This week in Arizona, a fundamentalist Catholic high school called “Our Lady of Sorrows” (indeed!) forfeited the high school championship game rather than face Mesa Preparatory Academy and its female second-baseman, Paige Sultzbach. According to its press release, this decision was an extension of their religious beliefs:
Our school aims to instill in our boys a profound respect for women and girls. Teaching our boys to treat ladies with deference, we choose not to place them in an athletic competition where proper boundaries can only be respected with difficulty.
Sadly, OLS’s “respect” and “deference” for Sultzbach means denying her and her team exactly that — the opportunity to play for the championship. This instance of discrimination, however, may be outside the scope of the laws that usually govern high school sports. OLS is a private school, not subject to the U.S. Constitution’s Equal Protection Clause, under which public entities must give girls an equal right to tryout and play sports.
Nor does Sultzbach likely have a claim against her own school, Mesa Prep. It was reported that during the regular season, Sultzbach benched herself in games against OLS, to avoid a forfeit for her team. Thus it would appear that she’s being discriminated against by Mesa Prep’s decision to play against OLS — except that her school is private also, and likely outside the reach of Title IX, which only applies to schools that receive federal funds. (While Title IX would not require a school to let a girl onto a boys baseball team in the first place, due to it’s status as a “contact sport,” the law clearly requires schools that do accept a girl onto boys’ teams to treat her equally, which would, I argue, include not subjecting her to the unique pressure of having to opt out in order for her teammates to have competition). Similarly beyond the scope of nondiscrimination law is the conference both schools play in, the Arizona Charter Athletic Conference, which “provides competitive athletic competition for charter schools, home school organizations & parochial schools in Arizona.”
Sultzbach and her parents are all reportedly upset by this decision, but unfortunately they would not appear to have legal recourse. Instead their situation must serve as a cautionary tale for others about the consequences of opting out of civil rights protection by one’s choice of where to attend school.