Should student athletes get punished for out-of-school conduct?
In Haddonfield, N.J., there are two lawsuits — both involving students suspended from extracurricular activities after being arrested for underage drinking — that seek to answer in the negative the musical question I’ve posed in the headline. However, there is a long tradition of that question being answered in the positive. Recent court decisions have affirmed that opinion, by saying plainly that while students have a right to stay in school, they have no special right to stay there afterward and participate in activities.
Contrary to how the new or unusual the concept of punishing student-athletes for nonschool conduct might seem, it’s been around for a long time, long enough that it was the rule when I was running cross country and track at Carmel (Ind.) High School back in the days when parachute pants were all the rage. In fact, it’s been around long enough that when I was editor of the high school’s newspaper, I identified the names of multiple basketball players suspended for a game after they were among 90 arrested at a party where underage drinking was taking place. (So there is a precedent to my revealing the names of Carmel’s current basketball players identified in a budding hazing scandal.)
However, apparently this concept is new to Haddonfield, N.J., where the school district adopted its “24/7” policy in 2006 to take action against students who run into trouble outside of school events. The policy includes the Haddonfield police tipping off the district if any of their students get arrested, a fairly common practice in many areas.
According to the Philadephia Inquirer, 70 students, including those of Haddonfield Mayor and 24/7 policy promoter Tish Colombi, have gotten caught in its net. (Correction: Colombi’s children got busted for underage drinking while in high school, and she later promoted the 24/7 policy.) Local attorney Matthew Wolf is seeking class-action status on behalf of all of them in his lawsuits representing two 15-year-old student-athletes got smacked down by the 24/7 policy in two separate incidents. Wolf, in a story that aired March 6 on NPR’s Weekend Edition, called 24/7 “simply a vigilante system of justice established by a school board in violation of the Constitution of the United States.”
Wolf says the off-campus policy violates the Constitution by duplicating the punishment and meting it out before the kids have gone to court. Also, he says drinking at a party on Saturday night has nothing to do with school safety.
“If a student has stabbed another student outside of school, or stabbed anyone outside the school, we don’t contend that the school doesn’t have the right to exercise its authority over students who commit serious offenses,” says Wolf.
Actually, courts so far have said the opposite — that it would be tougher to expel a student who stabbed someone outside of school than it would be to boot someone off the volleyball team for getting busted for even the most minor of offenses.
An Ohio state appeals court case is hardly legal precedent, but it’s the closest we might come (other than a judge denying one of Wolf’s clients a temporary restraining order) until a case like Mather v. Loveland City School District Board of Education makes its way to the Supreme Court.
The plaintiff was Charlie Mather, a student at Loveland High, located in a suburb of Cincinnati. One night in summer 2008, police pulled over a car in which he was riding, and police noticed an open container of alcohol between his legs. Mather was arrested. Later, a Loveland resource officer who also is a city cop told the school about Mather’s arrest. The school, under its policy, suspended Mather for 40 percent of the football season. Mather’s mother sued the school district, and got a local court to give a temporary injunction for him to play football — but he still faced sitting out 40 percent of lacrosse season in the spring.
With that in mind, the case (relatively quickly) made it to a state appeals court. On March 13, 2009, in a unanimous decision, the three judges said the lower court was all kinds of wrong in even giving Mather the time of day.
The first problem, the judges noted, was that the Ohio legislature never granted students a right to appeal suspension from extracurricular activities, even though they did have the right to appeal suspension or expulsion from curricular activities (which is why I noted Wolf had it backward about who had the harder time getting back into school). As a matter of fact, the Ohio legislature appeared to make it clear there would be no legal right of appeal on the extracurricular end. In 1996 it passed a law allowing school boards to adopt policies for prohibiting students from participating in extracurricular activities. In 1999, it struck out the word “extracurricular” when it amended statute on students’ rights to appeal suspension or expulsion from school.
It is significant that the legislature both created a separate statute to address policies for prohibiting students from extracurricular activities and deleted “extracurricular” from the statute concerning the right to appeal a school board’s decision. It is clear to us that the legislature intended to create a right of appeal to a common pleas court only for curricular activities. Extracurricular activities are governed solely by R.C. 3313.664, which provides no right to appeal a school board’s decision. Perhaps the legislature reasoned that some issues have to be left to the good faith of school officials, rather than to have every incident such as this one dragged into court.
That court also noted a 1980 decision by the Sixth Circuit Court — one step short of the Supreme Court — in a case called Glenn v. Harper. That court upheld the right of a school district to kick a student off the cheerleading squad, without a hearing or a right of appeal. The Sixth Circuit noted, and the Ohio state appeals court followed, that there is no Constitutional right to participate in extracurricular school activities.
So that’s what a court says, but is that right? I’ll sound like a grumpy old man, but, yes, it is. If a college team can suspend a player for off-campus problems, there’s no reason a high school or middle cannot, as well. As schools note, participating in extracurricular activities is a privilege. Generally, students and their parents have to sign an agreement (as Mather and his father did) adhering to a code of conduct, and if the student doesn’t, well, see you in math class, but not on the football field.
However, if Wolf and his like want to make some progress on giving young athletes more wiggle room in the code of conduct, they might concentrate on what’s in the code itself, and how it is applied. There is a case pending in U.S. District Court in Fort Wayne, Ind., in which two female athletes were suspended from teams for salacious MySpace pictures (often known as the “Penis Pop case”). In that case, the issue is whether photos taken and posted for the benefit of a select group of people (they couldn’t be seen by people outside the girls’ networks) counts as any sort of moral public turpitude worthy of getting suspended, and especially worthy of having to grovel in front of all-male panels gawking at your licking a phallus lollipop in order to get back on the team.
I’ve already gone on record as saying I don’t think this is actionable like an athlete getting busted for something illegal. At least in the latter case, you have a public record to go on, rather than trying to make some judgment call. But we’ll see what the court has to say. For now, those athletes in Haddonfield shouldn’t hold their breaths that Matthew Wolf will succeed in his goal of getting their suspensions off their permanent records, something extremely important in the well-to-do community. From the Philadelphia Inquirer:
A number of Haddonfield parents were contacted for this story, and all declined to speak on the record. They expressed concern that their comments would affect their children, both in their day-to-day existence in high school and when they applied to college in the months or years ahead.
Apropos of nothing, Bill Cosby talking about drinking, when he was more funny than hectoring.