U.S. ex rel. Missouri State High School Activities Ass'n, In re

Decision Date22 April 1982
Docket NumberNos. 81-1433,81-1527,81-1976 and 82-1132,81-1439,81-1526,s. 81-1433
Parties5 Ed. Law Rep. 383 In re UNITED STATES ex rel. MISSOURI STATE HIGH SCHOOL ACTIVITIES ASSOCIATION, a voluntary, not-for-profit, unincorporated association, Petitioner. William A. ZANDER III, by his next friend Judith R. Champ, Appellee, v. MISSOURI STATE HIGH SCHOOL ACTIVITIES ASSOCIATION, (MSHSAA), Appellant. Julie Ann BARNHORST, by her Parent and Legal Guardian, Marcella Barnhorst, Appellee, v. MISSOURI STATE HIGH SCHOOL ACTIVITIES ASSOCIATION, Appellant, Sunset Hill School; H. John Stander. Julie Ann BARNHORST, by her Parent and Legal Guardian, Marcella Barnhorst, Appellee, v. MISSOURI STATE HIGH SCHOOL ACTIVITIES ASSOCIATION; Sunset Hill School; H. John Stander. Appeal of the ABC LEAGUE. In re UNITED STATES ex rel. MISSOURI STATE HIGH SCHOOL ACTIVITIES ASSOCIATION, a voluntary, not-for-profit, unincorporated association, Petitioner. The ABC LEAGUE, a voluntary unincorporated association, and Andrew T. Nelson, a minor, by his next friend, his father, Richard T. Nelson, Appellees, v. MISSOURI STATE HIGH SCHOOL ACTIVITIES ASSOCIATION, a voluntary unincorporated association, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Guilfoil, Symington, Petzall & Shoemake, St. Louis, Mo., for plaintiff-appellee and intervenor-appellant, the ABC League, and plaintiffs-appellees, Andrew T. Nelson and Richard T. Nelson.

J. Robert Tull, Mallory V. Mayse, Tull & Mayse, Columbia, Mo., for appellant.

Before LAY, Chief Judge, and ROSS and McMILLIAN, Circuit Judges.

LAY, Chief Judge.

The basic question presented is whether a rule of the Missouri State High School Activities Association (MSHSAA) barring a student's participation in interscholastic athletics for a period of one year after the student transfers from one high school to another violates the federal Constitution. We hold that it does not.

Facts.

The Missouri State High School Activities Association is a voluntary, nonprofit, unincorporated association of high schools whose purpose is the regulation of interscholastic activities including sports, speech, debate, and music. MSHSAA is comprised primarily of public schools although many parochial and nonsectarian private schools are also members of the association.

The transfer rule applies only to athletics. Article VIII, section 8 of the MSHSAA constitution provides, "Students who transfer for reasons other than promotion are ineligible for 365 days." Section 8 creates a number of exceptions to this rule, most importantly, transfers accompanied by a corresponding change of residence of the student's parents and transfers ordered by the board of education or made necessary by school reorganization or closing. 1

Prior to July 1, 1981, an exception was also provided for students attending schools in the ABC League. 2 The ABC League is an association of private schools in the St. Louis area containing four denominational and two nondenominational schools. The six schools schedule sports competition among themselves on three levels determined by grade, age, height, and weight of the athletes. Because several of the ABC League schools have no physical education program and require all their students to participate in interscholastic athletics and because the League had traditionally been self-regulating, the League was granted a partial exemption from the transfer rule. However, during the course of this litigation, MSHSAA repealed this exemption effective July 1, 1981.

Three actions are consolidated in this appeal. In Zander v. Missouri State High School Activities Association, No. 81-0369-C(1) (E.D.Mo. April 7, 1981), Chief Judge H. Kenneth Wangelin enjoined MSHSAA from preventing William A. Zander, III, from participating in interscholastic tennis competition during the spring of 1981 after Zander transferred to a Missouri high school from a school in Florida. The Association's appeal from this order (No. 81-1439) is consolidated with review of this court's grant of a stay pending appeal (No. 81-1433). Zander did not take any role in the appeal. The parties concede that his individual claim is moot.

In Barnhorst v. Missouri State High School Activities Association, 504 F.Supp. 449 (W.D.Mo.1980), Judge Russell G. Clark refused to issue a preliminary injunction barring application of the transfer rule to prevent Julie Ann Barnhorst from participating in athletics during the 1980-81 school year. The court held the rule did not violate the due process or equal protection clauses of the fourteenth amendment.

