Indiana High School Athletic Ass'n, Inc. v. Schafer, 37A05-9201-CV-19

Docket NºNo. 37A05-9201-CV-19
Citation598 N.E.2d 540
Case DateAugust 24, 1992
CourtCourt of Appeals of Indiana

Page 540

598 N.E.2d 540
76 Ed. Law Rep. 1142
Gregory S. SCHAFER and Shane Schafer b/n/f Gregory S.
Schafer, Appellees-Plaintiffs.
No. 37A05-9201-CV-19.
Court of Appeals of Indiana,
Fifth District.
Aug. 24, 1992.
Transfer Denied Dec. 16, 1992.

Page 542

Robert M. Baker, III, Frederick D. Emhardt, Miller, Woddell & Baker, P.C., Indianapolis, for appellant-defendant.

Timothy S. Schafer, Schafer and Schafer, Merrillville, for appellees-plaintiffs.



This is an interlocutory appeal from the trial court's order of January 9, 1992 granting the motion of plaintiffs-appellees Gregory and Shane Schafer for declaratory judgment, declaring unconstitutional certain rules of the Indiana High School Athletic Association ("IHSAA"--a not for profit corporation that governs secondary school sports in Indiana, with the majority of Indiana high schools as its members), and enjoining IHSAA from prohibiting Shane Schafer ("Schafer") from participating in interscholastic sports. The appeal is interlocutory because the January 9 order reserved for future consideration the issue of damages. We affirm in part, reverse in part, and remand.


During the 1990-91 school year, Schafer was a junior at Andrean High School in Merrillville. He played on Andrean's basketball team that school year, seeing action in both the fall 1990 and spring 1991 semesters. The basketball season, roughly speaking, takes place during the last half of the fall semester and the first half of the spring semester. Andrean is an IHSAA member.

Schafer withdrew from school in the spring of 1991, at the end of the basketball regular season, just before the sectionals of IHSAA's statewide tournament, suffering from a serious sinus infection. This infection had apparently been present since the fall semester--although Schafer had passed a physical at the start of basketball season, he had complained to his family doctor on three occasions during the fall semester of a stuffy nose and headache (the sinusitis bacteria emit gas, pressuring the brain, causing headache) and the treating physician wrote in June, 1991 about the course of the illness "over the past six to nine months...."

Thus, the illness may have started as early as September, 1990, and may have hindered Schafer's academic performance, because in the fall semester he made very poor grades. There were no spring grades, due to Schafer's withdrawing. Not completing the spring semester had a ripple effect, in that Schafer had been enrolled in year-long courses, in which the fall coursework is a prerequisite to the spring segment. Because the spring portion of the year-long courses is difficult for a student not coming fresh from the fall semester, and because the illness may have affected Schafer's academic performance in the fall, Andrean permitted him to repeat his entire 1990-91 junior year in the 1991-92 school year.

In June, 1991 Schafer wrote to IHSAA to request that 1990-91 not count against his eligibility for interscholastic athletics. The request, in effect, sought relief from the operation of subparts C--12-3 ("Rule 12-3") and C--12-4 ("Rule 12-4") of IHSAA's Rule 12 on "Enrollment and Attendance." Rules 12-3 and 12-4 conjunctively limit athletic eligibility to the ordinary eight semesters of high school. Rule 12-3 states: "After being enrolled 16 or more school days in each of 4 fall semesters, a student shall be ineligible for further participation during any fall semester." Similarly, Rule 12-4 states: "After being enrolled 16 or more school days in each of 4 spring semesters, a student shall be ineligible for further participation during any spring semester."

Although Schafer had been enrolled more than sixteen days in both the fall 1990 and spring 1991 semesters, he retained a prospect of relief under Rule C--12-2 ("Rule 12-2"). That rule states that a semester will not be counted, even after sixteen days of enrollment, if the student

Page 543

withdrew from school due to serious illness, unless the student had participated in 20% of the scheduled contests in a given sport. 1

By letter of September 11, IHSAA's Assistant Commissioner Ray Craft refused Schafer's request. Craft reasoned thusly:

Shane finished the first semester but withdrew during the second semester. The game records show that Shane participated in more than 20% of the authorized season contest in that sport. Therefore by [Rule 12-2] he is not entitled to an additional year and an exception cannot be granted.

Craft's letter goes on to explain that an exception was not available because of subpart 17-8.1 of Rule C--17-8 ("Rule 17-8.1"), which excludes all of Rule 12 from the Commissioner's general authority to waive a rule in hardship cases.

