By Gina M. McKlveen, Esq.*
The United States Constitution’s Equal Protection Clause embedded in the Fourteenth Amendment makes clear that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States… nor deny to any person within its jurisdiction the equal protection of the laws.” Over the years, the Supreme Court of the United States has interpreted the Equal Protection Clause (hereinafter referred to as “EP clause”) to apply to both citizens and noncitizens alike. See, e.g., Plyler v. Doe, 457 U.S. 202, 215, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982). Recently, a federal court for the District of Utah, Central Division, was at the center of an alleged EP clause violation when a local high school association attempted to exclude a noncitizen student-athlete with an F-1 visa from playing on the varsity football team. See Szymakowski v. Utah High Sch. Activities Ass’n, 2024 U.S. Dist. LEXIS 189990.
The Key Players
The plaintiff to this dispute is Zachary Szymakowski, an Australian citizen who is currently a senior student at Juan Diego Catholic High School (hereinafter referred to as “Juan Diego”) located in Draper, Utah. See id at 1. Prior to enrolling at Juan Diego, Szymakowski testified that “he researched high schools across the United States and chose Juan Diego both for the academic and athletic opportunities he could receive there, and because he wished to receive a Catholic-oriented education.” Id at 3. Thereafter, he obtained an F-1 visa that was lawfully issued by the United States.
An F-1 visa is a non-immigrant visa (meaning “an applicant must not evince an intent to remain permanently in the United States” Id at 26) that allows international students to study full-time in the United States. There are application fees, issuance fees, and various forms and requirements, such as maintaining a full course of study and enrolling in a program that leads to a degree, diploma, or certificate, that must be completed to be considered eligible for this type of visa.
During his junior year, Szymakowski “made the Juan Diego varsity football team and started as
the team’s punter in nine out of ten games during the 2023-2024 season.” Id at 4. Juan Diego operates under the guidance of one the named defendants, the Utah High School Activities Association, Inc. (hereinafter referred to as “UHSAA”), “an organization that governs high school athletics and fine arts activities at 159 member schools.” Id. Beginning in 2023, UHSAA heard and considered testimony from F-1 visa student-athletes who alleged mistreatment by their coaches. See id at 5. Then, in early 2024, UHSAA began receiving letters and emails detailing further mistreatment of international student-athletes and improper recruitment efforts, which lead to deeper investigations revealing information that some F-1 visa student-athletes were sleeping on the floor of a host family home, becoming homeless, or living on their own. See id at 6, 33.
“In response to concerns about the recruitment of international athletes, the UHSAA Constitution and Bylaws Committee met and determined that the rule about eligibility of F-1 student athletes should be examined.” Id at 8. By late spring 2024, UHSAA adopted a rule, the Student Visa Eligibility Rule, stating that “international students on F-1 visas were only eligible for non-varsity level sports competition unless the school attended by that student opted for an independent status or forfeited its eligibility for postseason competition.” Id at 2. Szymakowski, through his football coach and his international student advisor at Juan Diego, attempted to obtain an exception to the new rule; however, just before the start of the 2024-2025 football season Szymakowski earned that UHSAA denied his requested exception. See id at 11. In turn, Szymakowski, alongside his parents, obtained counsel with Foley & Lardner and asserted that the new UHSAA rule violated the Equal Protection Clause of the Fourteenth Amendment and asked the court for a preliminary injunction, or temporary restraining order (hereinafter referred to as “TRO”) enjoining the rule’s enforcement as it applies to Szymakowski for the remainder of his 2024 football season. See id at 11, 13.
TRO Legal Standard
A plaintiff seeking a TRO must establish (1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008). The likelihood-of-success and irreparable-harm factors are “the most critical” in the analysis. Nken v.
Holder, 556 U.S. 418, 434, 129 S. Ct. 1749, 173 L. Ed. 2d 550 (2009). In its order and memorandum, the district court considered each of the TRO factors in the context of the facts presented by Szymakowski.
First, the court determined and neither the plaintiff nor the defendant disputed the fact that UHSAA is a state actor. See id at 16. Generally, a private association, such as a governing athletic organization like UHSAA, will be considered a state actor when the actions of the association form a “sufficiently close nexus” to the State, such that the association’s actions may be treated as the actions of the State. See id. In this case, because UHSAA is considered a state actor it was subject to the language of the Fourteenth Amendment that reads, “No state shall… deny to any person within its jurisdiction the equal protection of the laws.” See id. The court next analyzed whether Szymakowski was likely to succeed on the merits of his claim that UHSAA’s Student Visa Eligibility Rule is unconstitutional because it violated the EP clause by necessarily discriminating based on a person’s alienage. In its analysis, the court also reviewed the level of judicial scrutiny to apply to this type of rule.
