University of Tulsa College of LawTU Law Digital Commons

Articles, Chapters in Books and Other Contributions to Scholarly Works

2008

Upon Further Review: Recognizing ProceduralDue Process Rights for Suspended High SchoolAthletesRay Yasser

Matthew Block

Follow this and additional works at: http://digitalcommons.law.utulsa.edu/fac_pub

Part of the Entertainment, Arts, and Sports Law CommonsThis information or any portion thereof may not be copied or disseminated in any form or by anymeans or downloaded or stored in an electronic database or retrieval system without the expresswritten consent of the American Bar Association.

This Article is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Articles, Chapters in Booksand Other Contributions to Scholarly Works by an authorized administrator of TU Law Digital Commons. For more information, please contactdaniel-bell@utulsa.edu.

Recommended Citation26 Ent. & Sports Law. 1 (2008).

2016 Olympic Games Host What's Wrong With ISP Hollywood Under SiegeCity Selection Process Unveiled Music Licensing?

A PUBLICATION OF

THE ABA FORUM ON

THE ENTERTAINMENT

AND SPORTS INDUSTRIES

VOLUME 26, NUMBER 3FALL 2008

A Modern Pandora's BoxMusic, the Internet, and the Dilemma ofClearing Public Performance Rights

BY DAVID M. GIVEN

n Greek mythology, Pandora was the name given to the world's first wom-an. Molded from earth at Zeus' instruction, each of the gods contributed toher completion. She played a pivotal role in the ancient accounts by opening

a jar and releasing all the evils of mankind-greed, vanity, slander, envy-uponthe world.

Her name (which translates literally as "all-gifted") was recently appropriat-ed by a Bay Area startup. In 2000, Pandora-the modem online version-beganwhat it called the "Music Genome Project." Employing a team of musicians, thecompany undertook to decode the details of each song from the canon of popularrecorded music, using a matrix of distinct musical attributes.

CONTINUED ON PAGE 17

Upon Further ReviewRecognizing Procedural Due Process Rightsfor Suspended High School AthletesBY RAY YASSER AND MATTHEW BLOCK

I. INTRODUCTION

A. Recurring ScenariosMeet Jimmy Blevins. Jimmy plays football at a small-town public high school

and is the best athlete in town. Jimmy is not quite talented enough to play foot-ball on the Division I level after graduation, but several Division II schools havebeen recruiting him since his breakout junior season. The community knowsJimmy as a hard worker and all-around good guy. He will never be mistakenfor the school valedictorian, but he tries hard in school and his grades are suf-ficient to keep him eligible to play. Before Jimmy's breakout season last year, he

CONTINUED ON PAGE 22

PROFILE

All You Needto KnowAbout DonaldS. PassmanBY LONDON WRIGHT-PEGS

onald S. Passman evolved

into one of the industry'sleading music attorneys for

numerous reasons, not the least ofwhich is that doing so is, as he says,"a good way to be in the music busi-ness and eat regularly." In addition,he credits his attorney father, actress/producer mother, and disc-jockeystepfather as the most influentialpeople in his decision to pursue alegal career in the music business.Indeed, his illustrious career encom-passes pieces of his parents' crafts.

While both music and entertain-ment law shape his career, the formeris the core of his practice, and also hislife, as described more fully below.Growing up, Passman played not justone-butfour musical instruments-the guitar, piano, accordion, andbanjo. During his college years at theUniversity of Texas, Passman waslead guitarist for a band for threeyears. Although the band mostlyplayed covers for fraternities, Pass-man wrote some songs, displayinghis other passion-writing. Passmancoined the band "Oedipus and the

CONTINUED ON PAGE 15

16,2004 [hereinafter EU Communication], § 3.1.1,at 14.

25. Id.26. Id. § 3.1.2, at 14.27. EU Impact Assessment Reforming Cross-

Border Collective Management of Copyrightand Related Rights for Legitimate Online MusicServices [hereinafter Impact Assessment], Oct. 11,2005, at 5.

28. Patrick Boiron, The Simulcast Decision:Toward a Competitive Environment for Collective Ad-ministration Societies, INTERN'L Ass'N OF ENTM'T

LAW., at 2.29. U.S. v. ASCAP, 485 F. Supp. 2d 438,

442 et seq. (S.D.N.Y. 2007). See also 17 U.S.C.§§106(6) & 114 (scope of exclusive rights insound recordings). The principal collectionsociety handling the licensing and collectingfor the (limited) public performance rightin sound recordings in the United States isSoundExchange, which holds itself out asan independent nonprofit designated by theU.S. Copyright Office to collect and distributedigital performance royalties for featured re-cording artists and sound recording copyrightowners (i.e., record labels). More on SoundEx-change can be found at its Web site, http://www.soundexchange.com.

30. Lionel Bently, United Kingdom § 8[11][b][v], at UK-113, in INTERNATIONAL COPYRIGHT

LAW AND PRACTICE (Paul Edward Geller &Melville B. Nimmer eds., 2006) (filed throughSept. 2007).

31. See, e.g., Alex Veiga, Record Labels SueWeb Site Operator, WASH. POST, Dec. 20, 2006(reporting on lawsuit brought against al-lofmp3.com). The saga of the music industry'senforcement efforts against that particularonline service provides an interesting case

study underscoring the limitations copyrightholders face in the current legal regime withrespect to transnational distribution of enter-tainment content via the Internet. See Wikipediaentry for allofmp3.com (last visited Aug. 28,2008). Under intense political pressure, the sitewas ultimately closed down. But a Russiancourt acquitted the owner of the service of allcharges stemming from a copyright infringe-ment prosecution and early proceedings in arelated civil case appeared to favor the service.In May 2008, the record labels (via the Record-ing Industry Association of America) declaredvictory and voluntarily dismissed their U.S.lawsuit. In the meantime, two sister sites haveemerged to take allofmp3.com's place.

32. Geller, supra note 4, § 3[1][b][ii][A] atINT-61.

33. Id. at INT-59.34. Id. § 3[1][b] [ii] [B] at INT-75.35. Impact Assessment, supra note 27, at 5.36. EU Study on a Community Initiative on the

Cross-Border Collective Management of Copyright,released July 7, 2005, at 6.

37. Impact Assessment, supra note 27, at 31.38. Commission Recommendation of 18

May [sic] 2005 on collective cross-border man-agement of copyright and related rights forlegitimate online music services [hereinafterRecommendation], 2005 O.J. L 276/54, at & 3.

39. Call for Comments, Jan. 17,2007, avail-able at http://ec.europa.eu/internal market/copyright/docs/management/monitor-ing-en.pdf.

40. Monitoring of the 2005 Music OnlineRecommendation, July 2, 2008 [hereinafterReport], available at http://ec.europa.eu/inter-nal_market/copyright/management/ manage-ment en.htm#report.

41. Id. at 4.42. Id.43. See CELAS, http://www.celas.eu.44. Susan Butler, More One-Stop Shops, BILL-

BOARD MAGAZINE, Feb. 3,2007, http://www.billboard.com.

45. Report, supra note 40, at 6.46. Id.47. Id.48. Id. at 6 & n.2.49. Henry Olsson, The Ministry for Justice/

Stockholm, The Extended Collective Licence AsApplied in the Nordic Countries, Kopinor 25thAnniversary International Symposium (May20, 2005), available at http://www.kopinor.org/opphavsrett/artiklerog-foredrag/ko-pinor_25_- ar/kopinor_25thanniversary-inter-national-symposium.

50. Daniel J. Gervais, APPLICATION OF AN

EXTENDED COLLECTIVE LICENSING REGIME IN

CANADA [ELECTRONIC RESOURCE]: PRINCIPLES

AND ISSUES RELATED TO IMPLEMENTATION

(2003), available at http://www.canadianheri-tage.gc.ca/progs/ac-ca /progs/pda-cpb /pubs/regime/tdm e.cfm.

51. World Intellectual Property Organiza-tion, Collective Management of Copyright andRelated Rights, at 14, available at http://www.wipo.int/edocs/mdocs/sme/en/wiposmes_ge-08/wipo-smes-ge-08-topic02.doc.

52. Or perhaps not. See "Giant of InternetRadio Nears Its 'Last Stand"' WASH. POST, Aug.16, 2008.

53. Last FM Needs More Than a Redesign toCatch Up to Imeem, TECHCRUNCH, Aug. 15,2008,available at http://www.techcrunch.com.

Upon Further ReviewRecognizing Procedural Due Process Rights for Suspended High School Athletes

CONTINUED FROM PAGE I

planned to work at the town factory after graduation, but now is focusing hisattention on receiving a Division II athletic scholarship.

Two weeks before the first game of Jimmy's senior season, he was kicked off theteam for his alleged involvement in an off-campus party. After questioning severalstudents about the incident, the principal came away with conflicting reports aboutwhat occurred that night. All indications were that alcohol and other illegal sub-stances were distributed and used at the party. If true, the students involved violatedpublic laws, school rules, and the student-athletes broke additional team rules.While only one student mentioned Jimmy's name in connection with the party, theprincipal decided to make an example of Jimmy. Jimmy was suspended from thefootball team by the coach, who acted upon orders of the principal.

