Haverkamp v. Unified School Dist. No. 380

• Decision Date: 31 December 1986
• Docket Number: Civ. A. No. 86-2067-S.
• Citation: 689 F. Supp. 1055
• Parties: Deandra K. HAVERKAMP Plaintiff, v. UNIFIED SCHOOL DISTRICT # 380, et al., Defendants.
• Court: U.S. District Court — District of Kansas

689 F. Supp. 1055

Deandra K. HAVERKAMP Plaintiff, v. UNIFIED SCHOOL DISTRICT # 380, et al., Defendants.

Civ. A. No. 86-2067-S.

United States District Court, D. Kansas.

Fred W. Phelps, Jr., Phelps-Chartered, Topeka, Kan., for plaintiff.

Alan V. Johnson, Jeffrey W. Jones, Myron L. Listrom, Deanne Watts Hay, Sloan, Listrom, Eisenbarth, Sloan & Glassman, Fred W. Rausch, Jr., Topeka, Kan., for defendants.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on defendants' motion to dismiss. In considering a motion to dismiss, the factual allegations of the complaint must be taken as true and all reasonable inferences must be indulged in favor of the plaintiff. Mitchell v. King, 537 F.2d 385 (10th Cir.1976); Dewell v. Lawson, 489 F.2d 877 (10th Cir. 1974). A complaint should not be dismissed unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). The question is not whether a plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed. 2d 90 (1974).

Plaintiff brings this action pursuant to 42 U.S.C. § 1983 and claims she was deprived of property and liberty without due process of law, that defendants' actions deprived her of her first amendment rights, and further, that she was subjected to corporal punishment without just cause or rational relation to the educational process.

The facts alleged by plaintiff are essentially as follows. Plaintiff is a recent January, 1986 graduate of Centralia High School in Centralia, Kansas. Prior to October 21, 1985, plaintiff was the Head Cheer-leader for the high school varsity cheerleading squad. At all relevant times, defendant Kraushaar was Superintendent of Schools for defendant Unified School District No. 380 hereinafter U.S.D. No. 380, defendant Zumbahlen was Principal of Centralia High School, and defendants Dibble and Sleeper were teachers employed by U.S.D. No. 380.

In October, 1985, plaintiff was given the opportunity to journey to Nashville, Tennessee to record an album. She received permission for the journey from defendants Kraushaar and Zumbahlen. However, defendants Dibble and Sleeper, who were pep club sponsors, removed plaintiff from the varsity cheerleading squad. Plaintiff alleges this was because of animosity and illfeelings by defendants toward her. Defendants Kraushaar and Zumbahlen were informed of plaintiff's removal but refused to take any action on plaintiff's behalf. Plaintiff alleges her removal from the cheerleading squad was done without notice or hearing of any kind, thus violating her right to procedural due process.

Plaintiff further alleges she was subjected to an oppressive and embarrassing situation at the high school due to defendants' actions and on one occasion in January, 1986, defendant Dibble subjected her to corporal punishment without just cause, thereby resulting in plaintiff ending her public education prematurely in January, 1986. Plaintiff claims a property interest in her position as Head Cheerleader for the Centralia High School varsity cheerleading squad and also that her journey to Nashville to record an album was protected activity under the First Amendment of the United States Constitution and defendants' retaliatory actions against her violated her first amendment rights. Also, plaintiff claims liberty and property interests in the right to continue her high school education without interruption until May, 1986, and a liberty interest which was violated by defendant Dibble's conduct in corporal punishment against her.

The court will first consider the nature of plaintiff's interest in her position as Head Cheerleader for the high school varsity cheerleading squad. Property interests are not created by the United States Constitution, but are created and their dimensions defined by existing rules or understandings that stem from an independent source such as state law. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). An interest in property arises only when there is a legitimate claim of entitlement to it; merely having an abstract need or desire for the particular benefit or unilateral expectation of it is insufficient. Id. at 577, 92 S.Ct. at 2709.

Defendants argue that no protected property interest exists in the right to participate in extracurricular scholastic activities. The Kansas courts apparently have not addressed this issue.

