O'Connor v. Board of Education
449 U.S. 1301 (1980)

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U.S. Supreme Court

O'Connor v. Board of Education, 449 U.S. 1301 (1980)

O'Connor by O'Connor v. Board of Education of School District 23

No. A-384

Decided November 4, 1980

449 U.S. 1301

ON APPLICATION TO VACATE STAY

Syllabus

An application to vacate the Court of Appeals' stay pending appeal of the District Court's preliminary injunction requiring respondent school officials to allow plaintiff applicant, a female junior high school student, to try out for the boys' basketball teams, is denied. As required by an interscholastic athletic conference's rules, the school maintained separate teams for boys and girls for contact sports, including basketball, and the refusal to allow applicant to try out for the boys' teams was based solely on her sex. The Court of Appeals' en banc decision to continue the stay entered by a panel of the court is entitled to great deference. It appears at this stage of the proceedings that the gender-based classification, which apparently was adopted in full compliance with the regulations of the Department of Health, Education, and Welfare, is reasonable in substantially all of its applications, and it cannot be said to be unconstitutional simply because it might appear arbitrary in an individual case such as applicant's. Without a gender-based classification in competitive contact sports, there would be a substantial risk that boys would dominate the girls' programs and deny them an equal opportunity to compete in interscholastic events.

JUSTICE STEVENS, Circuit Justice.

On October 27, 1980, a panel of the United States Court of Appeals for the Seventh Circuit granted a stay pending appeal of a preliminary injunction entered by the District Court in favor of the plaintiff. Two days later, the Court of Appeals, sitting en banc, entered an order continuing the stay. The plaintiff has submitted to me, in my capacity as Circuit Justice, an application to vacate this stay. For the

Page 449 U. S. 1302

reasons explained below, I have decided not to vacate the stay entered by the Court of Appeals.

I

On October 22, 1980, plaintiff Karen O'Connor, represented by her father and her mother, filed a verified complaint and a motion for a temporary restraining order and preliminary injunction, supported by appropriate affidavits, in the United States District Court for the Northern District of Illinois. Her papers allege the following facts which, since they have not yet been denied or contradicted by countervailing affidavits or evidence, must be accepted as true.

Karen is an 11-year-old sixth-grade student at MacArthur Junior High School; she is 4'11" tall and weighs 103 pounds. For at least four years, she has successfully competed with boys in various organized basketball programs. A professional basketball coach who witnessed her play with boys and girls aged 10 to 13 during the summer of 1980 rates her ability as equal to or better than a female high school sophomore player and equal to that of a male eighth-grade player.

MacArthur Junior High School is a member of the Mid-Suburban Junior High School Conference, an association of six junior high schools engaged in interscholastic athletics. MacArthur has programs for seventh-grade and for eighth-grade teams; sixth-grade students are eligible to try out for both the seventh-grade and the eighth-grade teams. Students of either sex may compete on the same teams in some noncontact sports, but Conference rules require separate teams for boys and girls for contact sports. Contact sports include "boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose of major activity of which involves bodily contact." See Complaint

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