The principal refused to hear Jimmy's side of the story, which would haverevealed that he was not at the party. Since being banned from participation infootball, Jimmy's scholarship offers have been withdrawn. The recruiters werespooked by the incident, sensitive to the issue of giving scholarships to studentswith bad character. Many members of the community have changed their opinionof Jimmy, believing the false reports about the party. Reluctantly, Jimmy has suedthe school district for denying him his procedural due process rights.

Meet Sally Montross. Sally plays volleyball for the local public high school andis a good player. Sally has no plans to play volleyball at the collegiate level, butshe enjoys the camaraderie of being with the other girls and the exercise she getspracticing every day after school. Sally believes that she gains fulfillment and

22 Entertainment and Sports Lawyer / Volume 26, Number 3 / Fall 2008

benefits at school through her partici-pation in volleyball.

On her report card, Sally received a67 percent in history and was promptlynotified that she would not be able toplay volleyball for the rest of the termbecause she failed to meet the requiredacademic standard. Sally believes thatthis grade is incorrect, and she sus-pects that it is a result of a mechanicalor mathematical error by the teacher.Unfortunately, the local high school hasa strict policy against reviewing andadjusting grades after they have beenreported by the teacher and recorded inthe school's system. Sally has sued theschool district for denying her proce-dural due process rights in regard tothe suspension from volleyball.

Meet Billy Williams. Billy playsbasketball for the local high school.Billy is by no means a star player on

his school's team. He is the third-stringpoint guard and averages only eightminutes per game. Nonetheless, play-ing basketball is very important to Billy.He lives in a low-income neighborhoodthat is infested with drugs and gangs.Billy has avoided this lifestyle by play-ing basketball at every possible op-portunity since junior high. Billy keepshis grades high enough to play sports,but with no family support urging himto excel in academics, Billy only doesenough to stay eligible for the basket-ball team. Billy's three older brothersnever graduated high school, drop-ping out before the completion of theirsophomore years.

Unfortunately, Billy was not allowedto participate in basketball for his senioryear because he turned 19 the summerbefore. The state high school athleticassociation has an eligibility rule thatrequires all participants to be under theage of 19 prior to the start of the season.Billy had been held back a grade inelementary school after his learningdisabilities were discovered. Neitherthe local high school nor the athletic as-sociation would hear Billy's appeal foran exemption. Now, Billy sues the localpublic high school and the state highschool athletic association for violatinghis due process rights.

While the student-athletes abovehave very sympathetic stories, the mes-sage that the majority of courts acrossthe United States deliver to students is"tough luck."' Courts have found thatstudents have no right to present theirside of a story when they are dismissedfrom their public high school athleticteam.2 The U.S. Supreme Court haslaid the foundation for courts to protectstudents' rights to tell their stories, butthe majority of courts have avoidedthis route for the past 30 years.4 Instead,students face the legal reality that theyleave their right to educational benefits5

derived from athletic participation andtheir right to protect their good nameat the schoolhouse gate.6 The arbitrarydeprivation of the right to participatein high school athletics is viewed asconstitutionally insignificant.

B. The Legal BackdropIn San Antonio Independent School

District v. Rodriguez, the Supreme Courtruled that high school students did nothave a constitutional right to public

education.7 However, three years later, in the landmark case Goss v. Lopez, the Courtclarified Rodriguez and determined that the Fourteenth Amendment prohibits thestate from depriving students their property or liberty interests in public educationwithout due process.' These interests are "normally 'not created by the Constitu-tion. Rather, they are created and their dimensions are defined' by an independentsource such as state statutes or rules entitling the citizens to certain benefits."9 Everystate had enacted compulsory school attendance laws that guaranteed a free educa-tion by 1918.1 It is based on these state laws that students have a protected right to apublic education. Once a state has ratified such educational legislation, that state is"constrained to recognize a student's legitimate entitlement to a public education asa property right which is protected by the Due Process Clause and which may not betaken away for misconduct without adherence to the minimum procedures requiredby that Clause." 2

While a student has clearly been granted Fourteenth Amendment due processprotection in the context of education, the U.S. Supreme Court has yet to address theissue of whether there is a constitutionally protected interest in participating in highschool athletics. 13 However, most lower federal and state courts have held that there isno right to participate in extracurricular activities, induding athletics. 4 Cases holdingthat student-athletes have a Fourteenth Amendment Due Process interest are anoma-lies in the American legal system. 5 Despite the vast majority of holdings that studentshave no protected interest in athletic participation, some of the decisions concede thatathletics play an integral role in the educational process. 6 This article will demon-strate that high school athletic participation is an integral part of the educational pro-

STUDENTS FACE THE LEGAL REALITY THAT THEY

LEAVE THEIR RIGHT TO EDUCATIONAL BENEFITS

DERIVED FROM ATHLETIC PARTICIPATION AND THEIR

RIGHT TO PROTECT THEIR GOOD NAME AT THE

SCHOOLHOUSE GATE.

cess, 7 indistinguishable from the academic aspects of public education. Therefore, anysuspension of a student from athletic participation must be accompanied by properFourteenth Amendment procedural due process or risk violating a student's constitu-tionally protected property or liberty interest in athletic participation.

Part I of this article lays out the current landscape of the law relating to student-athletes' procedural due process rights. In this section, the basic elements required tomake a due process claim are discussed. Then the comment sets out an analysis of themajority view and two minority views to frame the legal arguments that can be raisedby student-athletes. Part II of this comment discusses the property interest that stu-dents have in high school athletic participation. The section discusses the changes thathave occurred in the area of high school athletics since the courts first decided to denystudent-athletes due process protection. Additionally, this section takes an in-depthlook at the scholarly research that shows that participation in high school athleticsplays an integral role in education. This research demonstrates that high school stu-dent-athletes derive benefits such as academic success, character development, futureeducational success, future employment success, and health-just to name a few. PartIll of this article discusses the liberty deprivation interest that occurs when public highschools suspend student-athletes from athletic participation without proper due pro-cess. The conclusion is that the denial of the right to participate in high school athleticsis worthy of constitutional protection.

II. PROCEDURAL DUE PROCESS

The Fourteenth Amendment to the United States Constitution provides, [n]o State shallmake or enforce any law which shall abridge the privileges or immunities of citizensof the United States; nor shall any State deprive any person of life, liberty, or property,

Fall 2008 / Volume 26, Number 3 / Entertainment and Sports Lawyer

without due process of law; nor deny to any person within its jurisdiction the equalprotection of the laws."8

The Fourteenth Amendment provides two types of due process protection: proce-dural and substantive. 9 This article focuses on the procedural due process protec-tion that students participating in high school athletics should be afforded. Basedon a plain reading of the language of the Fourteenth Amendment, procedural dueprocess is only required when there is a deprivation of a student's life, liberty, orproperty.R' As a practical matter, students typically argue that the school has de-prived them of their property or liberty interest. 1 Interests garnering due processprotection should not be viewed as rigid preset categories; rather, the court needsto examine the interest in light of changing society and new information.22 Thecourt in Board of Regents v. Roth explained,

[lliberty" and "property" are broad and majestic terms. They are among the"[gireat [constitutional] concepts... purposely left to gather meaning from experi-ence.... [T]hey relate to the whole domain of social and economic fact, and the

statesmen who founded this Nation knew too well that only a stagnant societyremains unchanged."'

Further, in order to prove that a student has due process protection, the studentmust show two things. First, the student must demonstrate that there was "stateaction." Second, the student must prove that there is a "constitutionally protectedliberty or property interest in athletic participation."'24

A. State Actor RequirementThe threshold question for the student-athlete in a due process argument is

determining whether the school or state high school association is a state actor.25

While some cases contest whether a school is a state actor, this typically is not adifficult element to establish. 26 Public schools are consistently found to be state ac-tors by courts, while private schools are generally outside the scope of the Four-teenth Amendment.

27

One area of dispute arises when private entities engage in state action,28 spe-cifically, state high school athletic associations. These athletic associations formu-late rules and administer high school athletic competitions in their respective

THE U.S. SUPREME COURT HAS LAID THE

FOUNDATION FOR COURTS TO PROTECT HIGH

SCHOOL STUDENTS' RIGHTS TO TELL THEIR STORIES,

BUT THE MAJORITY OF COURTS HAVE AVOIDED THIS

ROUTE FOR THE PAST 30 YEARS.

states. 29 Additionally, these organizations are formally private and are oftentimescharged with the duty of sanctioning member schools?6 These associations setforth many standards that students must meet in order to participate in athletics.These rules include academic standards, 31 age requirements, 2 substance abuseguidelines,33 physical ability,m and transfer stipulations.3 High school athleticsin all 50 states and the District of Columbia are governed by athletic associationsthat are members of the National Federation of State High School Associations.36

The Supreme Court has held that these putatively private state high school as-sociations are engaged in state action when they regulate high school athleticsbecause of the "pervasive entwinement of state school officials" in the associa-tion.37 In Brentwood Academy v. Tennessee Secondary School Athletic Association, theCourt explained that the actions of a private organization are state action if thoseactions can be fairly attributable to the state because of the "close nexus betweenthe state and the challenged action." 38 Typically, when these state high schoolathletic associations engage in "sponsoring, administering, regulating, and

