Legal Issues in Athletics Administration
Throughout 2014, court cases were decided, legislation was enacted and administrative agency rulings were released impacting school sports programs. In each instance, the legal principles established illustrate the importance for school and athletics personnel of understanding contemporary sports law issues and proactively applying that knowledge to policy development and day-to-day management of athletics programs.
Liability for Sports Injuries
In July, a week before the suit was scheduled to go to trial, a $1 million settlement was agreed to in the wrongful death civil suit Crotty v. Buncombe County Board of Education. In the summer of 2011, 15-year-old Donald Crotty, a varsity football player at Asheville (North Carolina) Roberson High School, was struck by an ATV driven by a fellow student-athlete immediately following a football camp workout session. The four-wheel vehicle was being used to move water coolers from the field and at the time of the incident was allegedly being driven at approximately 20 mph when it approached from behind a group of players walking along a paved path leading from the practice fields to the gym and locker rooms.
Although the others were able to dive out of the way of the ATV, Crotty was struck, fell, and his head was run over by the vehicle. The suit, which named as defendants the school district, the head football coach and the student driving the ATV, alleged negligent operation of the vehicle, negligent supervision because no coaches were on the field at the time of the accident, and an unsafe playing environment because students were allowed to operate motorized school vehicles on and around the practice facility. Shortly after Crotty’s death, the district enacted a policy banning students from operating school vehicles and other motorized equipment owned by the school.
In February, a $1.7 million settlement was reached in Donkor v. Manchester Public Schools, a case addressing natatorium supervision and safe environment issues. In November 2012, 14-year-old Manchester (Connecticut) High School student Malvrick Donkor drowned during a physical education class, an incident in which the boy was discovered at the bottom of the pool 17 minutes after surveillance cameras showed him climbing down a ladder into the deep end and disappearing below the water’s surface. In May of 2013, the Connecticut legislature enacted a pool safety law establishing new natatorium safety standards, mandating a second supervisor for all school aquatic activities, including swim team practices, and requiring schools to develop and implement aquatic activity safety plans.
In July, in Cross v. Wood County Schools, a jury awarded $136,030 to a Parkersburg (West Virginia) South High School football player who was injured in a locker-room fight with another team member. The altercation was allegedly encouraged by an assistant football coach who, even after it became clear that the victim was being severely injured, did not intervene to end the fight. District and school officials were found liable for failing to establish an overall plan for the athletics program and for failing to train, supervise and evaluate the assistant coach.
In July, a Montana court approved a $300,000 settlement in Rouchleau v. Three Forks School District, a case involving a traumatic brain injury suffered by a high school football player who allegedly was returned to action prematurely after suffering a concussion during a practice in 2009. The original filings in the suit claimed that shortly after being diagnosed with a concussion, the school’s coaches allowed the player to return to action without written clearance by a licensed medical professional as mandated by the state’s concussion protocol law and that the student-athlete then sustained a helmet-to-helmet hit that rendered him unconscious, resulting in permanent brain damage.
In August, a lawsuit was filed against a school district and soccer coach alleging premature return to action after a concussion in violation of the duty of reasonable care to evaluate student-athletes for incapacities, including return-to-action protocols after an injury. In M.U. v. Downingtown (PA) Area School District, the pleadings contend that a 14-year-old female soccer player suffered a concussion when, while attempting to strike a header, the girl’s face collided with the head of another player. The suit asserts that she was removed from the game for a few minutes and, despite exhibiting multiple indicia of a concussion, was allowed to return to action where she suffered another head-to-head hit resulting in a “second impact syndrome” traumatic brain injury. The suit invokes the state’s concussion protocol law, which requires that student-athletes who show signs of a concussion be immediately removed from play, cannot return to play the same day, and may return to action only after clearance from a licensed medical professional.
In January, the governor of Mississippi signed into law the Mississippi Youth Concussion Act. All 50 states and the District of Columbia now have a sports concussion law in place. Most of the state laws contain three common tenets: 1) any athlete suspected of having sustained a concussion must immediately be removed from play; 2) the athlete may not be returned to action the same day; and 3) the athlete may be returned to action only after written clearance is provided by a licensed health-care professional (the definition of which varies widely from state to state).
