The Sports Law Guru

Back in March, Heather Bauduin, a 16-year-old high school junior from Wabash, IN, made the news when she challenged the Indiana High School Athletic

Association’s (IHSAA) rule that girls were not allowed to play baseball if the school also has a softball team.  Heather threatened the IHSAA with a lawsuit alleging that the IHSAA’s rule was illegal discrimination in violation of the 14th Amendment’s Equal Protection Clause, as well as Title IX.  Heather was a relatively accomplished baseball player that had recently moved to Wabash from California.  Even though Wabash had a softball team, Heather was a baseball player and wanted to play baseball. …do people still play baseball? Just kidding…. but only sort of.  In any event, prior to any lawsuit being filed, the IHSAA granted Heather a waiver from the rule and permitted her to try out for the Wabash baseball team.  End of story, right?  Wrong.  Read on.

Baudin’s attorney, Sharon McKee, is a well respected public interest litigator.  Anyone who knows public interest litigators knows that they love their day in court.  Settlements just don’t do it for them; they want victory in court and the precedent that it sets.  (Reminds me of the Boston Legal episode a few weeks ago where Alan and Denny get arrested in Utah and Alan can’t wait for his day in court to assault the great state of Utah for its refusal to enforce polygamy laws, whilst enforcing adultery laws.  Anyone see it?  It was a good episode – William Shatner in a cowboy get-up if nothing else.  Check it out on ABC.com)  Sorry for the digression, but I have a point.  McKee, like any good public interest attorney, found another client.    Enter Logan Young.

Logan is a freshman at Bloomington South High School.  Like Heather, Logan is a baseball player (don’t confuse that with softball – it’s important, I’ll get to it soon) and wants to play for Bloomington South’s baseball team.  Also like Heather’s situation, Bloomington South has a softball team for girls and the school and IHSAA prohibit girls from playing on boys teams when there is a comparable girls sport available.  Unlike Heather, Logan does not have a waiver from the IHSAA.  Thus, McKee and Logan filed a discrimation complaint in Federal court against the IHSAA for alleged violations of 14th Amendment and Title IX.

The issue of girls playing baseball despite softball being offered as an alternative has been discussed and addressed in other jurisdictions for quite some time.  You’ll find that Title IX discrimination claims in high school sports are now, thankfully, quite hard to find.  The primary reason for this is that in order to prevail on a Title IX discrimination claim the complainant must show that the relative opportunities for one gender are greater than the other, as measured by the population of the school.  Given the current state of high school sports, such discrimination is difficult to find.  Interestingly enough, you’ll find that most successful discrimination claims related to high school sports are 14th Amendment claims.

The seminal case on this issue is addressed under a 14th Amendment analysis.  Israel v. West Virginia Secondary School Activities Commission was decided in the late 80’s and stands for the proposition that it is acceptable under the 14th Amendment for public schools to prohibit girls from playing on boys teams when there are separate teams for both boys and girls and the two are “substantially equivalent”.   In Israel, the court found that baseball and softball were not substantially equivalent in that the equipment and types of skills are quite different (think overhand vs. underhand pitching, different size/weight ball, etc.).  The court reached this conclusion in part by finding that the classification was not substantially related to an important government objective and, thus, the discrimination based on gender was unconstitutional in this context.

In light of this clear case law on point I’m sure you’re now asking how the IHSAA can possibly enforce a rule that has been found unconstitutional?  Well, thanks to the wonder that is our American legal system, the Federal court ruling in Israel is not binding upon the Federal courts in Indiana.  You see, West Virginia is in the 4th District, whereas Indiana is in the 7th District.  Case law from one District to another is not binding authority, stare decisis for you legal types, upon the other Districts.  However, in the case of unsettled law, such as this, it is generally very persuasive.

I’m sure the IHSAA was aware of this persuasive authority when they granted the waiver to Heather Bauduin.  This begs a couple of questions.  First, why are we now seeing another nearly identical claim just a few months later?  Second, and probably most importantly, why didn’t the IHSAA amend its rules back in February after granting Heather a waiver and, presumably, realizing it was on thin ice with its arguably discriminatory rule?  Well, the answer is that I have no idea, but if I were them I would surely be looking for a quick settlement.

Agree, disagree, or think my writing stinks?  Let me hear about it.