24 Entertainment and Sports Lawyer / Volume 26, Number 3 / Fall 2008

supervising interscholastic athletics,"their actions "will constitute stateaction within the meaning of the dueprocess clause." 39

B. Protected InterestThe leading case for analyzing

constitutional questions regarding astudent's property or liberty interest inparticipation in high school athleticsis Goss v. Lopez.4 In 1975, the SupremeCourt held in Goss v. Lopez that stu-dents facing suspension from schoolmust be afforded Fourteenth Amend-ment due process protection.41 In Goss,nine students were suspended fromschool for their supposed connectionto school disturbances.42 One studentwas suspended for demonstrating witha group of students during a class andrefusing to leave.4' A second studentwas suspended for attacking a policeofficer who was removing the demon-strating student.44 Other students weresuspended in connection with a lunch-room demonstration that ended inproperty damage, and yet another stu-dent was suspended for being presentat a demonstration.45 The administra-tion never heard testimony as to whyany of the students were suspended. 6

The school administrators suspendedthe students under an Ohio statute thatallowed the school administrator tosuspend students for up to 10 days orto expel students for misconduct.47 Theonly requirement was that the admin-istrator had to notify the parents of thestudent within 24 hours of the decisionand state the grounds for which thestudent was being reprimanded. 8 Ifexpelled, the student or the student'sparents had the option of appealing thedecision to the school board. Studentswho were merely suspended hadno right to appeal the decision of theschool administration.49

The Court found the actions by theschool unconstitutional. It reasonedthat "the total exclusion from the edu-cational process for more than a trivialperiod.., is a serious event in the life ofthe child" and that procedural due pro-cess rights could not be disregarded bythe schools." The Fourteenth Amend-ment prohibits a state actor from with-holding life, liberty, or property froma person without due process.5 ' Whileproperty interests are generally not"created by the Constitution," they are

defined by some other independent ba-sis such as state statutes.52 In this case,because state legislation required freeand compulsory education for school-aged residents, the students had a rightto public education.53 Once that rightwas vested in the students, the statecould not withdraw that right based onalleged misconduct without first fol-lowing "fundamentally fair proceduresto determine whether the misconducthas occurred."" While the state had noconstitutional obligation to require andprovide education to students, oncethe state has created this right, it is aprotected property interest held bythe student.55

The Court went further to describethe liberty interest that was at riskbecause of these suspensions fromschool s6 "Where a person's good name,reputation, honor, or integrity is at stakebecause of what the government isdoing to him," the state actor must en-gage in the procedures afforded by theDue Process Clause of the FourteenthAmendment.5 7 Students suspendedfrom school for misconduct wouldhave a damaged reputation amongtheir teachers, other students, futureemployers, and future educationalinstitutions.5" For school administratorsto threaten a student's liberty interest insuch a way required the state to affordstudents their due process rights."

The Court refused to look at theweight or severity of the detriment tothe student's interest in determiningwhether due process was required.'Instead, the first step was to determinethe "nature of the interest at stake,"61

and then the severity of the detri-ment to the protected interest wouldbe viewed as a factor in determiningthe form of the hearing that wouldbe required.62 As long as the depriva-tion of the protected interest is not deminimis, the gravity or severity of thedeprivation is not relevant, and the DueProcess Clause affords protection of theinterest.63 Even a suspension from theeducational process for a short periodof time is not de minimis because"education is perhaps the most impor-tant function of state and local govern-ments."61 The Court decided, "[n]eitherthe property interest in educationalbenefits temporarily denied nor theliberty interest in reputation, whichis implicated, is so insubstantial that

suspensions may constitutionally be imposed by any procedure the school chooses,no matter how arbitrary. "6

After determining that suspension from the educational process triggered thedue process protection guaranteed to property and liberty interests, the next step isto determine what process is due.' While there is no strict formula for determiningthe process due in each situation, it is clear that "at a minimum... deprivation oflife, liberty or property by adjudication be preceded by notice and opportunity forhearing appropriate to the nature of the case. "67 The Supreme Court recognized,"[tihe fundamental requisite of due process of law is the opportunity to beheard. "61 Additionally, due process requires that the decision maker be impartial toeither side of a dispute.69 While students' procedural due process does not protectthem from deserved suspension, it does allow them some type of notice and hear-

THE MESSAGE THAT THE MAJORITY OF COURTS

ACROSS THE UNITED STATES DELIVER TO STUDENTS

IS "TOUGH LUCK."

ing before the suspension can be levied.70 Prior to suspension, the student must begiven some notice of the accusations, and then if the student denies the charges, theschool must afford an opportunity to explain." When the school offers the studentan opportunity to be heard and the student refuses to participate, then the schoolmay continue with disciplinary actions.72 Finally, while some more serious suspen-sions or expulsions may require formal procedures, the Court refused to requireschools to allow students in all situations to obtain counsel, cross-examine witness-es, or call witnesses in the event of a short suspension.73

1. The Educational Process. When a student challenges a suspension based ondue process, the court must first determine if the student's deprivation amounts tothe "total exclusion from the educational process for more than a trivial period."74

Shortly after the Goss decision, the Tenth Circuit Court of Appeals developed anexplanation of the educational process.75 In Albach v. Odle, the court was faced witha rule that automatically excluded any student who transferred from another schoolin his district from participating in athletics for one year.76 The property interestrecognized in Goss was in the educational process.77 The Albach court defined theeducational process as a "broad and comprehensive concept" and extended it toencompass extracurricular activities. 78

The court went so far as to state that the educational process "is not limited toclassroom attendance but includes innumerable separate components, such asparticipation in athletic activity and membership in school clubs and social groups,which combine to provide an atmosphere of intellectual and moral advancement." 79

While the court in Albach clearly determined athletics to be a part of the educationalprocess, which is a protected property interest, it refused to acknowledge that theexclusion from participation in athletics is a deprivation of a property interest. Thecourt offered no explanation for the determination."'

2. The MajorityView. The vast majority of decisions have held that students donot have a property interest in participating in high school athletics."' While thesecourts are quick to dismiss procedural due process arguments in this context, theyoffer little rationale to support their decisions. Most courts hastily move these casesoff the docket with a quick mention of stare decisis principles. 2 However, even thedecisions that form the foundation for this denial of due process, which has becomefirmly rooted in American jurisprudence, display scanty analysis for the denial. 3

When attempting to explain why athletic participation does not deserve dueprocess protection, the court generally chooses from three basic arguments.First, many courts justify the denial by asserting that athletic participation is

Fall 2008 / Volume 26, Number 3 / Entertainment and Sports Lawyer

merely a privilege and not a right. 4 But this traditional rationale is moribund.Specifically, the Supreme Court has held that determining the validity of a propertyinterest by making a right versus privilege distinction is no longer legitimate in dueprocess analysis-'

Second, the court may assert that athletic participation falls "outside the scopeof protection"" because students only have a mere expectation of participationand not a legitimate claim of entitlement. 7 With this conclusory statement, thesecourts fail to explain the reasoning for finding that athletic participation is merelyan expectation for students and not something to which they are entitled. 8 Clearly,Goss held that students are entitled to the educational process and its educationalbenefits, thus triggering due process protections. Further, many courts agree thatathletic participation is integral to the educational process, 9 and research shows themyriad educational benefits accrued from athletic participation.9 If education is anentitlement and athletics are a fundamental aspect of education, then it is bafflingthat a court would summarily dismiss a student-athlete's interest as a mere expec-tation without further explanation.

Moreover, Goss speaks of the educational process and the state statutes providefor compulsory and free public education-not academics alone.91 The distinctionmay be subtle, but education does not consist of only classroom activities.92 Whilethe state statute is the starting point to determine that students are entitled to aneducation, the court must also look to "existing rules or understandings that stemfrom independent sources." 93 While a state may not have a statute providing for acompulsory athletic program, by looking at a school's student handbook, athleticcode, rules of the state athletic association, other state laws giving guidance in stateathletics, and possibly even the school's developed history or custom of offeringathletics as part of its educational program, it is apparent that students have morethan a mere expectation of athletic participation.94 The logical presumption is inopposition to that which the majority has taken; in fact, "[athletics] are 'generallyrecognized as a fundamental ingredient of the educational process....' Thus it isapparent that the right to attend school includes the right to participate in extracur-ricular activities."95

Lastly, these courts argue that the property interest protected is the entire educa-tional process and not the individual parts.96 The highest court using this argumentemployed a broad conclusory statement that property interests are not vested inthe individual aspects of the educational process. 97 Other courts have focused onthe language in Goss that discussed total exclusion from the educational processas a serious event in a student's life. From this statement, these courts have craftedthe notion that the entire educational process had to be denied before a student

received due process protections. 98 InPegram v. Nelson, the court relied on thisargument. The Pegram court discussedthe educational process analysis asdescribed by Goss and came to the con-clusion that due process can apply toathletics, but then refused to extend theright to suspended student-athletes. 99

Since there is not a property interestin each separate component of the"educational process," denial ofthe opportunity to participate inmerely one or several extracurricularactivities would not give rise todue process.100

But nowhere in Goss does the SupremeCourt focus on any requirement thatsuspension be from the total or entireeducational process.101

One court made the argument thatmost other courts avoided, but thenfailed to acknowledge its ramifica-tions. In McFarlin v. Newport SpecialSchool District, the court recognizedthe integral nature of athletics and thebenefits that students acquire throughparticipation, but refused to extendprotection based on a pragmaticargument. 02 Extending protection toathletics would "only result in a del-uge of litigation over not only athleticparticipation, but also participationin activities that others may hold asdear as some do sports, such as band,theatre, or choir."' 3 The court went onto explain that students just neededto accept the fact that in life, authority

Fau- h Defending LibertyPursuing Justice

Visit the ABA Web Store at www.ababooks.orgOver 150,000 customers have purchased products from our newABA Web Store. This is what they have to say:

"This is one of my favorite online resources for legal materials."

