563 F.2d 793
Victoria Ann CAPE, Plaintiff-Appellee,v.TENNESSEE SECONDARY SCHOOL ATHLETIC ASSOCIATION, Defendant-Appellant.
No. 77-1153.
United States Court of Appeals,Sixth Circuit.
Argued June 22, 1977.Decided Oct. 3, 1977.

Charles Hampton White, Cornelius, Collins, Higgins & White, Nashville, Tenn., for defendant-appellant.
Ann Mostoller, Oak Ridge, Tenn., for plaintiff-appellee.
Before CELEBREZZE and ENGEL, Circuit Judges and WEINMAN, Senior District Judge.*
PER CURIAM.


1
Tennessee Secondary School Athletic Association appeals from a judgment of the district court declaring that present TSSAA rules applicable to girls' basketball violate the Equal Protection Clause of the Fourteenth Amendment.  The challenged rules call for six instead of five players on each team, impose half-court restrictions, and permit only forwards to shoot.  A comparison of the TSSAA girls' rules and those published by the National Federation of State High School Associations (NFSHSA), as set forth in the trial judge's opinion, appears as an addendum hereto.


2
Following a trial on the merits, the district judge issued a memorandum and order in which he concluded that there was no rational relationship between the legitimate state objectives and the chosen sex-based classifications.  He held further that plaintiff's injury was not de minimis, and that she was thus entitled to redress.1


3
The original declaratory judgment was augmented on December 27, 1976 by a further order enjoining TSSAA and other named defendants from promulgating and enforcing the basketball rules which the court found to be unconstitutional.  We reverse.


4
Plaintiff Victoria Ann Cape, a junior at the Oak Ridge High School in Oak Ridge, Tennessee, played as a guard on the Oak Ridge High School girls' basketball team during the 1975-1976 year.  Plaintiff's complaint alleged that as a guard under the girls' rules, she was never able to "set up plays" and otherwise participate in the full playing and strategy of the game in such a manner as would be permitted under traditional basketball rules.  She claimed that being deprived of the opportunity to play a full-court game and to shoot the ball (a function, which under the girls' rules, is confined to the forwards) makes it virtually impossible for her to obtain an athletic scholarship in basketball, as she lacks the necessary training in the shooting skills.  Plaintiff points out that the State of Tennessee is only one of five states that continue to use separate rules for girls' basketball.


5
Following a trial on the merits, the district court specifically found no rational relationship between the different game rules and advancement of any of five admittedly legitimate objectives which the defendants sought to achieve:


6
1.  To protect those student activities (sic) who are weaker and incapable of playing the full-court game from harming themselves.


7
2. To provide the opportunity for more student athletes to play in basketball games.


8
3. To provide the opportunity for awkward and clumsy student athletes to play defense only.


9
4. To provide a "more interesting" and "faster" game for the fans.


10
5. To ensure continued crowd support and attendance (game receipts) because these fans are accustomed to a split-court game.


11
Plaintiff did not sue as representative of a class and there is no indication that the other members of her sex who play girls' basketball under present rules share in any way plaintiff's views.  Nevertheless, she has succeeded in procuring the order of a federal court which imposes her own personal notions as to how the game of basketball should be played upon not only the high school which plaintiff attends, but upon the approximately 526 junior and senior high schools, both public and private, in the State of Tennessee which are members of the Tennessee Secondary School Athletic Association.


12
No challenge is made here to the most apparent sex-based classification in this case.  Entirely separate basketball leagues for males and females are maintained on the basis of sex.2  It must therefore be assumed, for the purposes of this case, that this classification by gender is valid, as it serves important governmental objectives and is substantially related to the achievement of them.  Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).


13
When the classification, as here, relates to athletic activity, it must be apparent that its basis is the distinct differences in physical characteristics and capabilities between the sexes and that the differences are reflected in the sport of basketball by how the game itself is played.  It takes little imagination to realize that were play and competition not separated by sex, the great bulk of the females would quickly be eliminated from participation and denied any meaningful opportunity for athletic involvement.  Since there are such differences in physical characteristics and capabilities, we see no reason why the rules governing play cannot be tailored to accommodate them without running afoul of the Equal Protection Clause.


14
There is no evidence of any intent to discriminate between the sexes.  There is no claim that defendants discriminated in furnishing services and facilities on the basis of sex.  Plaintiff's remedy, if any, should more appropriately be directed to activity within the framework of the Association itself, a framework which is not shown to be inadequate to resolve issues of this sort.


15
Reversed and remanded for entry of judgment for the defendants.  No costs, a public question being involved.

ADDENDUM

16
NFSHSA Girls' &


17
TSSAA Girls' Rules                   Boys' Rules


18
1.  Each team has six players         Each team has five players,


19
(three forwards and three            one of whom is the captain.


20
guards) one of whom is the


21
captain.


22
2. After the scorers are notified,   Since all players play on the


23
any player in the game               full-court, there is no comparable


24
may change from one court to         rule.


25
the other during an intermission,


26
between periods, during


27
a charged time-out and following


28
a substitution.  (This


29
must mean changing from one


30
half-court to the other


31
half-court).


32
3. Only forwards may play            All ten players on the court


33
in their team's front court          May play on the entire court,


34
(the half-court that includes        front and back.  There are restrictions


35
that team's basket).  Only            on "back courting"


36
guards may play in their             a ball by the team in control.


37
team's back court (the


38
half-court that includes the


39
opposing team's basket).


40
4. Forwards may throw the            The center restraining circle


41
ball into play (e.g. after the       is never used as an area from


42
opposing team scores) from           which to throw the ball into


43
the center restraining circle.       play.


44
5.  Only forwards may score           Any team member may score


45
a goal for their team.               a goal for his or her team.


46
6. Playing time shall be four        Playing time shall be four


47
seven-minute quarters.               eight-minute quarters.


48
7. If the score is tied at the       Same--except each extra period


49
end of a regular game, play          is three minutes in time.


50
continues without change for


51
one or more extra periods.

Each extra period shall be

52
two minutes in time.


53
8. All held balls are jumped         All held balls are jumped at


54
at the nearest free throw            the nearest free throw circle.


55
circle, except when a held ball


56
is called between two opponents


57
from different ends of


58
the court (e.g. between forwards


59
from opposing teams.)


60
9. Only forwards may shoot           The offended player shoots


61
free throw(s) awarded because        his or her own free throw(s)


62
of a personal foul.                  awarded because of a personal


63
(When a guard is fouled, a           foul, except when injury


64
forward must shoot the free          or disqualification forces


65
throw).                              the player to withdraw.



*
 Honorable Carl A. Weinman, Senior Judge, United States District Court for the Southern District of Ohio, sitting by designation


1
 The trial court predicated jurisdiction upon 28 U.S.C. § 1343(3) and granted relief under 42 U.S.C. § 1983.  The court rejected the applicability of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., because it concluded that Title IX could not be interpreted as a grant of a private cause of action and the plaintiff had not exhausted her administrative remedies


2
 Whether plaintiff would be precluded from competing for a berth on the boys' basketball team, we do not know.  She does not complain of it


