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Can a school board limit a student's football participation if, six weeks after school recesses for the summer, he flees from the police with open alcohol in his car and, when apprehended, struggles with a police officer and tells the officer he will "Kick your ass" if the cuffs are removed? For one Illinois school board, the answer was, "No... but."

The case suggests some guidelines for school athletic codes that will stand up to legal scrutiny.

In the early hours of a morning six weeks after the end of his junior year, eighteen-year-old star defensive football player J. was driving his car in the company of two friends when he attempted to elude a police officer who had activated his car's flashing lights in an attempt to stop J. The brief chase ended when J. drove onto a parking lot divider, disabling his car.

After apprehending J., the officer attempted to handcuff him. J. pulled his arm away and, when forcibly cuffed, told the officer to remove the cuffs and he would, "Kick your ass." When he was placed in the police car, J. began kicking the windows and repeated the threat. A search of J.'s car revealed two opened liquor bottles under the driver's seat. Later that morning, J. was released to his father.

Initially, J. was charged with fleeing and eluding the police, unlawful possession and transportation of alcohol, and resisting arrest. Ultimately, the first charge was not prosecuted and J. pled guilty to and paid fines for unlawful transportation and resisting arrest. Transportation is a petty offense, for which J. paid a small fine, but resisting is a more serious charge and could result in as much as 364 days in jail. This was J.'' second offense; the first had occurred the previous spring.

The athletic director learned of the incident in mid-October, when a local newspaper reported the guilty plea to the resisting arrest charge. The report appeared on a Monday, and on Wednesday, the athletic director met with J. and removed him from the football team.

The school board's athletic code calls for a student to be removed from a team for half of the subsequent season if a student commits, out of season, a second offense. In this case, with only one game left in the regular season, J. was removed for that game and the state championship playoffs. On Thursday, the principal met with J. and his parents and confirmed the removal from the team. J. did not play in the final regular season game on Friday night.

The code, which every athlete receives, is intended and perceived by the board to allow for such discipline for "significant acts of violence" and for transportation of alcoholic beverages, whether on campus or off campus and whether during the school year or a vacation period.

The code specifies that the athletic director makes the initial decision on athletic discipline after a hearing with the athlete and his or her parents and that the student may then appeal an adverse decision to the principal, to the associate superintendent, and to the school board.

J.'s parents retained an attorney, who represented J. throughout the remainder of the proceedings. The associate superintendent conducted a hearing, with J. and his parents and attorney present, on the following Wednesday. On Thursday, the attorney received the associate superintendent's decision, based on the conclusion that J. had engaged in a significant act of violence and had transported alcohol, that J. was removed from the football team. The associate superintendent's decision to remove J. stated that the evidence presented in J.'s defense was not credible.

On Friday afternoon, J.'s attorney sued in Illinois circuit court for a preliminary injunction against the school district and for a temporary restraining order, which would allow J. to play in the first play-off game that evening.

A temporary restraining order is considered an extraordinary remedy because the defendant (in this case, the school board) has no chance to present evidence to support its position. It is used when there is no time for a trial.

An injunction, on the other hand, requires the opportunity for a trial in which both parties can present evidence.

The request for a temporary restraining order requires the court to look only at the statements made in J.'s request for the order. The order should be granted only if J. would suffer "irreparable harm" without the order -- in this case, being prevented from playing that same evening. In addition, the temporary restraining order is to be granted only if the harm occurring to J. if the order is denied will outweigh the harm to the school district if the order is granted.

The court decided for J. and granted the temporary restraining order, requiring the board to allow J. to play in the first play-off game that evening. He played with distinction and his team won and was scheduled to play in the second play-off game the next Friday. The court scheduled the trial on the preliminary injunction for the following Wednesday, two days before the second play-off game.

Unlike the temporary restraining order hearing, the hearing for a preliminary injunction gives the board the chance to present evidence at a trial. The court should grant a preliminary injunction only if the school district did not follow its own athletic code and if the decision made by the school district was "arbitrary and capricious."

The court found for J. and ordered the board to allow J. to play for the remainder of the play-offs. This order was based on the judge's determination on two issues. First, he decided that the athletic code did not notify an athlete that he would be disciplined for a significant act of violence which occurred during the summer. Second, the judge decided that the associate superintendent's determination that J. transported alcohol was arbitrary and capricious.

The school district could have appealed. An appeal would have attacked the circuit court's interpretation that the athletic code did not state that an athlete would he disciplined for a significant act of violence which occurred during the summer. It would have argued that the judge improperly placed himself in the decision-making role which is reserved for the school district's officials. The law allows the judge to overturn the school district's decision only if a reasonable person would not have made the same decision if presented with the same evidence. The law prohibits the judge from deciding what he would have done if he had been an administrator or school board member conducting a hearing.

For many reasons, and in spite of strong community support for the school district's removal of J. from the football team, the school district decided not to appeal and to accept the court's decision.

Significantly, the court did not reject a school district's right to have an athletic code which calls for discipline, including removal from a team, for misconduct occurring outside the school day or during school vacation periods. By anticipating the common challenges to discipline under athletic codes, a school district can increase the likelihood of having its action upheld.

The most common challenges to the removal of a student from extracurricular activities are that: (1) the district violated the student's due process rights, (2) the board did not have the authority to impose the sanction, and/or (3) the athletic code was insufficient or not followed. Each is reviewed below.

The 14th Amendment to the U.S. Constitution prohibits state action depriving any person of "life, liberty, or property without due process of law."

