By Allie Benson, 2L at UNC School of Law
As the recent K.H. v. Pennsylvania Interscholastic Athletic Association (PIAA) case demonstrates, transfer rules are a common form of rendering high school student-athletes ineligible.
Generally, student-athletes who transfer “from one high school to another without a corresponding change” in their parents’ residence are ineligible to participate in varsity sports for a year. However, this rule comes with exceptions, like waivers of the eligibility limitation when there is evidence of the transfer resulting from hardship. Athletically-motivated transfers are not allowed as that conduct is part of what this rule attempts to combat.
Though there are common trends among interscholastic transfer eligibility rules, state athletic associations promulgate and enforce their own rules on eligibility for their high school student-athletes while also following state laws. “Public high schools and state athletic associations judicially characterized as state actors also must respect student-athletes’ federal constitutional” rights. Procedural due process from the U.S. Constitution “requires consideration of whether fair notice and an opportunity to be heard have been provided by a state athletic association…before the athlete is denied eligibility to participate.” Substantive due process rights protect student-athletes by preventing interscholastic athletic associations from intruding upon certain fundamental rights and ensuring that if these rights are intruded on, there is a valid justification. Both types of due process claims require a deprivation of a “constitutionally protected property or liberty interest” to receive heightened scrutiny. Despite attempted arguments otherwise, courts have commonly held that there is no constitutional right nor any liberty or property interest to participate in high school athletics. Thus, although state high school associations are required to follow their own rules, they do not typically have to comply with federal due process.
The Constitution’s equal protection clause “requires that similarly situated parties be treated alike, with a heightened level of judicial scrutiny applicable if there is discrimination denying an individual a fundamental right or based on innate characteristics.” Apart from those scenarios, differing treatment is determined via a highly deferential standard and courts utilize the rational basis test: “if there is any rational basis for the challenged decision or rule, the court probably will not find a denial of equal protection of the law.”
Since there is no Supreme Court ruling on point of interscholastic student-athlete transfer rule eligibility claims or on what qualifies as a liberty interest for due process in interscholastic athletics,  each state has its own framework for these cases, while still keeping in line with the aforementioned rules for federal constitutional claims in this area. As PIAA demonstrates, one commonly used standard of review in these cases is the arbitrary and capricious standard that allows limited judicial review of the decisions of these high school athletic associations.
In PIAA, the student-athlete transferred schools when he and his father moved so that his father could be close to work. Prior to moving, the father only had access to transportation using a relative’s car, which he was in jeopardy of losing access to for his 39-mile commute. The father had a work disciplinary hearing and was advised to move closer “or be on the path toward termination because of tardiness and attendance issues” stemming from his long commute. Before the hearing, the father “transferred into a new position with the post office” and became a permanent employee. PIAA bylaws state that “if a student who participated in a sport transfers after the 10th grade, [they are] ineligible to play in the postseason” unless the student can show that the “transfer was necessitated by exceptional and unusual circumstances beyond the reasonable control of the student’s family.” The PIAA hearing regarding the student-athlete’s regular season eligibility and postseason eligibility was dominated by the former issue, and that issue was ultimately withdrawn by the sending school due to the severe lack of evidence that the transfer was athletically motivated. PIAA then denied the student-athlete a waiver to participate in postseason basketball since the father’s change in residence wasn’t a necessity, the move did not equate to a “change in residence necessitated by a change in employment” required to restore eligibility, and there were other ways for him to fix his tardiness issues.
The student-athlete then went to court requesting an injunction to enjoin PIAA from prohibiting his participation in postseason basketball. The court stated that “the general rule with respect to high school athletic associations…is one of judicial non-interference” and a court may only set aside a decision of PIAA if “the action complained of is fraudulent, an invasion of property or pecuniary rights, or capricious or arbitrary discrimination.” “[A]n action is capricious if it reflects the willful, deliberate disbelief of an apparently trustworthy witness, whose testimony one has no basis to challenge” and is arbitrary “when the conduct is based on random or convenient selection of choice rather than of reason or nature.” The trial court ruled that PIAA’s decision was arbitrary and capricious and granted this injunction.
Having a further limited standard of review, this appeals court held that as the trial court’s decision was based on reasonable grounds, there was no error in its decision that PIAA “acted with arbitrary and capricious discrimination when it devoted too little time to [his postseason eligibility], deliberated for less than 16 minutes, failed to offer Father the opportunity to testify about his employment status directly relevant to [an exemption from the transfer rule], and essentially discouraged Student and Father from presenting additional evidence.” The appeals court also indicated that the “trial court may not substitute its judgment for that of the PIAA” and that it did not do so.
Indiana courts also use this arbitrary and capricious standard, but make it stricter when reviewing student-athlete challenges than member school challenges since students have no say in the governing body. The PIAA court did not mention this distinction. However, it also appears to apply a stricter, less deferential level of the arbitrary and capricious standard as the PIAA’s decision, arguably skirting around fairness via a highly technical interpretation of its rules was not entirely arbitrary since PIAA did have reasons for their decision.
