated when a classification treats similarly situated persons in a disadvantageous manner. Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 253-54, 30 L.Ed.2d 225, 229 (1971). The claimed discrimination must be a product of state action4 as distinguished from a purely private activity. See Burton v. Wilmington Parking Auth., 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961).

A.

Fourteenth Amendment Equal Protection

In analyzing gender-based discrimination, the United States Supreme Court has been willing to take into account actual differences between the sexes, including physical ones. In Michael M. v. Sonoma County, Superior Court, 450 U.S. 464, 469, 101 S.Ct. 1200, 1204, 67 L.Ed.2d 437, 442 (1981), the Court explained that it has "consistently upheld statutes where the gender-based discrimination is not invidious but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances." On the other hand, the court has disapproved classifications that reflect "archaic and overbroad generalizations." Schlesinger v. Ballard, 419 U.S. 498, 508, 95 S.Ct. 572, 577, 42 L.Ed.2d 610, 618 (1975).

Under the United States Constitution, a gender-based discrimination is subject to a level of scrutiny somewhere between the traditional equal protection analysis and the highest level of scrutiny utilized for suspect classes. The intermediate level of scrutiny as applied to gender-based discrimination was stated in Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397, 407 (1976): "[C]lassifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives" in order to withstand an equal protection challenge.

Under the middle-tier analysis for gender-based discrimination claims, courts have recognized that it is constitutionally permissible under certain circumstances for public schools to maintain separate sports teams for males and females so long as they are substantially equivalent.5 This result has been justified by one or more of the following reasons: (1) there are physical and psychological differences between males and females; (2) the maintenance of separate teams promotes athletic opportunities for women; and, as a corollary to (2), (3) if there were not separate teams, men might dominate in certain sports.6 E.g., O'Connor v. Board of Educ. of School Dist. No. 23, 645 F.2d 578 (7th Cir.), cert. denied, 454 U.S. 1084, 102 S.Ct. 641, 70 L.Ed.2d 619 (1981); Clark v. Arizona Interscholastic Athletic Ass'n, 695 F.2d 1126 (9th Cir.1982), cert. denied, 464 U.S. 818, 104 S.Ct. 79, 78 L.Ed.2d 90 (1983); Lafler v. Athletic Bd. of Control, 536 F.Supp. 104 (W.D.Mich.1982); Hoover v. Meiklejohn, 430 F.Supp. 164 (D.Colo.1977); Carnes v. Tennessee Secondary School Ass'n, 415 F.Supp. 569 (E.D.Tenn.1976); Ritacco v. Norwin School Dist., 361 F.Supp. 930 (W.D.Pa.1973); Gilpin v. Kansas State High School Activities Ass'n, Inc., 377 F.Supp. 1233 (D.Kan.1973); Bucha v. Illinois High School Ass'n, 351 F.Supp. 69 (N.D.Ill.1972); Haas v. South Bend Community School Corp., 259 Ind. 515, 289 N.E.2d 495 (1972). Cf. Sullivan v. City of Cleveland Heights, 869 F.2d 961 (6th Cir. 1989) (ten-year-old female hockey player was not denied equal protection because she was required to change clothes in a restroom which was substantially similar to the locker room utilized by the male hockey players).

While courts have recognized the concept of substantial equivalency in the area of interscholastic sports, this does not mean that mere superficial equivalency will be found constitutional under equal protection principles. We are not cited nor have we found a case precisely on point. Several courts have held that Little League baseball teams must, under equal protection principles, permit female players to try out. E.g., Fortin v. Darlington Little League, Inc., 514 F.2d 344 (1st Cir.1975); National Org. for Women v. Little League Baseball, Inc., 127 N.J.Super. 522, 318 A.2d 33, aff'd mem., 67 N.J. 320, 338 A.2d 198 (1974). However, in these cases, there was not a comparable team for females.

From the record in this case, we find that the games of baseball and softball are not substantially equivalent. There is, of course, a superficial similarity between the games because both utilize a similar format. However, when the rules are analyzed,7 there is a substantial disparity in the equipment used and in the skill level required. The difference begins with the size of the ball and its delivery, and differences continue throughout. The softball is larger and must be thrown underhand, which forecloses the different types of pitching that can be accomplished in the overhand throw of a baseball.