Barnhorst subsequently conducted additional discovery and amended her complaint to claim that the transfer rule as modified by the ABC League exemption deprived her of equal protection of the law (Barnhorst did not transfer to or from an ABC League school). The court held that the exemption created discrimination between students which had no rational basis and thus violated the equal protection clause. However, the court found that the proper remedy was not the invalidation of the transfer rule, but rather the striking of the exemption. The court held the exemption unconstitutional and enjoined its application. Barnhorst v. Missouri State High School Activities Association, No. 80-1036-CV-W-4-3 (W.D.Mo. April 8, 1981). MSHSAA appealed (No. 81-1526).

On May 4, 1981, the ABC League moved to intervene in the Barnhorst case. The court allowed intervention for purposes of appeal, but refused to reconsider its order. Barnhorst v. Missouri State High School Activities Association, No. 80-1036-CV-W-4-3 (W.D.Mo. May 7, 1981). The League appealed (No. 81-1527). Because of the subsequent repeal of the ABC exemption, 3 the court's ruling as to the constitutionality of the exemption is moot. Barnhorst did not participate in the appeal. The parties concede that her individual claim is moot.

The final case consolidated in this appeal is ABC League v. Missouri State High School Activities Association, 530 F.Supp. 1033 (E.D.Mo.1981). In this case, the ABC League and Andrew T. Nelson, a transferee to an ABC League school interested in participating in interscholastic sports throughout the 1981-82 school year, filed suit against MSHSAA alleging that repeal of the ABC exemption and the transfer rule itself were unconstitutional. Judge Wangelin enjoined enforcement of the repeal and declared the transfer rule unconstitutional. In order to maintain a uniform policy in relation to the stay earlier granted in Zander, this court stayed execution of the ABC League order pending appeal. MSHSAA's appeal of Judge Wangelin's order (No. 82-1132) is consolidated with review of this court's stay of the order pending appeal (No. 81-1976). 4

Issues.

The issues presented on appeal concern the constitutionality of the transfer rule, the constitutionality of the application of the transfer rule to those schools formerly exempt under the ABC exemption, and the legality of the district court's decision to enjoin repeal of the ABC exemption. 5

Transfer Rule.

The ABC League and the individual students challenge the transfer rule on both equal protection and due process grounds. Because MSHSAA is an association comprised primarily of public schools, its rules are state action governed by the fourteenth amendment. However, federal courts have uniformly upheld comparable rules governing transfers against challenges based on both the due process and equal protection clauses. See Walsh v. Louisiana High School Athletic Association, 616 F.2d 152, 159-61 (5th Cir. 1980), cert. denied, 449 U.S. 1124, 101 S.Ct. 939, 67 L.Ed.2d 109 (1981); Moreland v. Western Pennsylvania Interscholastic Athletic League, 572 F.2d 121 (3d Cir. 1978); Hamilton v. Tennessee Secondary School Athletic Association, 552 F.2d 681 (6th Cir. 1976); Albach v. Odle, 531 F.2d 983 (10th Cir. 1976) (New Mexico); Oklahoma High School Athletic Association v. Bray, 321 F.2d 269 (10th Cir. 1963) (residency requirement); Kulovitz v. Illinois High School Association, 462 F.Supp. 875 (N.D.Ill.1978); Dallam v. Cumberland Valley School District, 391 F.Supp. 358 (M.D.Pa.1975); Paschal v. Perdue, 320 F.Supp. 1274 (S.D.Fla.1970).

Equal Protection.

Participation in interscholastic athletics is an important part of the educational process. Nonetheless, education has not been deemed a fundamental right under the fourteenth amendment requiring application of strict judicial scrutiny. San Antonio Independent School District v. Rodriquez, 411 U.S. 1, 29-39, 93 S.Ct. 1278, 1294-1300, 36 L.Ed.2d 16 (1973).

Plaintiffs argue that the transfer rule burdens their exercise of the fundamental right to travel interstate and restricts their freedom to associate. When a student alters his or her place of residence from one state to another without an accompanying change by his or her parents (as did Zander), the rule prohibits the student from participating in interscholastic athletics for one year. Classifications which penalize the exercise of the right to travel are subject to strict scrutiny. Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969). But most cases which implicate the rule's sanction do not involve interstate travel and, those which do, implicate the sanction because they involve school transfers and not because they involve interstate travel. The rule's minimal impact on interstate travel does not require strict scrutiny.

Plaintiffs also argue the rule burdens the exercise of the right to freely associate by penalizing students' choice to change schools and thus to alter the body of people with which they associate. Students have no indefeasible right to associate through choice of school. Mandatory assignment to public schools based on place of residence or other factors is clearly permissible. The transfer rule does not prevent...

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