COOPER, Appellant, v. OREGON SCHOOL ACTIVITIES ASSOCIATION et al, Respondents. FAHERTY, Appellant, v. OREGON SCHOOL ACTIVITIES ASSOCIATION et al, Respondents.
Nos. A7911-05444-E, CA 16349; A7911-05445
Court of Appeals of Oregon
Argued and submitted January 13, affirmed May 26, 1981
reconsideration denied July 16, 1981
425 | 629 P.2d 386
petition for review denied August 25, 1981 (291 Or 504)
John P. Conley, Portland, argued the cause for respondents. With him on the brief was Hardy, McEwen, Newman & Hanna, Portland.
Before Gillette, Presiding Judge, and Roberts and Young, Judges.
GILLETTE, P. J.
Roberts, J., dissenting.
These are consolidated suits for declaratory and injunctive relief in which plaintiffs seek declarations that they are eligible to participate in interscholastic sports competition in their respective high schools and injunctions against enforcement of an Oregon School Activities Association (OSAA) rule that bars them from participating in such competition for one year following their transfer from parochial to public high schools. Plaintiffs appeal from a trial court order dismissing their complaints and awarding judgment to defendants. We affirm.
We take the facts from plaintiffs’ complaints. Plaintiffs are high school students attending public schools in Portland. Plaintiff Theresa Cooper is a sophomore at Madison High School; plaintiff Brian Faherty is a sophomore at Grant High School. Defendant OSAA is a voluntary association of public and private schools in Oregon that was established primarily to regulate interscholastic athletic competition. Grant and Madison High Schools are members of OSAA, as are virtually all other public and private high schools in the state. Defendant Ryan is the executive director of OSAA.
Both plaintiffs spent their freshman year at parochial high schools. They would have preferred to attend public rather than parochial schools during their freshman year, but their parents chose to send them to parochial high schools in order for them to continue their religious education. Both plaintiffs participated in athletics during their freshman year at these high schools. At the end of their freshman year, however, they prevailed upon their parents to permit them to transfer to public high schools. Athletic considerations played no part in their transfer decisions, and neither student was encouraged to transfer or recruited for athletics by personnel at the public high schools to which they were transferring.
The OSAA rule in question provides, in pertinent part:
“Article 20, Eligibility Rules * * *
“20-6 TRANSFER
“*****
“20-6-2 A student who transfers from any high school to any member high school becomes ineligible until one calendar year after the student first attends the new school. For purposes of this rule, a student is deemed to have transferred from another high school if at any previous time the student registered and attended classes at, or participated in any way in athletics at, another high school.”
The rule was adopted to preserve harmony among member schools by preventing both actual recruitment of high school athletes and the appearance of recruitment. There are a number of exceptions to it,1 but none applies to plaintiffs.
Grant High School, on Brian Faherty‘s behalf, filed a “hardship” request with OSAA seeking a waiver of the OSAA transfer ineligibility rule. The parochial school from which Faherty transferred had no objection to the request and later joined with Grant High School in making it. Defendant Ryan denied the requested waiver. An appeal filed with OSAA‘s Board of Control was also denied. Theresa Cooper‘s father met with Ryan concerning a similar request to waive the transfer ineligibility rule; Ryan advised him that a waiver request would be futile. As a consequence, plaintiffs filed the present actions.
Plaintiffs challenge Rule 20-6-2 on both statutory and constitutional grounds. They contend that the school districts, acting through OSAA, did not have the authority to adopt or enforce the transfer rule, because the rule improperly penalizes plaintiffs for exercising their statutory right to attend parochial instead of public schools and because the rule violates
“* * * admit free of charge to the schools of [their] district all persons between the ages of 6 and 21 residing therein.”
In addition, plaintiffs argue that the rule violates the Privileges and Immunities Clause of the Oregon Constitution and deprives them of their rights to religious freedom, free association and equal protection guaranteed by the First and Fourteenth Amendments to the United States Constitution.