There are ten players on the softball team and nine on a baseball team. The distance between the bases in softball is sixty feet, while in baseball it is ninety feet. The pitcher's mound is elevated in baseball and is not in softball. The distance from the pitcher's mound to home plate is sixty feet in baseball and only forty feet in softball. In baseball, a bat of forty-two inches is permitted, while in softball the maximum length is thirty-four inches.

Moreover, the skill level is much more demanding in baseball because the game is played at a more vigorous pace. There are more intangible rewards available if one can make the baseball team. For a skilled player, such as the record demonstrates Ms. Israel to be, it would be deeply frustrating to be told she could not try out for the baseball team, not because she did not possess the necessary skills, but only because she was female. The entire thrust of the equal protection doctrine is to avoid this type of artificial distinction based solely on gender.

We agree with the SSAC that by providing a softball team for females, it was promoting more athletic opportunities for females. However, this purpose does not satisfy the equal protection mandate requiring substantial equivalency. We do not believe that by permitting females to try out for the boys' baseball team, a mass exodus from the girls' softball team will result. There are obvious practical considerations that will forestall such a result. Gender does not provide an automatic admission to play on a boys' baseball team. The team is selected from those who apply and possess the requisite skill to make the team.8 What we deal with in this case is an opportunity to have a chance to try out for the team. Aside from the baseball-softball dichotomy, other athletic events ordinarily operate on the same rules such that the substantial equivalency issue would be unlikely to arise.

B.

State Equal Protection

The argument is made that our gender-based equal protection standard is pegged at a higher level, i.e., the strict scrutiny standard, based on our holding in Syllabus Point 2 of Peters v. Narick, 165 W.Va. 622, 270 S.E.2d 760 (1980).9 The issue in Peters involved a discriminatory statute that permitted wives, but not husbands to seek separate maintenance. W.Va.Code, 48-2-28 (1976).10 We recognized in Peters the gender-based classification test adopted in Craig v. Boren, supra11 and found that the maintenance statute violated the Equal Protection Clause of the Fourteenth Amendment.12 By way of dictum, we then proceeded to discuss our state constitution's equal protection standard.

As a preliminary matter, we have recognized that although the phrase "equal protection" is not found in our constitution, its principles are an integral part of our constitutional law. E.g., Robertson v. Goldman, ___ W.Va. ___, 369 S.E.2d 888 (1988); State ex rel. Longanacre v. Crabtree, ___ W.Va. ___, 350 S.E.2d 760 (1986); Peters v. Narick, supra; Thorne v. Roush, 164 W.Va. 165, 261 S.E.2d 72 (1979); State ex rel. Harris v. Calendine, 160 W.Va. 172, 233 S.E.2d 318 (1977); State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965); Linger v. Jennings, 143 W.Va. 57, 99 S.E.2d 740 (1957). Our cases have not been uniform as to where this principle reposes in our constitution. We have identified several constitutional provisions as providing the source of our equal protection doctrine.13

The same problem exists in the Fifth Amendment to the United States Constitution, which also lacks an "equal protection clause." When addressing actions of the federal government, the United States Supreme Court has traditionally found that the concept of equal protection is embodied in the Due Process Clause of the Fifth Amendment. As stated in note 2 of Weinberger v. Wiesenfeld, 420 U.S. 636, 638, 95 S.Ct. 1225, 1228, 43 L.Ed.2d 514, 519 (1975):

See also Schneider v. Rusk, 377 U.S. 163, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964); Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).

