CHARLESTON — A Kanawha County circuit judge has denied a petition from volleyball players at three Putnam County high schools asking the West Virginia Secondary School Activities Commission to afford their daughters the opportunity to play in the state tournament that begins Thursday.
The parents were seeking a temporary restraining order and an injunction prohibiting the SSAC from conducting the girls state volleyball tournament until after Nov. 14, according to the petition filed November 10 in Kanawha Circuit Court. The SSAC filed a motion to dismiss later in the day, moments before Circuit Judge Carrie Webster's 4 p.m. emergency remote hearing that lasted more than two hours.
Webster agreed with the SSAC motion, saying a disparity does not exist that would result in a deviation from the current schedule for the state tournament. She said the SSAC is not showing preferential treatment to football teams over volleyball teams.
The petitioners likely will appeal the ruling to the state Supreme Court. But because of the timing of Webster's verbal ruling after the courthouse closed Tuesday and Wednesday being a federal holiday, her actual order won't be entered until Thursday morning. And because of that, any such Supreme Court appeal can't happen until that order is officially entered.
Yvette Peterson is the mother of Lexie Peterson, who plays volleyball at Hurricane High School. Tricia Fluharty is the mother of Jillian Fluharty, who plays volleyball at Winfield High School. Janessa Harris is a member of the Buffalo High School volleyball team. They filed the lawsuit on behalf of themselves and the rest of their teams.
The teams qualified for the playoffs last week, but then Saturday evening, the county was classified as "orange" on Gov. Jim Justice's education map that is published weekly. SSAC said because the county was classified as "orange" the teams couldn't complete.
"Upon information and belief, because the exclusion of the petitioners’ teams from Putnam County, the WVSSAC has designated or intends to designate other teams for the tournament," the petition states. "Upon information and belief that was also the intention of the WVSSAC for the football teams from the same county which had also qualified for participation in the State Football championship tournament – until November 7, 2020 when the WVSSAC announced that the football teams from Putnam County would be bracketed and scheduled to play, provided that the county became designated as “gold” or Yellow or Green in the report scheduled for release on Saturday, November 14, 2020."
The SSAC made exceptions to their own rules so that Hurricane and Buffalo football teams and other football teams could participate in the state football playoffs.
The suit says there are at least two football teams in Putnam County and five other schools from other counties that are designated orange or red and are scheduled to play on Sunday and have been given the opportunity to play if their counties switch to gold, yellow or green on Saturday.
The suit claims the SSAC also made an accommodation for the high school girls volleyball teams in Berkeley and Jefferson counties so they could play in their sectional and regional tournament last Sunday.
"The petitioners and all the other high school volleyball athletes in Putnam County and in other counties are being denied equal protection under the law, and are being discriminated against contrary to Title IX, through no fault of their own, because the WVSSAC’s adoption of exceptions for a sport played almost exclusively by males while refusing to do so for sports played exclusively by females," the petition states.
The petitioners argue that the SSAC also refused to make scheduling modifications for the volleyball tournament that it made for other teams in post-season play.
Football has been categorized as high risk, while volleyball has been categorized as medium risk, according to the petition.
"On the other hand, the WVSSAC has modified the criteria to permit other male athletes to participate in post season play despite the male dominated sport being classified as a Higher risk than the female dominated sport," the petition states.
The petitioners argue that if the SSAC is not enjoined from conducting the state volleyball tournament, the athletes will be denied the same opportunity that other high school athletes have had in the state.
The petitioners are seeking for playoffs to not be held until after Nov. 14 and for the court to order the rules be adopted for volleyball that have been afforded to the male-dominated sport of football.
The petitioners are represented by Paul S. Saluja of Saluja Law Offices in Charleston. The SSAC is represented by Bill Wooton of Wooton Law in Beckley. Wooton has been elected to the state Supreme Court, and he'll take his position on the bench in January.
Kanawha Circuit Court case number 20-P-335