McGee et al v. Virginia High School League, Inc.

Filing 21

OPINION AND ORDER denying 16 Motion for TRO. Signed by Judge James P. Jones on 8/11/11. (sc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION

CRYSTAL McGEE, ET AL.,
Plaintiffs,
v.
VIRGINIA HIGH SCHOOL
LEAGUE, INC.,
Defendant.

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Case No. 2:11CV00035
OPINION AND ORDER
By: James P. Jones
United States District Judge

Hugh F. O’Donnell, Client Centered Legal Services of Southwest Virginia,
Norton, Virginia, and Michael A. Bragg, Bragg Law, PLC, Abingdon, Virginia, for
Plaintiffs; R. Craig Wood and Aaron J. Longo, McGuire Woods LLP,
Charlottesville, Virginia and Charlotte, North Carolina, for Defendant.
The plaintiffs, parents of public high school students whose school was
closed under a school consolidation plan, seek a preliminary injunction allowing
their children eligibility to participate in sports and other interscholastic
competitions after their transfer to a new school in a different school district.
Despite my sympathy for the children’s situation, the plaintiffs have not
demonstrated a likelihood of success on the merits of their lawsuit and thus I am
unable to grant them relief.

I
The Town of St. Paul, Virginia, straddles the border between Wise and
Russell Counties. Until recently, St. Paul High School, part of Wise County’s
public school system, traditionally served students residing in both counties within
the Town. However, in March 2011, the Wise County School Board voted to
consolidate its six high schools into three, resulting in the end of the St. Paul
Fighting Deacons.
Under the School Board’s consolidation plan, all students who formerly
attended St. Paul High School were reassigned to Coeburn High School, located in
Wise County. Students residing in the Russell County portion of the Town were
granted the additional option, by virtue of their residency, of attending the nearest
Russell County alternative, Castlewood High School. However, Virginia law does
not mandate that students attend the resident school assigned to them by their local
school board. Thus, because Castlewood High School indicated its willingness to
accept St. Paul High School’s former students, regardless of residency, all the
students retained the ability to choose between Coeburn and Castlewood High
Schools. At the hearing on the present motion, the court heard evidence that for
various reasons — including distance, facilities, and the opportunity for and quality
of the extracurricular activities — the vast majority of St. Paul High School’s
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former students have opted to attend Castlewood High School for the upcoming
school year.
Defendant Virginia High School League, Inc. (“VHSL”) is a non-profit
organization composed of Virginia public high schools, charged with organizing
and conducting the schools’ interscholastic competitive events, including athletics.
As part of its duties, VHSL establishes eligibility requirements for student
participation. According to the VHSL Handbook, its eligibility rules are intended
to “provide a uniform code” in order to “equalize to some degree the opportunities
for success in competition, to encourage the participation of representative
students[,] and to insure [sic] maintenance of minimum essential standards by all
school representatives.”
Handbook”.)

(Def.’s Mot. in Opp’n, Ex. A, hereinafter, “VHSL

VHSL’s procedures provide a method for appealing eligibility

determinations, available to any student or parent who disagrees with a VHSL
decision. (Pl.’s Compl., Ex. A, hereinafter “Criteria for Transfer Appeals”.) The
appeals procedure involves multiple levels of internal review, culminating in the
opportunity to demand a hearing before an independent hearing officer. (Id.)
Pertinent to the present dispute are VHSL’s eligibility policies regarding
transfer students (the “Transfer Rule”). VHSL’s Transfer Rule applies whenever a
student enrolled in one school transfers to another without a corresponding change
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in the residence of his parents or guardian. (VHSL Handbook, Rule 28-6-1.) If a
student transfers to another high school and does not fall under one of the Transfer
Rule’s exceptions, the student is ineligible from participating in VHSL-sponsored
interscholastic competitions for one calendar year.

(VHSL Handbook, Rule

28-6-2.) The stated purpose of the Transfer Rule is “to discourage recruiting and
transfers for athletic/activity reasons and to encourage students to live with their
parents and be enrolled in school continuously in their home districts.” (Criteria for
Transfer Appeals.) The Transfer Rule addresses the case of a school closure by
providing an exception if the student transfers to the school serving the district in
which his parents reside. (VHSL Handbook, Rule 28-6-2(2).)
Shortly after the announcement of Wise County’s school reassignments, the
Mayor of St. Paul contacted VHSL seeking an exception to the Transfer Rule. The
Mayor requested that the Wise County St. Paul High School students be granted an
eligibility exception should they choose to transfer to Castlewood High School.
After review, VHSL’s Executive Committee denied the request. The VHSL’s
ruling thus set the student body’s eligibility as follows: if a student lived in the
Russell County portion of the Town prior to the closure, he or she would be
immediately eligible to participate in interscholastic activities at either Coeburn

