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EQUAL PROTECTION - RATIONAL BASIS - DISCRIMINATION - ATHLETICS - SCHOOLS
- REFERENDUM VOTE
REFERENDUM VOTE REQUIREMENT FOR MEMBERSHIP OF NON-PUBLIC SCHOOLS INTO SECTION
VI ATHLETIC ASSOCIATION DOES NOT VIOLATE EQUAL PROTECTION CLAUSE
[SUMMARY] | [ISSUE & DISPOSITION]
| [AUTHORITIES CITED] | [COMMENTARY]
In August 1993, Archbishop Walsh High School followed New York Public High
School Athletic Association Section VI (Section VI) guidelines to
apply for membership into the Athletic Association. Non-public high schools
have never been granted membership into Section VI. Unlike public schools,
non-public institutions must apply for admission under the special category
of "friends and neighbors" schools. This special application process includes
a referendum vote by Section VI members whereby admission is granted to
a non-public institution upon majority approval. Based upon the disparate
treatment of public and non-public high schools by Section VI, Archbishop
Walsh brought an Equal Protection claim after it was denied membership
due to an insufficient number of favorable votes.
A.) Whether Section VI denied Archbishop Walsh equal protection of the
laws by conditioning membership in the Athletic Association upon a majority
of votes from member schools.
No, Archbishop Walsh High School was not denied equal protection of the
laws because Section VI had a rational basis for instituting the special
requirements for the membership of non-public schools into the Athletic
Association. The Court of Appeals found the requirement rational because
1) the central purpose of the athletic organization was to provide a central
association through which public secondary schools may cooperate in organizing
interscholastic athletic activities and 2) the requirement was designed
to lessen incomparable or undesirable competition between public and non-public
3.) Cases Cited:
Comm'n v. Beach Communications, Inc., 508 U.S. 307 (1993).
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, reh'g
denied, 411 U.S. 959 (1973).
Oyler v. Boles, 368 U.S. 448 (1962).
Eastern N.Y. Youth Soccer Ass'n v. New York State Pub. High Sch. Athletic
Ass'n, 67 N.Y.2d 665 (N.Y. 1986).
DiMaggio v. Brown, 19 N.Y.2d 283 (N.Y. 1967).
Friends Academy v. Section VIII of the New York State Pub. High Sch.
Athletic Ass'n, 588 N.Y.S.2d 525 (N.Y. Sup. Ct. 1992).
Walsh v. Louisiana High Sch. Athletic Ass'n, 616 F.2d 152 (5th Cir.
Denis J. O'Connell High Sch. v. Virginia High Sch. League, 581 F.2d
81 (4th Cir. 1978).
Albach v. Odle, 531 F.2d 983 (10th Cir. 1976).
St. Augustine High Sch. v. Louisiana High Sch. Athletic Ass'n, 270
F. Supp. 767 (E.D. La. 1967), aff'd, 396 F.2d 224 (5th Cir. 1968).
Relied on by Dissent:
Walsh v. Louisiana High Sch. Athletic Ass'n, 616 F.2d 152 (5th Cir.
Clark v.Arizona Interscholastic Ass'n, 695 F.2d 1126 (9th Cir. 1982),
cert. denied, 464 U.S. 818 (1983).
City of Eastlake v. Forest City Enters., 426 U.S. 668 (1976).
McGowan v. Maryland, 366 U.S. 420 (1961).
Section VI of the New York State Pub. High Sch. Athletic Ass'n v. New
York State Pub. High Sch. Athletic Ass'n, 521 N.Y.S.2d 901 (N.Y. App.
Caso v. New York State Pub. High Sch. Athletic Ass'n, 434 N.Y.S.2d
60 (N.Y. Sup. Ct. 1980).
Valencia v. Blue Hen Conference, 476 F. Supp. 815 (D. Del. 1979).
Chabert v. Louisiana High Sch. Athletic Ass'n, 232 So. 2d 343 (La.