Li?

figures will make wrong decisions that will negatively affect them, and studentsneed to deal with it."M Unfortunately for this court, when the authority figuresare state actors, they are not free to tell the students to "deal with it" without dueprocess of law.105

Restricting students' rights for fear of opening the floodgates of litigation is con-trary to the purpose of the Due Process Clause. The Court in Goss stated,

[Ilt would be a strange disciplinary system in an educational institution if no commu-nication was sought by the disciplinarian with the student in an effort to inform himof his dereliction and to let him tell his side of the story in order to make sure that aninjustice is not done. "Fairness can rarely be obtained by secret,'one-sided determina-tions of facts decisive of rights.... Secrecy is not congenial to truth-seeking and self-righteousness gives too slender an assurance of righteousness. No better instrumenthas been devised for arriving at truth than to give a person in jeopardy of serious lossnotice of the case against him and opportunity to meet it."1

06

Obviously, refusing to recognize student-athletes' basic due process protections willkeep lawsuits to a minimum and aid school administrations in fast disciplinary ac-tion. However, the consequences of this holding are to allow the schools to operateas "enclaves of totalitarianism" and the courts to "shed [the students'] constitution-al rights.., at the schoolhouse gate."'17

While courts have crafted spurious rationales for denying basic due processrights to student-athletes, after analyzing the purpose for due process protections, l0 '

IN ORDER FOR HIGH SCHOOL ATHLETIC

PARTICIPATION TO BE PROTECTED BY THE DUE

PROCESS CLAUSE, ONE MUST SHOW DAMAGE TO

"LATER OPPORTUNITIES FOR HIGHER EDUCATION

AND EMPLOYMENT."

the explosion of athletic participation since the 1970s,109 and the integral nature ofathletics to the educational process,' these decisions are not defensible.

Many Supreme Court justices and well-known scholars have eloquently de-scribed the purpose behind the protection that due process affords Americansagainst government action. 1' Justice Douglas wrote,

It is not without significance that most of the provisions of the Bill of Rights are proce-dural. It is procedure that spells much of the difference between rule by law and ruleby whim or caprice. Steadfast adherence to strict procedural safeguards is our mainassurance that there will be equal justice under law.1 2

Likewise, Justice Frankfurter declared that "[t]he history of American freedomis, in no small measure, the history of procedure.""' Schools and lower courtsmay argue that affording due process protection to individual components of theeducational process will be too burdensome, but Justice Thurgood Marshall woulddisagree.' "[I]t is not burdensome to give reasons when reasons exist.... It isonly where the government acts improperly that procedural due process is trulyburdensome. And that is precisely when it is most necessary."11 5 Although govern-ment may act with good intentions the majority of the time, the benefits of proce-dure minimize accidental errors against the innocent."6

"It is the best insurance for the Government itself against those blunders which leavelasting stains on a system of justice"-blunders which are likely to occur when the rea-sonableness and indeed legality of judgments need not be subjected to any appraisalother than one's own."'7

When it comes to the deprivation of an interest so important to a young person, theConstitution demands that public schools afford the student-athlete at least mini-mal due process protections.

3. The Tiffany View. A few courts,while coming to the same result as themajority, have left the door open forstudent-athletes to enjoy the protec-tions of the Due Process Clause."' Thecourt in Tiffany v. Arizona Interscholas-tic Association developed the clearestrationale for this view."9 In Tiffany,the court faced the disqualification ofa high school athlete from his senioryear of athletic participation becausehe was 19 years old. 20 Tiffany playedsports throughout high school andeven grade school but was disqualifiedfrom competition during his senioryear because of a statewide rule regu-lating the age of athletic participants.12'

Tiffany had been held back during hisearly grade school years by his teach-ers and administrators, causing him tofail to meet the state high school ath-letic age requirement. 22 Tiffany arguedthat his procedural due process rightshad been violated, and the districtcourt determined that Tiffany did havea property or liberty interest in athleticparticipation.12'

On appeal, the Arizona Court ofAppeals held that Tiffany had notclaimed any cognizable interest, andwhile in some circumstances highschool athletes may have a constitu-tional right to due process, Tiffany'ssituation did not raise any interest thatreached the level of constitutionallyprotected property or liberty inter-est.24 The court noted that most deci-sions have found that the participationin high school athletics is not a consti-tutionally protected interest.'2 How-ever, the court did recognize that somecourt decisions have ordered schoolsto allow students to participate in ath-letics.'26 "In the realm of constitutionallaw, there are very few absolutes."1 27

Under certain circumstances, a studentcan prove that a suspension from highschool athletics violated his propertyor liberty interest, 28 but without show-ing damage to his future opportunitiesin higher education or employment,there was no deprivation of a cogni-zable property or liberty interest. 29

While Tiffany argued that he en-joyed participating in athletics, gainedfriendships while competing, andlearned discipline from participation,these subjective interests were notenough to show a property interest."0

Even Tiffany's incentive to maintain

Fall 2008 / Volume 26, Number 3 / Entertainment and Sports Lawyer

the required grade point average inorder to stay eligible for athletics didnot create a constitutionally protectedinterest.131 In order for high schoolathletic participation to be protected bythe Due Process Clause, one must showdamage to "later opportunities forhigher education and employment."1"2

Additionally, in Walsh v. LouisianaHigh School Athletic Association, theFifth Circuit Court of Appeals assertedthat depriving a student of one year ofathletic participation does not rise tothe level of constitutional protectionunder the Due Process Clause of theFourteenth Amendment, but the depri-vation of a more lengthy period of timecould require some procedural protec-tions."' Similarly, the court in Pegram v.Nelson explained 'that "[i]f the plaintiff'sproperty interest in public education isconsidered to extend to the total 'edu-cational process,' then, under certaincircumstances, the need for some dueprocess might arguably arise where astudent is excluded from participationin extracurricular activities." 134

4. The MinorityViews. Whilecases going in favor of suspended highschool athletes are rare, some courtshave found athletics to be such an inte-gral part of a student-athlete's educa-tion that the school was not permittedto suspend the athlete from participa-tion without due process.13' In Boyd v.Board of Directors of the McGehee SchoolDistrict, the Eastern District of Arkansasfound that the student-athlete's abilityto participate in high school athlet-ics was a property interest protectedby the Fourteenth Amendment's DueProcess Clause."6 In Boyd, a high schoolfootball player named Orlando John-son protested a pep rally with 24 otherteam members. These student-athleteshad perceived racial discrimination in ahomecoming queen election." 7 Becauseof the team members' actions, theywere suspended from the football teamfor the last four games of the regularseason."38 The court in Boyd found thatparticipating in athletics was integralto the educational and economic futureof the student-athlete.139 "Johnson'sinterest was something more than adesire to participate in a single seasonof interscholastic athletics without thebelief that and desire of realizing anytangential benefits accruing to him inthe future."'14 Therefore, the procedural

due process requirement protected the student-athlete's interest in participatingin athletics. 4'

In Duffley v. New Hampshire Interscholastic Athletic Ass'n, Inc., the Supreme Courtof New Hampshire declared that because athletics are such an important aspectof the educational process, a student's right to participate is protected by the DueProcess Clause.'4 In Duffley, the state high school athletic association held a 19-year-old student and member of the high school basketball team ineligible for his seniorseason of basketball. 43 The association's rules stated that a student was not eligibleto participate in athletics for more than eight consecutive semesters after the eighthgrade.""' Duffley had attended school for a portion of the first semester of his sopho-more year of high school and then withdrew from school for the remainder of theyear after becoming ill.14 Based on these facts, the state high school athletic associa-tion determined Duffley was ineligible to participate in athletics for the last semesterof his senior year.146

The association's rules allowed its decision to be appealed by the principal of thestudent-athlete's school. Duffley's principal conducted an appeal and requestedthat Duffley receive a medical exception for the two semesters that he did not attend

PARTICIPATION IN ATHLETICS HAS A POSITIVE

IMPACT ON HOW HARD THE STUDENT WORKS IN

SCHOOL, HOW PREPARED THE STUDENT COMES

TO CLASS, AND HOW POSITIVELY THE STUDENT

PERCEIVES HIS "LIFE CHANCES."

school or receive any academic credit. 47 The association denied the appeal by a voteof 12-1 and gave no reasons in support of its decision."4

The court in Duffley declared, "it can hardly be argued that high school studentswishing to participate in interscholastic athletics shed all of their constitutionalrights at the entrance to the [state high school athletic association] .1 49 Next, the courtturned to the main question of whether a student had a protected property interestin athletic participation at the high school level."" The court explained,

In making this determination, we rely upon not only statutory and regulatory pro-nouncements concerning the role of athletics in our educational process, but also a com-mon sense recognition of the benefits, both educational and economic, that frequentlyaccrue to those high school students who participate in interscholastic competition."'

