Griffin High School v. Illinois High School Ass'n

Decision Date10 July 1987
Docket NumberNo. 86-2948,86-2948
Citation822 F.2d 671
Parties, 40 Ed. Law Rep. 635 GRIFFIN HIGH SCHOOL, Plaintiff-Appellant, v. ILLINOIS HIGH SCHOOL ASSOCIATION, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Thomas F. Londrigan, Londrigan, Potter & Randle, P.C., Springfield, Ill., for plaintiff-appellant.

Wayne F. Plaza, Rooks, Pitts, & Poust, Chicago, Ill., for defendant-appellee.

Before POSNER and FLAUM, Circuit Judges, and WILL, Senior District Judge. *

FLAUM, Circuit Judge.

Griffin High School, a private religious school, sued the Illinois High School Association ("IHSA") under 42 U.S.C. Sec. 1983, alleging that certain IHSA by-laws discriminated against private schools in violation of the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. The district court granted summary judgment to the IHSA, and we affirm.

I.

The IHSA is a voluntary, not-for-profit association of public and private secondary schools in Illinois. Public schools comprise approximately 85% of the membership of the IHSA, and private schools make up the remaining 15%. Griffin High School, a private school established by the Catholic Diocese of Springfield, is a member of the IHSA.

The purpose of the IHSA is to supervise and regulate the interscholastic activities of its member schools. In furtherance of this end, the IHSA promulgates by-laws and regulations governing the conduct of member schools. At issue in this appeal is IHSA by-law 3.043, which is one of the "transfer rules" that govern the eligibility to participate in intermural sports of students who change schools.

Under the transfer policy in place before this dispute arose, students who transferred to or from IHSA schools were subsequently ineligible for participation in IHSA interscholastic athletic competition for one year, unless their parents had actually changed residence from one school district to another. The purpose of this policy was to prevent recruitment of student athletes. However, in the late 1970s and early 1980s, considerable discontent arose within the IHSA membership concerning the impact of private schools' enrollment policies on intermural sports. This discontent led to the 1981 appointment of an ad hoc committee to study the issue.

The ad hoc committee identified several differences between public and private schools which, in its view, rendered competition between the two groups of schools inequitable despite the facial neutrality of the IHSA transfer policy. For example, a private school may select students from an unlimited geographical area, whereas a public school may only enroll students from the school district in which the students' parents reside. In addition, private schools have available a wide range of financial incentives, such as scholarships and tuition waivers, that public schools do not. Finally, private schools, unlike public schools, are able to select and control their enrollments. In the ad hoc committee's opinion, these differences had caused private schools to enjoy an unfair advantage in IHSA-sponsored tournaments and playoffs under the transfer policy then in effect.

In 1982, pursuant to the recommendations of the ad hoc committee, the IHSA legislative committee submitted a change in the transfer rules to the IHSA membership. This change was subsequently adopted by a majority vote. Under the new transfer rules (specifically, under by-law 3.043), a student who transfers from a private to a public school does not face the one-year bar on interscholastic athletic participation, if the student is enrolling at the public school for the first time and if the principals of both schools agree that no undue influence is involved in the transfer. 1 All other transfer students continue to face the one-year bar.

Distressed at this new policy, on September 27, 1983 Griffin High School filed a complaint against the IHSA under 42 U.S.C. Sec. 1983, requesting a declaratory judgment that, inter alia, by-law 3.043 was unconstitutional. After discovery and cross-motions for summary judgment, the district court entered summary judgment for IHSA.

II.

Griffin argues that the new transfer rules violate both the Equal Protection and the Due Process Clauses of the Fourteenth Amendment. We reject these contentions.

As a preliminary matter, we note that the presence of state action is not in dispute in this case. Public schools make up 85% of the IHSA's membership, and although the IHSA is a purely voluntary association, the overwhelmingly public character of the IHSA membership is sufficient to confer state action for the purposes of Sec. 1983. See In re United States ex rel. Missouri State High School Activities Ass'n, 682 F.2d 147, 151 (8th Cir.1982); Walsh v. Louisiana High School Athletic Ass'n, 616 F.2d 152, 156 (5th Cir.1980), cert. denied, 449 U.S. 1124, 101 S.Ct. 939, 67 L.Ed.2d 109 (1981); see also Menora v. Illinois High School Ass'n, 683 F.2d 1030, 1032 (7th Cir.1982), cert. denied, 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1003 (1983) (assuming, without deciding the question, that the IHSA is an arm of the state for Fourteenth Amendment purposes).

The first question presented by Griffin's equal protection claim is the applicable standard of review. The usual standard of review for a statute or regulation challenged on equal protection grounds is the rational basis test. Under this test, legislation is presumed to be valid, and will be sustained as long as the classification drawn by the statute is rationally related to a legitimate state interest. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985); see Schweiker v. Wilson, 450 U.S. 221, 230, 101 S.Ct. 1074, 1080, 67 L.Ed.2d 186 (1981); Vaden v. Village of Maywood, 809 F.2d 361, 365 (7th Cir.1987).

However, the Constitution requires heightened judicial scrutiny in two situations: when a law classifies so as to burden a "suspect class," and when it classifies in such a way as to infringe upon a constitutionally protected fundamental right. Attorney General v. Soto-Lopez, 476 U.S. 898 n. 6, 106 S.Ct. 2317, 2323 n. 6, 90 L.Ed.2d 899 (1986); see Cleburne, 105 S.Ct. at 3255. In this case, Griffin High School contends that we should apply the most searching review--"strict scrutiny"--to by-law 3.043, because the new transfer policy intolerably burdens two fundamental rights: the free exercise of religion and the right of parents to direct the education of their children. We reject both arguments, and conclude that the correct standard of review in this case is the "rational basis" test.

According to Griffin, by-law 3.043 burdens parents' and students' First Amendment right to the free exercise of their religion. The transfer rules on their face do not classify in terms of religion. However, "[a] regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion." Wisconsin v. Yoder, 406 U.S. 205, 220, 92 S.Ct. 1526, 1536, 32 L.Ed.2d 15 (1972).

Griffin has presented no evidence that the rights of parents and students to practice their religion have been unduly burdened in this case. Griffin does not argue that by-law 3.043 constitutes "grave interference with important ... religious tenets," id. at 218, 92 S.Ct. at 1534, or that it affirmatively compels students or parents to "perform acts undeniably at odds with fundamental tenets of their religious beliefs," id. Because there is no evidence in the record that the new transfer rule unduly trammels upon the religious beliefs of Griffin students or parents, we decline to apply strict scrutiny to by-law 3.043 on this ground.

Griffin also argues that the new transfer rule burdens the fundamental right of parents to direct the education of their children. Griffin relies on Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). In Pierce, the Supreme Court held that an Oregon statute that compelled public school attendance for children from age eight to age 16 violated the Due Process Clause. The Court found that "[t]he inevitable practical result of enforcing the Act under consideration would be destruction of appellees' primary schools, and perhaps all other private primary schools for normal children within the State of Oregon." Id. at 534, 45 S.Ct. at 573. The Court thus concluded that the statute "unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control." Id. at 534-35, 45 S.Ct. at 573-74.

In this case, Griffin argues that by-law 3.043 has the inevitable effect of weakening private school athletic teams. As private school athletic teams become weaker, parents will choose to send their children to public schools instead. The end result will be the destruction of private schools in Illinois, and thus a grave infringement on parents' ability to educate their children as they wish. This chain of causation is too attenuated and speculative to support the conclusion that the new transfer policy unreasonably interferes with the freedom of parents to direct their children's upbringing. We must conclude that the...

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