(dissenting).
Apparently assuming that the denial to Rachel Lavin of the right to participate in tryouts for the varsity high school basketball team, an extracurricular or fringe aspect of the public educational process,1 has resulted in a deprivation to her of a fundamental constitutional right, although any claim that Lavin can now properly represent a class of which she no longer is a member by virtue of her graduation which would also seem to moot any claim for declaratory or injunctive relief, the majority opinion sends this case back to the district court for further proceedings, which if it is a continuing or live controversy is so solely because the second amended complaint seeks damages in the amount of $200. This case is such a prime example of de minimus non curat lex, that to me it appears beyond question the “controversy between the parties has thus clearly ceased to be ‘definite and concrete’ and no longer ‘touch[es] the legal relations of parties having adverse legal interests.’ ” DeFunis v. Odegaard, 416 U.S. 312, 317, 94 S.Ct. 1704, 1706, 10 L.Ed.2d 164 (1974). See also, Flast v. Cohen, 392 U.S. 83, 95, 99, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); Data Processing Service v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); and Barlow v. Collins, 397 U.S. 159, 164, 167-173, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970).
I am not unmindful that great and far-reaching principles have been established through litigious processes where the economic incentive of personal mone*62tary gain was slight. Here, however, none of us surely entertain any illusion that the underlying issue will not receive appropriate attention by litigants who can bring to the issue the forcefulness of one who is still in a position to benefit by being permitted to participate in the particular sports program. Indeed, in the present case the district court in denying the motion to dismiss as to the co-plaintiff, who was still in high school, stated that this was “a serious piece of litigation which should be decided on its merits.” The co-plaintiff, however, declining the district court’s invitation to file an amended complaint dismissed her action. This, of course, made the judgment as to Lavin final and appealable.
Whatever our opinions may be as to the constitutional rights of girls to participate on an equal basis with boys in high school competitive contact sports,2 this case does not appear to me to be the proper vehicle for determining what those rights may be. We complain of the overload in the federal courts, yet by the majority opinion we are allowing a litigant with a now paltry and insignificant interest to keep litigation alive. We also are once more interfering under the supposed mantle of constitutionality with the day-to-day administrative processes of operating a secondary school.
While I would affirm the judgment of the district court for the reasons given herein, I also note that the district court’s action under well-established summary judgment procedures appears to be proper. The affidavit of Fontana, the physical education teacher, was filed on February 19, 1974, stating, inter alia, that Lavin and another girl who had tried out with her in the absence of the rule “would not have been called back for the next level of tryouts because neither possessed the necessary ability to participate on the school’s varsity basketball team.” In her original complaint, Lavin had alleged that her preclusion was “not because of lack of skill,” but in her unverified second amended complaint filed on March 14, 1974, subsequent to the Fontana affidavit, she merely alleged that she continued to be “eligible, ready, willing and able to participate in high school interscholastic basketball.” The only defendants involved in this appeal filed their motion to dismiss and for summary judgment on April 5, 1974. It is true that the district court stated that the motion for summary judgment of the Illinois High School Association, which association has been dismissed on this appeal, was “continued until there is a decision on motions to dismiss.” I fail to find a corresponding entry as to the summary judgment motion of the Chicago school authorities, the only appellees now involved in this appeal. Nearly four months later, without any affidavit having been filed by Lavin as to her athletic qualifications entitling her to further tryouts, the district court sustained the summary judgment as to Lavin, stating, inter alia, that she “was given an opportunity to participate and found to be unqualified. She has not countered this affidavit, and therefore there is no genuine issue of material fact with respect to her complaint.” I agree. Under Rule 5, Fed.R.Civ.P., Lavin was not entitled to rest upon the allegations of her pleadings even if they by some stretch of language could be considered as asserting that she had the requisite athletic ability.
In sum, what is left of the present suit strikes me as being a tempéte dans un verre d’eau which should be appropriately interred by an affirmance. I therefore respectfully dissent.
. Cf., San Antonio School District v. L.Ed.2d 16 (1973). Rodriguez, 411 U.S. 1, 35-37, 93 S.Ct. 1278, 36
. Being a native, as are the other members of the panel, of a state in which the opinion has been expressed that the calibre of the varsity basketball team was of somewhat greater consequence than the quality of the curriculum, I might feel justified in venturing the opinion that in the middle portion of the United States at least, insofar as this particular sport is concerned, the prime requisite for being on the team would not be the retention of an attorney but the demonstration that the skill and ability was possessed to increase the team’s chances of winning its engagements.