By Gil Fried, University of West Florida
Joelle Chung and her brothers J.N.C. and J.D.C., and their teammates A.H.B. and A.A.B., brought an action against the Washington Interscholastic Athletic Association (WIAA) under the Free Exercise Clause and Equal Protection Clause of the U.S. Constitution, the Washington State Constitution, and RCW § 28A.600.200 (Washington law granting authority to WIAA as long as it does not violate certain requirements) for failure to accommodate Sabbath observers in its scheduling and administration of high school tennis state championship tournaments.
The Plaintiffs were current and former high school student athletes and Seventh-day Adventists who observe the Sabbath each week. Observing the Sabbath required that Plaintiffs rest from work and refrain from competitive sports from sundown Friday until sundown Saturday every week.
During the 2017-2018 season, Joelle was selected for postseason competition. However, after advancing from sub-districts, she had to withdraw from the district tournament because it was scheduled on Saturday. For the 2018-2019 season, because Joelle expected to qualify again for postseason, she and the Chung family preemptively asked the WIAA for an accommodation. WIAA Rule 22.2.6 provides that “[a]ny withdrawal and intentional forfeiture shall be considered a violation of WIAA rules and regulations, and shall be subject to penalties as determined by the WIAA Executive Board.” The Chungs asked that WIAA change rule 22.2.5 to allow religious observances as a valid reason to drop out of the tournament to allow Sabbath observers to play as far as they are able until the Sabbath becomes an issue. The Plaintiffs also asked the WIAA to move the 2A state tennis tournament to weekdays.
Joelle qualified for postseason competition. However, while the sub-district and district competitions were scheduled during the week, the state tournament was scheduled for Friday and Saturday. Consequently, if Joelle advanced to the state championship, she would not have played the final day.
The WIAA rejected Joelle’s request to preemptively withdraw from the state tournament in the event that she advanced to the final round. WIAA stated that withdrawal based on an anticipated Sabbath conflict would violate WIAA rules and thus the request could not be granted. The WIAA explained that withdrawing on the Sabbath would be (1) unfair to athletes who would have qualified but for the withdrawing athlete, and (2) create a competitive advantage for the athlete scheduled to play the athlete who forfeited. Thus, it was a battle regarding fairness for other athletes and whether not allowing any accommodation interfered with the religious rights of those who observe the Sabbath.
This is a personal issue for the author who happens to be a Sabbath observant Orthodox Jew and gave up competitive badminton at the highest level when he started observing the Sabbath and could only play in tournaments where he was able to compete without the need to compete on the Sabbath. In one tournament several years ago, the author made it to the finals of an international master’s tournament during the week and the final was scheduled for the Sabbath. The other team in the final agreed to play the final on Sunday. The opponents did not need to change the final, but in the interest of sportspersonship, they offered to move the match as to not have a forfeit at the finals. In an epic three game battle the author ended up winning 23-21 in the third game of a best of three match.
Shortly after the suit was filed the WIAA amended Rule 22.2.5 to permit withdrawals for “religious observance.” Based on this change most of the Plaintiffs’ standing changed. The Plaintiffs filed a motion for summary judgement which the court denied. The court denied in part based on based on WIAA’s scheduling of future state championships on the Sabbath was merely hypothetical and the Plaintiffs’ injury was not actual or imminent. Besides the uncertainty of whether the Plaintiffs would even qualify for the state tournament, another factor impacted the court’s decision- Covid 19. The court concluded that cancellations and postponements of sports competitions caused by the COVID-19 pandemic injected additional uncertainty into the injury-in-fact inquiry. Indeed, the WIAA rescheduled the 2021 state tournament with, as the court wrote, “no indication that [it] will be rescheduled.” While the future prospects ended the legal battle for most Plaintiffs, it did not impact Joelle’s claim- which the court also reviewed.
The court addressed the constitutional law argument and found the WIAA raised a material dispute of fact as to whether its scheduling policy amounted to a system of individualized exemptions such that strict scrutiny must apply. The WIAA asserted several objective criteria that govern its scheduling decisions for postseason competition: (1) minimizing the amount of time students, teachers, coaches, and athletic directors are out of the classroom; (2) reducing school expenses associated with the event such as the cost for substitute teachers and transportation; (3) increasing the opportunity for students, friends and community supporters to attend the events; (4) increasing revenue for due to higher ticket sale prices on Fridays and Saturdays; (5) increasing the ability to hire officials who have day jobs; (6) easily obtaining competition venues, which are more accessible on the weekends for high school venues; and (7) maintaining the “tournament atmosphere” for the event by maximizing audience attendance. Guided by these criteria, WIAA typically schedules its single-day tournaments on Saturday and its two-day tournaments on Friday and Saturday.