Ct. App. 1975).
A.) State of the Law Before Archbishop Walsh
Acts of the state high school athletic association constitute state action.
See Clark v. Arizona Interscholastic Ass'n, 695 F.2d 1126, 1128
(9th Cir. 1982), cert. denied, 464 U.S. 818 (1983). Unless the athletic
association allocates membership based upon a suspect classification, the
applicable standard is rational basis review. San Antonio Indep. Sch.
Dist. v. Rodriguez, 411 U.S. 1, 17 (1973). Therefore, absent evidence
of arbitrary or capricious acts or an abuse of discretion, courts refrain
from interfering with the internal affairs of a high school athletic association.
Caso v. New York State Pub. High Sch. Athletic Ass'n, 434 N.Y.S.2d
60 (N.Y. Sup. Ct. 1980).
New York courts had interfered with Section VI's vote to exclude non-public
schools only on two occasions. In Section VI of the New York State Pub.
High Sch. Athletic Ass'n v. New York State Pub. High Sch. Athletic Ass'n,
the Appellate Division found Section VI's appellate review and reversal
of the referendum vote to be "in excess of its authority." 521 N.Y.S.2d
901, 903 (N.Y. App. Div. 1987). The Appellate Division reinstated the referendum
vote that denied membership to the non-public school. Id. However,
in Friends Academy v. Section VIII of the New York State Pub. High Sch.
Athletic Ass'n, the court declared the referendum vote to be arbitrary
and capricious and "a constitutionally impermissible denial of petitioner's
right to equal protection under law." 588 N.Y.S.2d 525, 533 (N.Y. Sup.
Ct. 1992). In doing so, the court relied heavily upon a Fifth Circuit decision,
St. Augustine High Sch. v. Louisiana High Sch. Athletic Ass'n, 396
F.2d 224 (5th Cir. 1968).
In St. Augustine, a private high school with a predominantly
black student body applied for membership. The Louisiana athletic association
voted to deny membership under the newly amended requirement that every
applicant school secure two-thirds approval from member schools. The Fifth
Circuit articulated a rational basis test and found it arbitrary that an
otherwise qualified applicant could be excluded by a "showing of hands."
Id. at 228. However, the court also found ample evidence that St.
Augustine's denial was based on racial grounds. Id.
B.) Effect of Archbishop Walsh on Current Law
Archbishop Walsh establishes that the referendum vote required for
admission of a non-public school to Section VI bears a rational relation
to the stated government interest of assuring a "relatively level playing
field." Archbishop Walsh at para. 12. The court thereby reaffirms
that Section VI's referendum vote is not only constitutional but "a basic
instrument of democratic government." City of Eastlake v. Forest City
Enters., 426 U.S. 668, 678 (1976).
Archbishop Walsh therefore enables Section VI to deny membership
to private schools, whose resources allow them to offer financial incentives
for the enrollment of talented athletes from a wide geographical area.
This preserves a standard quality of athletic competition as well as the
community rivalry common to high school athletics.
Although the court did not explicitly overturn Friends Academy,
Archbishop Walsh effectively undermines the precedential value of
the decision. The only distinguishing factor of Friends Academy
is the absence of any stated government interest. 588 N.Y.S.2d at 531 (recognizing
that the Association had "not advanced any rational or legitimate state
interest."). In Archbishop Walsh, Section VI clearly stressed the
importance of maintaining the character of athletic competition among relatively
equally funded schools with student bodies drawn from the local community.
C.) Questions Unanswered
In Archbishop Walsh, the school's due process claim was unpreserved
and therefore not considered by the court. The referendum vote is the final
stage in the application process and may allow the denial of an otherwise
qualified applicant. Membership in an athletic association is a privilege
and not a constitutionally protected right. Denis J. O'Connell High
Sch. v. Virginia High Sch. League, 581 F.2d 81, 83 (4th Cir. 1978).
