Opinion
Cause No. IP99-1857-C-T/G
February 8, 1999
ENTRY ON DEFENDANT INDIANA HIGH SCHOOL ATHLETIC ASSOCIATION'S MOTION TO DISMISS COUNTS I, II AND III OF THE FIRST AMENDED COMPLAINT
Defendant moves, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss Counts I, II and III of the First Amended Complaint for failure to state a claim. Having considered the motion and the parties' arguments, the court makes the following decision.
Unless otherwise stated, the following are taken from the allegations of the First Amended Complaint which are accepted as true with all reasonable inferences drawn in Plaintiffs' favor.
Plaintiffs John Pearson and Reed Elder are seniors at Park Tudor High School, a private high school in Indianapolis, Indiana, which is a member of Defendant Indiana High School Athletic Association ("IHSAA"). Their parents are Plaintiffs John S. Pearson, III and Jennifer Pearson and Andy Elder and Marilyn Elder, respectively. John and Reed participated on Park Tudor's boys' varsity tennis team during the fall 1999 season and intend to compete in inter-collegiate tennis in the fall of 2000. Because John had surgery on his median nerve during the summer of 1999 and on his medical provider's advice, he did not play in every season contest of Park Tudor and did not play in North Central's Invitational John Shirley Tournament.
John and Reed were entered and participated in the 1999-2000 IHSAA Boys Tennis Tournament Series ("State Finals") as doubles contestants. They won their first match, qualifying to play another formidable opponent. On the morning of the second match, Center Grove High School protested their eligibility. It was contended that John did not meet the eligibility criteria because he did not meet the 50% Rule for the 1999 Individual Doubles Tournament. That rule states: "To qualify for the doubles tournament series, both participants must have played a minimum of 50% of their season contests in the #1 doubles position."
John and Reed began warming up for their match while their eligibility was debated by IHSAA's Assistant Commissioner Wynns, Center Grove's coach, Ivan Smith, Park Tudor's coach, Dave Heffern, and others. The warm-up period was extended, and then the match commenced between Park Tudor and Lawrence Central High School. Had John and Reed won this match, they would have advanced to the state finals and played against Center Grove for the state championship.
They did not win the match. The Commissioner of the IHSAA determined that John was ineligible under the 50% Rule and, therefore, that John and Reed should be disqualified. As a result, even though the match was underway (they won the first set 6-1 and were leading the second set 5-4), they were defaulted in front of hundreds of spectators. After the State Finals, the Indiana High School Tennis Coaches Association selected 12 teams as "All-State" Men's Doubles tennis teams. John and Reed were not selected because the IHSAA declared John ineligible under the 50% Rule.
On October 27, 1999, the Evansville Courier Press published an article recounting the events of the State Finals from the perspective of the Princeton Community High School players who had been defeated by the Park Tudor doubles team. The article contained the comments of Princeton's principal that "no one likes being beaten by a cheater."
The Elder family and Park Tudor representatives asked the Commissioner to reconsider his decision regarding John's ineligibility, but he stood by his decision. The Pearson and Elder families requested an appeal to the IHSAA Executive Committee, which held a proceeding and ultimately affirmed the Commissioner's decision.
On November 16, 1999, Plaintiffs filed their Complaint For Damages And Equitable Relief And Jury Demand in state court. On December 8, 1999, IHSAA filed its Notice of Removal. The First Amended Complaint For Damages And Equitable Relief And Jury Demand was filed on December 10, 1999. Plaintiffs claim that the IHSAA's decision finding John ineligible based on the 50% Rule was arbitrary and capricious because he played 100% of his season contests in the #1 doubles position. They allege that because of the manner in which John and Reed were disqualified, their good name, reputation, honor and integrity were harmed. Specifically, they allege that John and Reed
have been denied selection for the All State Boys' Doubles Team, have been publicly labeled as "cheaters," will be prevented from clearing their record before the deadline for applying for college, will be prevented from benefitting from All State Selection in the college application process, will continue to endure public humiliation, and will continue to be recorded as "ineligible" in the official record books.
(First Am. Compl. ¶ 100.)
