Fusato v. Washington Interscholastic Activities Ass'n

• Decision Date: 28 January 1999
• Docket Number: No. 17526-0-III,17526-0-III
• Citation: 970 P.2d 774,93 Wn.App. 762
• Court: Washington Court of Appeals
• Parties: , 131 Ed. Law Rep. 1119 Tomoe FUSATO, Respondent, v. WASHINGTON INTERSCHOLASTIC ACTIVITIES ASSOCIATION, Appellant.

Page 762

93 Wn.App. 762

970 P.2d 774, 131 Ed. Law Rep. 1119

Tomoe FUSATO, Respondent, v. WASHINGTON INTERSCHOLASTIC ACTIVITIES ASSOCIATION, Appellant.

No. 17526-0-III.

Court of Appeals of Washington,

Division 3,

Panel Three.

Jan. 28, 1999.

Reconsideration Denied March 4, 1999.

John R. Olson, Wa. Interscholastic Assoc., Bellevue, for Appellant

Chris A. Montgomery, Montgomery Law Firm, Colville, for Respondent.

OPINION

BROWN, J.

Tomoe Fusato challenges the Washington Interscholastic Activities Association's (WIAA) residence and transfer rules, which, with few exceptions, forbid students from playing varsity athletics if they did not relocate to a school district with their parents. The superior court reversed the administrative decision against Ms. Fusato and found the WIAA's rules violated the Fourteenth Amendment's Equal Protection Clause. Although the matter is moot, we proceed and decide the trial court did not err taking judicial notice of certain facts. We conclude that although no fundamental right is threatened, the rule of strict scrutiny applies. This is so because the challenged rule discriminatorily impact Ms. Fusato as a member of a suspect class based upon national origin and there is no showing of a compelling state interest being served by these rules. Additionally, the WIAA did not demonstrate that the least restrictive means were used to accomplish the regulatory purposes of their rules. Accordingly, we affirm.

FACTS

Ms. Fusato, a Japanese National, moved from Okinawa to live with her aunt and uncle in Kettle Falls. The purpose of the move was to experience American culture and help ease the biases prevalent against Americans arising from recent criminal conduct on the part of American servicemen. She was told she was ineligible for varsity sports at Kettle Falls High School under WIAA rules.

The WIAA, a non-profit organization, regulates interscholastic athletics at 385 secondary schools under RCW 28A.600.200. WIAA Rule 18.10.1(A) does not allow transferring students to be immediately eligible for varsity competition unless they transfer with their "entire family unit." Since Ms. Fusato moved without her parents a "hardship" was required for eligibility. Because neither the District 7 Eligibility Committee nor the Executive Board of the WIAA found her case to be a hardship under WIAA Rule 18.22.1, her eligibility was denied.

The Stevens County Superior Court, Judge Stewart, on appeal from the WIAA regulatory process, initially entered a temporary restraining order, permitting Ms. Fusato to play varsity sports pending final hearing. Judge Schroeder reviewed and maintained the temporary order at a continuation hearing. Finally, Judge Baker at the hearing on the merits, held the rules excluded a class of students based on national origin. The court further found the rules have a disparate impact based on this suspect class. The court took judicial notice that "almost every foreign exchange students and/or I-20 VISA students--it's almost unheard of in a high school setting--that such foreign students are here with their parents." The court also took judicial notice that "a typical foreign exchange or I-20 VISA student is unable to ever establish a hardship under the transfer rules."

The trial court concluded there was no compelling state interest in the WIAA residence and transfer rules and, accordingly, found them to be in violation of the Equal Protection Clause in the Fourteenth Amendment of the United States Constitution.

At argument, the parties informed the court that Ms. Fusato had returned to Japan and is no longer a student at Kettle Falls High School and no longer subject to WIAA rules. We consider WIAA's appeal after discussing first whether it is moot.

ANALYSIS

A. Mootness

Preliminarily, we must decide if this matter is moot. Arguably it is because we cannot order the relief originally sought. Dioxin/Organochlorine Ctr. v. Pollution Control Hearings Board, et al., 131 Wash.2d 345, 932 P.2d 158 (1997). Ms. Fusato has returned to Japan and no longer seeks to participate in varsity sports at Kettle Falls High School. Even if she had remained, she would be eligible for varsity sports by virtue of meeting the one year residency requirement. We believe the question is " 'public [in] nature, ... an authoritative determination ... will provide future guidance to public officers;' " and it is likely that " 'the question will recur.' " In re Swanson, 115 Wash.2d 21, 25, 793 P.2d 962 (1990) (quoting Dunner v. McLaughlin, 100 Wash.2d 832, 838, 676 P.2d 444 (1984)). In light of WIAA's status under state law, the number of schools affected, and the probability of recurrence, a decision here will provide guidance to the quasi-public officers of the WIAA. Therefore, we will decide the issues.

