By: Joe Dworetzky, Bay City News Foundation
A high school student filed a lawsuit and a request for a temporary restraining order in San Mateo County Superior Court on Friday in order to allow her onto the volleyball court.
Stella Buch, 14, is a freshman at Menlo School, an independent school for grades 6-12 in Atherton. She is a member of the school’s volleyball team and, according to the filing, wants to play not only for the competition, but because she is interested in “potentially securing an NCAA scholarship down the line to extend her playing career and allow her to attend a university she may not otherwise have had the opportunity to attend.”
The suit against San Mateo County and the California Department of Public Health is one of several youth sports suits to be filed around the state by the law firm representing Buch.
In a news release issued Friday, attorney Stephen Grebing said, “In addition to San Mateo County today, we are filing lawsuits in Santa Clara, San Francisco, Los Angeles, Orange, Santa Barbara, Riverside, San Bernardino, and other counties this week and next to ensure all youths, girls and boys, have the same right to play sports — indoor and outdoor — as professional athletes do.”
The dispute at the heart of the Buch lawsuit is the way that girls indoor volleyball is classified under the state’s tiered regulation of group activities. Under the California reopening plan called the “The Blueprint for a Safer Economy,” there are four color-coded county tiers — yellow, orange, red, and purple — with purple being the most problematic.
San Mateo County is in the “red tier.” According to the complaint, only two California counties are in the yellow and orange tiers.
On Feb. 19, the California Department of Public Health issued a new guidance, effective Friday, on youth and adult recreational sports. In counties in the purple and red tiers, all indoor high school sports are banned.
The complaint alleges that college and pro teams that play indoor sports like basketball and hockey are allowed in red and purple tiers as long as specified safety protocols are observed. The University of San Francisco, San Jose State University and Stanford University are all hosting indoor volleyball matches, according to the complaint, while the Golden State Warriors are playing indoor basketball.
The complaint argues that there is no meaningful difference from a public health and safety perspective between high school sports and college and professional sports, and therefore treating them differently violates the Equal Protection provisions of the U.S. and California constitutions.
Moreover, the argument goes, some “high-contact” outdoor sports (like football) are currently allowed in red and purple tiers if there is an “adjusted case rate equal or less than 14 per 100,000” people in the county, provided that participants follow specified heightened safety protocols. The complaint argues that players of safer indoor sports (like volleyball) in similarly situated counties aren’t given the opportunity to play in red or purple tiers by following those protocols.
The effect of these differences, according to the complaint, is to penalize girl athletes and deprive them of equal sports opportunities.
The complaint alleges that girls indoor volleyball was played in more than 40 states in the fall of 2020.
The Menlo School, according to its website, will move to “hybrid learning” on March 8. If a temporary restraining order is issued before March 8, it might mean that indoor volleyball could be played, even though Menlo School students would still be learning remotely.
Litigation over youth sports comes after challenges to California’s limitations on gatherings for worship have been considered by the courts.
California’s restrictions on indoor worship have gone to the U.S. Supreme Court several times, with the latest rulings going in favor of the church plaintiffs. On Friday, the high court sided with a Santa Clara County church that challenged a county ban on indoor gatherings generally that prevented indoor religious services.
In an earlier decision in February, the court invalidated broad restrictions on gatherings for worship, but allowed a 25 percent capacity limitation on inside gatherings and a ban on singing and chanting.
School sports, unlike gatherings for worship, do not generally enjoy the same level of constitutional protection as First Amendment protected activity.
As of Monday morning, no hearing on the temporary restraining order application for Buch’s case had yet been scheduled, according to a spokesperson for the plaintiff’s law firm.
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