Equal Protection Clause and Level of Scrutiny Explained
UHSAA argued, unpersuasively, that Szymakowski was not treated any differently from similarly situated F-1 visa students. See id at 16. The court correctly critiqued this argument stating, “Courts would never find equal protection violations if they only compared an individual member of a class to other members of the same class against which the state law was alleged to discriminate.” Id. Thus, the court concluded, “The rule therefore treats Mr. Szymakowski
differently on the basis of his alienage.” Id at 17. Several cases cited by the court, including cases decided by the Supreme Court, have found that “the Equal Protection Clause protected ‘aliens as well as citizens’ and held that ‘all persons lawfully in this country shall abide … on an equality of legal privileges with all citizens.’” Takahashi v. Fish and Game Commission, 334 U.S. 410, 419-20, 68 S. Ct. 1138, 92 L. Ed. 1478 (1948). Other cases have ruled that “classifications by a State that are based on alienage are ‘inherently suspect and subject to close judicial scrutiny.’” Graham v. Richardson, 403 U.S. 365, 372, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971).
There are essentially three levels of scrutiny courts apply in reviewing the constitutionality of certain rules. The first, and lowest level of scrutiny, is rational basis review, which analyzes whether state action is rationally related to a legitimate government interest. Rules that discriminate against a person based on age are typically subject to rational basis review. The second, and middle tier, is intermediate scrutiny, which means a rule must be substantially related to an important state interest. Cases involving sexual orientation are subject to intermediate scrutiny. Finally, strict scrutiny, the highest level of review, presumes the rule is unconstitutional unless the state demonstrates that the rule is necessary to achieve a compelling state interest and the rule is narrowly tailored to achieve that interest by the least restrictive means. Rules that discriminate based on race are required to meet strict scrutiny standards.
Usually, cases involving rules that discriminate based on alienage are subject to strict scrutiny, but not always. There is a “political-function exception” that courts apply narrowly. See Bernal v. Fainter, 467 U.S. 216, 220-21, 104 S. Ct. 2312, 81 L. Ed. 2d 175 (1984).For instance, the Supreme Court applied rational basis review to state laws that excluded aliens, or noncitizens, from political and governmental functions. See Foley v. Connelie, 435 U.S. 291, 295-96, 98 S. Ct. 1067, 55 L. Ed. 2d 287 (1978) (upholding New York statute that restricted aliens from working as police officers); Ambach v. Norwick, 441 U.S. 68, 81, 99 S. Ct. 1589, 60 L. Ed. 2d 49 (1979) (agreeing that New York may prohibit aliens who are eligible for citizenship but who refuse to seek naturalization from employment as an elementary or secondary school teacher); Cabell v. Chavez. Salido, 454 U.S. 432, 447, 102 S. Ct. 735, 70 L. Ed. 2d 677 (1982) (holding that California may require probation officers to be citizens). In more recent years, the Fifth and Sixth Circuit Courts have applied rational basis review to state laws that regulate nonimmigrant aliens. See Szymakowski at 23, citing League of United Latin American Citizens (LULAC) v. Bredesen, 500 F.3d 523, 526 (6th Cir. 2007) and LeClerc v. Webb, 419 F.3d 405, 410-11 (5th Cir. 2005).
The court in the present case expressly declined to apply rational basis review, finding the restrictions placed on Szymakowski by the UHSAA’s Student Visa Eligibility Rule were not related to any political or governmental functions (i.e. political-function exception does not apply) and outwardly declining to “adopt a rule whereby state law classifications that affect resident aliens are subject to the highest level of scrutiny, whereas state law classifications that affect nonresident or nonimmigrant aliens are subject to the lowest.” Id at 23-24, 26. But rather than go all the way up the scrutiny scale to subject the rule to strict scrutiny, the court applied a heightened version of intermediate scrutiny.