The First Amended Complaint contains four counts: Count I is entitled "Claim for Damages for Violation of the Constitution of the State of Indiana"; Count II is entitled "Claim for Damages for Violation of Common Law Right to Due Process of Law"; Count III is entitled "Claim for Damages and Equitable Relief under 42 U.S.C. § 1983 and Attorney's Fees under 42 U.S.C. § 1988"; and Count IV is a "Claim for Equitable Relief Under Indiana Law," seeking judicial review of the IHSAA's decision. Plaintiffs seek compensatory and punitive damages, an award of attorney's fees, costs, and equitable relief, including a public apology from IHSAA. They also seek a court order requiring the IHSAA to inform the Coaches Association that John and Reed are eligible for consideration for the all state team and to require the IHSAA to change the record book to reflect they should not have been defaulted. Finally, Plaintiffs request the court to require the IHSAA to declare John and Reed co-state champions with the Center Grove team.
Though not requested in the First Amended Complaint, this request is made by Plaintiffs in their brief supporting their motion for preliminary and permanent injunction.
II. Dismissal Standard
A complaint should not be dismissed for failure to state a claim "unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In considering a motion to dismiss for failure to state a claim, the court must accept the well-pleaded allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Massey v. Helman, 196 F.3d 727, 731 (7th Cir. 1999).
III. Analysis
Defendant moves to dismiss Counts I, II and III for failure to state a claim upon which relief can be granted. As to Count I, it contends that there is no cause of action for damages under the Indiana Constitution. As to Count II, Defendant argues that Indiana recognizes no common law right to damages for due process violations. It further contends that Plaintiffs cannot satisfy the "under color of law" and "state action" requirements such that Counts I, II and III should be dismissed. Finally, Defendant maintains that Plaintiffs have failed to plead facts establishing a protected interest, thus requiring dismissal of these three counts.
A. Damages Claim Under the Indiana Constitution
Count I purports to be a cause of action for damages directly under the Indiana Constitution, specifically Article I, § 12, the "Due Course of Law Clause." Defendant moves to dismiss this count, contending there is no action for damages directly under the Indiana Constitution.
In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Court recognized an implied right of action for damages under the United States Constitution against federal agents for violations of federal constitutional rights. The Indiana Supreme Court has not directly addressed whether there is an analogous cause of action under the Indiana Constitution. One federal district court has held that a plaintiff may bring a damages action under the equal protection clause of the Indiana Constitution. See Discovery House v. Consolidated City of Indianapolis, 43 F. Supp.2d 997, 1004 (N.D.Ind. 1999). Judge Hamilton of this court, however, declined to recognize an implied right to sue for damages under the Indiana Constitution. See Craig v. Christ, No. IP 96-1570-C H/G, Entry on Defs.' Mots. for Summ. J. and to Dismiss and City's Mot. to Strike at 5 (Dec. 15, 1998). The undersigned finds Judge Hamilton's decision more persuasive than that in Discovery House.
Though 42 U.S.C. § 1983 provides for a cause of action for violations of the United States Constitution, it does not provide for a cause of action for violations of a state constitution.
In reaching the decision in Discovery House, the court relied on the Indiana Supreme Court's implicit acceptance of such an action in Bayh v. Sonnenburg, 573 N.E.2d 398 (Ind. 1991), and the decisions of lower Indiana courts in Hilburt v. Town of Markleville, 649 N.E.2d 1036 (Ind.Ct.App. 1995), and Orr v. Sonnenburg, 542 N.E.2d 201 (Ind.Ct.App. 1989). See Discovery House, 43 F. Supp.2d at 1004. The Indiana Supreme Court did not expressly recognize a cause of action for damages under the Indiana Constitution in Bayh. See 573 N.E.2d at 411-12 (holding that plaintiffs' constitutional claim failed on the merits). The appellate court did not decide the issue in Hilburt, but rather, merely assumed such an action could be maintained. See Hilburt, 649 N.E.2d at 1041 ("Even assuming, but expressly not deciding, that an action for damages such as Hilburt's may be brought under Section 12, Hilburt's constitutional arguments fail on the merits.") Though the appellate court upheld a damages award under the Indiana Constitution in Orr, the court simply concluded without discussion, that such an action could be maintained. See Orr, 542 N.E.2d at 205 ("One of the theories of recovery upon which the Plaintiffs relied, and upon which the trial court's judgment may be sustained, is Article I, § 21 of the Indiana Constitution.") Thus, as the Discovery House court acknowledged, none of these decisions expressly recognized a cause of action for damages under the Indiana Constitution. The undersigned finds that the implicit acceptance of such a cause of action in these decisions is a slim reed indeed.