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High School or Castlewood High School; if a student lived in the Wise County
portion of the Town, he or she would be eligible only at Coeburn High School.
Although several of the plaintiffs made initial inquiries to VHSL regarding
their children’s individual transfer status, they substantially relied on the Executive
Committee’s response to the Mayor’s letter, and they did not appeal using VHSL’s
administrative remedies. Instead, they filed the present lawsuit on July 19, 2011,
seeking a permanent injunction against the VHSL preventing the application of the
Transfer Rule to their children. They also asked for a preliminary injunction to
allow their children temporary eligibility at Castlewood High School while this
lawsuit is pending. The court held a hearing on this Motion for a Preliminary
Injunction on August 5, 2011, at which evidence was received. At the conclusion
of the hearing, the motion was taken under advisement. For the reasons that
follow, a preliminary injunction will be denied.

II
The plaintiffs argue that VHSL’s Transfer Rule violates their children’s
substantive and procedural due process and equal protection rights, as well as the
Virginia Constitution. They stress that they challenge the rule only as applied to
their unique circumstances, and they do not contest its facial validity.
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Preliminary injunctions are “extraordinary remedies” that may be granted
“only sparingly and in limited circumstances.” Microstrategy Inc. v. Motorola,
Inc., 245 F.3d 335, 339 (4th Cir. 2001) (internal quotation marks and citation
omitted). A party seeking preliminary injunctive relief must clearly demonstrate
“that he is likely to succeed on the merits, that he is likely to suffer irreparable harm
in the absence of preliminary relief, that the balance of the equities tips in his favor,
and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008); See The Real Truth About Obama, Inc. v. Fed. Election
Comm’n, 575 F.3d 342, 346B47 (4th Cir. 2009), vacated on other grounds, 130
S.Ct. 2371 (2010), reissued on remand, 607 F.3d 355 (4th Cir. 2010) (adopting the
Winter standard in the Fourth Circuit).
Winter’s stringent standard prevents me from issuing a preliminary injunction
in this case.

Having carefully considered the applicable law, I find that the

plaintiffs have failed to demonstrate a likelihood of success on the merits, as well as
irreparable harm.
In order to claim Fourteenth Amendment protection, the plaintiffs must first
establish that they have been deprived of life, liberty, or property. See Bd. of
Regents v. Roth, 408 U.S. 564, 569 (1972).

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The plaintiffs’ Fourteenth Amendment claims are grounded in the argument
that the Transfer Rule deprives them of the “parental right to raise one’s child and
to make decisions about the child’s welfare.”

(Compl. 2.)

Although it is

well-established that the Constitution protects the fundamental right of parents to
make decisions concerning the care, custody, and control of their children, Troxel v.
Granville, 530 U.S. 57, 66 (2000), it is equally apparent that the right is neither
absolute nor unqualified. Lehr v. Robertson, 463 U.S. 248, 256 (1983).
Indeed, as the case law makes clear, the right to parent is not implicated here.
As the plaintiffs concede, the Transfer Rule does not eliminate the parents’
freedom of choice regarding where they send their children to school. 1 The rule
instead affects only one metric of consideration in exercising that choice.
Although couched in terms of the fundamental right to parent, the real “right” the
plaintiffs attempt to assert is the right of their children to participate in
extracurricular activities with the school of their choice.

Components of the

educational process, such as interscholastic competition, are issues of public
education that do not merit constitutional protection.

Sisson v. Va. High Sch.

League, Inc., No. 7:10CV00530, 2010 WL 5173264, at *4 (W.D. Va. Dec. 14,

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Likewise, the Transfer Rule does not impinge upon plaintiffs’ alleged First
Amendment ability to “vote with their feet” by transferring schools.
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2010). “[P]arents simply do not have a constitutional right to control each and every
aspect of their children’s education and oust the state’s authority over that subject.”
Swanson ex rel. Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694, 699
(10th Cir. 1998). “While parents may have a fundamental right to decide whether
to send their child to a public school, they do not have a fundamental right generally
to direct how a public school teaches their child.” Blau v. Fort Thomas Public Sch.
Dist., 401 F.3d 381, 395-96 (6th Cir. 2004)
The plaintiffs presented testimony that the Transfer Rule’s effects have
weighed heavily on their families. One plaintiff plans to send her son to Coeburn
High School, against her wishes, in order to maintain his athletic eligibility.
Another plaintiff has apparently gone so far as to move the family into a rental
home so that his son can play as a Castlewood Blue Devil. However, while I
appreciate the importance athletics play in their decision making, I also recognize
that the plaintiffs retain the choice between Castlewood High School and Coeburn
High School.