The court referred to regulations by the state department of education that allowedfor "pupil activities, including athletics" to be in the school curriculum."2 Addition-ally, the stated goal of the state high school athletic association was to "establish thestate athletic program as an integral part of the entire school program" and that highschool athletics "have a unique contribution to make to the educational program ofthe entire school program." 5'

The court determined that athletics played an important and integral role in theeducational process of students and that there was a right to participate in athletics,not merely a privilege. 1 4 Specifically, a student's access to further education afterhigh school may be determined by athletic ability.5 5 Therefore, participation in highschool athletics must be viewed as a right of high school students that is entitled toprotections by the Due Process Clause.l'-

While not framing its holding in Fourteenth Amendment property interestlanguage, the court in Lee v. Florida High School Activities Ass'n, Inc. refused to allowa state high school athletic association to ban a student-athlete from participating ininterscholastic athletics without due process.157 The school had refused to allow thestudent to participate in athletics based on an association rule that limited studentparticipation to four consecutive years from the time the student began his first yearof high school.'8 The student had missed a year of school to work to aid his family's

28 Entertainment and Sports Lawyer / Volume 26, Number 3 / Fall 2008

financial situation. Based on these facts, the school and state high school athleticassociation ruled that the student was not eligible to participate in interscholasticathletics when he returned to school.15 9 The court found that the actions of thestate high school athletic association were clearly state action for constitutionalpurposes."6 The court found that because participation in high school athleticswould enhance the student's chances of being admitted to college and perhapsreceiving a scholarship, the state high school athletic association could not enforcethe ineligibility determination without first allowing the student an opportunity topresent his case.161 While the court did not declare that the student had a protectedproperty interest in high school athletic participation, it nonetheless determinedthat the high school athletic association was a state actor that deprived the studentof his due process rights.'62

In Florida High School Activities Ass'n v. Bryant, the court rejected the appeal ofthe state high school athletic association from a final judgment that allowed AaronBryant to participate in interscholastic athletics." The trial court faced the sameathletic association four-year rule that was the center of the Lee decision a year ear-lier. 6 The court reasoned that athletics were "an important and vital part of [thestudent's] life, providing an impetus to his general scholastic and social develop-ment and rehabilitation from his prior problems as a juvenile delinquent. It hasresulted in the improvement of his grades, attitude, self-confidence, discipline andmaturity."6' Again, while the court refrained from phrasing its decision in prop-erty interest language, it found that the right of a student to participate in athleticscould not be taken away from the student without a fair hearing. 66

III. PROPERTY INTERESTWhile the majority of the courts have faithfully decided cases dealing with stu-

dent-athletes' right to due process by simply falling back on the principles of staredecisis, 167 these courts fail to interpret the Supreme Court's position on students'due process rights correctly The Supreme Court has made it clear that due processinterests in property and liberty are not stagnant interests. 6 To the contrary, dueprocess interests can change with society's expectations and experiences. 16' Now,over three decades into a chain of stare decisis on this issue, 70 it is time for courtsto look at the overwhelming research and experience that has been gathered onthe importance of athletics to the educational process 17' and recognize due processrights for this integral aspect of education.

The Supreme Court in Goss extended due process protection to a student'sinvolvement in the educational process beyond the classroom,"7 despite what thelower court's narrow view of education would lead one to believe. 73 While lowercourts continue to view participation in athletics as a nonproperty interest, 4 schol-arly research showing the integral part that athletics play in the educational processcontinues to mount.175 While academic pursuits are dearly fundamental to educa-tion, athletic participation enhances the educational process by offering the studentdevelopment in areas and in ways that academics may fail.176 Since the 1970s, whenthe first line of decisions found that students had no due process interest in athleticparticipation, the landscape of high school athletics has changed drastically.' 7 Thenumber of students involved in athletics has increased exponentially. 7' Over-whelming amounts of research' 79 have been compiled that lay out the benefits ofparticipation in athletics. These benefits include an increased likelihood of overallacademic success,18 an increased likelihood of completing school,'' the develop-ment of positive character traits,"2 and better health and overall well-being.'6 3 Thisresearch can help the court better understand the integral nature of athletics to astudent's educational process. Moreover, students should be afforded due processprotection even under the view held by the Tiffany court that athletic participationonly becomes a property interest if the student-athlete can prove a deprivationof future educational or employment opportunities.6 ' Current research makes acompelling case that all student-athletes (and not just elite athletes) are deprived offuture educational and employment opportunities when deprived of the opportu-nity to participate in athletics." 5

While most courts dismiss a high school student-athlete's argument that theDue Process Clause of the Fourteenth Amendment triggers procedural protection

when a school encroaches on participa-tion in athletics,"' many of the samecourts concede that high school athlet-ics are an important and even integralaspect of the educational process.1 7

Modem courts should look beyondthe somewhat stilted "statutory andregulatory pronouncements concerningthe role of athletics in our educationalprocess" and engage in "a commonsense recognition of the benefits, botheducational and economic, that fre-quently accrue to those high schoolstudents who participate in interscho-lastic competition."'l

A reexamination of the role of highschool athletics' in the educationalprocess reveals that the prevailingview of procedural due process rightshas failed to "gather meaning fromexperience" and has become "stag-nant.""' Courts that cling to this viewby simply defaulting to the decisionsof past courts may believe that "(s)tu-dents should recognize that it is a factof life that on occasion all people aresubjected to arbitrary and unjust deci-sion making.""' The Supreme Courtof the United States would not agreewith this view of student-athlete's dueprocess rights."2

In our system, state-operated schoolsmay not be enclaves of totalitarian-ism. School officials do not pos-sess absolute authority over theirstudents. Students in school as wellas out of school are "persons" underour Constitution. They are possessedof fundamental rights which theState must respect, just as they them-selves must respect their obligationsto the State.1 3

The better view was summarized bya court holding to the minority viewwhen it stated, "it can hardly be arguedthat high school students wishing toparticipate in interscholastic athleticsshed all of their constitutional rights atthe entrance to the [state high schoolathletic association].""'

The remainder of this article is dedi-cated to examining the integral natureof high school athletics to the educa-tional process through a discussionof research on the benefits of athleticparticipation. Participation in athleticshas been thoroughly researched,"' andits benefits upon the student-athleteare well documented.19 While it is

Fall 2008 / Volume 26, Number 3 / Entertainment and Sports Lawyer

clear that the majority of courts cling tothe idea that participation in athleticsare not constitutionally significant, thepurpose here is to look beyond the caselaw, rules, and regulations and engagein a "common sense recognition of thebenefits, both educational and econom-ic" that students gain from participationin high school athletics. 97

A. Changing Landscape of AthleticsThe Supreme Court has deter-

mined that due process interests canchange with society,19 and one wouldbe hard-pressed to find an area ineducation that has seen a more drastictransformation than high school athlet-ics. 19 While the role of athletics in theeducational process may not have beenessential in the 1970s when the courtsbegan to rule on a student-athlete'sdue process interests, more than 30years later, athletics have becomeessential to the education of studentsacross America.2"' Today, athletics havebecome a major source of opportunityfor students to attend college,2 10' and thesheer number of students participatingand acquiring the benefits of athleticparticipation 22 beckons the courts toreassess the relation between athleticsand the educational process.2 3 Addi-tionally, the role of athletics has crossedgender lines since the 1970s and hasbecome vitally important to the lives ofyoung women across the country.2 4

1. General. In America today, thetime and energy that students, schools,and communities pour into athleticsreveal the importance that athleticsplay in today's educational process.2

1

In the 1971-72 school year, fewer thanfour million high school studentsacross the nation participated in athlet-ics. 2 6 Today, over seven million highschool students participate in athleticsacross America. 2 7 In just the last year,nearly 150,000 additional studentsplayed high school sports, raising theactual percentage of the student bodythat participated in high school athlet-ics to over 53 percent.208 Today, col-leges and universities across Americaaward approximately $1 billion inathletic scholarship money to student-athletes.29 The executive director ofthe National Federation of State HighSchool Associations, Robert F. Kanaby,asserts that participation in high schoolathletics "will have positive effects

on[students'] long-term personal success." 21 More specifically, "participation inathletics ... helps students succeed in life." 2"

The consistent increase in participation among the youth of our country andthe fact that well over half of all enrolled students are competing in high schoolactivities are true testaments to the impact these activities have on millions of livesacross the country.

