Conford, Handler and Meanor. The opinion of the court was delivered by Conford, P.J.A.D. Meanor, J.A.D. (dissenting).
[127 NJSuper Page 526] This is an appeal from an order and an amended order of the Division on Civil Rights, entered on a report, findings and recommendations by Sylvia B. Pressler, hearing officer, adopted by the Director of the Division, ordering Little League Baseball, Inc. ("Little League") and all local baseball leagues chartered by it in this State to admit girls aged 8 to 12 to participation in their baseball programs conducted in this State. These programs have heretofore been maintained solely for boys. The Division acted on a complaint of violation of the Law Against Discrimination, N.J.S.A. 10:5-1 et seq., and particularly section 10:5-12(f). That provision prohibits the denial by the operator of any "place of public accommodation" of any of its "accommodations, advantages, facilities or privileges" on account of "race, creed, color, national origin, ancestry, marital status or sex" (emphasis added), except, in the case of sex, where the place of public accommodation "is in its nature reasonably restricted exclusively to individuals of one sex" (with a specification of a number of nonexclusive examples, discussed later in this opinion).
The gist of the defense by Little League of the sex requirement at the hearing in the Division was that because of physical differences between the sexes girls as a class were more likely to be injured in the game, which is played with a hard ball, than boys. Much expert evidence was introduced on both sides of this question. The hearing officer held that "by a heavy preponderance of the evidence" Little League had not borne its burden of establishing that girls of 8 to 12 are so physiologically inferior to boys of the same age group as to preclude them as a class from competing as safely and successfully as boys in the game.
In their objections to the hearing officer's report and findings and on this appeal Little League has made the additional contentions: (1) the Supremacy Clause of the Federal Constitution and principles of federal preemption preclude the action of the Division because Little League is chartered under an act of Congress which restricts its activities to boys; (2) Little League is not a "place of public accommodation," and (3) Little League in its nature is reasonably restricted to boys (aside from the matter of susceptibility to injury), within the intent of N.J.S.A. 10:5-12(f).
Dr. Creighton J. Hale, executive vice-president of Little League and its director of research, a qualified physiologist, gave testimony that in respect of comparative bone strength, muscle strength and reaction time girls were inferior to boys and that therefore their potentiality for injury during a baseball game with boys was enhanced above the hazard of injury of boys. The evidence as to strength of bones was based upon extrapolation from Japanese studies of cadaver bones of persons between 18 and 80 years of age. The State's expert witness, Dr. Torg, a specialist in pediatric orthopedics, rejected Dr. Hale's conclusions with regard to bone strength as based on unwarranted data. He also noted that between the ages of 8 and 10 the weight and height of the sexes is
about the same and that girls from 10 to 12 generally surpass boys in these respects.
While expert witnesses on both sides agreed that boys' "reaction time" is slightly faster than that of girls, the State's expert, Dr. Hohmuth, felt that the more relevant interval in relation to safety was "choice reaction time" -- the period between stimulus and exercise of judgment as to a course of action. He testified that standard studies in the field showed no consistent differences in this regard prior to adolescence. However, he was dubious whether laboratory experiments on these subjects had much weight in predicting results in actual play.
Dr. Hale testified that boys are stronger than girls because their muscles have more fibers. Dr. Torg agreed, but concluded that other factors were more important than strength in playing the game safely -- "general systemic physiologic maturation" (in which girls 8 to 12 are ahead) and training, experience, motivation, nutrition and home environment.
Dr. Hale acknowledged that some girls would have the skill to play baseball with boys, and he testified that Little League has various leagues graded according to the ability of the player, so that girls could be rated to play with their peers of either sex. He was nevertheless concerned that the less-skilled girls would be more apt to suffer injury even when playing with less-skilled boys. Dr. Torg, on the other hand, concluded that there was a significant proportion of girls from 8 to 12 capable from a physical standpoint of participating in Little League baseball and that there were some children of both sexes who should be excluded for physiological reasons. He also was of the opinion that a female who demonstrated skills comparable to a male on the Little League tryouts should be allowed to participate. He cautioned, however, that at the age of 13 the situation and his opinion begin to change.*fn1
Dr. Hale asserted that a blow to the breast of a female, as by a batted or thrown ball, can cause cancer, and Dr. Torg took the opposite position; however, neither was able to establish a firm basis for his conclusion.
There was opposing psychological testimony. A Little League expert testified that children of each sex need occasional "islands of privateness" during which they can be alone with others of their own sex, and that Little League can serve this purpose for boys, and softball competition for girls. (It appears to be agreed there is no organized hardball competition available for girls alone). The State's psychiatric expert disagreed with the need for sex-segregated activities at the age level of 8-12. He thought that sex-integrated baseball would contribute to the mental health of children of both sexes.
The hearing officer's detailed findings of fact were consistently in accord with the conclusions of the State's experts on all material points of disagreement on the issues of safety and skill. She was dubious as to the relevance of the psychological testimony. If material, she expressed accord with the view of the state expert.
We conclude there was substantial credible evidence in the record to permit the Division to find as a fact that girls of ages 8-12 are not as a class subject to a materially greater hazard of injury while playing baseball than boys of that age group. We will therefore not disturb that finding of the administrative agency. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). Thus the factor of safety does not militate for a determination that the nature of Little League baseball reasonably restricts participation in it at the 8-12 age level to boys. We regard the psychological testimony on both sides
as too speculative to rest any fact-finding on it. In any case, we are clear that there is no substantial psychological basis in the record to warrant a conclusion that the game is reasonably restricted to boys in this age bracket, as against the evident statutory policy against sex discrimination in places of public accommodation.
Little League asserts it is not a "place of public accommodation" within the meaning of the statute, primarily because it is a membership organization which does not operate from any fixed parcel of real estate in New Jersey of which it had exclusive possession by ownership or lease. The hearing officer, in arriving at a contrary conclusion, held that the hallmark of a place of public accommodation was that "the public at large is invited," and she found that Little League issued an invitation to all boys in communities having local leagues. She found, further, that membership organizations, although not having a "specific pinpointable geographic area," are nevertheless places of public accommodation if, as Little League does, they offer advantages and facilities on the basis of a general, public invitation to join.
We are satisfied that the determination of the Division on this issue is correct. The law is remedial and should be read with an approach sympathetic to its objectives. See Levitt & Sons, Inc. v. Div. Against Discrimination, etc., 31 N.J. 514, 524 (1960); Zahorian v. Russell Fitt Real Estate Agency, 62 N.J. 399, 409 (1973). Moreover, we are "warranted in placing considerable weight on the construction of the statute * * * by the administrative agency charged by the statute with the responsibility of making it work." Passaic Daily News v. Blair, 63 N.J. 474, 484 (1973). If this ...