Some of the state laws contain additional requirements, including mandates that athletics personnel complete an annual concussion education course, that baseline testing be implemented by schools, or that student-athletes and parents be provided with concussion education materials and sign a concussion-information form. The full-text of each state law may be accessed through the National Conference of State Legislatures website.
In September, the U.S. Court of Appeals for the Ninth Circuit issued its ruling in Ollier v. Sweetwater Union High School District, upholding a series of previous lower court decisions against the district. The case originated with a narrow dispute in 2006 over the substandard condition of Chula Vista (California) Castle Park High School’s softball facilities as compared to its baseball facilities, but resulted in a comprehensive investigation of the entire athletics program and judicial determinations that the school was in violation of Title IX’s “three-prong test” mandating equal sports participation opportunities for female students, in violation of Title IX’s prohibition on retaliation against those who lodge complaints about inequities because the softball team’s coach had been fired in response to his complaints about the facility inadequacies, and in violation of numerous requirements related to equal treatment of female student-athletes in the “other athletics benefits and opportunities” component of Title IX, including equipment, uniforms, supplies, storage, locker rooms, practice facilities, competition facilities, access to quality coaching, scheduling of practices and games, and access to athletic training and medical services. This case is an instructive one for school and athletics administrators and provides a blueprint for the expectations of the federal courts with regard to Title IX compliance by scholastic sports programs. The full-text of the decision, including its extensive set of recommendations for Title IX compliance by high school athletics programs, is available here.
In February, the Indianapolis Public Schools entered into a resolution agreement with the U.S. Department of Education’s Office for Civil Rights (OCR), which had in 2010 initiated a Title IX compliance review of the athletics programs at seven district high schools. The resolution agreement establishes a timetable for the district to remedy its Title IX problems over the next two years and, in the same way the Ollier case is instructive regarding the expectations of the federal courts regarding Title IX, the Indianapolis settlement is instructive regarding the expectations of the OCR regarding Title IX. The full-text of the resolution agreement is available here.
Constitutional Law: Freedom of Speech and Social Media
In June, in Harper v. Scappoose (OR) School District settled a federal lawsuit brought by a high school dance squad member who was barred from participation when she declined to sign her team’s social media policy requiring all online posts to be screened and approved by the dance squad’s sponsor, an effort by the coach to address a perceived problem in recent years of derogatory posts by team members about the dance squad. The complaint alleged that the policy violated team members’ free speech rights because, as written, they would have been forbidden without prior approval from “saying anything to anyone” via any form of digital communication, including email, instant messaging, texts and social media sites. The complaint also alleged that the policy violated the team members’ due process rights because the requirements set forth therein were vague and ambiguous.
As part of the settlement, the district will pay the plaintiff’s attorneys fees and discontinue its social media policy for the dance squad. The case should not be interpreted as an invalidation of all social media policies – a precisely crafted, narrowly written policy that imposes sanctions for social media postings that result in a substantial disruption on campus is likely to be upheld by courts. However, overly broad policies such as the one in the Scappoose case – a blanket policy that significantly limits off-campus student speech – is likely to be struck down by courts.
In January, a settlement was reached in Rosario v. Clark County School District, a case in which a basketball player at Las Vegas (Nevada) Desert Oasis High School was disciplined for violating the district’s cyberbullying policy after sending a series of profanity-laced tweets about his coach and school administrators. In July 2013, a federal district court dismissed most of the former student’s claims, including his argument that the school had violated his privacy rights by “searching” his Twitter account – the court ruled that persons do not have a reasonable expectation of privacy regarding messages disseminated into cyberspace. The court, however, refused to dismiss the plaintiff’s free speech claims, finding that seven of the tweets, although racist, hateful and offensive, did not satisfy the legal definition of obscenity and, because they were posted off-campus, might be entitled to First Amendment protection unless the school could establish at a trial that the off-campus speech had resulted in a substantial disruption on campus. The district settled the case before trial, rendering moot those issues.