Thus, in many cases involving students removed from extracurricular activities, the issue has arisen whether the student's interest in continuing participation is a property interest protected by procedural due process.

The law clearly establishes that, while the student enjoys property rights which considerably limit a board's right to remove the student from school attendance, a student enjoys only limited protections against a board's decision to remove a student from participation in an extracurricular activity.¹ In Illinois, participating in extracurricular activities is not a property right, the deprivation of which would require a full due process hearing.² Nonetheless, allowing a student to explain his or her side of the story is always advisable.

In order to uphold discipline for conduct occurring after school or during vacation periods, courts require some connection ("nexus") between the student's conduct and the school. Such a nexus is established by demonstrating the negative impact of the prohibited conduct on student athletic and/or academic performance, the extracurricular program, and school purposes.

The existence of a nexus between an athlete's after-school misconduct and the school is widely accepted. Indeed, the U.S. Supreme Court upheld urinalysis for athletes that would detect after-school drug use.³ Similarly, the Illinois Court of Appeals upheld the suspension of a student from a softball team for conduct outside the school day.⁴ Establishing such a nexus for misconduct occurring during vacation periods is more problematic.

While Illinois courts have not had the opportunity to rule on the issue, federal courts and courts in other states have ruled that a school district may remove a student from athletic activities for drug or alcohol use during the summer months. These courts have reasoned that schools have a significant interest in discouraging student use of such substances, that significant school problems are caused by student use of such substances, that athletes are role models for other students, and that students lack protectible interests in participation in extracurricular activities. Furthermore, the voluntary nature of athletics supports the district's authority to regulate participation. As the U.S. Supreme Court observed, "[b]y choosing to go out for the team, they voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally."⁵

Because boards of education ca make strong arguments that acts of violence, like drug and alcohol use, are serious problems for schools and that schools have an interest in discouraging acts of violence by students, courts are also likely to allow boards to remove a student from an athletic team if that student engages in acts of violence during the summer months. In fact, this reasoning also applies to removal from other, even nonathletic, extra-curricular activities for such conduct.

In the Illinois case upholding the suspension of a student from a softball team, the sufficiency of the athletic code was at issue.⁶ Rhonda, the student, had gone to a party in order to meet two friends. Shortly after arriving, she saw a beer on a table but saw no one drinking. After about 15 minutes, the police arrived and found a keg of beer in the basement being drunk by minors. The principal suspended Rhonda from the team according to a provision in the school's athletic code, which stated:

Insubordination, poor sportsmanship, violation of individual coach's rule, or anti-social behavior exhibited by athletes is considered detrimental to the team and to school spirit. The participant shall receive not less than a reprimand and not greater than suspension for the season.

The principal believed the student's presence at the party was "anti-social behavior." The court reviewed the school's treatment of the student using the standard of whether its action was arbitrary or capricious. Despite the indefiniteness of the phrase "anti-social behavior," and the confusing instructions regarding the rule given by the coach, the court upheld the suspension. The court was extremely reluctant to second-guess the administration's decision regarding the conduct of extracurricular activities.

The law allows a school board to remove a student from an athletic team if the board does not violate its own rules in doing so and if some connection ("nexus") can be made between the student's conduct and the school. A school district can take action now to increase the likelihood that its athletic code and discipline for off-campus and out-of-season misconduct will be upheld. Districts should review their athletic codes using the following criteria:

1. Remove gratuitous verbiage from the athletic code which may serve as a springboard for future due process claims. Phrases making participation in athletics "an integral part of the school curriculum" are suspect.
2. State in the athletic code that participation in athletics is a privilege, not a right. This pronouncement will help avoid due process implications.
3. Provide in the athletic code that a student accused of a violation will be informed of the charges and given the opportunity to explain or respond. Avoid using the term "hearing" because of its indefiniteness.
4. Consistently interpret the athletic code. Sanctions for similar misconduct should be consistent from sport-to-sport.
5. Follow the athletic code. Thus, if the athletic code calls for posting, it should be posted.
6. Remove indefinite and vague words from the athletic code. The athletic code should describe the prohibited conduct with as much specificity as possible. Examples are helpful, provided phrases like including, but not limited to are used.
7. Review the athletic code with participants and parent(s)/guardian(s). Each participant should receive a copy and sign a statement acknowledging its receipt. Each participant should sign an agreement, along with his or her parents/guardians, that he or she agrees to abide by the athletic code.
8. Include in the athletic code's coverage those individuals who are going out for the team.
9. Uniformly impose the athletic code on participants regardless of whether they are a star athlete or bench-warmer.
10. Explain the negative impact of the prohibited conduct on student athletic and/or academic performance, the extra-curricular program, and school purposes in the athletic code.

References

1. Courts have deviated from this general rule when school policy stresses the importance of athletics in the education process (Duffley v. New Hampshire interscholastic Athletic Assn., 446 A.2d 462 (N.G. 1982), and where participation in school sports is vital to the particular student's future (Boyd v. Board of Education McGebee School District No. 17, 612 F.Supp. 86 (D.Ark., 1985).
2. Kulovitz v. Il. High School Assoc., 462 F.Supp. 865 (N.D. Il., 1978); Clements v. Board of Education of Decatur Public School District 62, 478 N.E.2d 1209 (Il.App. 4^th. 1985).
3. Vernonia School District 47J v Acton, 115 S.Ct. 2386 (1995).
4. Supra note 2. Clements.
5. Supra note 3.
6. Supra note 2. Clements.

Michael L. Kiser is district counsel, Naperville Community Unit School District 203.   Melinda L. Selbee is General Counsel for the Illinois Association of School Boards.