212

The sheer number of high school students now participating in high school athleticssince the year that the majority view was set forth2 13 cries out for the current courtsto reassess whether this majority view has grown "stagnant.1214

2. Females and Athletic Participation. While fewer than 300,000 girls playedhigh school sports during the 1971-72 school year, today almost three million girlsparticipate in high school athletics.215 Since Congress enacted itle IX in 1972216and its "mandatory compliance" date in 1978,217 participation by females in highschool athletics has increased by 875 percent.21 Additionally, in that same period oftime, women's college athletics have seen a 437 percent increase in participation. 219

Stated another way, since 1972, participation by females in high school athletics hasincreased from I out of every 27 girls to 1 out of every 2.5 girls.22° Even as late asthe 1980s, female participation in high school athletics made up only 35 percent ofstudent-athletes. 2' Females now comprise over 41 percent of high school student-athletes.= From the 1980s until today, participation by female student-athletes insports such as soccer, softball, and track and field has dramatically increased.22 3

Additionally, the opportunity for female high school student-athletes to partici-pate in college athletics has exponentially increased since the 1970s and 1980s.224 In1970, only 16,000 women participated in athletics on the college level, while todaythe number of women participating in college athletics is over 180,000.2 In 23 years,women's college athletics have experienced a 137 percent increase in participationfrom 68,062 in 1981 to almost 161,000 in 2004.226 While in 1977-78 there were onlyapproximately 1,400 teams in all of American college athletics for women, todaythere are over 8,700 teams affording women the opportunity to participate in athlet-ics at the college level.227 In the years covering 1988 to 2002, NCAA schools added3,127 new sports while dropping 1,275, for a gain of 1,852 new women's athletic op-portunities.m During the 2003-04 school year, an average Division I school distrib-uted $1,388,100 in athletic scholarships to women, and each Division II school aver-aged $340,000 in women's athletic scholarships.229 Clearly, the landscape of women'sathletics has changed dramatically since the time the courts of the 1970s and 1980scrafted their view of the high school student-athlete's due process rights.

Along with the educational 23 and employment benefits that females receive fromparticipating in athletics,' 2 researchers have discovered overwhelming evidencethat participation in athletics is an integral part of a young woman's life that shouldnot be neglected.' Female student-athletes graduate at higher rates and obtain bet-ter academic results than girls who do not participate in athletics.?' For female highschool athletes who participate in college athletics, graduation rates are higher thanthose of nonathletes.23

Additionally, a 15-year study showed that females who participated in athlet-ics had significantly fewer incidents of breast cancer than nonathletes. 2

-6 A study

by researchers at Purdue University found that females who participate in highschool athletics had considerably higher bone density then females who did notparticipate and concluded that participating in high school athletics could aidin the prevention of osteoporosis. 237 These findings were supported by a studythat found that participation in athletics-not calcium consumption-is the bestpredictor of bone mineral density.238 Studies have found that female high schoolathletes have a more positive image of their body and are less prone to engagein drug use, to smoke, or to commit suicide than females who do not participatein athletics. 239 Research also has found that females actively participating in highschool athletics tend to avoid engaging in sexual behaviors during high school.241

More specifically, high school female student-athletes are "less than half as likelyto get pregnant as female nonathletes... more likely to report that they have nev-er had sexual intercourse than female nonathletes... and more likely to experi-ence their first sexual intercourse later in adolescence than female nonathletes." 241

30 Entertainment and Sports Lawyer / Volume 26, Number 3 / Fall 2008

Athletic participation has been found to be vital to the enhancement of adolescentfemale's mental health.242 Girls who participate in athletics experience higherlevels of confidence and tend to experience less depression than girls who do notparticipate in sports.2 43 With this increase in college scholarships and participationopportunities, the female student-athlete now has a larger financial and economicstake in high school athletic participation.

B. The Educational Process Is Not Purely AcademicThe Supreme Court in Goss found that students suspended from the educa-

tional process for a period as short as 10 days had to be afforded due processprotection. 244 The Court stated,

Neither the property interest in educational benefits temporarily denied ... is so insub-stantial that suspensions may constitutionally be imposed by any procedure the schoolchooses, no matter how arbitrary.245

The Court did not declare that academic benefits were the basis for protection; tothe contrary, the Court used much broader language that encompassed the benefitsthat are derived from the educational process and not just the academic classes.246

The Tenth Circuit Court of Appeals has laid out an explanation of the "educationalprocess" that proves to be very helpful.

The educational process is a broad and comprehensive concept with a variable andindefinite meaning. It is not limited to classroom attendance but includes innumer-able separate components, such as participation in athletic activity and membership inschool dubs and social groups, which combine to provide an atmosphere of intellectualand moral advancement.247

The Tenth Circuit decided, without explanation, that athletics were not affordeddue process protection under this definition of educational process.248 Thirty yearslater, in light of the changed landscape of athletics249 and the abundance of scholarly

THE SHEER NUMBER OF STUDENTS PARTICIPATING

AND ACQUIRING THE BENEFITS OF ATHLETIC

PARTICIPATION BECKONS THE COURTS TO REASSESS

THE RELATION BETWEEN ATHLETICS AND THE

EDUCATIONAL PROCESS.

research pointing to the importance of athletics to education,' this definition of theeducational process bolsters the view that the Supreme Court would find that dueprocess rights are not limited to the academic aspects of education.

While the lower courts often dismiss the constitutional rights of students as if stu-dents hold a lower status under the Constitution,5 the Supreme Court has expand-ed the rights that students are entitled to under the Constitution.252 The Court hasoften used strong language to express the depths of its disapproval of public schoolsthat deny students' basic rights guaranteed under the Constitution.253 Based on theSupreme Court's view of the dynamic nature of due process interests'" and its viewthat students do indeed have due process rights based on their property interest inthe educational process and educational benefits7 55 the nature of athletic participa-tion should be reexamined.3

Addressing the importance of athletics to a student's education, Supreme CourtJustice Byron White proclaimed,

Sports and other forms of vigorous physical activity provide educational experiencewhich cannot be duplicated in the classroom. They are an uncompromising laboratoryin which we must think and act quickly and efficiently under pressure and then forceus to meet our own inadequacies face-to-face and to do something about them, as noth-ing else does.... Sports resemble life in capsule form and the participant quickly learns

that his performance depends uponthe development of strength, stamina,self-discipline and a sure and steadyjudgment.27

Some schools have forgone the totaldevelopment of students while exclu-sively focusing on the academic aspectsof education. However, this view ofeducation fails to recognize that there isa difference between a student gainingan educationally complete and not sim-ply an academically complete experi-ence during high school.259 Educatorsrealize that athletics and academicshave a "lefthand-righthand relation-ship. Because a person can live withone hand, does that make the other aluxury?"26° The educational processis not merely classroom activities andtextbook assignments; the courts "can-not separate academics and [athletics].They are all part of the same program,and that program is education." 261 InAmerica, the role of athletics is in-separable from the educational processbecause athletics are "a training groundfor life." 262 Athletics serve an integralrole in the development of students thatmere academics do not provide becausesports are "a social theatre in whichyouth learn to aspire higher, work hardand sacrifice, perform with a team, andovercome defeat in their pursuit of theAmerican Dream."2" The "positive out-comes of involvement are inevitable."264

Focusing only on academics can be un-healthy to a student's development andattainment in the educational process. 265

Those who believe that activitiessuch as athletics are nonacademic andthus somehow inferior in the educa-tional process are mistaken a.2 6 Indeed,the courts tend to view athletic partici-pation as not integral to the educationalprocess, and many schools disregardthe importance of athletics by targetingthese activities for budget cuts duringtimes of financial hardship.267 But thesecourts and schools ignore the host ofpositive effects that athletics have onstudents.26 After viewing the over-whelming benefits that students gainfrom participation in athletics, the focusshould be on finding ways to increasestudent involvement, not decreasingor restricting participation. 269 Thosewith a significant interest in the totaldevelopment of students need to lookbeyond academics when accessing theeducational process and recognize the

Fall 2008 / Volume 26, Number 3 / Entertainment and Sports Lawyer

role that athletics play 270 Fortunately,the studies showing the positive effectsthat athletic participation has on highschool students are abundant.271

1. In-School Academic Benefits.Performance in school is closely con-nected to participation in athletics.272

There is little doubt that there is apositive connection between athleticparticipation and such "school relatedoutcomes such as GPA and students'academic self-confidence" and thestudent's overall academic achieve-ment.273 Students who begin partici-pating in athletics tend to earn highergrades than when they did not partici-pate in athletics.274 More importantly,those students who are typically lessdisposed to high levels of academicachievement experience the greatestacademic impact from participationin athletics.27 These positive benefitshave been discovered in regard tominority students. Athletes tend to sethigher educational aspirations, 276 pos-sess better self-esteem, 277 and gravi-tate toward college enrollment278 andcollege graduation. 279 Athletes tendto enjoy enhanced adult earnings.280

Participation in athletics provides stu-dents with "positive experiences thatenhance student academic success andthe basic value of achievement."2

1

High school teachers attributethese positive benefits experienced bystudent-athletes to the "discipline and.work ethic" that participation in sportsrequires from the student.212

It is possible that in sports theemphasis on hard work, achieve-ment, self-improvement, presentpreparation for future competition,persistence, etc., carries over fromthe playing field, thereby increasingmotivation and aspirations in otherareas including post-high-schoolcareer orientations. 83

Student-athletes tend to have higherlevels of motivation in school becausethey must maintain a minimumstandard of academic achievementin order to continue playing sports.2"3

Participation in athletics has a positiveimpact on how hard the student worksin school, how prepared the studentcomes to class, and how positively thestudent perceives his "life chances."2 5

Athletics have been shown to increasestudent-athletes' "overall interest andcommitment to school" as well as bet-

ter the student-teacher relationship along with increased parental contact with theschool.8 6 While there may be a popular stereotype in the United States that highschool student-athletes are "dumb jocks," the research proves that this is a myth.2 7

