PARKER EX REL. PARKER v. AIA

• Decision Date: 26 November 2002
• Docket Number: No. 1 CA-CV 01-0364.,1 CA-CV 01-0364.
• Citation: 204 Ariz. 42,59 P.3d 806
• Parties: Jason Ahmed PARKER, a Minor, by and through his Father and next Friend, Samuel L. PARKER, Sr., Petitioner-Appellant, v. ARIZONA INTERSCHOLASTIC ASSOCIATION, INC., its Executive Board, and Harold E. Slemmer, Executive Director, Respondent-Appellee.
• Court: Arizona Court of Appeals

59 P.3d 806

204 Ariz. 42

Jason Ahmed PARKER, a Minor, by and through his Father and next Friend, Samuel L. PARKER, Sr., Petitioner-Appellant, v. ARIZONA INTERSCHOLASTIC ASSOCIATION, INC., its Executive Board, and Harold E. Slemmer, Executive Director, Respondent-Appellee.

No. -0364.

Court of Appeals of Arizona, Division 1, Department D.

November 26, 2002.

Richard D. Coffinger, Glendale, for Petitioner-Appellant.

Mark R. Mignella, Phoenix, for Respondent-Appellee.

OPINION

GARBARINO, Judge.

¶ 1 We hold that the transfer rule of the Arizona Interscholastic Association, Inc. (AIA) does not conflict with Arizona's open enrollment policy, nor does it violate the Equal Protection Clauses of the Arizona and United States Constitutions. We lack jurisdiction to decide the constitutionality of the AIA restitution rule. Jason Ahmed Parker, through his father and next friend, Samuel L. Parker, Sr., appeals from the judgment of the trial court upholding the application of the transfer rule, which declared Parker ineligible for interscholastic athletic competition in football and basketball for one year from the date of his voluntary transfer from Barry Goldwater High School (BGHS) to Deer Valley High School (DVHS). We affirm the trial court's judgment.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 The AIA is a voluntary association of over 220 public and private Arizona high schools and one California high school. The AIA promulgates rules and regulations pertaining to interscholastic activities, including athletic competition among its members.

¶ 3 Parker attended BGHS during his freshman year and most of his sophomore year. In April of his sophomore year, Parker voluntarily transferred to DVHS. His transfer was not athletically motivated, and he was not recruited to attend DVHS. While at BGHS, Parker participated in football and basketball. Pursuant to the AIA transfer rule, Parker was found ineligible to play football and basketball at DVHS for one year following his voluntary transfer. According to the transfer rule, a student transferring from one school to another without a corresponding change in domicile may not participate at the receiving school in those sports he or she had played during the previous twelve months. Parker sought a hardship waiver, which the AIA denied. The stated purpose of the transfer rule is to deter athletically motivated transfers and recruitment of students and to promote "the educational philosophy that participation in athletics is a privilege which should not take a dominant role over academics."

¶ 4 Parker filed a petition for special action in superior court seeking a preliminary injunction and temporary restraining order prohibiting enforcement of the transfer rule and the restitution rule.¹ The trial court granted an interlocutory stay restraining the AIA from enforcing its ineligibility determination and from enforcing the restitution rule.

¶ 5 Following a trial, the trial court found that the transfer rule did not violate Arizona's open enrollment statutes, Arizona Revised Statutes (A.R.S.) sections 15-816 and 15-816.01 (2002). The trial court also concluded that the transfer rule did not violate Parker's equal protection rights under the Arizona and United States Constitutions, finding that it was rationally related to a legitimate state interest. See Ariz. Const. art. 2, § 13; U.S. Const. amend. XIV, § 1. The trial court, however, concluded in the final judgment that the restitution rule was unconstitutional and enjoined the AIA from enforcing it based on Parker's participation in interscholastic basketball competitions in accordance with the prior interlocutory stay order. Parker timely appeals. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) (1992) and 12-2101(B) (1994).

DISCUSSION

I. Mootness of Transfer Rule Judgment

¶ 6 Parker has already completed his twelve-month period of ineligibility. However, as both parties recognize, the dispute over the validity of the transfer rule will likely arise again. We agree that similar cases will recur, yet evade review because it is not possible to fully litigate such issues within the rule's one-year ineligibility period. The questions presented are of significance to students, parents, school boards, school administrators, and the AIA, which has the responsibility of administering interscholastic athletics. It is the general policy of this Court not to hear issues that have become moot. Fry's Food Stores of Ariz. v. Indus. Comm'n, 177 Ariz. 264, 266, 866 P.2d 1350, 1352 (1994). "We make exceptions to this self-imposed judicial restraint, however, when issues have significant public importance or are likely to recur." Id. Accordingly, we exercise our discretion to decide this issue on the merits. See Quimby v. Sch. Dist. No. 21 of Pinal County, 10 Ariz.App. 69, 71, 455 P.2d 1019, 1021 (1969).

