Cooper v. Oregon School Activities Ass'n

• Decision Date: 16 July 1981
• Docket Number: Nos. A7911-05444-E,s. A7911-05444-E
• Citation: 52 Or.App. 425,629 P.2d 386
• Parties: , 15 A.L.R.4th 869 Theresa COOPER, by Thomas M. Cooper, her guardian ad litem, Appellant, v. OREGON SCHOOL ACTIVITIES ASSOCIATION and Edward J. Ryan, Respondents. Brian FAHERTY, by John J. Faherty, his guardian ad litem, Appellant, v. OREGON SCHOOL ACTIVITIES ASSOCIATION and Edward J. Ryan, Respondents. ; CA 16349; A7911-05445.
• Court: Oregon Court of Appeals

Page 386

629 P.2d 386

52 Or.App. 425, 15 A.L.R.4th 869

Theresa COOPER, by Thomas M. Cooper, her guardian ad litem, Appellant, v. OREGON SCHOOL ACTIVITIES ASSOCIATION and Edward J. Ryan,

Respondents.

Brian FAHERTY, by John J. Faherty, his guardian ad litem, Appellant, v. OREGON SCHOOL ACTIVITIES ASSOCIATION and Edward J. Ryan, Respondents.

Nos. A7911-05444-E; CA 16349; A7911-05445.

Court of Appeals of Oregon.

Argued and Submitted Jan. 13, 1981.

Decided May 26, 1981.

Reconsideration Denied July 16, 1981.

Rex E. H. Armstrong, Portland, argued the cause for appellants. With him on the briefs were Daniel H. Skerritt and Lindsay, Hart, Neil & Weigler, Portland.

John P. Conley, Portland, argued the cause for respondents. With him on the brief was Hardy, McEwen, Newman & Hanna, Portland.

Before GILLETTE, P. J., and ROBERTS and YOUNG, JJ.

GILLETTE, Presiding Judge.

These are consolidated suits for declaratory and injunctive relief in which plaintiffs seek declarations that they are eligible to participate in interscholastic sports competition in their respective high schools and injunctions against enforcement of an Oregon School Activities Association (OSAA) rule that bars them from participating in such competition for one year following their transfer from parochial to public high schools. Plaintiffs appeal from a trial court order dismissing their complaints and awarding judgment to defendants. We affirm.

We take the facts from plaintiffs' complaints. Plaintiffs are high school students attending public schools in Portland. Plaintiff Theresa Cooper is a sophomore at Madison High School; plaintiff Brian Faherty is a sophomore at Grant High School. Defendant OSAA is a voluntary association of public and private schools in Oregon that was established primarily to regulate interscholastic athletic competition. Grant and Madison High Schools are members of OSAA, as are virtually all other public and private high schools in the state. Defendant Ryan is the executive director of OSAA.

Both plaintiffs spent their freshman year at parochial high schools. They would have preferred to attend public rather than parochial schools during their freshman year, but their parents chose to send them to parochial high schools in order for them to continue their religious education. Both plaintiffs participated in athletics during their freshman year at these high schools. At the end of their freshman year, however, they prevailed upon their parents to permit them to transfer to public high schools. Athletic considerations played no part in their transfer decisions, and neither student was encouraged to transfer or recruited for athletics by personnel at the public high schools to which they were transferring.

The OSAA rule in question provides, in pertinent part:

"Article 20, Eligibility Rules * * *

"20-6 TRANSFER

" * * *

"20-6-2 A student who transfers from any high school to any member high school becomes ineligible until one calendar year after the student first attends the new school. For purposes of this rule, a student is deemed to have transferred from another high school if at any previous time the student registered and attended classes at, or participated in any way in athletics at, another high school."

The rule was adopted to preserve harmony among member schools by preventing both actual recruitment of high school athletes and the appearance of recruitment. There are a number of exceptions to it, ¹ but none applies to plaintiffs.

Grant High School, on Brian Faherty's behalf, filed a "hardship" request with OSAA seeking a waiver of the OSAA transfer ineligibility rule. The parochial school from which Faherty transferred had no objection to the request and later joined with Grant High School in making it. Defendant Ryan denied the requested waiver. An appeal filed with OSAA's Board of Control was also denied. Theresa Cooper's father met with Ryan concerning a similar request to waive the transfer ineligibility rule; Ryan advised him that a waiver request would be futile. As a consequence, plaintiffs filed the present actions.