2. Drop-Out Rates. Not having athletics as part of the educational process is"like cutting off your nose to spite your face.., because [] sports ke[ep] many kidsin school who might otherwise have dropped out."2s8

Athletics is not just fun and games ... most kids, even if they're not the stars, enjoy be-ing a part of a team. Ninety-five percent of them are never going to get a college athleticscholarship, but that little bit of glue that comes from being on a team, even if it's ajayvee or freshman team, is what makes some kids want to come to school every day.2 9

Research reveals that involvement in school activities is the most important fac-tor keeping students from dropping out.m° High school student dropouts have an"increased probability of subsequent criminal behavior,29 1 lower occupational andeconomic prospects,29 2 lower lifetime earnings," and an increased likelihood ofbecoming a member of the underclass."29 4 The greatest predictor for a student's in-creased involvement in school and the student's decreased probability of droppingout of school is participation in athletics.295

3. Positive Character Traits. Research shows that student participation inathletics aids in the development of a significant character trait needed in both later

ATHLETICS AND ACADEMICS HAVE A "LEFTHAND-

RIGHTHAND RELATIONSHIP. BECAUSE A PERSON

CAN LIVE WITH ONE HAND, DOES THAT MAKE

THE OTHER A LUXURY?"

educational and employment ventures-leadership.2 96 Student-athletes tend todevelop appreciably higher levels of leadership abilities than nonathletes. 297 Whilestudents who don't participate in athletics may indeed have leadership ability, theclassroom setting does not offer them the active training to develop this importantskill298 Specifically, student-athletes engage in leadership roles with their peers dur-ing practices and competition, and they are under the constant purview of leader-ship models, their coaches.2 99

"Leadership may be defined as the capacity to guide others in the achievementof a common goal. Decisiveness, determination, loyalty, self-efficacy, and self-discipline are considered some of the attributes of effective leaders."3°0 Participa-tion in sports offers the student-athlete "the opportunity to develop and display"this important trait.3"1 The evidence strongly suggests that athletic participationincreases or strengthens the student-athlete's leadership ability.30 2 "If developingleadership skills-and the psychological characteristics associated with leader-ship-is indeed one of the goals of the educational system, and participation insports fosters the acquisition of such skills, then maintaining athletic programs isstrongly recommended."' 0

Sports offer the student-athlete experience in working as a team, setting goals,and pursuing those goals through adversity. 3 4

Students' academic objectives are much more than many educators realize. Participa-tion helps develop basic values such as self-respect, self-esteem, self-confidence, andcompetitive spirit; further the participant learns the value of teamwork and experienceshow to win and lose. These intangibles certainly are educational experiences and asimportant in a student's total preparation for being a productive citizen in later life asgrades earned in the academic classroom.'0

Society expects students to develop certain skills such as "striving for excellence,fair play, sportsmanship, hard work, and commitment to a goal," which are devel-oped through athletic participation.306 The deprivation of the right to participate in

32 Entertainment and Sports Lawyer / Volume 26, Number 3 / Fall 2008

athletics results in the loss of "school spirit, morale, self-esteem and skill develop-ment."3°7 These activities are "inherently educational" and uniquely support theeducational process because athletics provide practical experience in "teamwork,sportsmanship, winning and losing, hard work... self-discipline, [and] buildingself-confidence and develop[ing] skills to handle competitive situations."3 8

School administrators have supported the integral nature of athletics in the edu-cational process. As one public school superintendent explained, "I really believethat ... athletics are that important to the education of a child. Those kids learntremendous lessons in teamwork, sharing and discipline, and I'm convincedthese lessons help them later in life."'

4. Health and Other Benefits. One of the most important benefits that studentsgain from participation in high school athletics is good health.31' Studies have foundthat such participation can help "build and maintain healthy bones, muscles andjoints ... control weight, build lean muscle and reduce fat... [p]revent or delaythe development of high blood pressure... and [r]educes feelings of depressionand anxiety."311 President Bill Clinton ordered the secretary of Health and HumanServices and the secretary of Education to identify "strategies to promote betterhealth for our nation's youth through physical activity and fitness. ,312 The results ofthe study indicated that it must be a national priority "to promote participation inphysical activity and sports among young people."3 13

The third leading cause of death among adolescents between the ages of 15and 24 is suicide.3"4 Over the last 40 years, this rate among adolescents has almosttripled.31 "[A]thletic involvement is associated with protective factors that havebeen generally found to reduce suicide risk among young people: e.g., lower ratesof illicit drug use, greater social supports, reduced risk for depression." 316 Researchshows that students who participate in high school athletics "reported significantlylower rates of suicidal ideation and behavior than their nonathlete counterparts." 317

While current research suggests that a student's participation in a structured ex-tracurricular activity is "fundamental to students' academic motivation and achieve-ment,318 participation is also integral to their emotional well-being."3 19 The impor-tance of students having the opportunity to participate in athletics, a structuredextracurricular activity, is more important to today's student who has 40-50 percentof his or her day comprised of free time.3 2° Most students spend the vast majority ofthis free time on unproductive activities 321 that lead to deviant activities and antiso-cial behavior.32 Further, a student's inability to participate in athletics, a structuredextracurricular activity, translates to lowered academic performance and negativebehavioral tendencies. 32' Additionally, student-athletes tend to have a better grasp ofboundaries for disciplinary purposes because they must conform to strict codes ofconduct to participate on the team.324 These positive effects from athletic participa-tion also can be seen on inner-city students.325

Student athletic participation develops "self-efficacy, self-confidence, and feelingsof competence by virtue of the mastery of skills and talents that such participationengenders"3 26 and the development of these virtues through athletic participa-tion is related to the performance of students not only during school but also aftergraduation.3 27 While participation in athletics increases the student-athlete's levelof self-confidence, that increased confidence carries over into the student's life afterhigh school.32' The development of confidence in one's competence is key to properstudent development and can be traced back to the amount of the student's par-ticipation in high school physical activity.329 Additionally, student-athletes developimportant planning and decision-making skills because they are forced to balanceschoolwork, outside responsibilities, and game and practice schedules. 3

While many students feel alienated from their high schools, participation inathletics enriches the school experience for students.-3 1 The "prestige and popular-ity" that come with being a student-athlete could result in an increased self-esteemand higher career goals.32 This increased visibility of the student-athlete could resultin the increased quality and quantity of "career counseling and encouragement" atschool.333 Participation in sports even has a positive effect on relations between differ-ent racial and ethnic groups.3' 4 Students who participate in athletics receive such im-portant benefits to their school experience that educators and policymakers shouldtake notice of the research, develop the quality of athletics at schools, and integrate

ways to increase student participationin athletics. 3" Clearly, "[t]he athletic roleenhances the academic role" 3 6 in theeducational process and the achieve-ment of educational benefits.

C. The Tiffany StandardThe court in Tiffany explained that

in order for a student's interest in highschool athletic participation to riseto a level necessitating due processprotection, a significant injury to "lateropportunities for higher education andemployment" must be demonstrated.3

3 7

While it may be easier for star athletescompeting for a college scholarship toshow a significant injury to their oppor-tunity for higher education, 3" there issomething fundamentally unfair aboutproviding constitutional protection tosome students but not others based onathletic ability alone. Fortunately, sincethe decisions that have set off this chainreaction of stare decisis, overwhelmingamounts of research have been doneon the significant future educationaland employment benefits that all highschool student-athletes gain from par-ticipation in athletics-not just theelite athletes.3 '

Evidence is mounting about theeducational and labor market benefitsthat are gained because of a student'sparticipation in high school athletics.34°

Students who participate in high schoolathletics experience significant advan-tages in both employment 41 and edu-cation 342 when compared to studentswho do not participate in sports.43

The research in this area reveals thatparticipation in athletics "has a stron-ger positive impact on postsecondaryoutcomes" than any other extracurricu-lar activity,344 along with higher levelsof "academic achievement, educationaland occupational aspirations and at-tainments, self-concept, and popular-ity." m5 These skills help the student-athlete become a more productiveworker and one who will persevere inobtaining higher education if needed.'Benefits from participation in athleticsshow that the student-athlete will havea higher GPA,'347 a better "personal-social development," 34 a higher overallacademic performance, 49 fewer disci-pline problems,3"° and a lower probabil-ity of dropping out of school.31 Theseare all skills that future employers andeducators expect out of students and

Fall 2008 / Volume 26, Number 3 / Entertainment and Sports Lawyer

are specifically targeted and developedthrough participation in athletics. 2

1. Educational Benefits. One ofthe main goals of the educational sys-tem in the United States is to preparestudents for college.35 3 Nonathletestudents attempting to gain admit-tance into higher education institu-tions experience more difficulties thanathletes.3 54 Specifically, some universi-ties take great pride in the number offormer high school athletes in theirstudent bodies.5 Research has foundthat those students who characterizethemselves as "jocks" obtain highergrade point averages and have a betteropportunity of attending college thanthe rest of the student body.6 Researchis proving that "[s]ports and schoolingare inextricably linked." 357