In order to finally settle where our state's constitutional equal protection principle is located, we hold that it is a part of our Due Process Clause found in Article III, Section 10 of the West Virginia Constitution,14 and, thus, we confirm Syllabus Point 3 of Robertson v. Goldman, supra:

We explained in State ex rel. Longanacre v. Crabtree, ___ W.Va. at ___, 350 S.E.2d at 763-64, that "we have obtained guidance from federal cases interpreting the equal protection mandate of the Fourteenth Amendment to the United States Constitution[.]" In dicta in Peters, we strayed from this principle and ended by relying on cases involving "race, alienage [and] national origin." 165 W.Va. at 631, 270 S.E.2d at 765. (Footnote omitted). Classifications relating to race, alienage, or national origin have always been subject to strict judicial scrutiny, the most stringent test used in equal protection analysis. Another criticism leveled in Peters against the middle-tier gender standard for an equal protection analysis was that "we are unimpressed by the lineage of the middle-tier approach." 165 W.Va. at 630, 270 S.E.2d at 764. Whatever its lineage, it is clear almost ten years after Peters that the middle-tier standard is now firmly embedded in the federal law16 and has been adopted by a number of state courts.17

For the foregoing reasons, we conclude that our dictum in Peters with regard to our state equal protection standard for gender-based discrimination should be modified. We adopt the analysis used by the United States Supreme Court and other state courts. We therefore hold that a gender-based classification challenged as denying equal protection under Article III, Section 10 of our constitution can be upheld only if the classification serves an important governmental objective and is substantially related to the achievement of that objective. To the extent that Syllabus Point 2 of Peters differs from this rule, it is modified. It is apparent that the two tests are substantially equivalent. For this reason, we do not view the new gender-based equal protection rule to provide any less protection.

We have previously discussed in Section II(A), supra, the equal protection standard under the federal constitution and found the SSAC rule to be unconstitutional. For these same reasons, Rule 3.9 also violates our state equal protection constitutional standard.

III.

THE WEST VIRGINIA HUMAN RIGHTS ACT

A.

"Place of Public Accommodations"

The threshold question presented is whether the SSAC is a "place of public accommodations" under the Human Rights Act, W.Va.Code, 5-11-1, et seq., and thereby subject to the provisions of W.Va.Code, 5-11-9(f)(1) (1987).18 The phrase "place of public accommodations" is defined in W.Va.Code, 5-11-3(j):

The SSAC argues that it is not a "place of public accommodations" because participation in interscholastic athletics is not open to the general public, but rather is limited to secondary school students who meet certain age, residency, and academic requirements. We do not believe this statute is that narrowly confined.

We dealt with the public accommodations issue in Shepherdstown Volunteer Fire Dep't v. West Virginia Human Rights Comm'n, ___ W.Va. ___, 309 S.E.2d 342 (1983). There, two volunteer fire departments argued that they were not places of public accommodations and, therefore, did not have to admit women to membership. The fire departments contended that because our Human Rights Act is patterned after the Civil Rights Act of 1964, 42 U.S.C. § 2000a, et seq., as amended, this Court should follow the definition of "place of public accommodations" provided in the federal act.20 We declined the volunteer fire departments' invitation for several reasons. First, we found our public accommodations definition to be broader than its federal counterpart. Second, we reiterated the liberal construction of the Human Rights Act which is required under its terms.21 See State Human Rights Comm'n v. Pauley, 158 W.Va. 495, 212 S.E.2d 77 (1975), disapproved on other grounds, State Human Rights Comm'n v. Pearlman Real Estate Agency, 161 W.Va. 1, 239 S.E.2d 145 (1977). Accordingly, we held in Syllabus Point 1 of Shepherdstown that the fire departments were places of public accommodations.22

In reaching this conclusion in Shepherdstown, we identified two factors to determine whether an entity is a place of public accommodations: (1) if it is created and operated pursuant to the laws of the State of West Virginia, and (2) whether it receives funding from public sources. This definition is, of course, not exclusive. Certainly, as other courts have indicated, establishments receiving no public funds can also be places of public accommodations.

In National Org. for Women v. Little League Baseball, Inc., supra, the court determined that a place of public accommodations is dependent upon whether the organization engages in activities in places in which an unselected public is given an open invitation. It also concluded that this result obtained even though the entity was a "nonprofit or membership organization rather than a commercial enterprise, or [did] not have exclusive use or possession of the site of its operations." 127 N.J.Super. at 531-32, 318 A.2d at 38.