We first consider plaintiffs’ statutory arguments.2 We note at the outset that the contractual agreement between the school districts and OSAA confers authority on OSAA to operate as an agent for the member schools. Therefore, OSAA may enforce the rules which the member schools, acting through OSAA, adopt. By the same token, OSAA is subject to statutory and administrative rules which regulate school districts.
Plaintiffs’ right under
II. Right to free exercise of religion
The right to free exercise of religion is guaranteed by
From the case law, it is clear that the Free Exercise Clause of the First Amendment could work to condemn laws such as the transfer rule at issue here, at least where application of such laws clashes “with imperatives of religion and conscience when the burden on First Amendment
We first consider the burden. In this case, the transfer rule‘s impact on plaintiffs’ religious freedom is minimal. The rule does not single out parochial schools for different treatment, nor does it prevent parents from sending their children to such schools.
As to the factor of the government‘s interest, regulation of recruiting is a necessary component of interscholastic athletics. Such regulation has even been deemed a “compelling state interest.” Josephine Co. School District v. OSAA, 15 Or App 185, 201, 515 P2d 431 (1973). As defendants point out, if students could choose to go from one high school to another in order to be on a better team, particular schools might almost always have the best teams in certain sports and competition would become meaningless.
Plaintiffs argue that the burden imposed by the rule is impermissible because, they say, there are options available to OSAA which would allow the state to accomplish its goal without interfering with individual religious beliefs. However, we think that, since the encroachment of the transfer rule on the free exercise of religion is both “limited in scope and insignificant in magnitude,” the incidental burden imposed on parents and children is constitutionally permissible. See Walsh v. Louisiana High Sch. Athletic Ass‘n., 616 F2d 152, 158 (5th Cir 1980). Further, any exception promulgated to apply specifically to parochial schools would raise problems under the Establishment Clause—another equally important part of the First Amendment. While we agree that the transfer rule penalizes these plaintiffs, it does so neither because it is specifically aimed at parochial schools nor because its impact falls only or especially upon students transferring to or from such schools. We do not think that the rule‘s impact
III. Equal Protection
A more substantial question presented to us is whether the challenged rule violates the Privileges and Immunities Clause,
We begin our analysis with the plaintiffs’ claim under the Oregon Constitution. See State v. Spada, 286 Or 305, 594 P2d 815 (1979); and see generally Linde, “First Things First, Rediscovering the State‘s Bill of Rights,” 9 Balt L Rev 379 (1980).
The Oregon Supreme Court has recognized that the scope of
“[t]he provisions of the state constitution are the antithesis of the Fourteenth Amendment in that they prevent the enlargement of the rights of some in discrimination against the rights of others, while the Fourteenth Amendment prevents the curtailment of rights * * *” State ex rel Reed v. Schwab, 287 Or 411, 417, 600 P2d 387 (1979), cert den 444 US 1088, rev den 445 US 955 (1980).
Thus, in some cases, the applicability of the two clauses might not be identical. See Linde, Without Due Process, 49 Or L Rev 125, 142-143 (1970).
Notwithstanding the fact that we have concluded that the impact of the two provisions is the same in this instance, the Oregon Supreme Court, in analyzing
We now turn to the specific facts of this case. The stated purpose of the transfer rule is to:
“* * * preserve harmony among member schools and districts by preventing not only actual proselytizing, professionalism and participation by other than regular students in good standing, but conduct or circumstances which may give rise to the appearance thereof.” Article 20, Eligibility Rules, OSAA.
The rule provides for a number of exceptions which are to be “narrowly construed to preserve the purpose of the rule.”8 Plaintiffs point specifically to three exceptions which, they contend, violate their constitutional rights by allowing some students who transfer for non-athletic reasons to participate in interscholastic sports without penalty while denying that privilege to plaintiffs.
“20-6-4 A student does not lose eligibility where he transfers to or from a boarding school, if in the school year in which he transfers he did not participate on any high school team with an interscholastic competitive schedule or if the principal of the previous school signs and files with the Executive Secretary of the Association a paper releasing the student for athletic activity at the new high school.
“20-6-5 A student does not lose eligibility where he enters the beginning year of a four-year (9-12) or senior (10-12) high school for the first time.
