Berschback v. Grosse Pointe Public School Dist.

• Decision Date: 29 December 1986
• Docket Number: 88037,Nos. 87459,s. 87459
• Parties: , 36 Ed. Law Rep. 444 Don R. BERSCHBACK, Individually, and as Next Friend of Donald F. Berschback, a Minor, Plaintiff-Appellant, v. GROSSE POINTE PUBLIC SCHOOL DISTRICT and Michigan High School Athletic Association, Inc., a Michigan corporation, Defendants-Appellees. Lawrence R. TERNAN, as Next Friend of Amy Ternan, a Minor, Plaintiff-Appellant, v. MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION, INC., a Michigan corporation, and Rochester Community School District, a governmental entity, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 234

397 N.W.2d 234

154 Mich.App. 102, 36 Ed. Law Rep. 444

Don R. BERSCHBACK, Individually, and as Next Friend of

Donald F. Berschback, a Minor, Plaintiff-Appellant, v. GROSSE POINTE PUBLIC SCHOOL DISTRICT and Michigan High

School Athletic Association, Inc., a Michigan

corporation, Defendants-Appellees.

Lawrence R. TERNAN, as Next Friend of Amy Ternan, a Minor, Plaintiff-Appellant, v. MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION, INC., a Michigan

corporation, and Rochester Community School

District, a governmental entity,

Defendants-Appellees.

Nos. 87459, 88037.

Court of Appeals of Michigan.

Submitted July 2, 1986.

Decided Aug. 18, 1986.

Released for Publication Dec. 29, 1986.

Berschback, Kerwin, LoCicero, Chilingirian & Brennan by Don R. Berschback, St. Clair Shores, for Don R. Berschback.

Patterson & Patterson, Whitfield, Manikoff, Ternan & White by Lawrence R. Ternan, Bloomfield Hills, for Lawrence R. Ternan.

Edmund J. Sikorski, Jr., Ann Arbor, for the Michigan High School Athletic Association, Inc.

Before GRIBBS, P.J., and WALSH and BEASLEY, JJ.

BEASLEY, Judge.

Each of the plaintiffs in these consolidated cases, Amy Ternan, a minor, by her next friend Lawrence R. Ternan, and Donald F. Berschback, a minor, by his next friend Don R. Berschback, filed a complaint alleging that the "transfer eligibility" rule adopted by defendant, Michigan High School Athletic Association, Inc. (MHSAA), denied plaintiffs equal protection of the laws, in violation of U.S. Const., Am. XIV. Plaintiffs also alleged that the specific application of the MHSAA rule by defendants, MHSAA, Rochester Community School District and Grosse Pointe Public School District, denied plaintiffs their right to due process of law, in violation of U.S. Const. Am. XIV. Each of the plaintiffs sought declaratory relief and a temporary restraining order to enjoin enforcement of the rule in order to allow them to participate in interscholastic sports during the fall semester of 1985.

Defendant MHSAA brought a motion for summary disposition under MCR 2.116(C)(10) in each action, claiming that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. The trial judge in each actions granted defendant MHSAA's motion for summary disposition and denied each plaintiff's request for a temporary restraining order. Each plaintiff filed a motion in this Court for immediate consideration and for a stay of enforcement of defendant MHSAA's "transfer eligibility" rule. This Court granted each plaintiff's motion, enjoining the defendants from enforcing the rule. Defendant MHSAA then filed motions in the Michigan Supreme Court, requesting that this Court's injunctive order in each case be set aside and requesting leave to appeal prior to decision by this Court. The Supreme Court denied defendant MHSAA's motions, but directed this Court to expedite the appeals.

The factual situations in both cases are remarkably similar and are not in serious dispute. In September, 1985, Amy Ternan transferred from a parochial school, Lutheran High North, to a public high school, Rochester Adams High School, to begin the tenth grade. Rochester Adams High School is a three-year high school which includes the tenth, eleventh and twelfth grades and is the public high school for the area where Amy Ternan resides with her parents.

During the summer prior to Amy Ternan's transfer, she became aware of defendant MHSAA's "transfer eligibility" rule which, if applied to her, would bar her from participating in interscholastic sports for the first semester she attended Rochester Adams High School. Since Amy Ternan wished to participate on the Rochester Adams girls basketball team during the fall semester of her tenth grade, she requested that the superintendent of the Rochester Community School District request a waiver of the "transfer eligibility" rule in her case. Pursuant to defendant MHSAA's rules, the superintendent requested the waiver for Ternan. On August 6, 1985, defendant MHSAA's executive committee considered the superintendent's request, but denied the waiver. At this point, Ternan filed a complaint in the circuit court and the judicial proceedings described above followed.