As with many choices, this is one with consequences, and the

plaintiffs have the full opportunity to consider those consequences in deciding
which option is best for their families. See Jesuit Coll. Preparatory Sch. v. Judy,
231 F. Supp. 2d 520, 531 (N.D. Tex. 2002), vacated as moot, No. 02-10174, 2003
WL 23323003, at *1 (5th Cir. Feb. 26, 2003) (unpublished). However personally
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significant the individuals’ complaints, they are not thereby elevated to those of
constitutional import. Because the courts have rejected the notion that students
have a constitutionally protected interest in participating in interscholastic athletics,
see Sisson, 2010 WL 5173264 at *3, I conclude that the plaintiffs’ substantive due
process claim has very little likelihood of success on the merits.
The plaintiffs also claim a violation of the Equal Protection Clause. They
contend that the Transfer Rule’s application results in the Wise County students
being treated less favorably than those students who happen to live in Russell
County. Under recognized equal protection analysis, because no suspect class or
fundamental due process right is implicated here, the sole question is whether the
VHSL Transfer Rule bears a rational relationship to a legitimate state interest. See
FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993).
The VHSL handbook states that the purpose of the Transfer Rule is to
discourage athletic and academic recruiting and to encourage students to attend
school in their parents’ resident district. The handbook also emphasizes the desire
to establish rules that can be applied fairly and uniformly.

Transfer rules

articulating comparable goals have been upheld under rational basis scrutiny time
and again. See, e.g., Walsh v. La. High Sch. Athletic Ass’n, 616 F.2d 152, 160-61
(5th Cir. 1980). Given the consistency of the case law and the deferential nature of
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rational basis review, I find that the plaintiffs’ have not demonstrated a likelihood
of success on their equal protection claim.
The plaintiffs’ additionally contest the sufficiency of VHSL’s appeals
procedures in providing them with adequate procedural due process. Specifically,
the plaintiffs argue that the VHSL’s procedures lack an impartial decisionmaker,
use vague and inconsistent criteria, lack a definite method to apply the “undue
hardship” standard for eligibility exceptions, require an overly burdensome deposit
to avail an independent hearing officer, and unfairly require the student to enroll in
his new school prior to appeal.
Procedural due process protects a person from government action which
deprives him of an important liberty without adequate notice and opportunity to be
heard. Perry v. Sindermann, 408 U.S. 593, 599 (1972); Bd. of Regents v. Roth,
408 U.S. at 569-70. Given the non-constitutional nature of the right at issue and
the extensive, multilayer level of the VHSL’s appeals procedure, I am doubtful that
the plaintiffs could show that they have been deprived of adequate due process. See
In re United States ex rel. Mo. State High Sch. Activities Ass’n, 682 F.2d 147, 153
(8th Cir. 1982) (upholding a similar appeals procedure against a due process
challenge).

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Finally, the plaintiffs’ allege that the school system’s delegation of authority
to VHSL violates the Virginia Constitution. Article VIII, Section 7 of the Virginia
Constitution places exclusive responsibility for the supervision of local school
systems on local school boards. Although no school board has or could force
parents to send their child to his or her resident public school, the plaintiffs contend
that the Transfer Rule has the de facto effect of allowing VHSL to do so.
Again, the fact that there are obvious consequences to the choice of school
does not implicate a constitutional issue.

Moreover, VHSL is a voluntary

association, and such associations are traditionally granted significant deference as
to their internal affairs, rules, and bylaws unless enforcement would be arbitrary,
capricious, or an abuse of discretion. See Hebert v. Ventetuolo, 480 A.2d 403, 407
(R.I. 1984) (noting the application of this principle to several statewide athletic
associations).
For these reasons, I find that the plaintiffs have not demonstrated a likelihood
of success on the merits. Apart from this deficiency, the plaintiffs have also failed
to show irreparable harm. Courts have routinely rejected the notion that a student
suffers irreparable harm by not being permitted to participate in interscholastic
athletics. Sisson, 2010 WL 5173264, at *4.

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The court heard testimony and argument underscoring the significant benefits
interscholastic competition contributes to a child’s educational development. This
court fully supports those values. No doubt the perseverance and commitment
demonstrated by the parents in this case is not lost on their children. However,
lessons of victory and defeat, of fairness and unfairness, and of overcoming
setbacks, so often taught in the sports arena, are also present in difficult life
circumstances like this one. I hope that, despite the disappointing legal outcome,
the plaintiffs’ children remember that “clear eyes, full hearts, can’t lose.” 2

III
For the foregoing reasons, it is ORDERED that the Motion for a Preliminary
Injunction (ECF No. 16) is DENIED.
ENTER: August 11, 2011

/s/ JAMES P. JONES
United States District Judge

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This inspirational quote, lifted from Coach Eric Taylor’s halftime speeches to the
Dillon Panthers in the television show “Friday Night Lights,” reminds us all that it is
often one’s spirit, rather than the scoreboard, that defines a true winner.
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