The Plaintiffs dismissed these reasons as post hoc justifications. This represented a real argument of fact- thus denying the ability to rule in favor of the summary judgement motion. The question of whether WIAA developed its scheduling policy around these criteria was a question of fact reserved for the jury.
Plaintiffs also argued that the criteria are dubious given that no competitions are scheduled for Sunday, despite WIAA’s stated goal of reducing missed school time and enabling more friends and family to attend portions of the competition. However, the WIAA explained that its policy of not scheduling competition on Sunday served a purely secular purpose as Sundays were reserved as a travel-back day, considering the possibility of hazardous road conditions or long-distance travel through mountain passes. Sundays could also serve as a makeup day if competition was postponed by bad weather. The Court found WIAA’s explanation sufficient to raise a material dispute of fact on this point.
Plaintiffs further argued that the offered criteria are suspicious given that more than a dozen state tournaments were not scheduled for Saturday competition. For example, volleyball is the only sport for which WIAA concedes that it has accommodated Sabbath observers by not scheduling tournaments on a Saturday. For 1B and 2B volleyball teams, WIAA accommodated religiously affiliated schools that observed the Sabbath by moving the competition from Friday-Saturday to Thursday-Friday, with all Friday matches completed before sundown. The WIAA distinguished accommodation of these schools from accommodation of individual student athletes at any Washington school based on the fact that “[a]djusting the schedule for any single athlete create[s] a conflict for several others.” WIAA mentioned they attempted to accommodate three individual athletes in track and field events in 2005. However, due to the “cascade of issues for student/athletes, coaches and schools” created by the accommodations, WIAA decided in March 2006 that the interest in accommodating individual athletes in postseason competition was outweighed by the interests of students, coaches and schools affected by the scheduling consequences. In essence trying to help a few, compared with an entire team, created so many additional issues that it was impossible to accommodate an individual athlete.
These all represented potential issues that precluded summary judgement.
Having determined that a material dispute of fact existed as to whether strict scrutiny applied, the court addresses whether WIAA’s scheduling decision survived rational basis review. Under rational basis review, a rule must be upheld if it is “rationally related to a legitimate governmental purpose.
Here, the WIAA met its burden to show that its policy to schedule state championship tournaments to end on Saturday was rationally related to Washington’s interests. Scheduling tournaments to end on Saturday—rather than scheduling them to end on a weekday—was rationally related to the State’s interest in minimizing class time missed for students and coaches, many of whom were also teachers. With 384 students competing in postseason tournaments and one to two coaches from each of the 160 schools attending, a tournament on a weekday as opposed to a Saturday would result in missed class time for hundreds of students and coaches. Such an impact warranted the state trying to protect the entire educational ecosystem.
Lastly, for this analysis, the court examined the Equal Protection claim. In that argument the Plaintiffs failed to demonstrate as a matter of law that WIAA’s actions inflicted a “substantial burden” on Joelle such that its scheduling decision or application of former Rule 22.2.25 violated her state free exercise rights. While Washington courts recognize participation in sports as an activity that “supplements and enriches a student’s educational experience,” Washington courts acknowledge “there is no fundamental right to engage in interscholastic sports.” Joelle’s entitlement to compete in postseason play, in the sport of her choice, was not a protected right. Thus, the court could not conclude, as a matter of law, that competing in tennis postseason competition was a right or benefit to which she was entitled.
In conclusion, even though it pains me, the court was right. First, there are legitimate issues subject to the trier of fact determining whether the state acted appropriately. Second, there is a genuine issue of protecting the rights of some when it could adversely impact the rights and safety of others. If there had been accommodations throughout the regular tennis season, then there could be an argument that an individual match could be moved without causing undue harm to the rest of the tournament. Such a strategy could be difficult if not impossible with a draw tournament, but at least options could be explored. The best way to resolve future similar events is to have the adults in the room see if they can work out a compromise-maybe even a consolation match.
Chung v. Wash. Interscholastic Activities Ass’n; W. D. Wash.; 2021 U.S. Dist. LEXIS 89072 *; 2021 WL 1854571; 5/10/21