In declining to recognize such a cause of action, Judge Hamilton reasoned:
Perhaps the Indiana court will take such a step some day, but it has not yet given any hint that it is inclined to do so. Recognizing such an implied right to sue for damages under the Indiana Constitution would work a dramatic change in Indiana law, in the relationships between citizens and their state and local governments, and between those governments and their employees. If such a step is to be taken, it will need to be taken by the Indiana courts, not by a federal court whose duty is to apply existing Indiana law.Id. The undersigned, like Judge Hamilton, is persuaded that if there is a implied action for damages under the Indiana Constitution, it should be recognized by the Indiana courts. Those courts have not addressed whether such an implied right of action exists.
It is unlikely that the Indiana courts would recognize an implied right of action for damages under the Indiana Constitution for at least two reasons. First, Indiana's courts have been hesitant to recognize implied rights of action under Indiana statutory law. See, e.g., Right Reason Publications v. Silva, 691 N.E.2d 1347, 1352 (Ind.Ct.App. 1998) (no private cause of action for violation of Indiana Code § 35-46-2-1); Holvoet v. State, 689 N.E.2d 469, 472 (Ind.Ct.App. 1997) (no private right to petition court to convene grand jury under Indiana Code § 35-34-2-2), trans. denied, 706 N.E.2d 167 (Ind. 1998); Vukovits v. Board of Sch. Trustees of Rockville Community Sch. Corp., 659 N.E.2d 174, 179 (Ind.Ct.App. 1995) (no private cause of action for non-renewal of teacher contracts under staff performance evaluation statute), trans. denied; Walling v. Appel Serv. Co., 641 N.E.2d 647, 652 (Ind.App. 1994) (no private cause of action for a violation of Indiana Code § 13-7-4-1); Coons by Coons v. Kaiser, 567 N.E.2d 851, 852 (Ind.Ct.App. 1991) (declining to imply additional private cause of action based on Indiana Code § 20-7.5-1-14 where statute already provided for enforcement); but see Stampco Const. Co. v. Guffey, 572 N.E.2d 510 (Ind.Ct.App. 1991) (recognizing an implied private cause of action for violations of minimum wage statute). There is no reason to believe they would treat constitutional law any differently. In addition, when determining whether there exists a private cause of action for a violation of statutory law, Indiana courts begin by examining legislative intent. See City of Muncie v. Peters, 709 N.E.2d 50, 56 (Ind.Ct.App. 1999), trans. denied.; Coons, 567 N.E.2d at 852; Silva, 691 N.E.2d at 1352 (criminal statute); Bartholomew County Beverage Co. v. Barco Beverage Corp., Inc., 524 N.E.2d 353, 356 (Ind.Ct.App. 1988) (same). By analogy, the Indiana courts would begin with the intent of the framers of the Indiana Constitution to determine whether there is a private cause of action for damages for constitutional violations. It is unlikely that the framers intended such an action because they would have understood sovereign immunity to bar such an action. See, e.g., Shoemaker v. Board of Comm'rs, 36 Ind. 175, 186 (1871).
Plaintiffs argue that because they were "wrongly declar[ed] ineligible to compete in the State Finals, a claim for damages is the only remedy which can make them whole." (Pls.' Br. in Opp'n to Indiana High Sch. Athletic Ass'n's Mot. to Dismiss ("Pls.' Br.") at 5.) The unavailability of other remedies, however, does not necessarily imply a cause of action for damages directly under the Indiana Constitution. It very well may be that even if the Plaintiffs suffered a constitutional injury, they would have no remedy available to make them whole. This court declines Plaintiffs' invitation to recognize a cause of action for damages directly under the Indiana Constitution in the absence of any clear indication from the Indiana Supreme Court (or even the appellate courts) that such an action may be maintained. Defendant's motion to dismiss will be GRANTED with respect to Plaintiffs' claim for damages directly under the Indiana Constitution (Count I).
B. Claim for Violation of Common Law Right to Due Process of Law
Count II of the Complaint is entitled, "Claim for Damages for Violation of Common Law Right to Due Process of Law." Plaintiffs allege that Indiana common law recognizes a right to due process of law in interscholastic high school athletics. Defendant moves to dismiss Count II, contending there exists no common law right to due process of law.
