January 6, 2003

Letter to MPA's attorney

December 19, 2002


Margaret Coughlin LePage
Pierce Atwood
One Monument Square
Portland, ME 04101

Re: MPA/Homeschoolers on Private School Sports Teams

Dear Ms. LePage:

I am writing in response to your letter of December 12, 2002, to my colleague, Scott Woodruff. Mr. Woodruff referred the file to me to evaluate for potential litigation on behalf of numerous homeschoolers. I have reviewed the applicable Maine statutes, the Maine Principals' Association's rules, and relevant case law and have concluded that your client, the Maine Principals' Association has violated state law, ignored its own rules, and violated homeschoolers' federal constitutional rights. I strongly urge you to advise your client to reconsider its position of denying homeschool students the right to participate in athletics and extracurricular activities with member private schools.

The U.S. Supreme Court has held that interscholastic athletic associations like your client may be sued as state actors for violation of federal civil rights under 42 U.S.C. 1983. Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001). There is perhaps no more well-settled rule of federal constitutional law than this: State actors may not restrict parent's fundamental right to direct the care, upbringing, and education of their children by requiring children to attend public school and banning them from attending private schools. Pierce v. Society of Sisters, 268 U.S. 510 (1925).

In 1995, the Maine legislature amended the state's statutes to allow homeschoolers access to play sports and participate in other extracurricular activities in public schools. Until this year, homeschool students have also participated on private school teams without controversy. Nothing has changed in either Maine's statutes or in the MPA's rules. Your client's Executive Director, Richard Durost, has, nevertheless, reversed years of actual practice and has interpreted the state's statute in a highly restrictive manner. Nothing in Maine's statutes suggests that homeschool students may not participate on private school sports teams. Your client's interpretation violates the Court's holding in Pierce by directly infringing on the right of parents to choose private educational options, including extracurricular options, over those offered by the state.

Apart from any constitutional infirmities, nothing in your client's own rules prohibit homeschool students from participating on private school teams. Indeed, the rules say only that homeschool students need not be enrolled in the school for which they participate. That rule is certainly broad enough to be understood to encompass both public schools and private schools. Consequently, it is apparent to me that your client is disregarding its own rules as well as state law.

Parents have a fundamental right to direct the care and education of their children. Any state action that interferes with this fundamental right is subject to strict judicial scrutiny. Because the MPA's interpretation directly burdens this fundamental right of homeschooling parents, it is subject to strict judicial scrutiny. Under that standard, you would have to justify the policy by demonstrating that it serves a compelling state interest and that there is no less restrictive means of achieving that compelling state interest.

In your letter you indicate that your client's interest is in promoting fair play and competition. Even assuming that those interests are compelling state interests of the highest order, they are already met by your client's rules against recruitment, inducement, and influence. Additionally, you expressed a concern that homeschool athletes would be able to transfer from one school to another to participate in different sports during the same school year. Your client's transfer rule already prohibits transferring from one school to another primarily for athletic purposes. This rule would presumably apply to homeschool students as it would to those students who are regularly enrolled in the public or private schools. Thus, your client's interest is achieved by means less restrictive than an outright ban.

The transfer rule and the rules against recruitment, inducement, and influence are less restrictive means that already deal with the problems that your client has expressed. Therefore, the MPA's complete ban of homeschool students from private school sports team is without merit. It certainly would not withstand strict judicial scrutiny.

In addition to the basic right of all parents to direct the care, upbringing, and education of their children, many parents affected by your client's arbitrary ban from private school sports are also motivated by sincerely held religious conviction not to send their children to public schools. This conviction extends to participation in public school extracurricular activities as well.

For example, I have been contacted by a family whose children have participated for many years on the sports teams at the private school affiliated with the church that they have regularly attended as members. Their children's participation in extracurricular activities through the affiliated church school is a direct extension of their free exercise of religion. Your client's decision to ban these parents' children from participating in their own church's extracurricular activities has substantially burdened not only their parental rights, but also their free exercise of religion rights. Accordingly, your client's ban must independently withstand strict judicial scrutiny for the burden it imposes on the free exercise of religion. Employment Division v. Smith, 494 U.S. 872 (1990); Wisconsin v. Yoder, 406 U.S. 205 (1972).

In your letter to Mr. Woodruff, you suggest that allowing homeschool students to participate in private school athletics would give homeschool students an advantage that no other student would have. This argument begins from a faulty premise. A correct analysis should begin with the options of a parent before exercising the right to choose public, private, or home education. All parents of high school age children have a choice of sending their children to either public school or private school or of homeschooling them. Thus, any given family always has the choice of electing private school.

Any parent who wishes to have her children play for a private school, may simply enroll them in any private school. Similarly, a parent could elect to send her children to the public school where the family resides. The state of Maine has said, however, that if the family elects to homeschool its children, the state schools may not ban them from participating in sports. Because parents who choose homeschooling could choose to enroll their children in a private school, there is no special advantage conferred upon them when they decide to homeschool but elect to have their children participate in a private school's extracurricular activities.

The real import of your client's decision to ban homeschool students from participation in private school athletics is to give public schools a monopoly on homeschool students who are also athletes. It not only infringes on the parental and religious rights of many parents, it disadvantages private schools who participate in extracurricular activities with public schools. The parents who have contacted me are not seeking any special advantage for their children. They simply want to exercise their rights to participate on the sports teams of private and religious schools rather than those of the public schools.

If your client does not immediately reconsider its new policy, we will seek a preliminary injunction and a declaratory judgment that the policy violates homeschoolers' rights as parents, their free exercise of religion, and any other state or federal claim warranted by the facts and the law. In addition, we will seek attorneys' fees and costs under 42 U.S.C. 1988.

If you have any questions please do not hesitate to call me at (540) 338-5600.
Very truly yours, James R. Mason, III Litigation Counsel JRM/kdk