The PIAA court potentially could have used a public policy reason to grant the injunction also (or instead). The public policy reason to allow the student-athlete to play in the postseason would be that society wants people to be employed, especially those who have children so that they can support their family. Employment keeps families together, reduces poverty rates, and lessens the burden on state welfare systems. Thus, since there is sufficient evidence of how this move was to help the father keep his job and a lack of evidence about an athletically-motivated transfer, public policy necessitates that the student-athlete should not be punished for his father trying to keep his job.
The fact that PIAA still used the arbitrary and capricious standard for a non-constitutional claim regarding transfer eligibility in an interscholastic athletics case that was used in Carlberg shows that the standard is strong enough to last almost fifty years and is being applied across different states. However, a new case shows that, at least in Texas, there might be a shift in the legal standards used in these cases.
While federal due process claims are typically unsuccessful in this area due to the lack of a liberty or property interest at issue, in Motheral v. Black, a procedural due process claim was successful after the University Interscholastic League (UIL) voted that a student-athlete moved for athletic purposes and was ineligible to play varsity sports for a year. The student-athlete’s mother claimed that they were denied adequate due process and that parents have a liberty interest per Troxel in the “‘care, custody, and control’” of their child which was violated by the decision and thatUIL’s “decision implicated their liberty interest [from Roth] in their good name, reputation, honor, and integrity.” Plaintiffs contended that UIL’s failure to provide adequate due process during the hearing resulted “in a determination contradicting their basis for transferring schools and injuring their liberty interests.” The stigmatizing effect of the decision upon their family was then implicated on the mother’s ability to make child rearing decisions without government intrusion, particularly decisions in regards to her child’s safety. Suggesting that the due process claim could not hinge on the alleged reputational injury alone, the court concluded “that the Plaintiffs pleaded a liberty interest that warrants due-process protection.”
Overall, Motheral represents a rare successful due process claim in the realm of interscholastic student-athlete transfer eligibility cases. Motheral also shows how some state courts offer more protection for student-athletes challenging transfer rules than others since there is no Supreme Court case on point. PIAA shows a slightly less deferential version of the still-utilized arbitrary and capricious standard. These recent interscholastic student-athlete transfer eligibility cases show how, at least in some states, interscholastic athletics are becoming more important in society and the idea of participation in interscholastic athletics being a right might not seem as remote anymore. However, even Motheral reaffirmed the common notion that participation in interscholastic athletics is not a fundamental right or liberty interest.
 See K. H. v. Pennsylvania Interscholastic Athletic Ass’n., 277 A.3d 638, 640 (Pa. Cmmw. 2022).
 Mitten et al., Sports Law and Regulation: Cases, Materials, and Problems 56-57 (5th ed. 2020)[hereinafter Mitten]. However, the transfer rule in PIAA for postseasoneligibility is actually stricter and does not have this typical provision allowing transfers when there is a residence change. Pennsylvania Interscholastic Athletic Ass’n, 277 A.3d at 640, 643.
 Mitten, supra note 2, at 57. These are called hardship waivers. Id.
 Indiana High Sch. Athletic Ass’n, Inc. v. Carlberg, 694 N.E.2d 222, 233 (Ind. 1997); Mitten, supra note 2, at 57; see Pennsylvania Interscholastic Athletic Assn., 277 A.3d at 641.
 See Mitten, supra note 2, at 55.
 Id. at 56.
 See id.
 Id. at 55. Often, student-athletes who have been rendered ineligible as a result of a transfer rule argue that Goss v. Lopez, 419 U.S. 565 (1975) (holding that there is a property interest in receiving an education) should extend to participation in interscholastic sports as a way to get the heightened standard of due process and have typically, though not always, lacked success with that claim. See Amanda Siegrist, W. Andrew Czekanski, & Steve Silver, Interscholastic Athletics and Due Process Protection: Student-Athletes Continue to Knock on the Door of Due Process, 6 Ole Miss L. Rev 6, 10, 12, 14 (2016)[hereinafter Siegrist]. Most recently, the liberty “interest of parents in the care, custody, and control of their children,” from Troxel v. Granville, 530 U.S. 57, 65 (2000),was used by a student-athlete’s parent to successfully claim procedural due process in an interscholastic athletics transfer eligibility case. Motheral v. Black 03-21-00671-CV, 2022 WL 1433960, *1, *7 (Tex. App.–Austin May 6, 2022).
 See, e.g., Matthew J. Mitten & Timothy Davis, Athlete Eligibility Requirements and Legal Protection of Sports Participation Opportunities, 8 Va. Sports & Ent. L.J. 71, 113 (2008).