Plaintiffs argue that their common law right to due process of law is "derived directly from these cases in which Indiana courts have recognized that state law must redress injuries caused by associations which do not follow their own procedural rules." (Pls.' Br. at 6.) They specifically rely on Terrell v. Palomino Horse Breeders of America, 414 N.E.2d 332 (Ind.Ct.App. 1980), and Crane v. Indiana High School Athletic Association, 975 F.2d 1315 (7th Cir. 1992). Though these cases recognize that courts may interfere with a voluntary association that makes or enforces its rules in an unlawful, arbitrary or malicious manner, see Crane, 975 F.2d at 1320; Terrell, 414 N.E.2d at 335, neither of them establishes a common law right to due process of law. Furthermore, the Indiana Supreme Court has recognized that some Indiana cases have reviewed IHSAA's decisions under the federal and state constitutions, including the due process clauses, while others have reviewed its decisions under Indiana common law. See Indiana High Sch. Athletic Ass'n v. Carlberg, 694 N.E.2d 222, 228 (Ind. 1997). This is implicit recognition of a distinction between the two types of review. Moreover, as Defendant asserts, "[d]ue process is by its very nature a constitutional, not common law concept." (Br. in Supp. of IHSAA's Mot. to Dismiss Counts I, II and III of the First Am. Compl. for Failure to State a Claim at 7.) There is no common law right to due process of law. Therefore, Count II fails to state a claim, and Defendant's motion to dismiss will be GRANTED as to that count.
Terrell upheld the one-year suspension of a member of the Palomino Horse Breeders association following a "retrial" ordered by the court because the first suspension proceeding did not comport with the organization's own rules. Id. at 337.
Crane held that the IHSAA interpreted and applied its own rules in an arbitrary and capricious manner when it denied varsity golf eligibility to a high school student who moved between the residences of his divorced parents. Id. at 1322-26.
C. Whether IHSAA's Decision Constitutes State Action
Defendant further contends that Counts I, II and III should be dismissed because IHSAA's decision that John and Reed were not eligible to participate in the State Tournament did not constitute "state action." Defendant acknowledges that the Indiana Supreme Court has held that "decisions of the IHSAA with respect to student-athletes constitute `state action' for purposes of federal and state constitutional review under the Equal Protection and the Privileges and Immunities Clauses of the federal and state constitutions." Carlberg, 694 N.E.2d at 229. See also id. at 236 ("Having reaffirmed that the action of the IHSAA is `state action' for purposes of a student's challenge of IHSAA action for constitutional muster"); id. at 228 ("rules and decisions of the IHSAA constitute `state action' for the purposes of constitutional review."). Defendant argues, however, that Carlberg is distinguishable because John and Reed attend Park Tudor, a private high school member of the IHSAA, whereas, the Carlberg plaintiff attended a public high school member of the IHSAA. This argument is unavailing.
The "under color of law" in Section 1983 means the same as the "state action" requirement under the Fourteenth Amendment. See Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 928 (1982); Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 (1982); Thomas v. Pearl, 998 F.2d 447, 450 (7th Cir. 1993).
First and foremost, the Indiana Supreme Court did not limit its holding in Carlberg to IHSAA decisions as to student-athletes attending public schools as opposed to private or parochial schools. See also Haas v. South Bend Community School Corporation, 289 N.E.2d 495 (Ind. 1972) ("the administration of interscholastic athletics by the IHSAA should be considered to be `state action' within the meaning of the Fourteenth Amendment.") Second, an approach that focuses on the status of the school attended by the student-athlete — public vs. private or parochial — would be in tension with the decision of IHSAA v. Schafer, 598 N.E.2d 540 (Ind.Ct.App. 1992). In Schafer, the IHSAA argued that because members of its executive board were not public officials, its eligibility decisions did not constitute "state action." The court wrote:
We disagree with the IHSAA's approach. The high school cases have not turned on whether the members of an athletic association's executive board were public officials so that the association could be deemed a state actor, but not engaged in state action. Instead, the inquiry has focused on the relationship of the association, as a monolithic entity, to the state.Id. at 550 (emphasis added). Furthermore, it would be incongruous if student-athletes in public schools had legal remedies against IHSAA whereas student-athletes in private or parochial schools did not simply because of the status of the school attended. Given this incongruous result and based on Carlberg and Schafer, the undersigned concludes that the state action inquiry focuses on IHSAA's relationship to the state rather than the status of the school attended by the student-athlete.
