On appeal from the decision of the Commissioner of Education.
Deighan, Havey and Muir. The opinion of the court was delivered by Deighan, J.A.D.
Petitioner B.C. appeals from a decision of the Commissioner of Education (Commissioner) which determined that petitioner's son, C.C., may not play on the girls' hockey team at Cumberland Regional High School (Cumberland Regional). The underlying issue presented on this appeal is whether the Commissioner was correct in holding that the policy of the New Jersey State Interscholastic Athletic Association (Athletic Association) of prohibiting boys from playing on girls' hockey teams did not deprive C.C. of his rights under the New Jersey Constitution, the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., and N.J.S.A. 18A:36-20 pertaining to equal rights within the education system.
Congress adopted Title IX of the Education Amendments of 1972, 20 U.S.C.A. § 1681 et seq., which mandates that all educational institutions receiving federal assistance must provide equal education opportunities without regard to sex. To implement Title IX the New Jersey Department of Education established the Office of Equal Educational Opportunity (OEEO). In 1977 the OEEO collaborated with other agencies and the Athletic Association to develop "athletic guidelines" which were promulgated on September 1, 1978. The guidelines, in the form of questions and answers, were designed to aid schools in rectifying the historical denial of equal opportunities for girls in extracurricular sports.
The Athletic Association is a voluntary association of public and non-public schools formed for the purposes of promoting and regulating interscholastic sports activities. Respondent Board of Education of the Cumberland Regional School District
is a member of the Athletic Association. Member schools such as Cumberland Regional are governed by the Association's rules and regulations the purpose of which, among others, is the equalization of athletic opportunities for females.
During the 1984-85 school year, C.C. participated as a freshman on the Cumberland Regional girls' junior varsity field hockey team. The school did not have a boys' field hockey team. In the fall of that year, Robert Kanaby, executive director of the Athletic Association, received inquiries and complaints from several member schools regarding C.C.'s participation. Member schools of the Athletic Association indicated that if C.C. were permitted to play on the girls' varsity field hockey team, they would actively recruit males for their girls' field hockey teams thereby displacing otherwise eligible girls.
On April 15, 1985, the Athletic Association adopted a resolution by which it provided standards regarding males participating in girls' sports. The relevant standard provides that:
1. Males shall be excluded from female athletic teams although there are no teams for boys in the same sport until such time as both sexes are afforded overall equal athletic opportunities.
The resolution further stated that:
The purposes of section 1 are twofold: (1) the promotion of equal athletic opportunities for females, and (2) to redress the effects of past discrimination and disparate treatment relating to girls' athletics. If boys are permitted to participate on girls' interscholastic athletic teams there would be a substantial risk that boys would dominate the girls' program and thus cause a displacement of girls from participating on those teams. Any displacement of girls from those teams would further limit their opportunities for participation in interscholastic athletics. Further, this policy is constitutionally sound because males have historically enjoyed greater athletic opportunities than have girls. Similarly, boys currently have ample opportunity for participation in interscholastic sports and sufficient avenues for interscholastic participation. . . .
Since the Commissioner did not approve or disapprove this regulation within 20 days, it became effective pursuant to N.J.S.A. 18A:11-5.
On August 29, 1985, the Athletic Association sent a letter to Cumberland Regional advising that pursuant to the regulation, C.C. could not participate with the girls' field hockey team.
Petitioner filed a petition with the Commissioner pursuant to N.J.S.A. 18A:11-3 to permit his son, C.C., to play on Cumberland Regional's girls' field hockey team.
At a hearing before an Administrative Law Judge (ALJ) C.C. testified that he was very serious about field hockey and that there were limited opportunities for him to play other than at Cumberland Regional. Jean Barry, the field hockey coach at Cumberland Regional, testified that C.C.'s presence on her team caused the other members of the team to work harder. She stated that while C.C. was a freshman only two or three girls, all juniors and seniors, were faster and had greater strength, stamina and endurance than C.C. Ms. Barry admitted that C.C. would displace a girl if he were to participate on the team and also admitted that there was a potential for injuries in field hockey if C.C. played.