Constitutional Law: Freedom of Expression
In February, the U.S. Seventh Circuit Court of Appeals, in Hayden v. Greensburg (IN) Community School Corporation, held that the policy of an Indiana high school boys basketball team regulating hair length violates the Fourteenth Amendment’s Equal Protection Clause and Title IX because female basketball players at the school were not subject to comparable grooming restrictions. The decision reversed a lower court ruling upholding the grooming policy. The standard of practice reflected by the case is that athletics programs should establish grooming policies that set forth comparable, even if not identical, standards for both male student-athletes and female student-athletes and carefully review those policies to ensure that they do not burden one gender to a greater extent than the other.
Constitutional Law: Freedom of Religion
In October, in Matthews v. Kountze Independent School District, by ordering the district to file a written response, the Texas Supreme Court indicated that it may agree to hear an appeal by high school cheerleaders regarding their right to display religious messages on banners at public school athletic events. The dispute arose in September 2012 when the district, concerned that the display of Bible verses on run-through banners at high school football games violated the First Amendment’s Establishment Clause, prohibited the practice. Citing their free speech and free exercise of religion rights, the cheerleaders filed a lawsuit and a state trial court judge issued a temporary restraining order staying the implementation of the ban pending a full resolution of the case.
In April 2013, the district changed its policy to allow such banners at school sports events and in May 2013, the same judge who had previously issued the temporary injunction ruled that the display of the banners was constitutionally permissible. The Kountze Independent School District then requested that a state appellate court clarify the district’s obligations regarding church-and-state issues, but in May 2014, the appellate court ruled that the issue was moot because of the district’s policy change. The cheerleaders, in order to eliminate the possibility of the policy being amended in the future in a manner that might limit their ability to display the religious messages, appealed to the state Supreme Court seeking a definitive ruling on the free speech and free exercise of religion issues in the case. If the state high court agrees to hear their appeal, a ruling will likely be issued sometime during 2015.
Constitutional Law: Invasion of Privacy
In September, a former Fairfield (Illinois) Community High School cross country coach was sentenced to 20 years in federal prison after pleading guilty to multiple charges of sexual exploitation of a minor for secretly videotaping female student-athletes in the girls locker room by placing a hidden video camera in a device designed to look like a smoke detector attached to the ceiling. According to Wayne County Circuit Court officials, civil suits against the school district and school officials, if filed, are unlikely to be successful because as soon as the camera was discovered, district administrators immediately launched an investigation leading to the arrest of the coach.
The U.S. Supreme Court has established the legal standard for civil suits in such cases that schools and personnel will be liable only when someone in a position to take corrective action has knowledge that the behavior is occurring and exhibits deliberate indifference to remedying the situation.
In November, in a case illustrating the importance for schools of establishing and enforcing policies banning smartphones, tablets and other devices containing digital cameras from school environments where the privacy of students and student-athletes might be compromised, a police investigation was completed into the covert videotaping in early October of the Escalante (New Mexico) High-Middle School girls volleyball team in its locker room by four members of the school’s football team using a cell phone camera. The local District Attorney is presently reviewing the police report to determine whether the boys will be charged with the privacy-related crime of voyeurism. Still being investigated is whether district and school personnel responded appropriately after learning about the videotaping – the state’s child abuse reporting law mandates immediate contact with either law enforcement or child protective services and school officials allegedly failed to make the required report to either, with the incident eventually being reported to police by a parent of one of the volleyball players.
Constitutional Law: Equal Protection and Pregnancy
In July, the U.S. Equal Employment Opportunity Commission (EEOC) issued a policy guidance titled Enforcement Guidance on Pregnancy Discrimination and Related Issues (available full-text here). Although the guidelines focus on the subject of discrimination against pregnant and parenting workers, the position statement also discusses the broader application of the Pregnancy Discrimination Act and the Americans with Disabilities Act to a variety of individuals who encounter pregnancy-related discrimination, including college and high school students and student-athletes. The document supplements guidelines issued in June 2013 by the U.S. Department of Education’s Office for Civil Rights titled Supporting the Academic Success of Pregnant and Parenting Students Under Title IX of the Education Amendments of 1972, a position statement that sets forth in detail the obligations of schools to pregnant and parenting students and student-athletes (available full-text here).