“20-7 Despite compliance with any other rules herein, a student is thereafter ineligible and the high school to which he transfers, if involved as hereinafter, is subject to a fine and/or suspension if the student transfers from any high school to a member school because of the request or suggestion of any coach or other member of the athletic staff of the new high school, or if he so transfers for athletic purposes upon the request or suggestion of any employee of the new school or its district, or if he so transfers for athletic purposes because of a promise by any person of pecuniary benefit to the student or to any member of his family.
“20-8 HARDSHIP
“20-8-1 Except for the eligibility rule regarding age, the Board of Control (or as it may provide, the Executive Secretary) in individual cases may, at its discretion and upon such terms and conditions as it may impose, waive or modify any eligibility rule when in its opinion there are circumstances beyond the control of the student whereby enforcement of the rule would work an undue hardship upon the student.
“20-8-2 Hardship requests are to be submitted and decided in accordance with rules and guidelines established from time to time by the Board of Control.”
2. Plaintiffs also call our attention to the exception made for students who attend boarding schools. Rule 20-6-4. This exception provides that a student who transfers from a boarding school may participate in interscholastic sports after the transfer if the student did not participate in sports in the year of the transfer or if the principal of the boarding school signs a certificate releasing the student for athletic activities at the new high school. The rationale behind the exception is that a boarding school is, for many purposes, the residence of the student and OSAA generally presumes that transfers made due to changes in residence are ‘bona fide.’9
3. Finally, plaintiffs point out that, as presently interpreted, the OSAA rule allows a public school district to permit “administrative transfers” between public schools within that district to be made without penalty, provided the transfers are for other than athletic purposes. The Portland school district has such a rule. Thus, a student who lives in a large public multi-school district such as Portland may transfer from any public school to any other public school within the district without penalty as long as the transfer is for any non-athletic reason recognized by local school board officials. Plaintiffs argue that this deference to the judgment of local officials for intradistrict transfers and not for interdistrict transfers is unconstitutional.
We think, however, that similarity of geography is an illusory criterion in cases such as this, because the pertinent consideration is that of administrative control. In any multi-school public school district, student transfers may occur for a variety of reasons which the individual district finds either appropriate or permissible—e.g., transfers to equalize class size, to achieve racial balance, or even to permit students to transfer to certain schools to gain the benefit of particular programs. A student in such a district may be required by the district to transfer or may do so for his or her own reasons. Indeed, the blend of volitional and nonvolitional elements in a particular case will vary almost infinitely, a fact which directly reflects the impact of administrative considerations on each transfer. In light of the varied administrative concerns which may be involved, OSAA does not interject itself into the day-to-day operation of school districts. Rather, it leaves it to the district to identify transfers for such non-athletic purpose.
In contrast, the Portland public school district cannot either force or forbid a student to transfer to or from a private or parochial school, wherever such school may be located. There is nothing “administrative” about such transfers, and OSAA may reasonably treat them differently than it treats intradistrict administrative transfers.
