Catholic Diocese in PA Bans Schools' Participation in Coed Sports

The Harrisburg, Pennsylvania Catholic Diocese has prohibited its schools from participating in coed sports where "substantial and potentially immodest physical contact" could occur. The policy, which also cites "safety" as a motivating concern, not only prohibits area Catholic schools from integrating their wrestling, football, and rugby teams, but also requires their teams for forfeit games or matches against (or against teams that include) opposite-sex opponents.

The policy change, which went into effect this summer, coincides with a federal district court ruling earlier this year that acknowledged a female student's right under the Constitution's Equal Protection Clause to try out for her public middle school's wrestling team. Because the Catholic schools of Harrisburg compete against public schools that would be subject to the ruling, it seems plausible that that the court's decision was at least part of the Diocese's motivation to enact its new policy.

Are there any legal implications of the Diocese's new policy?  After all, Catholic schools, by virtue of being private rather than government-run, are not subject to the Equal Protection Clause. Therefore, despite the fact that courts have repeatedly rejected the generalizations and stereotypes (like safety and modesty) that underlie most decisions to separate girls and boys in sports, such rulings are not binding on private schools like those run by the Diocese. Moreover, while Title IX would apply to any of those private schools should they happen to accept federal funds (such as, for instance, to run a school lunch program), Title IX is strangely permissive of the segregation of contact sports. Therefore, a student who opts in to private, Catholic education has no legal right to try out for teams designated for the other sex. 

But I also think about the rights of students at public schools whose athletic opportunities are limited by virtue of their schools' decision to schedule competition against Catholic schools who are subject to this policy. Public school students, whose rights are protected the Equal Protection Clause, have the right to play on coed teams. And even though Title IX does not require a school to allow coed contact sports, schools that do allow it are prohibited by Title IX from discriminating on the basis of sex against those who make the team. When public schools schedule athletic competition against a school that is required to forfeit, that school's coed team ends up with fewer opportunities for competition compared to the teams that are not coed. Or, the girls on that coed team, who could possibly be benched or volunteer not to play in order to preserve the game, end up with fewer competitive opportunities. Either way, scheduling games against the Catholic schools creates discrimination against those teams that have a female participant (and thus, on the basis of in sex). In the interest of compliance with Title IX and the Equal Protection Clause, public schools ought to leave the Catholic schools off of their competition schedules. The law may not insist that private Catholic schools treat students equally on the basis of sex. But the consequences of a Catholic policy should not be allowed to impair the experience of coed participants at public schools.