483 F.3d 1025 (10th Cir. 2007), 04-6342, Christian Heritage Academy v. Oklahoma Secondary School Activities Ass'n

Docket Nº:04-6342.
Citation:483 F.3d 1025
Party Name:CHRISTIAN HERITAGE ACADEMY, a private corporation, Plaintiff-Appellant, v. OKLAHOMA SECONDARY SCHOOL ACTIVITIES ASSOCIATION, a not-for-profit association, Defendant-Appellee.
Case Date:April 09, 2007
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1025

483 F.3d 1025 (10th Cir. 2007)

CHRISTIAN HERITAGE ACADEMY, a private corporation, Plaintiff-Appellant,


OKLAHOMA SECONDARY SCHOOL ACTIVITIES ASSOCIATION, a not-for-profit association, Defendant-Appellee.

No. 04-6342.

United States Court of Appeals, Tenth Circuit.

April 9, 2007

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Micheal Salem of Salem Law Offices, Norman, Oklahoma (William D. (Bill) Graves, Oklahoma City, OK, and Chris Box, Oklahoma City, OK, with him on the briefs), for Plaintiff-Appellant.

Mark S. Grossman (Clyde A. Muchmore, and Mary H. Tolbert with him on the brief) of Crowe & Dunlevy, a Professional Corporation, Oklahoma City, OK, for Defendant-Appellee.

Before BRISCOE, McWILLIAMS, and McCONNELL, Circuit Judges.

BRISCOE, Circuit Judge.

Plaintiff Christian Heritage Academy ("Christian Heritage") filed this action pursuant to 42 U.S.C. § 1983 claiming, in pertinent part, that defendant Oklahoma Secondary School Activity Association's ("OSSAA's") membership requirements for nonpublic schools violated the Equal Protection Clause. The district court granted summary judgment in favor of OSSAA. Christian Heritage now appeals from that ruling. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand.


OSSAA is Oklahoma's state-organized school activities association, which regulates interscholastic activities. For athletics, OSSAA determines athletic divisions, sets eligibility rules, and holds state play-offs and championships.

Christian Heritage is a private religious school in Del City, Oklahoma, and well-known for its eight-man football team. Since it is not an OSSAA member, Christian Heritage cannot participate in the state-organized activities association or compete in the state-organized play-offs or championships. Christian Heritage has applied for OSSAA membership on two occasions, but OSSAA denied its applications, both of which failed to garner majority approval from OSSAA member schools. Christian Heritage has satisfied all other membership requirements, except obtaining majority approval.

OSSAA's admission requirements for nonpublic schools

OSSAA has 471 member schools, and twelve of its members are nonpublic schools (ten of which are private schools and two are Indian schools). Of the private schools, eight are located in suburban areas, while two are in rural areas.

The OSSAA Constitution, which governs membership in the association, applies different application procedures for public and nonpublic schools:

a. Membership in the Association shall be open to public schools ... and other schools as approved by the members of the Association.

b. Any secondary school desiring to become a member of the Association is to file with the Executive Secretary a resolution, ... authorizing such membership.... Upon submitting the resolution, and all entry fees or other reports required by the Association, a public school ... shall be admitted to membership. All other schools must be approved by a majority vote of the existing membership and, if approved, must submit all entry fees and reports required to establish membership.

OSSAA Const. art. III, § 1 (emphases added), App. Vol. 1, at 57. To be admitted into OSSAA, public schools merely apply, but nonpublic schools must garner approval by majority vote from OSSAA members.

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When a nonpublic school applies for membership, OSSAA members vote for or against the application. Importantly, however, OSSAA members are provided with, and are subject to, no standards or guidelines in voting. Instead, the ballot simply describes the geographic area where students are immediately eligible for athletics in the nonpublic applicant school by reason of residence. 1 OSSAA's Rule 8 lists the geographic areas for nonpublic schools that are admitted. See OSSAA Rule 8, § 1(b), App. Vol. 1, at 72. Thus, when a nonpublic school is admitted into OSSAA, Rule 8 is amended to include its geographic area for eligibility. Pursuant to OSSAA's Constitution, any amendment to the rules of the association, including Rule 8, must be approved by a majority vote of the member schools. OSSAA Const. art. VII, § 2, App. Vol. 1, at 63. Thus, on the same ballot and in one vote, member schools vote simultaneously whether to admit a nonpublic school, and whether to amend Rule 8 to establish its geographic area.