Many students who would nototherwise attend college decide toattend because they aspire to continueparticipating in athletics after highschool.35 More specifically, manystudent-athletes who would nototherwise attend college do so becausethey receive an athletic scholarship.3 9

Research uncovered that high schoolathletes are more likely to obtain apostsecondary education eight yearsafter graduation than nonathletes.360High school student-athletes are morelikely than nonparticipants to graduatefrom college by 25-35 percent. 6 Thesefindings indicate that "traditional testscores and high school rank do notfully capture an individual's ability"

3 6 2

and that athletic participation plays anintegral role in determining a student'sfuture educational and employmentbenefits.363 One explanation for theseresults is that the student-athlete isexposed to unique training that is ben-eficial after high school, which student-nonathletes do not receive throughmere classroom experiences. 364

Student-athletes express interest inattending college after high school ingreater proportions than the generalstudent body.36 A greater number ofstudent-athletes intend on enrollingin college than nonparticipants, andthis connection is seen clearly withthose students otherwise not disposedtoward attending college.366 Whileparticipation in high school athleticsis directly connected to the greatereducational achievement and higherwages later in life, there is no evidence

that this participation has any negative effects on the student in his or her futureeducational and employment benefits.367

2. Employment Benefits. While many educators have focused their attentionon academic achievement,' a student's participation in athletics provides the stu-dent with "opportunities to acquire, develop, and rehearse attitudes and skills fromwhich status goals evolve and upon which future success is grounded."369 Eightyears after graduation, high school athletes also are employed at higher levels thannonparticipants in high school athletics.37

' Additionally, those students who partici-pated in high school sports earn more money than students who did not participatein sports.37' Studies have shown that by the age of 32, men who participated insports during high school were earning 31 percent more money in their career thanworkers who had not involved themselves in athletics during high school.372 Anadditional study, which tracked the effects of high school athletic participation onhigh school students who graduated in 1972, also found that those who had beeninvolved in high school athletics earned higher wages than nonparticipants.373 Fur-thermore, greater involvement in athletics tended to increase the amount of moneyearned in life.374

IV. LIBERTY INTEREST

The Supreme Court in Goss not only laid the groundwork for student-athletesto protect their property interest in athletic participation, but the Court alsomade it clear that when a school deprives a student of the educational processand its benefits that a liberty interest also may be at stake.375 The Court in Gossreaffirmed its stance on liberty interests requiring due process protection.376

"Where a person's good name, reputation, honor, or integrity is at stake because ofwhat the government is doing to him," the minimal requirements of the Clause mustbe satisfied.37

The Court went on to explain that if the charges against the students weremaintained by the school and recorded, the charges against the students could"seriously damage the students' standing with their fellow pupils and theirteachers as well as interfere with later opportunities for higher education andemployment."3 7 Public schools unilaterally deciding whether a student hadengaged in misconduct without any process "collides with the requirements ofthe Constitution."

379

Shortly after the Goss decision, the Supreme Court further explained itsstance on the deprivation of a liberty interest. 30 In Paul v. Davis, the Court heldthat the mere act of defamation by the state actor was not enough to triggerdue process protection.381 The defamation had to occur in connection with someother loss, such as employment termination or educational suspension.382 TheCourt in Paul stated that this holding was consistent with Goss because the repu-tational harm that occurs in the context of the educational process is connectedwith the student's suspension.3 83

A student-athlete could not successfully make this argument in all scenarioswhen a school denies the student participation in athletics.384 For instance, rulesthat would suspend or ban a student from athletics based on age,3 5 transfer-ability,386 home-school eligibility,38 7 or semester-eligibility388 do not typically raisethe issue of a student's reputation. But one could argue that integrity is marredif a school questions the student's motives for transferring. Generally, arguingdeprivation of liberty interests under the aforementioned rules does not seem tobe as persuasive as a property interest argument, but the door is open for suchan argument to be made.389

In many situations, the student does have a viable liberty interest at stake. 390

For instance, if a student is suspended or banned from athletics because theschool accuses the student of violating a drug, alcohol, or some behavioralpolicy, the student's liberty interest is implicated.391 Even in situations where aschool suspends a student for grades,392 the student's reputation and good namewill be affected adversely, therefore securing the protections of due process. 393 Ineach of these situations, if the school made an error in determining that the stu-dent violated a behavioral or academic standard, the student-athlete's standing

34 Entertainment and Sports Lawyer / Volume 26, Number 3 / Fall 2008

in the eyes of teachers, peers, family members, and possibly members of the com-munity will be adversely affected.394 More damaging to the student would be theeffect of this reputational harm on the student's future employment and educationalgoals.395 Shakespeare may have summed up the irreparable nature of reputationalharm when he said,

Good name in man and woman, dear my lord, is the immediate jewel of their souls:Who steals my purse steals trash; 'tis something, nothing; 'twas mine, 'tis his, and hasbeen slave to thousands; but he that filches from me my good name robs me of thatwhich not enriches him, and makes me poor indeed.396

While schools have a need to discipline students, the harm caused by unilateraldisciplinary actions makes the need for procedural protections imperative.

V. CONCLUSIONAfter analyzing the scholarly research regarding high school athletic participa-

tion397 and examining the exponential increase in student participation since the1970s and 1980s,398 there is only one conclusion to be reached regarding the issueof high school student-athletes' due process rights: The current state of the law inAmerica is out of touch with current realities.

While the courts may look askance on athletic participation as being "just sports,"the research proves that athletics are an integral aspect of education. Not only does

PARTICIPATION IN HIGH SCHOOL ATHLETICS IS

INSEPARABLE FROM THE EDUCATIONAL PROCESS

AND OFFERS BENEFITS TO THE STUDENT THAT DO

NOT END AT GRADUATION.

high school athletic participation add several independent benefits to the education-al process,399 but it also enhances the academic aspects of the educational process."While schools across the nation continue to offer athletics as part of the educationalprocess, students are participating in record numbers.4° 1 High school athletic partici-pation is integral to both the educational process and the lives of these students. It isunconscionable that in the twenty-first century a public school can suspend or evendismiss student-athletes from athletic participation without telling them what rulethey violated, without allowing the student-athletes to explain their side of the story,or without permitting them to appeal their position to an impartial party.

The Supreme Court has laid the foundation for due process protection of highschool student-athletes in regard to athletic participation.' In Goss v. Lopez, the Su-preme Court made it clear that students have both a property interest and, in somesituations, a liberty interest in the educational process.4°3 The Court avowed,

Neither the property interest in educational benefits temporarily denied nor the libertyinterest in reputation, which is also implicated, is so insubstantial that suspensionsmay constitutionally be imposed by any procedure the school chooses, no matterhow arbitrary.4

While the Supreme Court found that suspensions for a period of time as short as10 days required the school to at least minimal due process,4°5 the lower courtscontinue to deny due process protection to student-athletes. 4 The Supreme Courtdid not hold that suspensions must be from every aspect of the educational processbefore the Constitution protected a student. In fact, the Court clearly stated thatpublic schools could not impose suspensions without due process in the context ofeducational benefits.

The educational process is very broad and contemplates activities outside theclassroom.407 The research overwhelmingly supports the finding that-participation inhigh school athletics is inseparable from the educational process and offers benefitsto the student that do not end at graduation. 4°8 To the contrary, studies show thatathletic participation enhances a student's chances of success at both education andemployment after high school.4

While the doctrine of stare decisisis a cornerstone of the American legalsystem, 41 the law should not growstagnant.411 Specifically, the courts clingto outmoded notions when the cultureand experiences of a nation have sodrastically changed. It is now apparentthat due process rights should be ex-panded beyond the boundaries drawn30 years ago.412 Today, athletics in highschools across the nation play a largerrole in the lives of students than thecourts of 30 years ago could have imag-ined possible.413 Scholars have mountedstacks of evidence and research that cryout for protection of a student's right toathletic participation.414 While the vastmajority of opinions delivered rest sole-ly on stare decisis, 415 the cases that arebeing relied upon inadequately supportdenying a student-athlete's due processprotection.416 The modem court shouldengage in "a common sense recogni-tion of the benefits, both educationaland economic, that frequently accrue tothose high school students who partici-pate in interscholastic competition." 417

The courts cannot analyze theresearch on participation benefits, 418

view the statistics on current studentparticipation,419 and examine themanner in which public schools haveintertwined athletics and academ-ics to create the current educationalprocess 42° and then flippantly dismissstudent-athletes' property interestclaim. Student-athletes have a protect-able interest in athletic participation,and the courts' current reasoning fordenying protection is unsatisfactory.2 1

While courts may ultimately desireto maintain the efficiency of publicschools' disciplinary procedures,422 ig-noring the rights of a student-athlete toachieve this goal unashamedly contra-dicts the purpose for our constitutionaldue process protections.' o:.

The authors wish to acknowledge supportthrough the University of Tulsa Collegeof Law Faculty Summer Research GrantProgram. They also wish to thank Universityof Tulsa law student Kelsey May for her help inputting the finishing touches on this article.Additionally, Professor Yasser would like toacknowledge his long-time faculty assistantand all 'round enabler Cyndee Jones.

Ray Yasser is a professor of law at the Universityof Tulsa College of Law. He has published exten-

Fall 2008 / Volume 26, Number 3 / Entertainment and Sports Lawyer