A federal judge in the Central District of Illinois has denied a motion for a preliminary injunction, sought by a student athlete, who had claimed that a school district violated his right to due process when it suspended him from interscholastic sports for a full year.
In so ruling, the court re-affirmed the off-held legal standard that participation in interscholastic sports is a privilege, not a constitutionally protected right.
A.C., whom the court only identified by his initials, was a junior at Cambridge High School when he discharged what he claimed was a toy gun at one or more students in the parking lot of the high school after school had been dismissed for the day.
After an investigation, the school’s principal determined that the gun was not a toy, but rather a look-alike weapon, which fired small plastic BBs. He gave A.C. a ten-day academic suspension. The Athletic Council subsequently made a similar finding and imposed a 365-day suspension from all extracurricular athletic activities. The Council rationalized that A.C.’s possession and use of the look-alike weapon constituted “gross misconduct” in the student handbook.
The parents sued on behalf of their son, claiming that his due process rights were violated by the actions of the school district. They also subsequently filed a motion for preliminary injunctive relief, asking the court to enjoin the defendant from enforcing A.C.’s 365-day athletic suspension withholding his right to participate in school athletics.
In assessing the motion, the court pointed out that a plaintiff must show, among other things, that there is a likelihood of success on the merits of the underlying litigation. Ty, Inc. v. Jones Group, 237 F.3d 891, 895 (7th Cir. 2001). This threshold requirement takes on special meaning when there is a procedural due process claim at stake. In such instances, a plaintiff “must demonstrate that they have a protectable property or liberty interest at stake. Such interests are ‘are not created by the Constitution. Rather, they are created and their dimensions defined by an independent source such as state statutes or rules entitling the citizen to certain benefits.’ Goss v. Lopez, 419 U.S. 565, 572-73, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975), citing Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972).”
The Plaintiffs maintained that A.C. has a protectable property interest in continued participation in the athletic program and prospects for college scholarships attendant to such participation.
However, that argument is problematic, since courts in other jurisdictions have repeatedly held that there is no protectable property or liberty interest in participating in interscholastic athletics. Hamilton v. Tennessee Secondary School Athletic Association, 552 F.2d 681, 682 (6th Cir. 1976), citing Mitchell v. Louisiana High School Athletic Association, 430 F.2d 1155, 1157-58 (5th Cir. 1970) (finding that the privilege of participating in interscholastic athletics falls outside the protection of due process); Hebert v. Ventetuolo, 638 F.2d 5, 6 (1st Cir. 1981) (finding that since there is no property right to play interscholastic sports, there is no constitutional entitlement to any process whatsoever); Rutledge v. Arizona Board of Regents, 660 F.2d 1345, (9th Cir. 1981); Poling v. Murphy, 872 F.2d 757, 764 (6th Cir. 1989); In re United States ex rel. Missouri State High School Activities Ass’n., 682 F.2d 147, 153 (8th Cir. 1982); [*6] Burrows v. Ohio High School Athletic Ass’n., 891 F.2d 122 (6th Cir. 1989); Smith v. Chippewa Falls Area Unified School District, 302 F.Supp.2d 953, 957 (W.D. Wis. 2002) (noting that the preponderance of federal district courts considering the question have held that the opportunity to participate in extracurricular activities is not a protected property interest). Similarly, the Illinois courts have noted that “students can need, want, and expect to participate in interscholastic athletics, but students are not entitled to participate in them” in holding that participation in athletics does not rise to the level of a protected interest. Jordan v. O’Fallon Township High School Dist. No. 203 Board of Education, 302 Ill.App.3d 1070, 706 N.E.2d 137, 140, 235 Ill. Dec. 877 (1999); Clements v. Board of Education of Decatur Public School Dist. No. 61,133 Ill. App. 3d 531, 478 N.E.2d 1209, 1210, 88 Ill. Dec. 601 (1985).”
The court further wrote that “while the Seventh Circuit has not expressly addressed this issue, two opinions involving related issues provide some indication of how the Court of Appeals might rule if it were to consider this question directly. In Schaill v. Tippecanoe County School Corp., 864 F.2d 1309, 1323 (7th Cir. 1988), the Seventh Circuit relied on the First Circuit’s decision in Hebert in noting “that there is room for doubt whether a student has a constitutionally protected liberty interest in being free of the potential stigma associated with removal from an athletic team.” In Todd v. Rush County Schools, 133 F.3d 984, 986 (7th Cir. 1998), the Court of Appeals also suggested that extracurricular activities, such as athletics, are only a privilege rather than a right. Accordingly, the Court finds that the Court of Appeals would likely follow the existing persuasive precedent cited above and hold that participation in interscholastic sports does not implicate any protectable liberty or property interest.
“The Court therefore concludes that Plaintiffs have failed to demonstrate that they have any protectable liberty or property interest in continued participation in school athletics. Having so found, the Court need not go on to consider to what process Plaintiffs would have been entitled or whether the process that was provided was sufficient.”
A.C., a minor, by Mark Carlson and Julie Carlson, his parents v. Board of Education for Cambridge Community Unit School District #227; C.D. Ill.; Case No. 05-4092; 12/28/05
Attorneys of Record: (for plaintiff) Shari R Rhode, Rhode & Jackson PC, Carbondale, IL; James W Springer, Kavanagh Scully Sudow White & Frederick PC, Peoria, IL. (for defendant) Colette L McCarty, Robbins Schwartz Nicholas Lifton & Taylor, Decatur, IL.