Defendant maintains that no Indiana court nor federal court has "dealt head on" with whether IHSAA's decisions with respect to private school students constitute state action for purposes of constitutional review. However, Magistrate Judge Hussman of this court concluded the IHSAA was a state actor and engaged in state action with respect to a transfer-based ineligibility decision in a case in which the student-athlete transferred to a parochial school. See Robbins v. IHSAA, 941 F. Supp. 786, 788, 791 (S.D.Ind. 1996). Judge Hussman, relying in part on Haas and Schafer, concluded:
The IHSAA is an organization whose very existence is entirely dependent upon the absolute cooperation and support of the public school system of the State of Indiana and is subject to constitutional scrutiny as a state actor and as being involved in state action.Id. at 791. In addition, though the presence of state action was not in dispute, the Seventh Circuit found that the Illinois High School Athletic Association, a voluntary, not-for-profit association of both public and private schools like the IHSAA in the instant case, took state action against a private school student. See Griffin High School v. Illinois High School Association, 822 F.2d 671, 673-74 (7th Cir. 1987). The court explained:
Public schools make up 85% of the IHSA's membership, and although the IHSA is a purely voluntary association, the overwhelmingly public character of the IHSA membership is sufficient to confer state action for purposes of § 1983.Id. at 674.
Defendant relies on a footnote in the Supreme Court's decision in NCAA v. Tarkanian, 488 U.S. 179 (1988), and the recent decision in Brentwood Academy v. Tennessee Secondary School Athletic Association, 180 F.3d 758 (6th Cir.), petition for cert. filed, 68 U.S.L.W. 3368 (U.S. Nov. 29, 1999) (No. 99-901), to support its position. The issue in Brentwood Academy was whether the Tennessee Secondary Athletic Association ("TSSAA") was a state actor when it enforced a rule which prohibited recruitment of student-athletes against a private school, Brentwood Academy. The court started by analyzing the structure and function of TSSAA, which is quite similar to those of the IHSAA in the instant case. Brentwood Academy, 180 F.3d at 762. Based on its analysis, the Sixth Circuit concluded that TSSAA was not an arm of the government. The court then examined prior Sixth Circuit precedent to determine whether TSSAA should be treated as a state actor, answering the question in the negative. Id. at 762-766. At the end of its opinion, the court considered footnote 13 in the Supreme Court's Tarkanian decision. It noted that dicta in the footnote indicated a high school athletic association might potentially be a state actor but further indicated "even if an athletic association is a state actor when dealing with a public school, it `was not acting under color of state law in its relationships with private universities.'" Id. at 766 (citing Tarkanian, 488 U.S. at 193 n. 13). Because Brentwood Academy was a private school, the Sixth Circuit concluded that footnote 13 did not buttress the conclusion that the TSSAA was a state actor. Id.
The TSSAA was a voluntary association comprised of public and private schools. Its administrative authority was vested in a Board whose members were elected from the member schools. TSSAA received no funding from the state, its revenues were derived from gate receipts, and it contracted to use public facilities for its tournaments. Tennessee law did not give TSSAA any authority to conduct interscholastic athletics on the state's behalf. Id. at 762.
Like Defendant in the instant case, however, the Sixth Circuit misinterpreted footnote 13 in Tarkanian. The issue in Tarkanian was whether the National Collegiate Athletic Association ("NCAA") engaged in state action when it conducted an investigation into the athletic programs at the University of Nevada Las Vegas and recommended discipline of the men's basketball coach, Jerry Tarkanian. See Tarkanian, 488 U.S. at 182. The Court held the NCAA was not a state actor. Id. at 199. The recent consideration of footnote 13 and Brentwood Academy in Communities for Equity v. Michigan High School Athletic Association, ___ F. Supp.2d ___, No. 1:98-CV-479, 2000 WL 60044 (W.D.Mich. Jan. 21, 2000), is instructive. In a thoughtful opinion, the court explained:
The Tarkanian case required the Supreme Court to examine two independent state actor questions. First, the Supreme Court was required to briefly analyze in what instances an athletic association might be considered a state actor because its members controlled the association and those members were state actors. ("The membership question"). Second, the Supreme Court examined in what instances an athletic association should be considered a state actor when it engages in joint activity with the state. ("The joint action question"). With these independent inquiries in mind, Footnote 13 appears to stand for three propositions. First, an athletic association made up of schools from across the country, the majority of which are private schools, is not a state actor because no one state controls the policy of the association. Second, if an association were made up of schools from the same state, and the majority of those schools were public, the association might well be a state actor. Third, while "joint action" between a public school and a private association might render the private association a state actor, joint action between a private school and a private association would not.Id. at *12. The court concluded that " Brentwood Academy misstates the Supreme Court's reasoning in Tarkanian," id. at *13, and erroneously relies on the part of footnote 13 which applied to the joint action question in reaching its decision. Id. At issue in Brentwood Academy was whether the TSSAA was a state actor because of its membership consisting primarily of public schools not because of "joint action" between the TSSAA and Brentwood Academy. This court agrees that "there appears to be a serious disconnect between Tarkanian and the Sixth Circuit's reasoning in Brentwood Academy." Id. Brentwood Academy therefore is not persuasive authority because it is at odds with footnote 13 in Tarkanian. Moreover, because the IHSAA is comprised of schools from the same state, the majority of which are public schools, the second proposition taken from footnote 13 strongly implies that the IHSAA is a state actor. The court holds that the IHSAA was a state actor when it ruled John and Reed were not qualified to participate in the State Finals. Plaintiffs' request to dismiss Counts I, II and III because of a lack of state action is DENIED.