Whether the court would have found that Section VI's procedures violated
either the procedural or substantive due process rights of Walsh is unclear.
The court noted its inability to address not only the legal theory but
also "the accuracy of the asserted factual underpinnings of the theory."
Archbishop Walsh at para. 8.
The obvious danger of the referendum vote is that it provides no basis
for rational review. Friends Academy, 588 N.Y.S.2d at 532 (stating
that a referendum vote allows denial of membership "for 'any reason, or
for no reason,' upon grounds which are not set forth and are therefore
not subject to review."). Under Archbishop Walsh, such a referendum
vote will always pass the rational basis test absent evidence of discrimination
based on a suspect classification since Section VI has a legitimate interest
in preserving the quality of competition. See McGowan v. Maryland,
366 U.S. 420, 425-426 (1961) ("A statutory discrimination will not be set
aside if any state of facts reasonably may be conceived to justify it.").
Since the referendum vote theoretically allows exclusion of religious or
racially imbalanced schools without reliance upon such suspect classifications,
Archbishop Walsh immunizes from closer analysis a religiously or
racially motivated vote to deny membership absent clear evidence of such
bias. Whether an applicant could demonstrate evidence of bias sufficient
to reveal the referendum vote as a subterfuge for invidious discrimination
Judge Titone dissented based on his conclusion that Section VI's referendum
vote is not rationally related to its legitimate state purpose of maintaining
balanced competition throughout the league. Judge Titone criticized the
voting process as enabling Section VI to exclude non-public schools in
a patently arbitrary manner, without reliance on either any objective or
Although he shared the majority's concern for the maintenance of both
competitive balance and community spirit, he rejected the referendum vote
as a reasonable means of achieving these goals. Judge Titone was critical
of the current voting system, which precludes the opportunity to discover
whether the denial of the applicant advances the stated goals or forwards
some other discriminatory agenda.
Judge Titone compared the case at bar with St. Augustine High Sch.
v. Louisiana High Sch. League, where the Fifth Circuit affirmed the
Eastern District of Louisiana's conclusion that a voting mechanism similar
to Section VI's was an "arbitrary and unreasonable method of making distinctions
between applicants for membership, conducive to wholesale discrimination
and arbitrary and capricious treatment of any and all candidates for membership
in the [league], and therefore is violative of the Fourteenth Amendment."
270 F. Supp. 767, 777 (E.D. La. 1967). Judge Titone distinguished the case
at bar from Walsh v. Louisiana High Sch. Athletic Ass'n, 616 F.2d
152 (5th Cir. 1980)(Walsh v. LHSAA), which the majority cited as
persuasive. The Judge agreed with the Fifth Circuit's decision to uphold
the one-year ban on interscholastic sports for all transfer students. Judge
Titone praised the Fifth Circuit for sending a clear message to the applicants
in Walsh v. LHSAA that certain conduct will lead to denial of membership
The Judge then contrasted the Walsh v. LHSAA court's reasoning with
the majority's, criticizing that the Section VI referendum vote "can leave
denied applicants with nothing more than bewilderment over the reasons
for their rejection [and thus they] can not refashion their conduct in
a manner that will avoid future rejection." Archbishop Walsh, at
Judge Titone concluded by stating that, to his knowledge, "... no such
arbitrary voting mechanism used to distinguish among participants in a
state-promoted activity has ever survived an equal protection challenge"
and urging the majority to grant summary judgment for Archbishop Walsh
High School. Archbishop Walsh, at para. 26.
E.) Other Jurisdictions
There appears to be a broad consensus that state athletic conferences may
have a rational basis for excluding non-public high schools. Jurisdictions
that have addressed the issue have cited a number of factors as "rational"
including the need for a competitive balance and the ability of private
schools to draw from a large body of potential athletes. See, e.g.,
O'Connell, 581 F.2d at 81; Valencia v. Blue Hen Conference,
476 F. Supp. 815 (D. Del. 1979); Chabert v. Louisiana High Sch. Athletic
Ass'n, 232 So. 2d 343 (La. Ct. App. 1975).
