APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. (District Court Civil Action No. 73-513).
Aldisert, Gibbons and Rosenn, Circuit Judges.
The question presented is whether the district court erred in denying relief to a ten-year-old girl who asserted an Equal Protection deprivation when a community youth baseball conference refused to allow her to participate.
Alleging that the defendant officers of the Avonworth Baseball Conference (ABC) refused to permit her to play baseball solely because of her sex and thus infringed rights secured by the Fourteenth Amendment, plaintiffs brought a Civil Rights Action*fn1 seeking preliminary and permanent injunctions. Following a hearing, the district court held (1) there was no state action, and (2) assuming state action, there was no unconstitutional discrimination. Plaintiffs have appealed.*fn2 We hold that state action was not present to confer jurisdiction and affirm without reaching the constitutional question.
On April 6, 1973, Pamela Magill, accompanied by her parents, went to a Ben Avon Heights school to enroll in ABC's 1973 summer baseball program. Her parents completed an application form in her name and paid the $7.00 registration fee. The following day, an ABC official told Mr. Magill that his daughter was unable to play because the program was limited to boys. Following consideration of Pamela's application by the ABC Board of Directors, ABC returned the registration fee, and appellants commenced this action.
ABC is a private, non-profit corporation chartered and organized under the laws of Pennsylvania. Its stated purpose is "the promotion and encouragement of the playing and enjoyment of baseball among school-age youngsters . . . ." ABC administers the baseball program for the geographical area encompassed essentially by the Avonworth School District. ABC is staffed by volunteers and owns no playing facilities.
At the outset, we dispose of any contention that Pamela, 10 years old at the time of the hearing in this action, was or is unable to seek an injunction against the entire ABC program, including divisions of that program provided for youngsters in other age groups.*fn3 Pamela, by her parents, attacks the entire practice by which ABC excludes females from its baseball program as it currently exists.*fn4 In this respect her challenge resembles that of the plaintiffs in Brown v. Board of Education, 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954), where desegregation of an entire school system was sought, and not merely that of the grades in which the plaintiffs would have been included.
The threshold task before us is to determine the presence vel non of state action.*fn5
Any discussion of the "protean concept"*fn6 of state action must begin with the Civil Rights Cases, 109 U.S. 3, 27 L. Ed. 835, 3 S. Ct. 18 (1883). It was there the Supreme Court first enunciated the principle that "individual invasion of individual rights is not the subject-matter of the [Fourteenth] amendment"; only " [state] action of a particular kind . . . is prohibited." Ibid. at 11.
Notwithstanding the Civil Rights Cases, subsequent decisions of the Supreme Court have pierced the seemingly impenetrable veil of private, individual conduct to find state action. These cases have the capability of being grouped into three general categories: (1) where state courts enforced an agreement affecting private parties; (2) where the state "significantly" involved itself with the private party; and (3) where there was private performance of a government function.*fn7
An example of cases falling in the first category is Shelley v. Kraemer, 334 U.S. 1, 92 L. Ed. 1161, 68 S. Ct. 836 (1948), in which state action was premised upon state court enforcement of private, racially ...