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Court Determines that Interscholastic Sports Participation Is Privilege, Not Right

Another court determines that participation in interscholastic athletics is a privilege, not a right.

Mancuso 0509
Cleared by the courts to compete, fifth-year senior Elizabeth Mancuso helped her swim team win its fourth straight state title.
For years, courts at all levels have held that interscholastic athletics is a privilege, not a right. Among the latest cases to lead to that conclusion, Elizabeth Mancuso v. Massachusetts Interscholastic Athletic Association [2009 Mass. LEXIS 15], involved a female swimmer and began with a typical disagreement over an eligibility rule. In the fall of 1999, Mancuso entered Austin Preparatory School as a high school freshman. After completing her freshman year, Mancuso transferred to Andover High School and repeated the ninth grade. She joined the varsity swim team as a freshman, and over the next three years (2000-2002) helped the school win three state championships.

Before her senior year, Andover applied to the MIAA on behalf of Mancuso, requesting a waiver of MIAA Rule 59.1. The rule, which governs student-athlete eligibility, states that a student "shall be eligible for interscholastic competition for no more than 12 consecutive athletic seasons (i.e. four consecutive years) beyond the first completion of grade 8."

The MIAA refused to waive the rule for Mancuso and declared her ineligible to compete during her senior year. After all direct appeals to the MIAA were denied, Mancuso went to court seeking reinstatement to the swim team. In granting Mancuso a preliminary injunction, the court ruled that the MIAA's decision to deny the waiver was arbitrary and capricious. Cleared to compete, Mancuso helped the school win another state title. Individually, Mancuso earned both the state's high school swimmer of the year award and All-America honors.

Although Mancuso was allowed to compete, the case was still eventually tried before the Superior Court. At trial, Mancuso argued that the MIAA's decision not to grant the waiver infringed on her property interest in participating in interscholastic athletics, and that the MIAA deprived her of that property interest without due process, in violation of 42 U.S.C. § 1983. In submitting the issue to the jury, the judge asked the jury to decide:
  1. whether the MIAA had afforded Mancuso due process;
  2. if not, what (if any) compensable harm she had sustained; and
  3. whether the MIAA's conduct, if unlawful, was sufficiently malicious and intentional to warrant an award of punitive damages.
The jury returned a special verdict in favor of Mancuso, finding that the MIAA had failed to provide her with due process and awarded her compensatory damages in the amount of $10,000.

The MIAA then moved for judgment notwithstanding the verdict. In granting the MIAA's request, the judge ruled that Mancuso had no constitutionally protected right to participate on the swim team that entitled her to pursue a due process claim.

On appeal to the Supreme Judicial Court of Massachusetts, the state's highest court, Mancuso presented two arguments. First, she claimed that the MIAA infringed upon her rights under federal law in violation of 42 U.S.C. § 1983. Second, Mancuso argued that the MIAA had promulgated rules intended to discourage the exercise of her right to seek judicial review in violation of the Massachusetts Civil Rights Act.

Since Massachusetts courts had already determined that the MIAA is a state actor in Attorney Gen. v. Massachusetts Interscholastic Athletic Association [378 Mass. 342, 393 N.E.2d 284 (1979)], in order to recover damages under 42 U.S.C. § 1983, Mancuso would only have to prove that the MIAA deprived her of a right secured by the Constitution and laws of the United States. To this end, Mancuso first repeated her lower-court due-process claim. In particular, Mancuso argued that she had an entitled property interest in participating in interscholastic athletics, as an implied outgrowth of her recognized right to an education, which under Massachusetts law includes physical education.

In reviewing Mancuso's claim, the court acknowledged that all children in Massachusetts have a constitutional right to a public education, but determined that the right is not synonymous with the right to participate in extracurricular activities. Although such activities may serve as a beneficial supplement to required physical education, they are by their nature separate from the curriculum.

In noting that its decision was in line with the majority of other state courts that had considered the issue, the court rejected Mancuso's argument that some states have found that such a right exists. In reviewing the cases cited by Mancuso, the court ruled that only one of them (Stone v. Kansas State High Sch. Activities Association, 13 Kan. App. 2d 71, 761 P.2d 1255 [1988]) explicitly found a property interest in participation in extracurricular activities, and that case contains no discussion of the reasons for the court's conclusion.

Mancuso's second argument was that by denying her a year of eligibility, the MIAA was treating her differently from students who participate in both interscholastic swimming and private swimming clubs, and that this differential treatment violated her rights as a "class of one" under the equal protection clause of the Fourteenth Amendment. To prevail, Mancuso would have to demonstrate the differential treatment, and also show that the treatment resulted from a gross abuse of power, invidious discrimination or some other fundamental procedural unfairness.

Using this test, the court held that Mancuso had failed to meet her burden. While Mancuso was able to show that nearly half of all high school swimmers participate in both interscholastic swimming and private swimming clubs, she failed to show any evidence that any of these other swimmers had attended high school for five years, thus also running afoul of the MIAA's fifth-year rule. Even if Mancuso had presented sufficient evidence, the court ruled, Mancuso failed to show that the MIAA's alleged differential treatment resulted from a gross abuse of its power. In particular, there was no evidence that the MIAA failed to provide Mancuso with the same opportunity to be heard that it provided to every other athlete for whom a waiver was sought.

Mancuso thus failed to establish the violation of any federally protected right actionable under § 1983. As for Mancuso's claim that the MIAA's actions violated the Massachusetts Civil Rights Act, the court held in order to prevail, Mancuso must show that the MIAA used threats, intimidation or coercion to interfere, or attempt to interfere, with rights secured by the Constitution or laws of the United States or the Commonwealth of Massachusetts.

Mancuso claimed that the MIAA's rules constitute an attempt to dissuade her from exercising her right of access to the courts, and more specifically her right to seek judicial review of the MIAA's decision. In support of this argument, Mancuso pointed to MIAA Rule 29.2, which states that "any contest in which an ineligible student or coach participates under court order will be forfeited if the order is dissolved or the plaintiff ultimately fails to prevail," and MIAA Rule 29.3, which provides that students or teams participating in any contest under court order will be seeded last, imposing a competitive disadvantage on that team.

In rejecting Mancuso's argument, the court ruled that even though the MIAA has admitted that the rules are designed, at least in part, to discourage the litigation of eligibility disputes, they do not constitute the kind of actionable threats, intimidation or coercion contemplated by the Civil Rights Act. The MIAA rules, the court held, merely inform athletes seeking to challenge adverse eligibility determinations that, if they force their way into competition but are later determined to have been ineligible, the MIAA will apply its traditional rules regarding ineligible athletes - namely, a winning team that includes an ineligible athlete must forfeit its win. There is nothing unlawful or unfair about either of these practices, the court concluded.

The decision by the Supreme Judicial Court of Massachusetts in Mancuso reconfirms the almost universal position that unless states are willing to enact laws or regulations that specifically grant students the right to participate in interscholastic athletics, participation in high school sports is going to be deemed a privilege and not an entitlement protected under federal or state law.

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