We agree with plaintiffs that the transfer rule and its exceptions sweep very broadly. It is unfortunate that OSAA does not have a rule which, by more careful tailoring, might avoid the situation produced by its application here. For example, OSAA might enact an additional
However, the mere fact that we believe we can identify a more fair and equitable approach to the transfer problem does not give us the right to declare the present transfer rule unconstitutional. Applying the Oregon constitutional test first, we recognize that participation in interscholastic sports is important to all students who, like plaintiffs here, undoubtedly derive uncalculated benefits from such competition. On balance, however, we hold that the “compelling interest” of OSAA and high schools generally, see Josephine Co. School District v. OSAA, supra, 15 Or App at 201, in rules which will discourage proselytizing the appearance of proselytizing and school jumping, and which are easy to apply, outweighs the detriment caused to these plaintiffs. Although the transfer rule is broad in sweep, such lack of precision will not, under Oregon law, make it constitutionally impermissible. Olsen v. State ex rel Johnson, supra, 276 Or at 26. We conclude that the transfer rule does not violate
Turning to the federal constitution, we must first examine the nature of plaintiffs’ interest in order to determine the appropriate standard of review. Dunn v. Blumstein, 405 US 330, 335, 92 S Ct 995, 31 L Ed 2d 274 (1972). Although interscholastic sports is an important and integral part of a student‘s total educational experience, we cannot classify plaintiffs’ interest as fundamental in view of the fact that the U. S. Supreme Court has held that the right to education itself is not “fundamental.”10 See San
As already demonstrated by our discussion under the Oregon Constitution, we find that a rational relationship exists between the classifications made by the transfer rule and the legitimate purpose of the rule. Both the “returning home” and the boarding school exceptions generally emphasize proximity to the child‘s actual place of residence and are therefore not capricious or arbitrary. The administrative transfer exception applies equally to all districts and serves the rule‘s stated purpose of preserving harmony between districts by allowing each district to scrutinize the validity of transfers within its own boundaries. Although the OSAA‘s transfer rule has produced unfortunate results in this case, the use of generalized rules frequently produces difficult results in some circumstances. Under traditional equal protection scrutiny, however, a statute or rule may not be condemned simply on the ground that it is “overbroad.” See, e.g., Hughes v. Alexandria Scrap Corp., 426 US 794, 813, 96 S Ct 2488, 49 L Ed 2d 220 (1976); Williamson v. Lee Optical, 348 US 483, 489, 75 S Ct 461, 99 L Ed 563 (1955). As the Oregon Supreme Court stated in School District No. 12 v. Wasco County, 270 Or 622, 529 P2d 386 (1974):
“* * * a classification having some reasonable basis does not offend against the Federal Constitution or the Constitution of this state merely because it is not made with
appropriate here as plaintiffs have literally not traveled anywhere, but have merely transferred between schools while maintaining the same residence. We similarly find plaintiffs’ argument that the rule impinges upon their fundamental right to freedom of association inapposite since the rule does not deny the right to go to a high school of their choosing nor does it prohibit them from engaging in sports, but merely prevents them from engaging in certain forms of competition.
mathematical nicety or because in practice it results in some inequality. * * *” 270 Or at 629. (quoting Mallatt v. Luihn et al, 206 Or 678, 702, 294 P2d 871 (1956)).
We are aware that one state court has used overbreadth as a basis for declaring a similar transfer rule to be in violation of the federal Equal Protection Clause. See Sturrup v. Mahan, 290 NE2d 64 (Ind App 1972), modified 261 Ind 463, 305 NE2d 877 (1974). With respect, we do not think that the Indiana court correctly applied federal law. See Walsh v. Louisiana High Sch. Athletic Assn., supra, 616 F2d at 160 (1980).
We conclude that, inasmuch as the right to participate in interscholastic sports is not by itself a “fundamental” interest, and inasmuch as the application of OSAA‘s rules in this case has not impinged upon a recognized fundamental right or upon a suspect class and, further, because the distinctions made by OSAA‘s rules exceptions appear to be based upon considerations which bear a logical relationship to preventing athletic recruiting and the appearance thereof, the transfer rule is constitutionally valid under the federal Constitution. Under similar circumstances, the Fifth Circuit Court of Appeals reached the same conclusion in Walsh, supra:
“The rule seeks to deter or eliminate such recruitment. Accordingly, it imposes a direct cost on an identifiable overt act that must necessarily accompany that conduct. Moreover, by exacting its price in terms of a period of interscholastic athletic ineligibility, the transfer rule focuses its effect on athletic recruiting. The rule adopted by LHSAA, together with the classification that results, is rationally and logically related to the association‘s valid and legitimate interest.” 616 F2d at 160.
See also, Mitchell v. Louisiana High School Athletic Assn., supra; Gilpin v. Kansas State High School Activities Assn., supra; Chabert v. Louisiana High School Athletic Assn., 323 So 2d 774 (La 1975); cf. Louisiana High School Athletic Assn. v. St. Augustine High School, 396 F2d 224 (5th Cir 1968) (unconstitutional because classification based on race); Brenden v. Independent School District 742, 342 F Supp 1224 (D. Minn 1972) (denial of equal protection because the rule denied athletic participation on the basis of sex alone); Josephine Co. School District v. OSAA, supra
Affirmed.