A similar result was reached in United States Jaycees v. McClure, 305 N.W.2d 764 (Minn. 1981), where the court held that under the Minnesota Human Rights Act, the question whether an entity was a place of public accommodations turned ultimately on whether the organization invited only a screened and selected portion of the public, or whether instead it engaged in activities in places in which an unscreened, unselected, and unlimited number of persons from the general public was invited.

A volunteer group of power boat enthusiasts was found to meet the public accommodations definition in United States Power Squadron v. State Human Rights Appeal Bd., 59 N.Y.2d 401, 465 N.Y.S.2d 871, 452 N.E.2d 1199 (1983). New York's highest court concluded that the group conducted its activities at public schools, public buildings, public waterways, public parks, and public marinas. Thus, the place where the petitioner's meetings and activities occurred was a place of public accommodations. Other courts have also concluded that lack of control or possession of a particular meeting site does not preclude an organization from being a place of public accommodations. See Quinnipiac Council, Boy Scouts of America, Inc. v. Commission on Human Rights & Opportunities, 204 Conn. 287, 528 A.2d 352 (1987). Cf. Isbister v. Boys' Club of Santa Cruz, Inc., 40 Cal.3d 72, 219 Cal.Rptr. 150, 707 P.2d 212 (1985) (Boys' Club which operated a community recreational facility was a "business establishment" under Unruth Civil Rights Act).

Because we find the foregoing authority persuasive, we reject the SSAC's argument that because the general public does not participate in interscholastic sports and because it does not operate any facility that is open to the public, it does not fall within the public accommodations definition. The critical point is that the SSAC regulates interscholastic athletics and its membership, all of which have a direct impact on the public school system. Thus, this entire activity is permeated with a general public interest through open spectator invitation to the sporting event which is generally conducted at a public facility. This is sufficient to meet the public accommodations definition.

Moreover, because the SSAC was legislatively created and endowed with powers legislatively prescribed to provide services in supervising interscholastic athletics, it also falls within the ambit of the Human Rights Act definition of public accommodations. Finally, the SSAC receives membership dues from the public schools, as well as gate receipts from the athletic events.23

B.

Interscholastic Athletics

This is the first occasion that we have had to consider admission to tryout for an athletic team under our Human Rights Act. There are no applicable regulations. Elsewhere courts have referred to their state human rights acts, but have decided the issue on constitutional equal protection or equal rights grounds. See Petrie v. Illinois High School Ass'n, 75 Ill.App.3d 980, 31 Ill.Dec. 653, 394 N.E.2d 855 (1979); Darrin v. Gould, 85 Wn.2d 859, 540 P.2d 882 (1975).

In several cases, courts have concluded that their human rights acts extended equal protection into a given area and proceeded to hold that the applicable standard to apply to their human rights acts was the same standard used in equal protection analyses. This was the result reached by the Supreme Court of Michigan in Department of Civil Rights ex rel. Forton v. Waterford Township Dep't of Parks and Recreation, 425 Mich. 173, 387 N.W.2d 821 (1986). The Michigan Supreme Court found that despite the difference between language in the statute and in the constitutional equal protection clause, the same legal standard applied to both:

The New Jersey Court of Appeals in B.C. v. Board of Educ., Cumberland Regional School Dist., 220 N.J.Super. 214, 531 A.2d 1059 (1987), discussed New Jersey's antidiscrimination statute (N.J.S.A. 10:5-1) and a related statute prohibiting discrimination in education (N.J.S.A. 18:36A-20) and equated both of them to prescribe constitutional equal protection principles:

We believe this is a reasonable approach to our Human Rights Act as it relates to claims of gender discrimination involving interscholastic athletics. The lack of any definitive legislative guidelines in this field compels the conclusion that the legislature intended to bring into play general equal protection principles.24

We have in Part II(A), supra, analyzed and applied equal protection principles and found that the regulation, as it relates to the games of baseball and softball, fails to meet the substantially equivalent standard. Since this same standard applies under our Human Rights Act, we need not repeat the analysis here.

Ms. Israel does, however, claim her right to reasonable attorney's fees pursuant to W.Va.Code, 5-11-13(c), and we accord her such a right. This case is, therefore, remanded to the circuit court for a determination of her reasonable attorney's fees.

Reversed and remanded.