To survive heightened scrutiny, a law or rule must be “substantially related to a sufficiently important government interest.” Fowler v. Stitt, 104 F.4th 770, 794 (2024). UHSAA alleged that one of its important state interests was an interest in preventing the mistreatment of students on F-1 visas. See Szymakowski at 32. However, the court, again rightfully criticized this interest, calling out UHSAA’s proposed solution to F-1 visa student-athlete mistreatment, barring these international students from postseason competition altogether, as “penaliz[ing] the victim of this abuse more than the perpetrator.” Id at 34. A second important interest cited by UHSAA in an attempt to justify its rule was “an interest in ensuring fair competitions for high school students in Utah.” Id at 32. The court poked holes in this argument also. Specially, the court acknowledged, “UHSAA has an important interest in ensuring that its member schools abide by the same set of rules. But the UHSAA also has an important interest in ensuring that all students can participate.” Id at 35. While the court recognized that UHSAA has an important interest in preventing illegal recruitment practices, “UHSAA has addressed this issue with a rule relating to transfer students—but rather than applying this rule equally to both national and international transfer students, the UHSAA also adopted the Student Visa Eligibility Rule that applies only to international students.” Id at 37-38.
Moreover, the court looked to other states for guidance on how their athletic associations implemented rules regarding F-1 visa student-athletes. The court found “these state athletic association rules—many of which the UHSAA reviewed in crafting its policy limiting F-1 visa students’ participation in athletics—provide less restrictive regimes to achieve the school district’s stated goal to ensure international students’ well-being and discourage inappropriate recruiting activities.” Id at 46. Because UHSAA’s Student Visa Eligibility Rule did not use the least restrictive means to accomplish its stated interest it failed to satisfy the heighted level of intermediate scrutiny applied by the court in this case.
As a result, the court found the rule violated the EP clause.
Supremacy Clause Also Examined
In addition to analyzing the EP clause to assess the merits of Szymakowski’scase, the court also examined the Supremacy clause. This clause is another principle established in the U.S. Constitution that essentially outlines the order of legal precedence in our county’s judicial system. The Constitution and other federal laws are considered the supreme law of the land and will take precedence over any conflicting state laws. In this instance, the court determined “[w]hile F-1 visa holders are subject to many restrictions, it is for Congress and not the UHSAA to impose those restrictions.” Id at 46. According to the court, “Athletics is not the only field in
which high schools compete with each other, and the court is wary of rules that deny opportunities to one class of students but not another on the grounds of the student’s immigrant status—a determination that is more appropriately regulated by Congress.” Id at 47.
Based on the application of both the EP clause and the Supremacy clause to the facts, the court ultimately found Szymakowski demonstrated a substantial likelihood that he will succeed on the merits of his claim.
Proving the Remaining Elements of Requested TRO
Because the court has found a substantial likelihood that the Student Visa Eligibility Rule poses an ongoing violation of Szymakowski’s rights under the Equal Protection Clause, the court similarly found that Szymakowski made a strong showing of irreparable harm. In reaching this decision the court wrote, “the evidence demonstrates that Mr. Szymakowski’s failure to compete with his high school football team at the varsity level could affect his chances of
admission to American universities… Mr. Szymakowski’s missed opportunity to play tonight be made up elsewhere at a later date. For Mr. Szymakowski, his varsity season is fleeting—he is a senior with just one game left in the regular season. Tonight’s game and any postseason play are the last opportunities for Mr. Szymakowski to impress scouts in this singularly critical way.” Id at 48, 50. The court recognized the value in extracurricular activities, “including the right to participate in high school varsity football,” and a loss of his opportunity to play and potential loss of college opportunities, according to this court, “constitutes irreparable harm.” Id at 50, 51.
Despite UHSAA’s arguments that it would be harmed by the TRO, the court was once more, not persuaded.
Regarding the public interest, the court determined the public is “best served by a decision that upholds the equal protection of the laws to all persons who are lawfully within the state’s jurisdiction.” Solidifying the constitutional principle that equal protection means equal for all.
The Ruling on the Field
In reaching its ruling, the Utah District Court concluded there is a strong likelihood that UHSAA Student Visa Eligibility Rule is unconstitutional. The court granted Szymakowski’s request for a TRO, allowing him to play in Juan Diego’s final game of the 2024-2025 regular season without forfeiting Juan Diego’s eligibility for postseason play. Finally, the court enjoined UHSAA from enforcing of the Student Visa Eligibility Rule only as it applies to Szymakowski.
This case is a textbook-worthy lesson about the American value of equality for all in action.
Gina is a licensed attorney in Maryland, New York, and Pennsylvania. Her practice and experience ranges from handling civil and criminal domestic violence cases, involvement in personal injury and product liability lawsuits, and instruction in the areas of sports, entertainment, and art law. She is a first-generation law school graduate and alumna of The George Washington University Law School.