In Delaware, religious schools may be excluded from public school athletic
conferences when the conference displays a rational basis for the exclusion.
In Valencia, the Blue Hen Conference, an athletic conference whose
constitution allowed only public schools, rejected a Catholic high school's
application. 476 F. Supp. at 815. The Blue Hen Conference's constitution
did not allow private schools because (1) the larger body of prospective
eligible students for private schools made enforcement of recruiting rules
almost impossible; (2) differences in tuition and admission standards gave
private schools a competitive advantage; and (3) private schools without
state-defined boundaries from which to draw eligible students recruited
from a larger base of prospective athletes. Id. at 825-26. The court
held that "the classification drawn between public and private schools
is rationally related to [legitimate state] interests." Id. at 826.
The court also explicitly noted that two public vocational schools accepted
in the Blue Hen Conference that did draw students from throughout
an entire county only "provide[d] limited and specialized educational programs,"
thereby restricting their pool of prospective athletes to those students
with certain vocational interests. Id. at 826 n.52. The court also
considered the fact that the Catholic school had enjoyed great success
against its public opponents so that the Blue Hen Conference was justified
in limiting membership to those schools who would fit into the conference's
pre-existing competitive balance. Id. at 827.
Courts in Louisiana have upheld the exclusion of private schools from an
athletic conferences for reasons similar to those cited in Delaware. They
have also held that race is not a rational basis to deny admission to an
athletic conference. For example, the Court of Appeals has upheld a conference
by-law provision barring eligibility of intra-district transfer students.
Chabert, 232 So. 2d at 346. In Chabert, a student lived in
the South Terrebonne High School District in Terrebonne Parish and attended
La Cache Public Elementary School. Id. at 344. After eighth grade,
the student transferred to a non-public school in a different district.
Id. The by-laws of the athletic association ("LHSAA") prevented
transfer students from participating in intermural sports. Id. The
Louisiana court upheld the by-law provision on the ground that it did have
a rational basis. Id. at 346 (citing the possibility of illegal
recruiting among high schools as a rational basis for the rule).
In contrast, the Fifth Circuit barred the LHSAA from rejecting the application
of St. Augustine High School, citing evidence that the denial of membership
was based solely on racial grounds. St. Augustine, 396 F.2d at 228
("no other reasonable inference is supported by the record and no other
explanations offered to us"). In dicta, the court said that standards for
membership may not be arbitrary and that the conference's vote denying
St. Augustine's application was arbitrary. Id. They defined an "arbitrary"
vote "to mean a vote to deny membership to an applicant which has met proper
and reasonable membership requirements and standards. Id.
In Virginia, the Fourth Circuit has upheld the Virginia High School League's
exclusion of private schools, including parochial schools, as "rationally
related to a legitimate state objective." Denis J. O'Connell High Sch.,
581 F.2d at 88. The league, which included public high schools in Virginia,
argued that transfer rules would be difficult to enforce with respect to
private schools and that public schools would be hurt by their inability
to draw students from other districts. Id. at 83. The Fourth Circuit
accepted the league's argument and rejected an argument that there was
no evidence in the record that private schools could draw students from
a larger geographical area than public schools. Id. at 85 ("it is
well-known that many private schools in Virginia suffer no geographical
limitation with respect to the areas from which they may draw students").
The court said "[t]he task of courts in passing on the validity of classification
under the standard Equal Protection test is . . . only to determine whether
the classification makes sense in light of the purpose to be achieved[,]
beyond that point the wisdom of the State must be allowed to prevail."
Id. at 87-88.
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Kathryn W. Becker, '97
Rene M. Devlin, '97
Quentin C. Faust, '97
Melissa E. Hart, '97
James D. McCann, '97
Farah Mollo, '97
Charles A. Samuelson, '96