Also in September, 1985, Donald F. Berschback transferred from a parochial high school, Warren DeLaSalle, to a public high school, Grosse Pointe South High School, to begin eleventh grade. Grosse Pointe South High School is the four-year public high school for the area where Donald F. Berschback resides with his parents.

Prior to his transfer, Donald F. Berschback became aware that defendant MHSAA's "transfer eligibility" rule, if applied to him, would bar him from participating in interscholastic sports for the first semester he attended Grosse Pointe South High School. Since Donald F. Berschback wished to participate on the Grosse Point South High School varsity football team during the fall semester of his eleventh grade, he requested, pursuant to defendant MHSAA's rules, that the deputy superintendent of Grosse Pointe Public School system request a waiver of the "transfer eligibility" rule in his case. The deputy superintendent declined to request a waiver from the MHSAA for Berschback. Berschback then filed a complaint in the circuit court, and the judicial proceedings described above followed.

Initially, we note that all the parties agree that the issues raised in these cases are technically moot, as they relate to Amy Ternan and Donald F. Berschback. This Court's order staying enforcement of defendant MHSAA's "transfer eligibility" rule effectively allowed both plaintiffs the relief they requested, since each was allowed to participate in interscholastic sports during the fall semester of 1985. However, we also note that the time period between a denial of a waiver request and the start of the athletic season is normally too short to allow a case to progress fully through the appellate system. Since the situation presented by these cases appears to arise frequently at the beginning of each school year and involves issues of significant public importance, and since the trial courts fully addressed the issues now raised on appeal, we will address the issues raised by the parties in this appeal. ¹

On appeal, both plaintiffs first argue that defendant MHSAA's "transfer eligibility" rule denies them equal protection of the law, in violation of U.S. Const. Am. XIV. The MHSAA "transfer eligibility" rule, with its thirteen express exceptions, provides:

"A student who transfers from one high school or junior high/middle school to another high school is ineligible to participate in an interscholastic athletic contest for 1 full semester in the school to which the student transfers, except that the following students may be declared eligible:

"(1) A student who moves into a new district or school service area with the persons with whom he or she was living during his or her last school enrollment.

"(2) A student who moves into a district or school service area and resides with his or her parents in that district or area.

"(3) A student who is a ward of the court or state and is placed in a district or school service area by court order. Guardianship does not fulfill this requirement.

"(4) A foreign exchange student who is placed in a district or school service area by a bona fide exchange program.

"(5) A student who marries and establishes a new residence in a new district or school service area.

"(6) A student who transfers to another school because his or her school ceases to operate.

"(7) A student in attendance at a school designated by the governing body of that school as the result of reorganization, consolidation or annexation, or at the public school in the district where he or she resides.

"(8) A student from divorced or legally separated parents who moves into a new school district with one of the aforementioned parents and the principal of each of the two schools involved signs the Educational Transfer Form which certifies the reason for the move as it relates to the divorced/separated parents. The transfer is permitted one time and must be approved by the Executive Director before the student competes in interscholastic athletic competition. (1981)

"(9) A student ordered transferred within a school system for other than athletic purposes, by a board of education or the governing body of a private or parochial school system.

"(10) A student who enters in the ninth grade of a four year high school and has not been previously enrolled in the ninth grade.

"(11) A student who completes the last grade available in the school system previously attended. (1971)

"(12) A student eighteen (18) years or older who moves from one school district to another without being accompanied by a parent or parents and resides within that new school district and both principals sign the Educational Transfer Form certifying the transfer is in the best educational interest of the student. The transfer is permitted one time and must be approved by the Executive Director before the student competes in interscholastic athletic competition. (1983).

"(13) A student who becomes a bona fide boarding student of a boarding school, as defined in the school code, and the principal of each of the two schools involved signs the Educational Transfer Form which certifies the reason for the move as it relates to his/her enrollment at the boarding school. The transfer is permitted one time and must be approved by the Executive Director before the student competes in interscholastic athletic competition (1982)."

The MHSAA is an athletic association as described in M.C.L. Sec. 380.1289(2); M.S.A. Sec. 15.41289(2):

"An association established for the purpose of organizing and conducting athletic events, contests, or tournaments among schools shall be the official association of the state. The association shall be responsible for the adoption and enforcement of...