II. Open Enrollment Statutes

¶ 7 Parker argues that the AIA's transfer rule is invalid because it conflicts with A.R.S. §§ 15-816 and 15-816.01(A), which establish an open enrollment policy in Arizona schools.² Under these statutes, school districts "shall implement an open enrollment policy without charging tuition." A.R.S. § 15-816.01(A). Section 15-816 defines "open enrollment" as

a policy adopted and implemented by a school district governing board to allow resident transfer pupils to enroll in any school within the school district, to allow resident pupils to enroll in any school located within other school districts in this state and to allow nonresident pupils to enroll in any school within the district pursuant to § 15-816.01.

Under this open enrollment policy, students are able to transfer schools voluntarily and without any change in domicile.

¶ 8 Parker contends that under this legislative policy, a student cannot be penalized in any way if he or she chooses to transfer schools for reasons not related to athletics. He argues that participation in athletics is a protected component of the educational process which he is entitled to pursue at any school he chooses under Arizona's open enrollment policy.

¶ 9 Citing Article 11 of the Arizona Constitution and Shofstall v. Hollins, 110 Ariz. 88, 90, 515 P.2d 590, 592 (1973), Parker contends that the Arizona Constitution establishes a fundamental right to education. Although in Shofstall the supreme court did state that education was a fundamental right, they applied a rational basis test in upholding Arizona's public school financing system. Shofstall, 110 Ariz. at 90-91, 515 P.2d at 592-93. The supreme court noted this inconsistency in Roosevelt Elementary School District Number 66 v. Bishop, 179 Ariz. 233, 238, 877 P.2d 806, 811 (1994).

¶ 10 Here, we need not decide whether education is a fundamental right because Parker takes the argument one step further and contends that the right to an education includes the right to participate in interscholastic athletics. To support his contention, Parker cites Tiffany v. Arizona Interscholastic Ass'n, 151 Ariz. 134, 726 P.2d 231 (App. 1986), which recognizes that participation in interscholastic athletics is an integral component of the educational process. Id. at 137-38, 726 P.2d at 234-35. Parker also relies on Alexander v. Phillips, 31 Ariz. 503, 254 P. 1056 (1927), which holds that physical education is properly included as part of the state's educational curriculum and that interscholastic competition is a permissible method of imparting such knowledge. Id. at 514, 254 P. at 1059. Finally, Parker argues that interscholastic athletics is a protected component of the educational process because the legislature included in A.R.S. Title 15, chapter 7, entitled "curriculum," a statute requiring school boards to adopt policies and procedures governing extracurricular activities. See A.R.S. § 15-705 (2002).

¶ 11 Parker misconstrues the cases he cites in support of his arguments. Although recognizing that a student has a right to a public education, Tiffany holds that absent "serious damage to his `later opportunities for higher education and employment,'" participation in interscholastic athletics itself is not a constitutionally protected right. Tiffany, 151 Ariz. at 138-39,726 P.2d at 235-36 (quoting Goss v. Lopez, 419 U.S. 565, 575, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975)). Tiffany is in accord with the majority of jurisdictions that have considered this issue. Tiffany, 151 Ariz. at 137,726 P.2d at 234 (citing cases). As recognized in Tiffany and by numerous other state and federal courts, interscholastic athletics is an important component of the educational process, but these individual components are not constitutionally protected. Id. at 137, 726 P.2d at 234 (quoting Albach v. Odle, 531 F.2d 983, 985 (10th Cir. 1976)); see also Walsh v. Louisiana High Sch. Athletic Ass'n, 616 F.2d 152, 159 (5th Cir.1980) (holding that there is no constitutionally protected right to participate in interscholastic athletics, and that no fundamental rights are burdened by the transfer rule); Anderson v. Indiana High Sch. Athletic Ass'n, 699 F.Supp. 719, 728 (S.D.Ind.1988) (explaining, in dicta, that students do not have a constitutional right to participate in interscholastic athletics); Justice v. Nat'l Collegiate Athletic Ass'n, 577 F.Supp. 356, 366 (D.Ariz.1983) (noting that participation in intercollegiate athletics is not a constitutionally protected interest); Steffes v. Cal. Interscholastic Fed'n, 176 Cal.App.3d 739, 222 Cal.Rptr. 355, 361 (1986) (noting that under the California Constitution, education is a fundamental right, but the right to participate in interscholastic athletics is not).

¶ 12 The legislature has not included interscholastic athletics as a graduation requirement for high school students, and Parker has not provided us with evidence that it is part of the minimum course of study required for him to graduate from DVHS. See A.R.S. § 15-701.01(B) (2002) (requiring school districts to prescribe graduation criteria "in...