ROBERTS, J., dissenting.
I dissent from the majority opinion, because in my view the OSAA rule which penalizes a student‘s intradistrict transfer from a private school to a public school by barring the student from competitive athletics for a year produces considerably more than what the majority terms “unfortunate results.” I believe it violates
The majority opinion fails to deal adequately with the fact that within the rule‘s “administrative transfer” exception, which mandates OSAA deferral to the transfer of students within a multi-school district by the school administration without loss of athletic eligibility, there are two significantly different types of transfers. The first is the kind of nonvoluntary transfer of numbers of students to achieve racial balance or other district-wide goals. The record indicates, however, that there is a second type of administrative transfer, which is student-initiated, and in which the district, not OSAA, has the authority to decide whether the move is for “athletic purposes” and whether the student transferring should forfeit athletic eligibility. Thus, students moving for non-athletic purposes from one public school to another within the same geographic district have an administrative level at the school itself in which to plead their case regarding an intradistrict transfer, but this opportunity is not available to students transferring to or from a private school within that district. Thus the rule, it seems to me, grants to public school students within larger districts a privilege which is denied students at private schools. The “boarding school exception,” which allows a similar administrative waiver for students transferring to or from boarding schools, applies to only a limited number of private schools. OSAA rules do provide for a “hardship exception;” however, that rule was of no help to these students.
Because I do not find the intrusion to be minimal, I would demand something more than a “logical relationship” between the OSAA rule challenged and the goal it purports to achieve (preventing proselytizing and professionalism in high school athletics). I would require any such rule to be drafted more narrowly to protect, without penalty, Oregon students’ statutory and constitutional rights to attend a private school.1
Notes
“Exceptions from compulsory school attendance. In the following cases, children shall not be required to attend public full-time schools:
“*****
“(2) Children being taught in a private or parochial school. * * *”
“(1) Except as provided in
“*****”
“Athletics. A district which operates or sponsors interscholastic club or intramural athletics shall provide equal athletic opportunity of members of both sexes, of all ages and ethnic groups, and persons with handicaps. In determining whether equal opportunities are available, the Superintendent of Public Instruction shall consider, among other factors, whether the selection of sports and levels of competition effectively accommodate the interests and abilities of all students.”
It is clear that no violation of this rule existed here.
“No laws shall be passed granting to any citizen or class of citizens privileges, or immunities, which upon the same terms, shall not equally belong to all citizens.”
The
“* * * no state shall * * * deny to any person within its jurisdiction equal protection of the laws.”
“20-6-1 TRANSFER
“Before a student can participate in athletics after having transferred from one high school to another high school, a transfer certificate in form prescribed by the Association, properly signed by the superintendent or principal of the high school he enters, must be filed with the Association office. (Transfer Certificate)
“20-6-2 A student who transfers from any high school to any member high school becomes ineligible until one calendar year after he first attends the new school. For purposes of this rule, a student is deemed to have transferred from another high school if at any previous time he registered and attended classes at, or participated in any way in athletics at, another high school.
“(a) A student does not lose eligibility where he registered or attended the previous high school under a bona fide error as to the boundary of its district, provided that he has not participated in any way in athletics at the previous high school.
“(b) A student does not lose eligibility where he moves with his parents, or with a person who prior to their move was his legal guardian and lived with him, either from outside or within this state, or from within to outside the district (as established by the district school board) of his previous school, or from outside or within the district of his new school. For purposes of this Article, a ‘district’ is any public high school district (including unified or similar districts) established under Oregon law, and the ‘district’ of a private school is the district in which it is located, or if it is not located in a district as defined herein, any Oregon public school district (including non-high school districts) in which it is located. For purposes of this Section, the student and his parents or guardian ‘move’ when they establish a joint residence for all purposes, with the intent to reside there indefinitely and terminate all occupancy of their previous residence.
“20-6-3 A student does not lose eligibility where he transfers between school years from a school outside his home district to a school within his home district. His home district is the district in which he and a parent or guardian resided both at the time of the transfer and at the time of first enrollment in the previous school.”