Homeschooler Participation in High School Sports (continued)

CIF rules, called bylaws, can be found online at www.cifstate.org. These rules include several pages of eligibility requirements ranging from when boys can compete on girl's teams and vice-versa, to competing under an assumed name, to academic requirements, to discipline, to independent study, home study and home schooling. Section 227, which was added in February, 2000, states that: "Students who are not enrolled in programs under the jurisdiction of a member school's governing body are not eligible to participate in CIF competition. Such programs would include, but not be limited to, home schooling or home study wherein parents, or other persons, are responsible for instruction and evaluation. Home study, home schooling students may become eligible to participate in CIF competition provided they meet all requirements of bylaw 226." This section also applies to homeschool students using the private school option and private school programs that do not have CIF athletic programs. Bylaw 226 provides that an independent study student can be eligible for sports teams as long as: "A. The student's registration is accepted by the local school board AND; B. The courses taken by the student meet the standards adopted by the local school board and Education Code Sections 51745, et. Seq. AND; C. The administrative responsibility for the student involved in athletics shall rest with the principal of the school for which the student is competing, AND; D. The student meets all other eligibility requirements of the CIF and its member sections."

Therefore under CIF rules homeschoolers participating in interscholastic sports must enroll in a public or private high school, independent study program, or charter school. Not only are California homeschoolers required to follow these provisions, but also homeschooling is now defined in a quasi-legislative forum: "home schooling or home study wherein parents, or other persons, are responsible for instruction and evaluation." This requirement raises three significant questions: 1) Do our children have the fundamental constitutional right to participate in high school sports? 2) Can these bylaws/rules be challenged? 3) What is the legal significance of the definition of homeschooling found in the CIF bylaws?

Is Participation in High School Interscholastic Athletics a Fundamental Constitutional Right?

Apparently not, according to a 1986 appellate court decision. In Steffes v. California Interscholastic Federation, the court addressed the issue of "whether, under the California Constitution, the right to participate in interscholastic athletics is a 'fundamental right'." (Steffes v. California Interscholastic Federation (1986) 176 Cal.App.3d 739.) For a comprehensive discussion of the significance of "fundamental rights" see Stephen Greenberg's essay: The Legality of Private-School Homeschooling in California. Basically, when examining the constitutionality of a law infringing on a fundamental constitutional right, the higher standard of "strict scrutiny" is used. If the right infringed upon is not fundamental, the court uses the "rational basis" test to evaluate its constitutionality. In Steffes, a Los Angeles area student, Kent Steffes, appealed CIF Rule 214 that made him ineligible to participate in varsity high school sports because he transferred from a CIF member private school to a CIF member public school.

Kent Steffes' contention that participation in high school athletics is a fundamental right is relevant to homeschoolers interested in challenging Rule 227. He argued that the fundamental right to a public school education included the right to participate in interscholastic athletics and the imposition of Rule 214 deprived him of his fundamental right to participate in extracurricular activities offered by a public school. He further contended that this deprivation of a fundamental right required the court to apply a "strict scrutiny" test, rather than a "rational basis" test in considering the constitutionality of Rule 214. The Second District Court of Appeals did not agree with this argument.

The court noted that, "inasmuch as CIF is an organization with responsibility for administering interscholastic athletics in all California secondary schools (see Ed. Code, section 33353), the enforcement of its rules constitutes 'state action' for purposes of constitutional analysis." (Id. at 746. See also Jones v. California Interscholastic Federation (1980) 197 Cal.App.3d 751, 757.) Although acknowledging that under the California Constitution, public education is a fundamental right (Hartzell v. Connell (1984) 35 Cal.3d 899; Serrano v. Priest (1971) 5 Cal.3d 584) and that the Supreme Court in Serrano stated that extracurricular activities are a fundamental part of public education, the Steffes court refused to extend that same fundamental right status to the right to participate in interscholastic athletics. They pointed out that since Serrano had not specifically stated that interscholastic athletics were a fundamental right, they were not compelled to make such a finding. "[T]he fact that public education is a fundamental right under the California Constitution does not compel a finding that in California the right to participate in interscholastic athletics is also a fundamental right entitled to the highest degree of constitutional protection. Therefore, we hold that an equal protection challenge involving that right is properly tested by the rational basis standard, rather than by the strict scrutiny standard of judicial review." (Steffes, supra, at748.) Thus, the court based its decision that interscholastic athletics is not a fundamental right on the thin grounds that the Supreme Court in Serrano did not take the next step and specifically state that extracurricular activities are fundamental rights subject to constitutional protection.