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Archbishop Walsh High Sch. v. Section VI of the N.Y. State Pub. High Sch. Athletic Ass'n, Inc., 88 N.Y.2d 131 (Apr. 2, 1996).

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]

SUMMARY

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.

[ANALYSIS]

1.) Issues

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.

2.) Disposition

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 schools.

3.) Cases Cited:

Cited:

  • Federal Communications 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. 1980).
  • 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. 1980).

Related Sources:

  • 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. Div. 1987).
  • 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).

4.) Commentary

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 is unclear.

D.) Dissent

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 observable criteria.

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 para. 24.

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).

Delaware

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.

Louisiana

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.

Virginia

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.

Prepared By:

  • 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