Action on the Court (of Appeals)

Three sports-related cases came down from three federal circuit courts of appeals in the last month. Let me talk about the two shorter ones here, then save the third for a separate, longer post.

The first is Breen v. Texas A&M University from the Fifth Circuit. Since 1909, students at Texas A&M have built a massive tower bonfire to light on the eve of the Texas game; it symbolizes the "burning desire" to beat the LongHorns. In 1999, the tower collapsed during construction, killing 12 and injuring 27. The report of the investigatory commission is here. Lawsuits followed against the university and its officials by victims and their families. The theory of the suits was that, by delegating responsibility for construction of the bonfire to a group of students who were not trained or qualified for the task, the university had engaged in outrageous conduct in violation of substantive due process. The Fifth Circuit affirmed the grant of summary judgment in favor of the defendants on a defense of qualified immunity.

The court accepted that an earlier panel opinion in this action had recognized the "state-created danger" theory of due process liability. That theory makes the state liable for the misconduct of others (here the student leaders actually responsible for overseeing building of the tower) when the state somehow created the situation that allowed others to act in a way causing harm (here, by delegating responsibility). And the court accepted that the plaintiffs had sufficiently alleged a due process violation on that theory. But the court held that theory of liability (and thus individuals' rights to be free of government conduct that created such a danger) was not clearly established in 1999 (at the time of the events). Thus, a reasonable government official would not have known that, in delegating responsibility for the bonfire to students, he was violating the substantive due process rights of the other students who might come into contact with the bonfire.

Pretty straightforward stuff. The court perhaps was a bit stingy in recognizing how widely accepted (at least outside of the Fifth Circuit) the state-created-danger theory was in 1999. But this also seems like a case involving a tragedy for which there was some negligence and responsibility for the deaths and injuries, but not the sort of deliberate unconscionable misconduct that is the stuff of constitutional law.

The second case, out of the Tenth Circuit, is Christian Heritage Academy v. Oklahoma Secondary School Activities Ass'n. That case involved an Equal Protection challenge to an OSSAA rule granting automatic membership to public schools, but requiring private schools to get the approval of a majority of OSSAA members. Christian Heritage Academy twice applied for membership and twice was rejected, supposedly out of concern for the large geographic area from which the school drew students.

The panel majority accepted that the OSSAA had several legitimate interests supporting the majority-vote requirement for private schools: preserving competitive advantage, preventing recruiting and exploitation of athletes, and preserving a balance between athletics and academics. But the majority held that those interests were not furthered by the majority-vote rule. Member schools' votes were unguided and standardless, meaning a nonpublic school could be denied membership even by a majority of membership schools, even if the applicant school posed no danger of recruiting or harming competitive balance. Thus the differential treatment of nonpublic schools seeking to join the OSSAA violated equal protection. The court remanded with orders to enter judgment in favor of Christian Heritage and to formulate an injunction against the majority-vote rule.

This case is somewhat of a piece with Tennessee Secondary Schools Athletic Ass'n v. Brentwood Academy, the First Amendment challenge to a high-school-athletics recruiting ban, a case on which the Supreme Court heard oral argument last month and which was discussed at length here and here. Both cases deal with constitutional issues arising from efforts by a scholastic athletic association to maintain competitive balance and to keep sports in its place.

More importantly, both reflect a tension over how to incorporate public and private schools in scholastic athletic associations. The record in Christian Heritage showed public schools' fears of competing with private schools, given the latters' perceived advantages owing to their ability to recruit, to offer financial aid, to attract students from a wider area, and to attract transfer students. Public school officials were specifically concerned that private schools were enjoying on the athletic field, success that (the theory goes) is traceable to those competitive advantages. The record shows that Christian Heritage's memberhsip application was being considered and rejected in 1998 and 1999, when several nonpublic schools were enjoying great athletic success.

One of the amicus briefs supporting the TSSAA in Brentwood came from the "Small Independents," four small private schools. They argued that if the recruiting rule is unconstitutional, the TSSAA could not continue to include public and nonpublic schools, because private schools given a First Amendment liberty to recruit would enjoy a competitive advantage. The events underlying Christian Heritage suggest many public school would prefer to go on without private schools.

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