A panel of judges from the 6th U.S. Circuit Court of Appeals has affirmed the dismissal of a claim brought by the parents of non-public school students, who had alleged that their Constitutional rights were violated when a state athletic association limited the amount of merit-based scholarship assistance a student could receive and remain eligible to participate in high school athletics.
In so ruling, the court found that the bylaw’s provisions were rationally related to furthering the state athletic association’s governmental interest in deterring the use of financial aid as an improper athletic recruitment tool.
By way of background, the court noted that the Kentucky High School Athletic Association (KHSAA) is a voluntary, unincorporated association consisting of more than 280 public, private, and parochial schools. The Kentucky Board of Education (KBE) has designated the KHSAA as its agent to manage interscholastic athletics. The KHSAA’s member schools are responsible for the promulgation of the KHSAA’s regulations, known as bylaws, governing participation in KHSAA-sanctioned sporting events. The KBE then reviews, approves, and incorporates these bylaws into its own administrative regulations.
The application of KHSAA Bylaw 13 was at issue in the instant case. Bylaw 13 concerns the eligibility of student athletes at non-public schools who receive certain types and amounts of financial aid.
“The parties do not dispute the purpose of the bylaw, which is to prevent and deter the recruitment of student athletes by KHSAA member schools,” wrote the court. “To prevent this improper recruitment, the KHSAA places certain restrictions on the amount and form of financial aid non-public school students can accept and still remain eligible to play KHSAA-sanctioned sports,” wrote the court. “Bylaw 13 divides acceptable financial aid into two categories: (1) need-based financial aid and (2) merit-based financial aid. Merit-based financial aid is awarded based on academic or test performance. It must have been made available to the entire student body through a competitive application process and must be made according to published, objective criteria.”
The court added that in addition to these restrictions, a student accepting merit-based aid must comply with several other conditions found in Bylaw 13 in order to maintain his or her interscholastic athletic eligibility.
“Two of these restrictions are particularly relevant in this case,” wrote the court. “First, a student may only accept up to 25 percent of the cost of tuition in merit-based aid. Second, a student may not accept financial aid from a ‘funding source that is not under the custody and control of the member school or its governing board.’ Under this provision, independent groups are not prohibited from making merit-based financial aid awards, but the group must subject its aid to the review and control of the member school or its governing board. Thus, if a student were to accept more than 25 percent of the cost of tuition in merit-based aid or accept financial aid from a group outside the review and control of the school or governing board, this student would be ineligible to participate in KHSAA-sponsored athletics.”
After the plaintiffs filed their lawsuit, the KHSAA successfully filed a motion to dismiss the claims, pursuant to Federal Rule of Civil Procedure 12(b)(6). The plaintiffs appealed.
The plaintiffs’ core argument was that Bylaw 13 “interferes with their ‘fundamental right’ as parents to control the upbringing and education of their children. While the Supreme Court has found this right to be fundamental, see, e.g., Meyer, 262 U.S. at 400-401; Pierce v. Soc’y of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 530-535, 45 S. Ct. 571, 69 L. Ed. 1070 (1925), it is not abridged by Bylaw 13. The bylaw only restricts the amount and type of financial aid that a student can receive and retain KHSAA athletic eligibility. It does not limit a parent’s ability to send his or her child to a non-public school or limit the amount of aid a student can receive when he or she also chooses not to participate in sports. Furthermore, ‘[i]t is well-established that students do not have a general constitutional right to participate in extracurricular athletics.’ Lowery v. Euverard, 497 F.3d 584, 588 (6th Cir. 2007) (citing Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 180 F.3d 758, 763 (6th Cir. 1999), rev’d on other grounds, 531 U.S. 288, 121 S. Ct. 924, 148 L. Ed. 2d 807 (2001)). The fundamental right of parents to control the education of their children does not extend to a right to demand that their children be allowed to participate without restrictions in extracurricular sports in the educational setting that the parents have freely chosen.”
Thus, the bylaw is subject to review under the rational basis standard, meaning it must be rationally related to furthering a legitimate state interest.
“The purpose of Bylaw 13 is to prevent and deter the recruitment of student athletes by preventing KHSAA member schools from ‘paying’ student athletes to play at that school. The plaintiffs do not challenge the legitimacy of the KHSAA’s interest in preventing improper athletic recruitment but instead argue that the bylaw’s provisions are not rationally related to furthering this objective.”
The court remained in the defendant’s corner.
“Instead of attempting to regulate all these potential loopholes one-by-one, the KHSAA has apparently decided to deter such manipulation by simply capping the amount of merit-based aid a student can receive and still be eligible to play school sports,” it wrote. “The 25 percent cap on merit-aid provision is, therefore, rationally related to the KHSAA’s interest in preventing improper athletic recruitment.”
Mary Seger v. Kentucky High School Athletic Association et al.; 6th Cir.; Nos. 10-5595, 10-5597, 11a0874n.06; 2011 U.S. App. LEXIS 25799; 2011 FED App. 0874N; 12/21/12
Attorneys of record: (for plaintiffs) Teddy B. Gordon, Law Office, Louisville, KY. (for defendants) Phillip D. Scott, Attorney, Jason Trent Ams, Theodore Roberts Martin, Greenebaum, Doll & McDonald, Lexington, KY. Teddy B. Gordon, Law Office, Louisville, KY.