Christian Heritage's first application

On March 4, 1998, Christian Heritage applied to join OSSAA. Simultaneous with Christian Heritage's first application to OSSAA, there was controversy surrounding admission of nonpublic schools to OSSAA membership.

On March 16, 1998, Perry Adams, the Superintendent of Inola Public Schools, sent a letter and petition to all member schools. Adams' letter stated that it "has become necessary for us to examine some problems, perceived or real, that have arisen" given the "growing number of non-public schools asking and receiving acceptance" to OSSAA. App. Vol. 3, at 506. Adams' petition listed five items concerning "participation and classification of non-public schools in OSSAA sanctioned activities," and it mentioned Christian Heritage by name:

(1) Non-public schools['] ability to offer financial aid (scholarships) or work student and work assistance programs.

(2) Non-public schools['] district size. (i.e. On March 26, 1998 the OSSAA will be mailing ballots to membership schools allowing them the opportunity to vote to accept or not to accept Christian Heritage Academy into the OSSAA. Christian Heritage Academy has designated their district boundary lines to include all of Moore Public Schools district and all of Midwest City/Del City Public Schools district, which have a combined total 9-12 membership of 9,670 students which are divided into four 6A schools and one 5A school. If voted in, Christian Heritage Academy would be a 2A school with a 9-12 membership of 218 students).

(3) Non-public student transfer restrictions as related to public schools student transfer restrictions (i.e. under current public school law a transfer student must be accepted by both receiving and sending district. Non-public schools have no such restrictions).

(4) Non-public school membership audits for verification of OSSAA classification.

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(5) Percentage of students who participate in OSSAA activities in public schools as related to percentage of students participating in non-public schools.

Adams' Petition, App. Vol. 3, at 507. Adams asked member schools to return the petition to him "[i]f you agree that some of these items need to be addressed." Id. at 506. Seventy-two member schools returned petitions to Adams.

Given the increased controversy concerning the admission of nonpublic schools into OSSAA, on March 25, 1998, the OSSAA Board of Directors discussed "concerns that recently surfaced with public schools regarding OSSAA non-public schools." App. Vol. 3, at 503.

On March 26, 1998, OSSAA mailed ballots to all member schools to vote on Christian Heritage's application. The ballot defined Christian Heritage's school boundaries as the Mid-Del and Moore School Districts, which are two suburban school districts near Oklahoma City. The ballot stated that Christian Heritage had 218 students in grades 9-12, which would classify it as a 2A school in athletics. The ballot had no space to allow a member school to explain its vote for or against Christian Heritage's application, and the ballot instructed " PLEASE DO NOT ENCLOSE OTHER CORRESPONDENCE WITH BALLOT." App. Vol. 3, at 505. Christian Heritage prepared a letter advocating its membership, which was attached to each ballot. The postmark deadline for the ballots was April 13, 1998.

With 184 schools voting against the application, and 153 schools voting for it, OSSAA denied Christian Heritage's application in April 1998 because it failed to garner majority approval. Danny Rennels, OSSAA's Executive Secretary, acknowledged that before the "first vote on Christian Heritage, it had become evident that admission of non-public schools to membership had become more controversial than in the recent past." Rennels Aff. ¶ 12, App. Vol. 6, at 1094. On April 20, 1998, Superintendent Adams forwarded Executive Secretary Rennels the seventy-two petitions from member schools who had indicated that the participation and classification of non-public schools in OSSAA sanctioned activities needed to be addressed.

In November 1998, the OSSAA's Board of Directors created the Nonpublic and Public School Relations Committee ("Committee"). The Committee would investigate member schools' concerns about nonpublic schools, and it included public and nonpublic school representatives, including Adams. Some public schools voiced concerns at area meetings regarding criteria for enrollment, admission standards, scholarships and recruiting, size of districts for nonpublic schools, and even distorted enrollment numbers because nonpublic schools "do not have special education students" included in their average daily membership. App. Vol. 3, at 532.

The Committee rejected each of the proffered reasons for denying membership to nonpublic schools in a Special Report, which was mailed to all OSSAA members in January 1999. The Committee emphasized that OSSAA rules prohibit recruiting or providing scholarships for athletics, and that the transfer rule effectively resolves concerns about a nonpublic school designating its geographic boundary. The Committee concluded that "communication seems to be the real problem" because the "fact that the OSSAA Handbook of Rules and Regulations applies to all schools, public and non-public, doesn't seem to be fully grasped." App. Vol. 3, at 522. Doyle Greteman, Superintendent of Lindsey Schools, expressed that "many of those concerns [about nonpublic schools]...

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