Brewer v. Purvis

• Decision Date: 10 March 1993
• Docket Number: Civ. No. 91-39-ATH(DF).
• Parties: Ken BREWER, Plaintiff, v. Carol PURVIS, Clarke County School District, William C. Fordham, Georgia High School Association, Hans C. Schacht, Chris Good, The Professional Practices Commission, Defendants.
• Court: U.S. District Court — Middle District of Georgia

816 F. Supp. 1560

Ken BREWER, Plaintiff, v. Carol PURVIS, Clarke County School District, William C. Fordham, Georgia High School Association, Hans C. Schacht, Chris Good, The Professional Practices Commission, Defendants.

Civ. No. 91-39-ATH(DF).

United States District Court, M.D. Georgia, Athens Division.

March 10, 1993.

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Lawrence Scott McLarty, Athens, GA, Deedra M. Brewer, Austell, GA, for plaintiff.

Terrance C. Sullivan, Carol Awtrey Callaway, Rebecca S. Mick, Atlanta, GA, Edward Davison Burch, J. Ralph Beaird, Athens, GA, Alan W. Connell, Thomaston, GA, for defendants.

FITZPATRICK, District Judge.

Defendants' motions for summary judgment are presently pending in this Court. Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). For purposes of a summary judgment motion, the non-movant's version of the facts must be accepted, and all disputed matters must be resolved in favor of the non-movant. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). Summary judgment, however, is mandated, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

BACKGROUND

Plaintiff Ken Brewer was employed by the Clarke County School District ("CCSD") as the head football coach and as a teacher at Cedar Shoals High School ("CSHS") from the spring of 1986 until the April of 1990.¹ On April 12, 1989, Plaintiff signed a contract of employment as a member of the CSHS teaching staff for the scholastic year 1989-90, which called for a $27,167.00 annual salary. On July 20, 1989, the Personnel Director of CCSD issued a personal information indicating that Brewer would receive a salary supplement of $7,400.00 for serving as head football coach during the 1989-1990 season.²

CSHS is a member of the Georgia High School Association ("GHSA"). The GHSA is a voluntary association of 355 public and private high schools organized to promulgate and enforce uniform rules of eligibility and play between its members³. Schools are required to determine and certify eligibility rules for competing students to the GHSA. One of the academic eligibility rules promulgated and enforced by the GHSA is the requirement that a student be "on track" for graduation before he/she can participate in athletics. The "on track" provision was enacted by the State Board of Education in July of 1987, effective for the 1987-88 school year and was adopted in October 1988 by the GHSA Executive Committee⁴, which included CSHS's athletic director.⁵ In order to be "on track" a student in his third year of high school must have passed and received credit for ten (10) units before he is eligible to participate in interscholastic competitions.⁶ The Clarke County School District's "no pass/no play" rule is identical to the GHSA's rule.⁷

Football practice began on August 1, 1989. Coach Glen Townsend, who was responsible for determining student eligibility, prepared a list of all players desiring to participate in varsity football and checked the school records to determine whether those students were eligible. J.C.'s grades at CSHS were as follows:

                1987-1988 School Year
                English I                      48/F
                Math I                         62/F
                Physical Science               high 60s/F
                World Geography                mid-50's/F
                Art                            77/C
                Health and Physical Education  77/C
                1988-1989 School Year
                Math I                         52/F
                Math II                        72/C
                Biology                        58/F
                World History                  77/C
                Building and Construction         F
                 Technology I
                Physical Education             85/B
                Summer of 1989
                Biology                        77/C
                General Math                   75/C
                

Since J.C. had passed only seven subjects during his first two years of high school, he was ineligible to play varsity football, and he did not participate in football practice on August 1, 1989.⁸ Coach Townsend told Coach Brewer that J.C. was ineligible.

The week before football practice began, J.C.'s father visited Charles Worthy, Associate Principal at CCHS. J.C.'s father indicated his desire to have J.C. play football and his concern that J.C. might not remain in school if he were not permitted to play. J.C.'s father had previously talked to Coach John Osborne, who taught handicapped students at CCHS, about J.C.'s academic problems.⁹ Coach Osborne surmised that J.C. might have a learning disability and arranged for J.C. to be tested. Coach Brewer called the GHSA and asked if J.C.'s placement in special education would automatically make him eligible.¹⁰ Mr. Fordham informed Mr. Brewer that special education placement had no effect on eligibility.¹¹

Coach Osborne contacted Mr. David Schwartz and asked if he would test J.C. After Mr. Schwartz agreed to do so, Mr. Osborne called J.C.'s father and gave him Mr. Schwartz's name. J.C.'s father then contacted Mr. Schwartz and made an appointment for J.C. for Saturday, August 26, 1989.¹² That evening, Mr. Schwartz informed Coach Osborne that J.C. had a learning disability.¹³ Coach Osborne then advised some of J.C.'s teachers about the test results. Eventually four of J.C.'s grades were changed.¹⁴ J.C. was declared eligible for football on August 30, 1989, and practiced football that day.