Richard Kentwell, an expert witness in field hockey who testified for petitioner, stated that mere size, speed and stamina of the player were not determinative factors in evaluating the skill of field hockey play. Rather, he stated that ability to handle and move the ball were the most important factors. Christopher Maloney, plaintiff's other expert, corroborated Kentwell's testimony.
The Athletic Association's witnesses included Robert Kanaby, Executive Director of the Athletic Association; Richard Neal, Executive Director of the Massachusetts Interscholastic Athletic Association; Barbara Skiba, a field hockey coach at Hopewell Valley Regional High School, and Steven Timko, Athletic Director at Hopewell Valley.
Kanaby testified that allowing the boys to participate on the girls' teams would: impede considerable progress which had been made by the Athletic Association to equalize athletic opportunities; displace girls from athletic teams; be unfair from a competitive standpoint to other teams, and raise serious safety issues, particularly in sports where bodily contact may occur, as in field hockey.
Richard Neal supported Kanaby's testimony. He testified that Massachusetts was the only state in the nation which allows boys on girls teams because of a 1979 decision by the Massachusetts Supreme Judicial Court, mandating that boys be permitted the opportunity to participate on girls' athletic teams.*fn1 In Neal's opinion, the impact of that decision was a "disaster." He testified that while approximately only 20 to 30 boys have participated on girls' teams since that decision, their impact upon the girls' interscholastic sports has been highly detrimental. Neal testified that permitting boys to play on girls teams caused safety problems and resulted in the intimidation of females which permitted male dominance in volleyball, softball, soccer and field hockey teams. As a result, girls were displaced in sports where they had previously participated. He recounted that on one occasion a girl participant sustained serious injuries as a direct result of a boy's participation in an integrated sport. Neal noted that in the 1985 field hockey season at one school, five senior boys played on the girls' field hockey team. He stated that the boys' presence intimidated other girls' field hockey opponents and, in addition to displacement of girls in integrated sports, other girls were quitting girls' teams as a direct result of boys' participation.
Barbara Skiba, a girls' field hockey coach for 18 years, corroborated both Kanaby and Neal's testimonies that male participation on girls' field hockey teams could result in serious injuries, would intimidate many female participants and displace many girls. Ms. Skiba's testimony was corroborated by Steven Timko, the Athletic Director from Hopewell Valley.
The ALJ, in his written opinion, thoroughly reviewed all of the evidence. He was persuaded by petitioner's witnesses that male participation on girls' field hockey teams would not have a detrimental impact. He concluded, among other things, that
the exclusion of C.C. was based solely on his gender; that no substantial public interest was served by the exclusion, and that under the New Jersey Constitution and statutes, discrimination in interscholastic sports based on gender alone is forbidden. He then ordered "that C.C. be allowed to participate as a member of the field hockey team at Cumberland Regional High School so long as, in the coach's judgment, his skills, attitude and team play will contribute to the success of the team and so long as he shall otherwise be eligible."
The Commissioner rejected the ALJ's conclusion that no substantial public interest is served by the exclusion of boys from the girls' hockey team. He was persuaded by the Athletic Association's evidence which indicated that the inclusion of males on girls' field hockey teams would increase the risk of injury, intimidate girls from participation and displace girls from the field hockey team. He concluded that the Athletic Association's policy was substantially related to the important governmental interest of providing overall equal athletic opportunities and therefore determined that C.C. may not participate with the girls' field hockey team.
On appeal petitioner presents the following issues:
POINT I New Jersey State Law, Rule And Constitution Prohibit Barring [C.C.] From Participating On The Cumberland Regional High School Field Hockey Team Solely On The Basis Of His Gender;
POINT II It Was Improper Under The Circumstances Of This Proceeding For The Commissioner Of Education To Make Findings Of Fact That Varied From Those Made By The Administrative Law Judge;
POINT III The Commissioner Erred In Selecting The Legal Standards To Be Utilized In Reversing The Initial Decision Of The Administrative Law Judge;
POINT IV The Commissioner Of Education Erred Below By Failing And Refusing To Comply With The ...