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10 N.J.A.R. 106

Cumberland Regional School District Board of Education and New Jersey State Inter- scholastic Athletic Association; B.C., On His Own Behalf and On Behalf of His Minor Son, C.C. v
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Citation: 10 N.J.A.R. 106
Decision Date: 1986
Agency: DEPARTMENT OF EDUCATION
Synopsis: Petitioner filed an appeal with the Commissioner of Education alleging respondent Board of Education discriminated against peti- tioner's son on the basis of his sex by removing him from the high school field hockey team for girls. The matter was transmitted to the Office of Administrative Law for hearing. Petitioner's son played on the girls' field hockey team the previous year (1984) because he was interested in the sport and the high school did not offer field hockey for boys. In 1985, respondent New Jersey State Interscholastic Athletic Association (NJSIAA) adopted guide- lines which said, in part, '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 offered overall equal athletic opportunity.' NJSIAA directed that petitioner's son be removed from the field hockey team. The administrative law judge assigned to the case determined that the exclusion was unlawful discrimination by reason of sex and or- dered that petitioner's son be allowed to participate as a member of the field hockey team. Applying the 'middle tier' test of equal protec- tion, the administrative law judge held that the gender-based classi- fication used by respondents did not bear sufficient relationship to the governmental objective of maximizing participation of both sexes in interscholastic athletic events. State of New Jersey 107 B.C.v. Cumberland Regional School District Upon review, the Commissioner of Education rejected this initial decision. Also applying the middle tier test, the Commissioner held that excluding males from female teams is a narrowly tailored means of achieving the governmental objective of redressing past discrimina- tion by advancing female participation in sports. Thus, the policy does not violate the constitutional fights of boys. The Commissioner noted that if males were allowed to participate on female teams, males would likely displace females in competing for positions on teams. This would diminish athletic opportunities for females, whereas the goal should be to provide equal opportunities for female athletes, who have in the past had fewer opportunities to participate in school athletics. The Commissioner also agreed with respondent NJSIAA that in- clusion of males on some female teams would increase the risk of injury for female participants. The issue of female participation on previously all-male teams is different, the Commissioner held, because in that case the girl seeking to play on a boys' team is voluntarily assuming the risk involved. In the present case, the girls on the field hockey team and on teams with which they compete are involuntarily subjected to potentially greater risk of injury. Accordingly, the Commissioner dismissed the appeal. John T. Barbour, Esq., for petitioner (Barbour & Costa, attorneys) William P. Doherty, Jr., Esq., for respondent, Cumberland Regional School District Board of Education Michael J. Herbert, Esq., for respondent, New Jersey State Inter- scholastic Athletic Association (Sterns, Herbert & Weinroth, at- torneys)
Rule(s) Cited: 6:4-1.5 
Statute(s) Cited: 10:5-2 et seq. 
Citation Tracker rejected-Com'r of Education; affirmed -220 N.J. Super. 214 (App. Div. 1987) [Updated through 1991]