In the early fall of 1989, GHSA was notified by the State Department of Education of a possible violation of eligibility rules by CSHS, i.e., that the grades of a Cedar Shoals student athlete, J.C., had been changed to make the student eligible to play football.¹⁵ On November 1, 1989, Chris Good, an investigator for the Professional Practices Commission¹⁶ ("PPC"), received a telephone call from Mr. Randall Ponder, who was the administrator in charge of No Pass/No Participate. Mr. Ponder informed Mr. Good that he had received a report of violations of the No Pass/No Participate rule at CSHS and that he and Regional Director Jim Gurley were going to Cedar Shoals on November 7, 1989, to begin an investigation. Mr. Ponder asked Mr. Good to accompany them.

On November 7, 1989, Good, Gurley and Ponder visited CSHS.¹⁷ While visiting CCHS, Chris Good spoke with Plaintiff for approximately five minutes.¹⁸ On the same day, Gurley and Ponder visited Dr. Purvis and informed him of their investigation.¹⁹ The next day Dr. Purvis met with Mr. Doug McLaughlin, the principal of CSHS, regarding the grade changing incident.

On November 8, 1989, Mr. Fordham called Mr. Good to inform him that the GHSA would hold a hearing on November 9, 1989, on the allegations of GHSA's regulations by CSHS. Mr. Fordham granted Mr. Good's request to attend as an observer for informational purposes. Although the PPC did not receive a written request to conduct an investigation into the grade changing incident until November 13, 1989²⁰, it instigated an official investigation on November 9, 1989²¹, which involved one or more interviews with approximately twenty-five people.²²

On November 9, 1989, Coach Brewer observed Chris Good talking with Mr. Alan Connell, attorney for the GHSA, and William Fordham before the GHSA hearing began.²³ During the hearing Coach Brewer testified that he had no interest or knowledge of any grade changes involving J.C. Mr. Connell turned and asked Mr. Good if Coach Brewer had indicated the same in the earlier interviews. Mr. Good replied that Coach Brewer told him that Coach Osborne had approached him and said "Here's the deal. I've talked to all the teachers. I think they understand. It wouldn't hurt for you to talk to them."

After the evidentiary hearing William Fordham made the following fact findings and assessed the following penalties:

In view of the fact that (1) only three courses were needed to gain eligibility and only three grades were changed; (2) two of the three teachers who changed grades were football coaches and all three acted after a request for review by Coach Osborne; (3) the action taken by Coach Osborne is not such action as he customarily took on behalf of all other students; (4) no one could recall a similar case where grades were changed after a two-year period; (5) no make up work or supplemental work was performed by the student prior to the grade change; (6) all three grades were changed within a two day period; (7) the student was, on the same day that the grades were changed, immediately certified to the GHSA as eligible; and (8) Coach Osborne had a conversation with Coach Brewer indicating that eligibility for football was considered in the action taken by Coach Osborne, I must conclude that the actions taken by the Cedar Shoals personnel were for the purposes of improperly securing eligibility for the student to play football. These actions are in violation of the GHSA Constitution Art IV Section 14 and GHSA Bylaws Section 2.31b. Cedar Shoals is hereby required to:

(1) forfeit any games won during the 1989-90 school year in which the subject student participated;

(2) be on probation for one calendar year from the date of the ruling;

(3) pay a $1,000.00 fine.²⁴

William Fordham forwarded his ruling to Dr. Carol Purvis, Superintendent of the Clarke County School District. Neither the GHSA nor any other person acting on its behalf released a copy of the decision to anyone other than Superintendent Purvis. GHSA did not announce its decision and all inquiries were directed to Superintendent Purvis.²⁵

CSHS subsequently appealed the decision to the GHSA State Board of Appeals, which unanimously upheld the Executive Director's decision.²⁶ CSHS did not exercise its right to...