Constitutional Law: Equal Protection and Transgender Students
The development of fair, practical and legally sufficient policies regarding the inclusion of transgender athletes in sports activities is one of the latest civil rights challenges facing sport governing bodies and educational institutions.
In April, the U.S. Department of Education’s Office for Civil Rights issued an updated policy guidance clarifying that the civil rights guarantees in Title IX extend to all students, regardless of their sexual orientation or gender identity. The inclusion of transgender students in the new guidance reflects evolving legal standards nationwide, both through laws enacted by state legislatures and via policies implemented by state associations, regarding the protections against discrimination that must be accorded by schools to transgender students and student-athletes. The 53-page document, structured in a question-and-answer format, is available full-text here.
Numerous state associations, including Washington, Colorado, Vermont, Maine, Virginia, Kansas and Illinois, have developed policies regarding the inclusion of transgender student-athletes in school sports programs and which might serve as models for districts attempting to develop transgender strategies at the local level. Each state association’s policy is available on its website. For additional guidance, consult a 2010 position paper titled On The Team: Equal Opportunity for Transgender Student-Athletes that was endorsed by the NFHS and NCAA. The 57-page document, available full-text at www.nclrights.org, sets forth detailed recommendations for policy development, protection of the privacy, safety and dignity of transgender student-athletes, and best practices for schools, athletic administrators and coaches.
In October, the Sayreville (New Jersey) Public Schools announced that War Memorial High School was cancelling the remainder of its 2014 football season in the wake of revelations about an allegedly pervasive and longstanding tradition of hazing by upperclassmen against underclassmen, often involving acts constituting sexual assault and sexual battery, including sodomy. In mid-October, seven players were charged by the Middlesex County prosecutor’s office with aggravated criminal sexual contact and criminal hazing pursuant to New Jersey’s anti-hazing state law and in early November, the prosecutor’s office announced that the alleged perpetrators would not be tried as adults. The Sayreville Board of Education voted to approve the suspension of the head football coach and four assistants pending resolution of an investigation into the events.
Yet to be determined regarding the situation is whether the district had a strong and effective anti-hazing policy in place for its athletics programs and if so, whether all athletics personnel were in-serviced regarding the policy, whether student-athletes and parents were educated about the policy and informed as to how and to whom hazing should be reported, whether substantive, ongoing efforts were made by athletics personnel to enforce the policy, whether adequate supervision was in place over all environments and situations where hazing might take place, and whether any athletics personnel were aware of the hazing behaviors but allowed them to continue from year-to-year in the interests of maintaining “team traditions.”
Despite the national media focus directed towards the Sayreville hazing scandal, it should be noted that similar hazing allegations surface dozens of times each year at schools across the country. In October, the team’s final two games of the season were cancelled after reports surfaced of multiple alleged hazing incidents in the football program at Central Bucks West High School in Doylestown, Pennsylvania, including haircuts forcibly administered by upperclassmen on underclassmen, physical beatings of players who resisted having their heads shaved, underclassmen being harassed by being placed under showers with towels covering their heads in a ritual the players referred to as “waterboarding,” and reports of sexual assault and battery against underclassmen who allegedly had their genitals groped by upperclassmen.
In January, an Illinois trial court judge acquitted a Maine West High School soccer coach of hazing, battery and failure to report child abuse criminal charges related to alleged hazing incidents in the fall of 2012 in which freshmen players were reportedly physically and sexually assaulted by upperclassmen as part of an initiation ritual. In announcing his decision, Cook County Judge Jeffrey Warnick acknowledged that hazing had taken place, but ruled that the coach had insufficient knowledge of the behavior to be held criminally responsible for the actions of the hazers. A civil suit by five of the victims continues against the Maine Township School District and the coach. In response to the case, the Illinois legislature enacted a law to clarify the responsibility of school officials for reporting hazing or any child abuse-related crime, making it a Class B misdemeanor to fail to report hazing if an incident causes “bodily harm to any person.”