D. Whether Plaintiffs Have Alleged a Constitutionally Protected Interest
Whether Plaintiffs have pleaded a protectable interest is a much more difficult question. Defendant contends that Count III should be dismissed because Plaintiffs have not identified an interest entitled to the Fourteenth Amendment's protections. "The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in property or liberty." American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 119 S.Ct. 977, 989 (1999) (internal quotation marks omitted); see also Board of Regents of State Colleges v. Roth, 408 U.S. 564, 571 (1972); Gustafson v. Jones, 117 F.3d 1015, 1019 (7th Cir. 1997). Plaintiffs concede that the state and federal courts in Indiana have not recognized a constitutional right to participate in interscholastic athletics. See, e.g., Carlberg, 694 N.E.2d at 242. Plaintiffs claim, however, that because "the IHSAA extended to Reed Elder and John Pearson the benefit of participation in the State Finals tournament," (Pls.' Br. at 14), they had a constitutionally protected liberty interest in completing that match. They also claim a protected liberty interest in their good names and reputations.
Plaintiffs do not assert a constitutionally protected liberty interest in being elected to the All-State tennis team. Rather, they assert that they were denied consideration for selection to the All-State team as a result of IHSAA's decision.
To support their argument of a protected liberty interest in completing the state finals match, Plaintiffs first rely on language from Robbins. The Robbins plaintiff challenged an IHSAA transfer rule which prohibited her from participating on her school's varsity volleyball team following her transfer from a public school to a parochial school. The plaintiff alleged she was denied due process of law in violation of the Fourteenth Amendment. Id. at 791. In considering whether the plaintiff had a protected interest, the court first recognized that a student has no constitutional right to participate in interscholastic athletics. Id. It then noted that the Indiana Supreme Court's decision in Haas taught that once an interscholastic athletic program is provided, it "must be administered without violation of the Fourteenth Amendment, at least if the case involves an equal protection claim arising from gender-based discrimination." Robbins, 941 F. Supp. at 791. Citing Goldberg v. Kelly, 397 U.S. 254, 262 (1970), the court said: "In other words, participation in interscholastic sports, even if not a constitutional right, is perhaps a non-constitutional `privilege' protected by the Fourteenth Amendment." Robbins, 941 F. Supp. at 791 (emphasis added). Robbins held that the plaintiff was not denied due process because the notice and hearing she received from IHSAA were adequate. Thus, the court did not have to decide whether the plaintiff had a protected liberty interest. This is apparent from the court's own qualifying language that "perhaps" participation in interscholastic athletics was entitled to Fourteenth Amendment protections. Robbins does not support Plaintiffs' claim of a protected liberty interest in competing in the State Finals.
Goldberg was limited to cases involving welfare benefits. See Goldberg, 397 U.S. at 263-64.
