Property Right? Or Just A Nice Little Student Perk?

**This is probably a little thick for a Monday morning, but I combined a blog post with an assignment for class.  In the coaching biz, we call this a dual purpose drill!  Please remember, I’m not a legal expert, nor do I play one on TV.

Participation in high school athletics – is it a constitutionally protected right?  Or is it a privilege afforded to high school students who meet a certain set of criteria?  I’ve posted about this topic before, but that post was more about the “should have dones” than the legally established precedents in high school athletics.  With the explosion of social media alongside the (unfortunate) high stakes nature of youth sports today, it has become even more important to remind families that participation in athletics is a privilege not a protected property right.  Unlike students in the classroom who are constitutionally protected (unless there is a substantial disruption to the educational process), athletes can be held to a higher standard.

As a reminder, you will find no mention of education in the US Constitution; however, the 10th and 14th Amendments combine to determine, in part, that a person’s right to life, liberty, and the pursuit of happiness (which includes the right to be educated) are based in state law.  North Dakota establishes the right to a free, public education in Article VIII of its constitution.  Nowhere in either of those constitutions will you find reference to any athletics programming, meaning an individual is not guaranteed the right to participate in extra-curricular activities beyond the equal protection parameters set by the 14th Amendment and several federal laws such as Title VI and Title IX.

Generally, there are four constitutional amendments (1st, 4th, 5th, and 14th) that are challenged in relation to extra-curricular activities, and case law for all of them has reinforced athletics as a privilege.  As will be noted below, school districts do still have a standard of care to allow for those aspects of due process and equal protection that are guaranteed to students.

Combining the 1st and 5th amendments, several cases have challenged courts attempting to show that athletic program regulations violate an individual’s property rights and/or have not allowed sufficient due process to the athlete.
– The 1987 case Brands v. Sheldon Community School established that when a school district applies consistent consequences that are neither arbitrary nor capricious, those consequences do not deprive a student of property rights regardless of his or her athletic ability.
– Using the Brands case as a guideline, Thompson v. Fayette County Public Schools denied a student’s appeal to reverse a suspension for academic ineligibility.
Letendre v. Missouri HSAA ruled against a student attempting to swim for a club team during the high school season by nothing that due process in executing the suspension and equal protection for students on athletic teams do not apply because the student was not deprived of life, liberty, or property.
James v. Tallassee High School, found that schools and coaches can publish their own set of standards and guidelines without violating constitutional rights because participation on teams is a voluntary activity.  Similarly to the Brands case, this case also found that a student’s ability to earn a college scholarship (in this case for cheer leading) has no bearing on the court’s decision.
Mancuso v. Massachusetts IAA established that athletics teams are separate from a school’s required physical education curriculum and are therefore allowed to set additional rules and regulations.

The 4th Amendment regarding search and seizure is most often challenged for athletic departments conducting drug testing and/or locker searches.  The often cited Board of Education of Pottawatomie County ISD v. Earls granted schools the ability to conduct mandatory drug testing for participants in voluntary activities.  Because this case rose to the Supreme Court level,  it is binding for all public school districts in the US although schools need to limit mandatory (without cause) testing to extracurricular participants, not the entire student body as was found in this District Court case in Texas.

Tenets of the 14th Amendment requiring due process and equal protection for citizens’ life, liberty, and the pursuit of happiness run through many of the above cases.  School districts and participants need to remember that (1) the loss of voluntary participation does not constitute a loss of 14th Amendment rights, but (2) schools need to treat all participants equally within their extra-curricular rules.  Further, as is good practice for all school regulations, schools are best served by publishing a handbook and requiring written verification from athletes and parents that it has been received.

Although many of these cases are more recent, courts have been attempting to make sense of schools’ role in student liberties for a long time.  The decision summary in the 1975 Goss v. Lopez case foreshadowed the necessity of courts limiting their decision making powers for every small infraction in schools.  As we see more and more cases related to high school athletics being brought to court, we are realizing how visionary that summary was.  Establishing high school athletics as a privilege, not a right, has allowed multiple courts to dismiss cases quickly rather than miring themselves in the inner workings of high school administration.

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