By Amanda Siegrst, Esq. and Colleen McGlone, Ph.D
In 2013, 7.7 million student athletes participated in interscholastic athletics ( High School Sports, 2013). The growth of these programs has led to increased awareness and debate regarding the educational benefits and rights that are embedded in the interscholastic experience. News coverage often reports headlines such as “Suspended over a tweet” or “Hazing allegations sideline players.” In some cases these suspensions can lead to legal challenges resulting in headlines such as “Prep Athlete Sues UHSAA” or “Dad files suit after son kicked off team for missed practices”.
This legal issue centers on the question: Is participation in interscholastic athletics a privilege, protected interest or a right? The answer is vitally important to the outcomes of these cases. If one could answer and subsequently prove that participation was a right or interest, then due process would apply prior to suspension or removal from the team. If the answer were that participation is considered a privilege, due process would not apply in the eyes of the law. In order to claim a due process violation, the plaintiff must show that a protected life, liberty or property interest was withheld.
The debate regarding due process educational settings is not novel. Case in point, in Goss v. Lopez (1975), the court ruled that suspension without a hearing in a public school setting was a violation of the Fourteenth Amendment. However, in Pegram v. Guilford (1979) the court ruled that participation in extracurricular activities is not in and of itself a property interest. In McFarlin v. Newport Special School District (1992) a student was removed from a team and was not offered a hearing. The court denied relief based upon the ground that the student had no protected property interest in continued participation. Similarly, the courts have held that interscholastic athletic participation is a privilege not a right in several cases including Taylor v. Enumclaw (2006) and Lowery v. Euverard (2007). Most recently, in Natke, et. Al; v. North Branch Area School District (2010), a student was suspended from the baseball team after pleading guilty to stealing beer from a local store. The school’s athletics handbook specifically stated that participation in athletics programs is deemed to be a “privilege” not a ‘right”. In addition, the handbook stated that a student who was found to have committed or was involved in any gross misconduct would be suspended for a minimum of 1/3 of the remaining season. Summary judgment deemed that the student was not to be suspended from school, as it was a protected right but that due process did not apply to participation in athletics, as it was an extracurricular activity.
The very purpose of procedural due process is to prevent arbitrary and inconsistent outcomes by state actors. Due to the fact that interscholastic athletics play a vital role in education and hold an ever-growing importance in our society, they should be more closely and fairly governed. Courts’ have reasoned that sports are a voluntary privilege which are not a part of the “total educational process”. Such outcomes have relied on stare decisis rulings which claim sport as a right or interest would be too burdensome. As well as, the perception that these remedies are inadequate as the damages are too speculative.
A privilege provides people only a mere expectation, while a right or interest provides a legitimate claim of entitlement (Black’s Law Dictionary). Goss held that students are entitled to the educational process and its educational benefits created by state law regulations. While the case of Taylor v. Enumclaw (2006) held that athletics are not a part of that educational process. The Court of Appeals of Washington may have misapplied this notion. The Supreme Court’s ruling in Goss v. Lopez (1975) arguably laid the foundation for the establishment of a right to due process in interscholastic athletics by calling it an “educational process.”
Not all courts have rejected the notion of a property or liberty interest. In Florida High School Activities Association v. Bryant (1975), just months after the Supreme Court ruling in Goss, the court said “interscholastic basketball was an integral part of the student’s rehabilitation from his prior problems as a juvenile delinquent,” harping on the importance of the sport in the student athlete’s life, education and development.
In Albach v. Odle (1976), although the courtultimately dismissed the student athlete’s claim, the court did acknowledge that:
“the educational process is a broad and comprehensive concept with a variable and indefinite meaning. It is not limited to classroom attendance but includes innumerable separate components, such as participation in athletic activity and membership in school clubs and social groups, which combine to provide an atmosphere of intellectual and moral advancement.”
Similarly in, Duffley v. New Hampshire Interscholastic Athletic Association, Inc. (1982), the Supreme Court of New Hampshire ruled in favor of a 19-year-old member of the basketball team who was declared ineligible due to the eight consecutive semester rule. The court stated, “because athletics are such an important aspect of the education process, a student’s right to participate is protected by the Due Process Clause.”
While the vast majority of courts in recent years have been reluctant to accept claims of a property interest in athletics, very seldom do they offer substantial reasoning for their decision; but rather, they rely on precedent, claiming that the decision has already been addressed in previous cases. However, the Supreme Court caseof Board of Regents v. Roth (1972), has been referenced frequently in regards to ambiguities in determining what constitutes a liberty or property interest. In this case, the Supreme Court stated, “liberty and property are broad and majestic terms…they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged” (Yasser & Block, 2008). Considering the significance and influence that sports currently hold in our society today, the policies and procedures regarding due process may need to be reexamined. It may be an errant decision to continue to rely on previous legal decisions which may offer a myopic response considering societal changes in regards to the importance of interscholastic athletics.
Therefore, based on the mixed judicial review as well as the increased level of societal importance placed upon interscholastic athletic programs, it may be prudent for interscholastic athletics to review the policies and procedures currently in place in order to provide due process to their athletes prior to suspensions.
Dr. Colleen A. McGlone is Associate Professor and Program Coordinator of Recreation and Sport Management at Coastal Carolina University. She earned her doctorate from the University of New Mexico in Sport Administration in 2005.. Her areas of research involve collegiate athletics, legal aspects of hazing including institutional liability as well as organizational culture and leadership in sport environments.
Amanda Siegrst, Esq. is currently an Assistant Professor in the Recreation and Sport Management Program at Coastal Carolina University. Amanda has both a legal and sports management background, and earned her Juris Doctor from NKU Salmon P. Chase College of Law and has been admitted to the State Bar of Ohio. Her research interests include legal aspects of sport and the student athlete experience.
