A Wisconsin state appeals court has affirmed a lower court’s ruling effectively dismissing the claim of a male student athlete, who had argued that the Wisconsin Interscholastic Athletic Association violated the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution and Title IX of the federal Education Amendments of 20 U.S.C. § 1681 (1972) (Title IX) when it did not let him participate on the Stevens Points Area Senior High School girls gymnastics team.
Central to the appeals court’s ruling was its agreement with the lower court that plaintiff J. Keith Bukowski failed to established that the WIAA was a state actor or received federal funds, which would have subjected it to the requirements of the federal Equal Protection Clause and Title IX.
By way of background, the court noted that the WIAA “is a voluntary, unincorporated, nonprofit organization of public and private high schools in the state of Wisconsin that organizes, directs and controls an interscholastic athletic program, promotes uniform standards and sets rules for member schools.”
In his suit, note the court, Bukowski challenged a WIAA rule that prohibits students from competing in mixed gender interscholastic athletic competitions.
“At issue is Article VI of the WIAA constitution, which provides:
“Section 6 – Co-ed Competition
“A. The Board of Control shall prohibit all types of interscholastic activity involving boys and girls competing with or against each other, except (a) as prescribed by state and federal law and (b) as determined by Board of Control interpretations of such law.”
Bukowski sought an order “enjoining the WIAA from discriminating against him because of his sex and requiring the WIAA to allow him to ‘try out and participate on the SPASH gymnastics team.’” The circuit court, however, denied Bukowski’s motion for a temporary injunction. Bukowski appealed.
The appeals court quickly zeroed in on Bukowski‘s argument that the WIAA is a state actor and that, (and that) by enforcing its rule prohibiting boys from competing in girls athletics it violated the Equal Protection Clause of the Fourteenth Amendment. The appeals court wrote that “under well-established case law, to establish an equal protection claim under the Fourteenth Amendment, a plaintiff must establish through factual evidence that the defendant was a state actor. Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295, 121 S. Ct. 924, 148 L. Ed. 2d 807 (2001).
“In Brentwood, the Court concluded that the plaintiff sufficiently established such a nexus establishing that a nonprofit athletic association which regulated interscholastic sports among Tennessee’s public and private high schools was a state actor. Id. at 290-91, 295-302. The plaintiff in Brentwood provided abundant evidence showing extensive entwinement with the State Board of Education and the organization and between the member public schools and the organization. Id. The Court concluded that there was sufficient evidence to establish that the organization was a ‘state actor.’ Id. For example, the evidence established that public schools provided much of the association’s financial support. Id. at 299. The evidence also showed that the public school officials were acting in their official capacity when they engaged in the association’s ministerial acts; State Board members were appointed as members of the organization’s board of control and legislative council; the state provided retirement benefits to organization members; and the state officially endorsed student participation in association-sponsored interscholastic athletics as a substitution for physical education requirements. Id. at 300-01.
“There is no such evidence in this case,” wrote the court.
“There is a second reason why Bukowski’s equal protection claim fails. The cases upon which Bukowski relies for his equal protection claim-Regents of the University of California v. Bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978); Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954); Gratz v. Bollinger, 539 U.S. 244, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (2003); and Grutter v. Bollinger, 539 U.S. 306, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003)-all involve race discrimination claims, not gender discrimination claims. Constitutional claims of racial discrimination are evaluated under strict scrutiny analysis. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 215, 218, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995). Constitutional claims of gender discrimination are not subject to strict scrutiny analysis. See Bakke, 438 U.S. at 302 (“gender-based classifications are not subjected to this level of [strict] scrutiny”). Instead, gender-based equal protection claims are subject to heightened scrutiny. See Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 722, 123 S. Ct. 1972, 155 L. Ed. 2d 953 (2003) (under heightened scrutiny test, classifications which distinguish between males and females must serve important government objectives, the achievement of which is substantially related to the means employed) (citations omitted); see also United States v. Virginia, 518 U.S. 515, 532-33, 116 S. Ct. 2264, 135 L. Ed. 2d 735 (1996) (articulating same test, which the Supreme Court in that case called the “exceedingly persuasive” test, while explaining that it was not equating gender and race classifications). Because Bukowski’s equal protection arguments rest on the wrong legal standard, the arguments are without merit.”
Similarly, the court wrote that his Title IX claim must fail:
“His Title IX argument on appeal consists solely of quoting the language of Title IX and then stating that ‘Title IX has been interpreted to provide that policies prohibiting boys from participation in girls’ sport is a permissible means of attempting to insure equality of opportunity for girls in interscholastic sports and of redressing past discrimination.’ That is the entirety of his Title IX argument; Bukowski provides no further explanation of how Title IX applies to his circumstances and provides no relevant legal authority in the form of Title IX cases.”
Keith Michael Bukowski et al. v. Wisconsin Interscholastic Athletic Association; Ct. App. Wisc., Dist. 4; Appeal No. 2005AP650, 2006 Wisc. App. LEXIS 1126; 11/30/06
