Photo Source: thelagroup.com
All over the country governors, health departments, and school districts have been forced to make many difficult decisions about how to safely handle a return to school amidst a pandemic. One of those decisions is whether or not sports will be played, and if so, which ones?
Inevitably a decision either way on high school sports is going to leave some unhappy. Over the past few months, many have been left feeling as though they have missed out on a life experience they will never get back. This feeling has boiled over into lawsuits in parts of the country including Niagara Falls, NY.
Last week, a class action lawsuit was filed against Governor Cuomo, Attorney General Howard Zucker, New York Department of Health, New York State Public High School Athletic Association, and fourteen others seeking to enjoin the enforcement of the state’s shutdown orders. The plaintiff is the mother of Niagara High School’s senior quarterback. She brought the suit on behalf of her son (J.H.-G) and all others similarly situated.
The lawsuit challenges the decision not to offer fall high school football on Fourteenth Amendment Due Process, Equal Protection, New York State Constitutional, and tortious interference grounds. The crux of the Plaintiff’s argument is that J.H.-G is a blue-chip prospect who will most likely lose a chance at a college scholarship and is therefore being stripped of a constitutionally protected property interest. And by not being allowed pre- or post -review of the cancellation of fall football, Plaintiff is being deprived of property without due process of law. The lawsuit also argues that by allowing professional and college football to be played within the state, as well as high school soccer and field hockey, Defendants are depriving Plaintiff equal protection of the laws provided by both the federal and state constitution. The suit also argues that the purpose of the state shutdown orders–flattening the curve–has been met and the decision to cancel fall football was not based on science.
Others have argued that they had a constitutionally protected property interest in participating in high school athletics and courts have largely struck them down. Only in very limited situations have courts been willing to recognize such an interest. First, when an athlete has been deprived of a scholarship that has already been granted. Second, where participation in high school athletics was the impetous for rehabilitation after juvenile delinquency. Importantly, these two exceptions were carved out in the absence of a pandemic.
Given the current health concerns, it seems unlikely that a court would find a precautionary rule that does not cancel–simply postpones high school football until spring–unconstitutional.