Plaintiffs' next argument is based on analogy to the Supreme Court's decision in Goss v. Lopez, 419 U.S. 565 (1974), which held that children have a protected property interest in public education. Id. at 574-5. It is true that the Indiana Constitution mandates a state-wide system of free public education, Ind. Const. art. VIII, § 1, and the Indiana General Assembly and Indiana courts have recognized the state's interest in providing extracurricular programs such as interscholastic athletics. See, e.g., Ind. Code § 20-1-1-6.2(a)(2) ("the state has an interest in ensuring that all Indiana children are well-educated in both curricular and extracurricular programs"); Carlberg, 694 N.E.2d at 229 ("athletics are an integral part of this constitutionally mandated process of education"); Indiana H. Sch. Athletic Ass'n v. Raike, 329 N.E.2d 66, 75 (Ind.Ct.App. 1975) (suggesting that the right to participate in interscholastic athletics though not a fundamental or absolute right is a right that "should be encouraged). The Indiana Supreme Court clearly held, however, that a student-athlete has no constitutional right to participate in interscholastic athletics. See Carlberg, 694 N.E.2d at 242. Even if there is a right to participate in interscholastic athletics and, more specifically, a particular athletic event, that right manifestly is not of the same nature, nor entitled to the same protections, as the right to a public education itself. Cf. Todd v. Rush County Schs., 133 F.3d 984, 986 (7th Cir. 1998) (high school extracurricular activities are a privilege rather than a right). John and Reed had no constitutionally protected liberty interest in completing the State Finals match.
Goss also recognized that the children had a protected liberty interest in their reputations. Id. (liberty interest in reputation implicated by 10-day suspension from school).
These young men do, however, have a constitutionally protected liberty interest in their good names, reputation, honor and integrity. In Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573 (1972), the Supreme Court indicated that a person could be deprived of a liberty interest in his good name, reputation, honor and integrity. If, in connection with disqualifying John and Reed, the IHSAA made any statement "against [them] that might seriously damage [their] standing and associations in [their] community," their protected liberty interests may be implicated. Roth, 408 U.S. at 573. Neither Plaintiff nor Defendant points to a case closely analogous to this, and the court has been unable to find any. However, the Supreme Court and other courts have found that students have protected liberty interests in their reputations and good names. See, e.g., Goss, 419 U.S. at 574-75 (students had protected liberty interests in their reputations which was implicated by 10-day suspension from school); James P. v. Lemahieu, No. CV 99-00861 DAE-LEK, 2000 WL 93879 (D. Hawai'i Jan. 12, 2000) ( Fourteenth Amendment liberty interests implicated where school suspends student and places suspension on his permanent record). Warren v. National Association of Secondary School Principals, 375 F. Supp. 1043 (N.D.Tex. 1974), relied upon by Plaintiffs, held that a student's dismissal from National Honor Society deprived him of a liberty interest in his good name, reputation, honor or integrity. See id. at 1048. The student was dismissed for an alleged violation of the Society's rules against consumption of alcohol. See id. The court observed that "this black mark of a dismissal" would remain part of the student's permanent school records and could adversely affect his future educational and employment opportunities. Id.
In Kriss v. Brown, 390 N.E.2d 193, 200 (Ind.Ct.App. 1979), a case involving an IHSAA ineligibility decision based on an IHSAA guardianship rule, the court held that the plaintiff was not denied procedural due process. Under the rule, a student who transferred schools without a corresponding change of residence of his parents had to satisfy certain criteria under the rule to be eligible to participate in interscholastic athletics. The IHSAA determined that the plaintiff failed to satisfy any of the criteria and thus was ineligible to play athletics at the school to which he had transferred. Id. at 197, 200. The court distinguished Warren, stating "Kriss cites no evidence that anything adverse to his good name has been made a part of his permanent school record or that he has suffered disgrace of any sort." Id at 200.
Like the plaintiff in Kriss, John and Reed were declared by the IHSAA ineligible to play in interscholastic competition because they allegedly failed to satisfy certain criteria, namely the 50% Rule. (A minor factual difference between the two cases is that Kriss was found ineligible to participate on his school's interscholastic athletic teams, whereas, John and Reed were declared ineligible to participate in one tennis match, but this is of no moment here.) Based on the allegations of the First Amended Complaint, the court cannot determine beyond all doubt that Plaintiffs can prove no set of facts to establish a protected liberty interest in their good names, reputation, honor and integrity which was implicated by their disqualification from the State Finals by the IHSAA. Unlike the trial court and appellate court in Kriss, however, this court has not yet had the benefit of evidence. Once the court has heard evidence, it may very well find no evidence that the IHSAA's disqualification might have seriously damaged John and Reed's standing and associations in their community, but that remains for another day. Because Plaintiffs have sufficiently pled a protected liberty interest in their good names, reputation, honor and integrity, Defendant's motion to dismiss will be DENIED as to Count III.
