Expectation of Scholarship Is Not Constitutionally Protected

Oct 7, 2005

A Louisiana appeals court has all but dismissed the claims brought by the parents of a high school basketball player, who sued after their daughter was ruled ineligible by the Louisiana High School Athletic Association, Inc. because of a dispute over the family’s residency.
While the court dismissed as moot the plaintiffs’ claims for injunctive relief and affirmed a trial court’s ruling for the LHSAA regarding due process and other claims, it did give the plaintiff a sliver of hope by remanding her invasion of privacy claim.
The impetus for the litigation was the plaintiffs’ decision to move to St. John the Baptist Parish in order to meet the special educational needs of their minor son. Their daughter, Krystin Johansen, had played basketball at another school in another parish during the 2001-2002 school year. The plaintiffs rented an apartment in the new parish, but did not establish it as their residence until September 2002. They also placed a sign on their old property, advertising it for sale.
The court noted that the LHSAA is a nonprofit corporation with more than 400 member schools. And while it is not a state agency, the State of Louisiana has given the LHSAA authority to enforce the administration of interscholastic athletic competition between its member schools.
The plaintiffs ultimately met with the principal of the new school and secured his opinion that the plaintiffs were in compliance with the LHSAA’s rules. Shortly thereafter, however, a rival school district lodged a complaint alleging a violation of the transfer and bona fide change of residence rules regarding the daughter’s eligibility. The LHSAA retained a private investigator to investigate plaintiffs’ residence status. According to plaintiffs’ petition, the assistant commissioners demanded access to the house in order to search it, with the threat to immediately declare daughter ineligible if permission was denied. The Plaintiffs consented to the search.
In January of 2003, the LHSAA ruled that the school violated the LHSAA transfer and bona fide change of residence rules. It fined the school for the cost of the private investigator and required the school to forfeit the 15 games the girl had played in.
The school and plaintiffs unsuccessful appealed the ruling, before turning to the courts.
A petition was filed with the 40th Judicial District Court for the Parish of St. John the Baptist, seeking injunctive relief and damages based upon the LHSAA’s action. After the district court dismissed the case, the plaintiffs appealed.
The first order of business for the appeals court was to dismiss the plaintiffs’ appeal for injunctive relief as moot, leaving only the plaintiffs’ allegation that they sustained damages because of the defendant’s actions.
The court first reviewed the transfer rule, which “provides that a student athlete must be enrolled in a school in the LHSAA zone where her parents reside in order to be eligible to play during the first year of that student’s attendance at that school. If the student transfers to a school outside the zone of parents’ residence, then the student is ineligible to play during the first year of attendance at that school.”
Residence is determined by Rule 1.11.11, which requires that “any change of residence from one zone to another by parents be an actual, bona fide change of permanent residence, in order to avoid the evils of recruiting by schools to obtain unfair advantage over competing schools.
“Rule sets out the nonexclusive criteria governing the determination of a bona fide change of permanent residence, including, among other circumstances, (1), the abandonment as a residence and sale or other disposal of the original residence; (2) the removal of all personal belongings and furniture appropriate to the circumstances; and (3) change of mailing address and telephone service.”
The Plaintiffs claimed the defendant violated their rights of procedural and substantive due process under the Fourteenth Amendment of the United States Constitution and La. Const. art. I, § 2. “To prevail on their due process claim, plaintiffs must show the existence of some property or liberty interest which has been adversely affected by state action. Brennan v. Board of Trustees for University of Louisiana Systems, 95-2396, p. 9 (La. App. 1st Cir. 3/27/97), 691 So. 2d 324, 330.”
The court noted that “to have a property interest protected by due process, a person must have more than an abstract need or desire for it. He must have a legitimate claim of entitlement to it rather than a unilateral expectation of it. Id.”
The plaintiffs had claimed that their daughter “had an opportunity for an athletic scholarship to college,” and that if defendants’ actions were upheld it would “preclude her ability to be considered for such scholarship because she will not be playing the sport.
“The possibility of obtaining a college athletic scholarship based upon participation in high school athletics simply does not constitute such a property interest or right, but rather a ‘speculative and uncertain’ expectation or opportunity. Marino v. Waters, 220 So.2d 802, 806 (La. App. 1st Cir. 1969); Sanders v. Louisiana High School Athletic Association, 242 So.2d 19, 28 (La. App. 3rd Cir. 1970). See also Indiana High Sch. Ath. Ass’n v. Carlberg by Carlberg, 694 N.E.2d 222, 241 n.26 (Ind. 1997).”
In affirming the trial court’s judgment on the alleged violations of due process, the court also noted Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. Ct. 2258, 2268, 138 L. Ed. 2d 772, 117 S. Ct. 2302 (1997). That court concluded that “participation in interscholastic athletics does not rise to the level of fundamental rights and liberties so essential that ‘neither liberty nor justice would exist if they were sacrificed.’”
Next, the court turned to the plaintiffs’ claim that their constitutional right to privacy was violated when the LHSAA hired a private investigator. The court found that Article I, § 5 of the Louisiana Constitution does not extend such protections to private citizens against the actions of private parties. Brennan, 95-2396 at p. 7, 691 So. 2d at 328.
“While the LHSAA may be considered a state actor for purposes of review of claims under the Fourteenth Amendment guarantees of due process and equal protection, we cannot conclude that it should be treated as a state actor for purposes of claims under the guarantee against unreasonable searches and seizures of the Fourth Amendment and La. Const. art. I, § 5,” wrote the court.
However, wrote the court, Louisiana has recognized a civil cause of action for invasion of privacy since 1905. Jaubert v. Crowley Post-Signal, Inc., 375 So. 2d 1386, 1388-89 (La. 1979).
“The right to privacy has been defined in Louisiana as “the right to be let alone” and “the right to an inviolate personality.” Id. at 1388. A violation of such right by another may be actionable in tort. Id. An actionable invasion of privacy occurs only when the defendant’s conduct is unreasonable and seriously interferes with the plaintiff’s privacy interest. Id. at 1389. Plaintiffs have sufficiently alleged facts supporting a delictual cause of action for violation of privacy, and the trial court erred in sustaining the peremptory exception of no cause of action as to that claim, and dismissing the claim. Its judgment is reversed in part in that regard, and the case remanded for further proceedings.”
Linda Wife Of/And Neal Johansen, Individually And As Natural Tutors Of Their Minor Daughter, Krystin Johansen v. Louisiana High School Athletic Association et al.; Ct. App. La.,1st Cir.; NO. 2004 CA 0937; 6/ 29/05
Attorneys of Record: (for plaintiff) William F. Wessel and Victoria L. Bartels of New Orleans, La. (for defendants) R. Bradley Lewis of Bogalusa, La.


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