Denis J. O'Connell High School v. Virginia High School League.

• Citation: 581 F.2d 81
• Decision Date: 07 August 1978
• Docket Number: No. 78-1064,78-1064
• Parties: DENIS J. O'CONNELL HIGH SCHOOL by its Board of Trustees, Appellee, v. The VIRGINIA HIGH SCHOOL LEAGUE et al., Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

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581 F.2d 81

DENIS J. O'CONNELL HIGH SCHOOL by its Board of Trustees, Appellee, v. The VIRGINIA HIGH SCHOOL LEAGUE et al., Appellants.

No. 78-1064.

United States Court of Appeals Fourth Circuit.

Argued March 8, 1978.

Decided Aug. 7, 1978.

John A. Dezio, Charlottesville, Va., for appellants.

William G. McMurtrie, Falls Church, Va., for appellee.

Before BUTZNER, RUSSELL and WIDENER, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

The Virginia High School League (the League) appeals from a judgment of the District Court enjoining the League from denying Denis J. O'Connell High School's (O'Connell) application for membership in the League and from barring O'Connell from competing in League-sponsored championship athletic contests.

O'Connell is a state-accredited private nonprofit Catholic high school located in Arlington County, Virginia. In February of 1977, O'Connell applied for admission to the Virginia High School League, Northern Region. The application was denied because the League's Constitution limits membership to public high schools. ¹

The League is an unincorporated association of public high schools in Virginia under the sponsorship of the School of Continuing Education of the University of Virginia. With only one exception, every public high school in Virginia belongs to the League. In 1913 when the League was founded, its Constitution included both public and private secondary schools without distinction, but in 1925 the Constitution was changed so that only public high schools could be members, and that limitation remains today. The League is maintained by public funds derived in part from the University of Virginia, in part from local school boards, and in part from gate receipts from League-sponsored tournaments.

The League regulates, controls, and governs all athletic, literary and debating contests between and among its member schools. Private schools are invited by the League to participate as a distinct class in certain statewide tournaments, such as those involving tennis, debating and speaking. However, the private schools are excluded altogether from League sponsored tournaments involving such "major" sports as football, basketball and baseball.

O'Connell brought suit against the League pursuant to Section 1983, 42 U.S.C. and its jurisdictional counterpart, Section 1343(3), 28 U.S.C., ² alleging in its complaint that the League's refusal to admit O'Connell on the sole basis that it is a private school is an arbitrary classification in violation of the Equal Protection Clause of the Fourteenth Amendment. The complaint further charged that, as a result of this exclusion, O'Connell's students' choice of private education denies them the right to compete on a tournament level in sports such as football, basketball and baseball, thus placing them in a less favorable competitive position than public high school students to receive athletic scholarships, professional bonuses, and other benefits that accrue to gifted athletes. The League submitted an answer denying the essential allegations of the complaint. Following the Court's denial of the League's Motion to Dismiss and Motion for Summary Judgment, the parties entered into a formal stipulation which was filed with the Court prior to trial. The stipulation stated, Inter alia, that action by the League in supervising interscholastic competition is taken under color of state law and constitutes state action within the meaning of Section 1983, 42 U.S.C.

At trial, the League presented three basic arguments in defense of its policy of exclusion. First, the League asserted that because O'Connell had not been deprived of any federally protected right, there was no federal question presented so as to support federal jurisdiction alleged to be founded on 28 U.S.C. § 1343. Second, the League argued that its limitation of membership to public schools is rationally related to the League's interest in enforcing its eligibility rules concerning transfer students. The League presented testimony to the effect that, because public schools draw students only from strictly defined zones whereas private schools are not so limited, the League's transfer rules would be difficult to enforce with respect to private schools. Finally, the League argued that the admission of O'Connell, a parochial school, into the League would violate the Establishment Clause of the First Amendment. The Court held that (1) the question whether participation in the League's athletic program can be characterized as a right is not determinative of the Constitutional validity of the League's classification, (2) there is nothing in the record to support the asserted bases for the League's exclusion of private schools from League membership, and (3) the activities of the League neither advance nor inhibit religion, and any financial benefits supplied indirectly by the League to O'Connell in the form of surplus proceeds from League-sponsored championship games would not constitute excessive governmental entanglement with religion so as to violate the Establishment Clause. Thus, because the exclusion of O'Connell from the League lacked a rational basis in violation of the Fourteenth Amendment, and because the inclusion of O'Connell in the League would not violate the First Amendment, the Court enjoined the League from denying O'Connell membership.

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The League next contends that the District Court erred in holding that there is no rational basis for the provision of the League's Constitution limiting membership to public schools. We agree.

Where, as here, there is no fundamental right or suspect classification involved, the test to determine the validity of state legislation is whether the statutory classification bears some rational relationship to a legitimate state purpose. San Antonio Independent School District v. Rodriguez, supra, 411 U.S. at 17, 93 S.Ct. 1278; Weber v. Aetna Casualty & Surety Co. (1972), 406 U.S. 164, 172, 92 S.Ct. 1400, 31 L.Ed.2d 768; See generally Developments in the Law Equal Protection, 82 Harv.L.Rev. 1065, 1076-1087 (1969). Furthermore, "State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." McGowan v. Maryland (1961), 366 U.S. 420, 425-426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393.

The reasons for the League's exclusion of private schools, as established by the statements of two League officials, are as follows: (1) League regulations are not sufficiently defined to determine the area from which private schools, many of which may now draw students from an unlimited geographical area, may draw eligible participants for League activities; (2) the lack of an attendance zone for private schools similar to that of public schools, each of which may draw students only from a specified geographical area, would make the transfer rule difficult to enforce and would give private school students an advantage not enjoyed by public school students; (3) students eligible to attend private schools could choose to attend private schools or their public school on the basis of athletic programs in violation of the spirit of the League. The transfer rule cited by the League officials states, essentially, that when a student transfers from one high school to another without a corresponding change in district residence by his parents, the student is ineligible to participate in interscholastic competition for one semester at his new school.

In its Memorandum Opinion, the District Court stated that "(t)he only bases asserted by the League for excluding non-public high schools from League membership are their ability to draw students from a larger geographical area than the public high schools and the difficulty of enforcing the eligibility rules for transfer students." The Court found that "(n)either assertion is supported by the record and no reason was suggested why the League's rules could not be uniformly applied to both private and public high schools."

The Court's finding that there is no support in the record for the League's contention that private schools can draw students from a larger geographical area than public schools is based upon the failure of the League to introduce actual evidence to that effect. However, it is well-known that many private schools in Virginia suffer no geographical limitation with respect to the areas from which they may draw students. Furthermore, even assuming that there are some Virginia private schools which do draw from strictly defined areas, these schools unlike their public counterparts, are not so limited by state law and could therefore at any time decide to modify or abolish their self-imposed drawing restrictions and recruit students from anywhere. And even assuming that some of these schools chose to continue drawing from strictly defined areas an assumption the League is not obligated to make these areas would overlap with the areas from which public schools can draw. Therefore, because the actual and potential disparity in drawing area between public schools and private schools is beyond doubt, the District Court should have given credence to the League's assertion that public and private schools lack similar attendance zones.

Given the lack of specifically defined drawing areas with respect to many private schools, it is obvious that the admission into the League of private schools would create difficulties in the enforcement of the transfer rule. Although the difficulty of applying the rule to students transferring from private to public schools might not be affected, ⁴ surely additional difficulties would arise in applying the rule to students transferring from either private or public schools to "zoneless" private schools. Since the school to which the student transfers would be lacking a...