 Indiana High Sch. Athletic Ass’n, Inc v. Carlberg, 694 N.E.2d 222, 242 (Ind. 1997); Albach v. Odle, 531 F.2d 983, 984-85 (10th Cir. 1976); Cornerstone Christian Sch. v. Univ. Interscholastic League, 563 F.3d 127, 136-37 (5th Cir. 2009);Siegrist, supra note 9, at 3 (discussing Taylor v. Encumclaw School District). However, Boyd v. Bd. of Directors of the McGehee Sch. Dist. No. 17, 612 F. Supp. 86 (E.D. Ark. 1985), Duffley v. New Hampshire Interscholastic Athletic Assoc., Inc., 122 N.H. 484 (1982), and a handful of other cases have elevated participation in interscholastic athletics to the status of a right/property interest instead of a privilege. Id. at 12, 14.
 Mitten, supra note 2, at 56. Innate characteristics include race, ethnicity, national origin, or gender. Id.
 See Siegrist, supra note 9, at 20.
 See Mitten, supra note 2, at 55-56.
 See K. H. v. Pennsylvania Interscholastic Athletic Ass’n, 277 A.3d 638, 643 (Pa. Cmmw. 2022).
 Id. at 640.
 Id. at 643. A “change of residence necessitated by a change in employment” and “[a]n involuntary substantial change in financial condition and resources that compels a withdrawal from a school” explicitly fit under this exceptional and unusual circumstances clause and “[a]ll other tendered reasons will be considered…on a case-by-case basis. Id.
 Id. at 641.
 Id. at 641-42.
 Id. at 639-40.
 Id. at 643 (citing Harrisburg School District v. Pennsylvania Interscholastic Athletic Association, 453 Pa. 495 (1973)).
 Id. (internal citations omitted).
 Id. at 645.
 Id. at 648.
 Id. However, the appeals court failed to really explain how the trial court did not just substitute its judgment for that of PIAA so it would not be irrational to wonder if that is in fact what the trial court did. This question itself shows how the highly deferential standard was lessened in this case to some extent.
 See Indiana High Sch. Athletic Ass’n, Inc v. Carlberg, 694 N.E.2d 222, 230 (Ind. 1997).
 See Pennsylvania Interscholastic Athletic Ass’n, 277 A.3d at 641-42. While the PIAA court did take a bit of a less deferential approach, their language and overall way of doing so was less strong and pointed than that of some other courts. See, e.g., Scott v. Oklahoma Secondary Sch. Activities Ass’n, 313 P.3d 891, 908-909 (Okla. 2013).
 See Employment and Decent Work, United Nations: Department of Economic and Social Affairs (2007), https://www.un.org/development/desa/socialperspectiveondevelopment/issues/employment-and-decent-work.html; see Why is Work Important?, InWork European Project, http://www.inworkproject.eu/toolbox/.
 Pennsylvania Interscholastic Athletic Ass’n, 277 A.3d at 641.
 The public policy reason is strengthened by the fact that in many districts, the transfer rule only applies to those who transfer without a corresponding change in their parent/guardian’s residence. See Mitten, supra note 2, at 56-57.
 , even if it was a weaker version of this standard to some extent,
 Pennsylvania Interscholastic Athletic Ass’n, 277 A.3d at 643.
 Carlberg, 694 N.E.2d at 230-31. The standard has been in use in Indiana since Sturrup, which took place in 1974. Id.
 See generally Motheral v. Black 03-21-00671-CV, 2022 WL 1433960, *1 (Tex. App.–Austin May 6, 2022).
 Motheral, 2022 WL 1433960 at *3. Texas courts have determined that state due process claims, like the one here, are functionally the same as federal due process challenges. Id. at *7. The student-athlete’s father was physically and verbally abusive to him at a basketball games and had a history of abuse against the mother. Id. at *1-2. The mother, student-athlete, and the mother’s boyfriend (the basketball coach at the receiving school) moved from Coppell to Duncanville to get away from the father and so that the father would not know where they lived. Id. at *2.
 Id. at *7. This failure to provide adequate due process is significant because if a liberty interest is implicated, federal due process requires a heightened level of scrutiny to take away/infringe upon that liberty interest.
 Id. (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)).This argument regarding due process is different than the common route taken, which is asserting that sports are included in the “‘total educational process’” — a liberty interest protected by Goss. Siegrist, supra note 9, at 3. This argument was successful in some cases in Texas since they allowed “academic credit for participation in high school sport.” Id. at 4.
 Motheral, 2022 WL 1433960 at *8.
 Id. The Motheral court went on to “affirm the portions of the trial court’s order granting the temporary injunction [allowing the student-athlete to participate in varsity high school athletic competitions pending his trial’s resolution] …regarding the Plaintiff’s [due process] claim.” Id. at *1.
 See id.
 See Siegrist, supra note 9, at 20. Similarly, some state constitutions, like Indiana’s, provide more protection to student-athletes challenging transfer rules than the US Constitution does. See Indiana High Sch. Athletic Ass’n, Inc. v. Avant, 650 N.E.2d 1164 (Ind. App. 3d Dist. 1995).
 See K. H. v. Pennsylvania Interscholastic Athletic Ass’n., 277 A.3d 638, 643 (Pa. Cmmw. 2022).
 Motheral, 2022 WL 1433960 at *7.