In April, a 37-year-old softball coach at Westlake (California) High School was arrested and charged with four felonies related to his unlawful sexual relationship with a 15-year-old student-athlete. Police and school district investigations are ongoing regarding the school and athletic program’s sexual harassment policy and whether it was effectively implemented, whether all coaches were in-serviced regarding the policy, whether all student-athletes and parents were educated regarding the policy and its reporting mechanisms, and whether implementation of the policy was sufficient to effectively protect students and student-athletes. The parents of the victim have filed paperwork indicating their intention to sue the district and school athletics personnel for negligence for failing to adequately safeguard the well-being of their daughter.
In March, a Tinley Park (Illinois) High School wrestling coach was charged with multiple counts of felony criminal sexual assault, aggravated criminal sexual abuse from a position of trust, and criminal sexual assault of a victim under age 18 for having sex with a female student-athlete. A school district investigation is focusing on the effectiveness of its sexual harassment policy, whether personnel are adequately in-serviced regarding the policy, and whether students and parents are adequately educated regarding the reporting mechanisms of the policy.
In February, an Marion (Ohio) Elgin High School cross country coach was charged with felony sexual battery for having sex with a teenage, male student at her school. She pleaded guilty to the lesser charge of gross sexual imposition, received a 15-day prison sentence, one-year of probation, and permanent registration as a sex offender which will preclude her from ever again teaching or coaching.
In January, a former basketball referee was convicted by a Jefferson County (Colorado) jury of nine counts of unlawful sexual contact for inappropriately touching female basketball players during games. Five girls who attend schools in the Jefferson County Public Schools and the Denver Public Schools testified at the trial that they had been groped by the official, who touched the girls breasts, buttocks and legs when handing them the ball for inbounds passes or when they were standing on the court during dead-ball times. After his arrest, it was discovered that the referee had been arrested in the early 1990s on a felony sexual assault charge and pleaded guilty to a lesser sex crime. In response to the case, the Colorado High School Activities Association enacted rules mandating criminal background checks on sports officials, who because they are not employed by school districts and are classified as independent contractors, had not previously been vetted before being allowed to officiate high school and middle school sports.
Failure to Report Child Abuse
In March, in Smith v. State of Indiana, a case with implications for school and athletics personnel nationwide, the Indiana Supreme Court upheld the conviction of a high school principal for failing to report a student-on-student rape as mandated by the state’s child abuse reporting law. The principal argued that he had acted in good faith, but had merely misinterpreted the law, believing that student-against-student abuse did not constitute child abuse pursuant to the language of the statute. The state Supreme Court disagreed, concluding that the rape of a minor student by another student was clearly covered by the child abuse law and that school officials, without exception, had the affirmative duty to report all instances of abuse against minors.
Issues continue to arise in school athletics programs involving the application to sports activities of the Americans with Disabilities Act (ADA), the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act.
In October, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a “Dear Colleague Letter” (DCL) clarifying the obligations of schools to prevent bullying and harassment of students and student-athletes with disabilities. Titled Responding to Bullying of Students with Disabilities, the full-text of the guidance is available in the OCR’s online Reading Room.
The 2014 document supplements the guidelines set forth by the OCR a year earlier in another DCL clarifying the legal duties imposed on schools with regard to providing sports participation opportunities for students with disabilities. That guidance is available at www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html. The core message of the directive is that students with disabilities should be granted equal opportunity to participate alongside their peers in school athletics programs, club sports, intramural sports and physical education courses.
Lee Green is an attorney and a professor at Baker University in Baldwin City, Kansas, where he teaches courses in sports law, business law and constitutional law. He is a member of the High School Today Publications Committee. He may be contacted at Lee.Green@BakerU.Edu.