The United States Supreme Court in Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) found a student's entitlement to a public education to amount to a constitutionally-protected property interest. However, the Tenth Circuit Court of Appeals, when discussing Goss, noted that Goss spoke in terms of the "educational process" which included innumerable separate components such as participation in athletics and membership in school clubs, but found that each separate component does not create a property interest subject to constitutional protection. Albach v. Odle, 531 F.2d 983, 985 (10th Cir. 1976). See also Colorado Seminary v. National Collegiate Athletic Assoc., 417 F.Supp. 885 (D.Colo.1976) aff'd, 570 F.2d 320 (10th Cir.1978).

The majority of cases discussing interscholastic athletics and other extracurricular activities have rejected the existence of a federally-protected property right. See, e.g., Hebert v. Ventetuolo 638 F.2d 5 (1st Cir.1981); Walsh v. Louisiana High School Athletic Ass'n, 616 F.2d 152, reh. denied, 621 F.2d 440 (5th Cir.1980); Hamilton v. Tenn. Secondary School Athletic Ass'n, 552 F.2d 681 (6th Cir.1976); Okla. High School Athletic Ass'n v. Bray, 321 F.2d 269 (10th Cir.1963); Williams v. Hamilton, 497 F.Supp. 641 (D.N.H.1980); Kite v. Marshall, 494 F.Supp. 227 (S.D.Tx.1980); Ward v. Robinson, 496 F.Supp. 1 (E.D. Tenn.1978); Kulovitz v. Illinois High School Ass'n, 462 F.Supp. 875 (N.D.Ill. 1978); and Paschal v. Perdue, 320 F.Supp. 1274 (S.D.Fla.1970).

The court notes, however, that there are a group of cases holding that students have constitutionally-protected interests in extracurricular activities. One line of cases holds that participation in athletics gives rise to a property interest because interscholastic athletics can be a springboard to a higher education or a professional career in sports. See, e.g., Boyd v. Board of Education of McGehee School District, 612 F.Supp. 86 (D.Ark.1985) and Behagen v. Intercollegiate Conference of Faculty Representatives, 346 F.Supp. 602 (D.Minn. 1972). Another line of cases finding a constitutionally-protected property interest takes the view that interscholastic athletics are an integral part of the total education process. Illustrative of this view is Kelley v. Metropolitan Board of Education of Nashville, 293 F.Supp. 485 (M.D.Tenn. 1968). Kelley involved the suspension of the entire interscholastic athletic program within the high school for a period of one (1) year and the court viewed the severity and harshness of the punishment as a significant factor requiring adherence to procedural due process. A third group of cases holds that denial of the right to participate in extracurricular activities may amount to a constitutional violation where such denial violates the equal protection clause of the United States Constitution. The United States District Court for the District of Kansas addressed this situation in Gilpin v. Kansas State High School Activities Ass'n, Inc., 377 F.Supp. 1233 (D.Kan.1974).

The Gilpin case considered the rights of a female student denied the right to compete on her high school's cross-country team because of a rule of the K-State High School Activities Association which provided that "boys and girls shall not be members of the same athletic teams in interscholastic contests." The court correctly noted that to state a cause of action under 42 U.S.C. § 1983, the plaintiff must show the conduct complained of was by a person acting under color of state statutes or local law, custom or usage, and such conduct deprived plaintiff of rights, privileges or immunities secured by the Constitution or the laws of the United States. The court fully agreed with the contention that participation in interscholastic sports is not a fundamental right, however found that plaintiff could not be denied the opportunity to participate in athletics solely on the basis of her sex. The court struck down the rule on equal protection grounds and noted that the correct question to be considered was not whether plaintiff had an absolute right to participate in interscholastic athletics, but whether the plaintiff could be denied the benefit of activities provided by the state for male students.

In the instant case, the court finds that plaintiff's position as Head Cheerleader or as a member of the varsity cheerleading squad does not rise to the level of a constitutionally-protected property interest. The court declines to follow those few cases holding that a property interest exists because of the potential for future education or professional career opportunities. Any potential opportunities for the future derived from participation in interscholastic athletics amounts only to mere expectations and are insufficient for the creation of a constitutionally-protected property interest. Likewise, this case does not involve group punishment that is unduly harsh or severe as in Kelley, 293 F.Supp. 485. The court elects to follow the majority view holding that federally-protected property interests do not exist in participation in interscholastic extracurricular activities. Therefore, plaintiff's claim on this basis must be dismissed.

Plaintiff asserts that the facts as pled show a denial of equal protection because defendants' actions in removing her from her position as Head...