Andrean appealed Craft's decision to IHSAA's Executive Committee. At a hearing on October 18, Assistant Principal Kauffman of Andrean stated that Schafer was repeating most of his fall 1990 courses during fall 1991, as well as taking a few new courses, and had received no credit for the entire 1990-91 school year. This testimony piqued the interest of IHSAA Commissioner C. Eugene Cato, who remarked that such non-credit might limit Schafer's athletic eligibility pursuant to Rule C--18-1 ("Rule 18-1") on "Scholarship," which makes past academic success and current progress a prerequisite to participation in IHSAA sports, by stating, in pertinent part:

To be eligible scholastically, students must have received passing grades at the end of their last grading period in school in at least five full credit subjects or the equivalent and must be currently enrolled in at least five full credit subjects or the equivalent. Semester grades take precedence.

Following Rule 18-1 in the IHSAA bylaws is a section labelled "Interpretation," with eight subparts, including 18-1.5 ("Rule 18-1.5"), which states "[a] subject for which credit has previously been granted may not, if repeated, be counted to satisfy this rule." Although Schafer was taking a few new courses during fall 1991, his non-repeat work did not amount to five full credits.

Cato also opined that Andrean had broken the rules by allowing Schafer to play basketball during the spring of 1991. Because Schafer had not received credit for fall 1990, he was ineligible for spring 1991, so Andrean should have kept him off the team. Kauffman defended Andrean by explaining that at the start of the spring semester Schafer had the credits for fall, but in March or April the Andrean administration had decided to eliminate the fall credits because of Schafer's illness.

The Executive Committee denied the appeal. The ruling affirms Craft's decision, but is silent as to Cato's comments on the applicability of Rules 18-1 and 18-1.5. In other words, the Executive Committee's action left Schafer eligible during his next two semesters, the first being the then-current fall of 1991.

However, Cato apparently made a parol ruling on November 1 that Schafer was ineligible for the fall of 1991 because of Rules 18-1 and 18-1.5. Presumably, Cato interpreted Rule 18-1.5 to mean that a class "for which credit has previously been granted" includes even a class for which credit was given but then rescinded.

Page 544

Again, there was an appeal, with a hearing on November 15. Kauffman again testified that Schafer was taking a few new courses, but repeating four courses he had taken in fall 1990. Kauffman explained further that Schafer would be graded anew in the repeat coursework, unless he failed a course that he had passed in fall 1990. However, a new wrinkle appeared in Kauffman's testimony--because rules of the state department of education prohibit rescission of credit once awarded, and because Schafer had previously received credit for fall 1990, the repeated courses would not earn credit. Thus, Schafer's case seemed, even with a strict interpretation, directly under the dictates of Rules 18-1 and 18-1.5: because he would not earn credit for his repeat coursework, Rule 18-1.5 eliminated those classes from the five full credit subjects required by Rule 18-1, leaving him academically ineligible during fall 1991.

At the November 15 hearing, Schafer argued that ruling him ineligible for fall 1991 under Rules 18-1 and 18-1.5 unfairly deprived him of a semester's eligibility, because if he had stayed out of school during the fall semester 1991, he would have been eligible upon returning to school in spring 1992, and then again in fall 1992: in spring 1992 he would have been taking the second semester of the year-long courses for which he had not received credit in the spring of 1991, because he withdrew before the end of the semester, and therefore, Rule 18-1.5 would not have been pertinent, and under Rule 18-1 ("students must have received passing grades at the end of their last grading period") Schafer would be eligible, because his last grading period was the mid-term grades in spring 1991, at which time he had passing grades; and, assuming he received passing grades for spring 1992, he would be eligible for fall 1992. But, by attending in fall 1991, he was being ruled eligible for spring 1992 only. Similarly, if he had failed his courses in fall 1990, he would not have earned credit, and would therefore have been able to repeat the courses in fall 1991 without being ruled academically ineligible for sports. The decision to return in fall 1991 reflected the judgment of Schafer's parents and the Andrean administration that such was in Schafer's best interest academically and socially.

The Executive Committee upheld "the decision ... of November 1, 1991 ... [that Schafer] is ineligible for the fall 1991 semester ... in that he is not currently enrolled in five (5) full credit subjects...." The entry cited Rules 18-1, 18-1.5 and 17-8.1, which excludes all of Rule 18, like Rule 12, from the Commissioner's waiver authority.

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