Plaintiffs challenge Rule 20-6-2 on both statutory and constitutional grounds. They contend that the school districts, acting through OSAA, did not have the authority to adopt or enforce the transfer rule, because the rule improperly penalizes plaintiffs for exercising their statutory right to attend parochial instead of public schools and because the rule violates ORS 339.115, which requires school district boards to

" * * * admit free of charge to the schools of (their) district all persons between the ages of 6 and 21 residing therein."

In addition, plaintiffs argue that the rule violates the Privileges and Immunities Clause of the Oregon Constitution and deprives them of their rights to religious freedom, free association and equal protection guaranteed by the First and Fourteenth Amendments to the United States Constitution.

I. Statutory considerations

We first consider plaintiffs' statutory arguments. ² We note at the outset that the contractual agreement between the school districts and OSAA confers authority on OSAA to operate as an agent for the member schools. Therefore, OSAA may enforce the rules which the member schools, acting through OSAA, adopt. By the same token, OSAA is subject to statutory and administrative rules which regulate school districts.

Plaintiffs' right under ORS 339.030(2) ³ to attend parochial instead of public schools is obviously not impinged upon by the transfer rule. Neither child is in any way being prohibited from attending such schools. Neither do we think the rule in question violates ORS 339.115, ⁴ which simply requires schools to admit pupils free of charge. Plaintiffs rely on Neuhaus v. Federico, 12 Or.App. 314, 505 P.2d 939, rev. den. (1973), for the proposition that, in the absence of specific statutory authority given to a board to restrict student participation, a student admitted under ORS 339.115, supra, is entitled to participate in activities at the school. We agree with plaintiffs that the school district's authority is limited to "enacting rules (which have) a reasonable relation with the proper operation of the schools." Neuhaus v. Federico, supra, 12 Or.App. at 322, 505 P.2d 939. However, Neuhaus does not stand for the proposition that students are entitled to participate in all activities at the school. ⁵ In fact, plaintiffs conceded on oral argument that a school can internally restrict the number of extracurricular activities in which a student may take part if the school can connect such action with promotion of educational goals. If a single school can do that, we fail to perceive why it cannot do so in conjunction with other schools, so long as the resulting rule bears a reasonable relationship to the goal of fostering interscholastic athletic competition. We conclude that Rule 20-6-2, by preventing recruitment of athletes between high schools, serves such a purpose.

II. Right to free exercise of religion

The right to free exercise of religion is guaranteed by Art. I, §§ 2 and 3 of the Oregon Constitution and by the First Amendment to the United States Constitution. ⁶ These provisions protect a parent's right to send his or her child to parochial instead of public schools, ORS 339.030(2), Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), as well as the child's right to free exercise of religion. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972).

From the case law, it is clear that the Free Exercise Clause of the First Amendment could work to condemn laws such as the transfer rule at issue here, at least where application of such laws clashes "with imperatives of religion and conscience when the burden on First Amendment values is not justifiable in terms of the government's valid aims." Gillette v. United States, 401 U.S. 437, 462, 91 S.Ct. 828, 842, 28 L.Ed.2d 168 (1971). In assessing the permissibility of any rule which creates a burden on such values, the importance of the state's interest, the degree of encroachment on the individual's freedom and the availability of less intrusive means are the principal factors to be considered. See Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963).

We first consider the burden. In this case, the transfer rule's impact on plaintiffs' religious freedom is minimal. The rule does not single out parochial schools for different treatment, nor does it prevent parents from sending their children to such schools.

As to the factor of the government's interest, regulation of recruiting is a necessary component of interscholastic athletics. Such regulation has even been deemed a "compelling state interest." Josephine Co. School District v. OSAA, 15 Or.App. 185, 201, 515 P.2d 431 (1973). As defendants point out, if students could choose to go from one high school to another in order to be on a better team, particular schools might almost always have the best teams in certain sports and competition would become meaningless.

Plaintiffs argue that the burden imposed by the rule is impermissible because, they say, there are options available to OSAA which would allow the state to accomplish its goal without interfering with individual religious beliefs. However, we think that, since the encroachment of the transfer rule on the free exercise of religion is both "limited in scope and insignificant in magnitude," the incidental burden imposed on parents and children is constitutionally permissible. See Walsh v. Louisiana High Sch. Athletic Ass'n., 616 F.2d 152, 158 (5th Cir. 1980). Further, any exception promulgated to apply specifically to parochial schools would raise problems under the Establishment Clause another equally important part of the First Amendment. While we agree that the transfer rule penalizes these plaintiffs, it does so neither because it is specifically aimed at parochial schools nor because its...