B. Equal Protection

1. Issue. The issue is whether the trial court erred by using strict scrutiny and deciding the WIAA residence and transfer rules violated the Equal Protection Clause of the Fourteenth Amendment.

2. Standard of Review. Constitutional challenges are reviewed de novo. See Washam v. Sonntag, 74 Wash.App. 504, 507, 874 P.2d 188 (1994) (addressing whether statute violates state constitution as issue of law subject to de novo review.)

3. Discussion. The challenger of a rule, regulation or statute claiming an equal protection violation may have to meet one of three different legal standards for judging whether a violation exists. City of Richland v. Michel, 89 Wash.App. 764, 768-70, 950 P.2d 10 (1998). The choice is based upon the factual context, giving rise to different degrees of scrutiny in ascending order of difficulty of proof: strict, intermediate, or minimum.

One of three standards of review has been employed when analyzing equal protection claims. Strict scrutiny applies when a classification affects a suspect class or threatens a fundamental right. Intermediate or heightened scrutiny, used by this court in limited circumstances, applies when important rights or semisuspect classifications are affected. The most relaxed (minimum) level of scrutiny, commonly referred to as the rational basis or rational relationship test, applies when a statutory classification does not involve a suspect or semisuspect class and does not threaten a fundamental right.

State v. Manussier, 129 Wash.2d 652, 672-73, 921 P.2d 473 (1996), cert. denied, 520 U.S. 1201, 117 S.Ct. 1563, 137 L.Ed.2d 709 (1997) (citations omitted). It normally follows that the party seeking to uphold the rule, regulation, or statute generally prefers the minimum scrutiny standard, using the rational relationship test.

Deciding the degree or standard of scrutiny is our first task. Harris v. Dept. of Labor & Indus., 120 Wash.2d 461, 476-77, 843 P.2d 1056 (1993). Here, Ms. Fusato argues for strict scrutiny and defends the trial court's decision while the WIAA argues for the lesser minimum scrutiny standard and use of the rational relationship test. When strict scrutiny is involved, the classification will be upheld if it is shown to be necessary to accomplish a compelling state interest. Westerman v. Cary, 125 Wash.2d 277, 294, 892 P.2d 1067 (1994). If the complaining party demonstrates strict scrutiny is the proper test under the facts, then the burden shifts to the party seeking to uphold the rule, regulation, or statute "to show the restrictions serve a compelling state interest and are the least restrictive means for achieving the government objective. If no compelling state interest exists, the restrictions are unconstitutional." First United Methodist Church v. Hearing Examiner, 129 Wash.2d 238, 246, 916 P.2d 374 (1996).

If neither a suspect class is involved nor a fundamental right is threatened, the appropriate standard of review is the rational basis test. Manussier, 129 Wash.2d at 673, 921 P.2d 473. We answer three questions when deciding if the rational relationship test applies.

1. Does the classification apply alike to all members within the designated class?

2. Do reasonable grounds exist to support a distinction between those within and without each class? and

3. Does the class have a "rational relationship" to the purpose of the legislation?

Harris, 120 Wash.2d at 477, 843 P.2d 1056. Because the trial court agreed with Ms. Fusato that the strict scrutiny test applies here, we examine it first.

Washington courts have recognized there is no fundamental right to engage in interscholastic sports. Darrin v. Gould, 85 Wash.2d 859, 873, 540 P.2d 882 (1975). It follows that for Ms. Fusato to prevail, the WIAA residence and transfer rules must discriminate against a suspect class to warrant strict scrutiny review. Suspect classifications include those based on race, national origin, or alienage. U.S. Const. amend. XIV; State v. Wallace, 86 Wash.App. 546, 552, 937 P.2d 200, review denied, 133 Wash.2d 1028, 950 P.2d 478 (1997). Ms. Fusato alleges discrimination and disparate impact based on her national origin.

Under the WIAA residence and transfer rules, foreign exchange and I-20 VISA students, persons of identifiable foreign national origins, cannot compete at the varsity level because their parents usually do not accompany them to the United States. Thus, disparate impact based on alienage is present. Therefore, for persons of foreign national origin the sole recourse is to apply for hardship exception under the WIAA rules. WIAA rule 18.22.1 provides:

A. A hardship exists only when some unique circumstances concerning the student's educational physical or emotional status exist and only when such circumstances are beyond the student's or, where applicable, their family unit' or legal guardian's control.

B. The circumstances must be totally different from those which exist for the majority or even a small minority of students (e.g., usual maturation problems or family situations which do not cause severe and abnormal emotional problems, and academic or athletic deficiencies in a school's curriculum...