The court does not rely on Plaintiffs' allegations that John and Reed were labeled "cheaters" in a newspaper article. There is no allegation that this label is directly attributable to the IHSAA. To the contrary, the First Amended Complaint alleges that the principal of Princeton Community High School allegedly made a comment referencing Plaintiffs as "cheaters." It is state action by the IHSAA that must visit the alleged injury upon Plaintiffs' reputation and good names. See Roth, 408 U.S. at 573 ("Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, the minimal requirements of the Clause must be satisfied.") (emphasis added); Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971); cf. Pleva v. Norquist, 195 F.3d 905, 915 (7th Cir. 1999) ("If, in connection with the loss of Pleva's positions on the Board, government officials made `any charge against him that might seriously damage his standing and associations in his community' . . . a due process claim may arise.") (emphasis added). Statements by others independent of the IHSAA such as Princeton's principal do not suffice to establish that the IHSAA impugned Plaintiffs' liberty interests. See, e.g., Roth, 408 U.S. at 573; Beckham v. Harris, 756 F.2d 1032, 1038 (4th Cir. 1985) ("That a newspaper got things wrong in a manner injurious to Beckham creates no cause of action against the defendants when, as here, no persuasive showing has been made that they contributed to the media error.").
There is concern that Plaintiffs' main complaint is not with the IHSAA's ineligibility ruling but with the manner in which that decision was conveyed. See First Am. Compl. ¶ 29 ("John and Reed were defaulted in front of hundreds of spectators"), ¶ 53 ("As a consequence of the manner in which John Pearson and Reed Elder were disqualified, their good name, reputation, honor and integrity has been harmed"), ¶ 70 B ("Without due process of law, [Plaintiffs] were declared ineligible to compete in a public forum as hundreds of spectators watched"). If that is the case, their claim to a protected liberty interest might be even more tenuous. See Roth, 408 U.S. at 573 (noting that the State "did not make any charge against [respondent] that might seriously damage his standing and associations in the community.").
What remains for trial on Count III is first, whether the actions of the IHSAA in disqualifying the tennis players implicated their protectable liberty interest under the United States Constitution, and if so, whether the post-disqualification procedures allowed to them satisfied their right to procedural due process. The trial of the portion of the claim for which Plaintiffs seek injunctive relief is set in a few days, namely February 11, 2000. Of course, if Plaintiffs are unable to prove the underlying merits of their constitutional claim at this trial, there will be nothing left for trial on the merits of the monetary damage part of the claim.
The Fourteenth Amendment generally requires some kind of hearing accompanied by notice and an opportunity to be heard before an individual can be deprived of life, liberty, or property by a government official acting under color of state law. See, e.g., Zinermon v. Burch, 494 U.S. 113, 127 (1990); Cleveland Board of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). A postdeprivation remedy, however, may be sufficient to satisfy procedural due process requirements under certain circumstances. See Zinermon, 494 U.S. at 132 ("[I]n situations where a predeprivation hearing is unduly burdensome in proportion to the liberty interest at stake . . . or where the State is truly unable to anticipate and prevent a random deprivation of a liberty interest, postdeprivation remedies might satisfy due process"); Daniels v. Williams, 474 U.S. 327, 342 (1986) (Stevens, J., concurring in judgments) (predeprivation hearing not required if "definitionally impossible"); Hudson v. Palmer, 468 U.S. 517, 532-33 (1984) (no predeprivation hearing required for intentional and unauthorized deprivation with meaningful postdeprivation remedy); Porter v. DiBlasio, 93 F.3d 301, 305-06 (7th Cir. 1996) (postdeprivation hearing or common law tort remedy may satisfy due process where the state necessarily must act quickly or "where the degree of the deprivation is not serious and the procedures underlying the decision to effect the deprivation are adequate to address the risk of an erroneous deprivation"). In determining what process is due the court must weigh the factors set out in Mathews v. Eldridge, 424 U.S. 319 (1976):
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.Id. at 335. The court will weigh these factors to determine whether the post-disqualification procedures provided Plaintiffs comport with due process requirements.
IV. Conclusion
Plaintiffs can prove no set of facts in support of their claims for damages directly under the Indiana Constitution and for a violation of common law due process of law as such claims are not cognizable in the law. They may, however, be able to prove facts to support their § 1983 claim which would entitled them to relief. Accordingly, Defendant's motion to dismiss is GRANTED with respect to Counts I and II and DENIED with respect to Count III.
ALL OF WHICH IS ORDERED.