Can I have chapter 12 outline.

As a reference I posted all the pages of the chapter.

Chapter 12 Constitutional Protections: "I Have My Rights" In the early days of our country, opinions were strong about whether laws and power should be concentrated in the national/federal government or within each state. A republic was the format that allowed a compromise. In our republic, the states have given certain powers to the federal govern- ment but have kept everything else. The U.S. Constitution is a compilation of the powers the states decided were better administered by a national government. For instance, the U.S. Constitution includes the power of the federal government to create an army, print money, and sign treaties. If each state had retained such powers, our foreign and economic policies would be very confusing. In addition to giving power to the federal government to do things, the U.S. Constitution includes a number of promises, in the form of amendments, made on behalf of the federal government not to do other things. For instance, the Ist amendment guarantees that the federal government will not interfere with our right to speak freely and our freedom to maintain the religious beliefs of our choice. The 4th Amendment has been interpreted to provide guarantees for our right to privacy, including the right to be free from being searched. The 5th Amendment guarantees us due process and a right not to testify against ourselves in criminal matters. Due process means that "fair procedures" must be used before we can be deprived of life, liberty, or property. If we read the Bill of Rights (the first 10 amendments) carefully, we will see that the federal government, and only the federal government, promises to honor these rights. Without something else, the state governments could search us or ban what we say. However, thanks to the 14th Amendment, passed soon after the Civil War, the states, in effect, have added their promises to those of the federal government to protect our rights. The 14th Amendment also gives us something else of great value. It promises that neither the states nor the federal government can treat us unequally (this is often referred to as the Equal Protection Clause).164 Legal Concepts in Sport: A Primer It might If one of these three suspect classifications is used as the basis for disparate words used treatment by a state actor, the state actor must justify the disparate treatment by words mal using a more rigorous standard than merely showing that its actions are rationally mined to related to a legitimate state interest. In fact, the same test used when a fundamen tal right is violated is used to evaluate categorizations based on one of the RAN Constitu The classifications. So disparate treatment by a state actor based on race, alienage, or national right has origin is only permissible if it is necessary to accomplish a compelling state inter- est. The classifications of race, alienage, and national origin are accorded a more the other stringent review because society has determined, via the courts, that discrimina- such as tion and disparate treatment based on these three classifications is very unlikely to "Did the be based on any reason other than racism and ethnic prejudice. analyses through Developing Middle/Intermediate Level of Scrutiny of statu Race, alienage, and nationality, called suspect classifications, are the three types of classifications that require strict scrutiny when they are used to discrim- inate. Gender and disability are not currently considered suspect classifications. WI However, several U.S. Supreme Court decisions have indicated that gender and evalu disability-based classifications must be justified by something more than the "ra- St tionally related to a legitimate state interest" test yet less than the "necessary to St accomplish a compelling state interest" test, which would be applied to the suspect St classifications of race, alienage, or national origin. So at present, there seems to be a developing mid-level test or scrutiny. The development by the Supreme Court of this apparent mid-level test for gender and disability-based classifications seems to be indicative of a growing concern and sensitivity about discrimination based on either gender or disability. In between strict scrutiny (necessary to accomplish a compelling state inter- est) and mild scrutiny (rationally related to a legitimate state interest) is the devel- oping level of scrutiny which currently is: "substantially related to an important state interest." There are two parts to the description used for each level of judicial scrutiny applied to constitutional analysis. First is the connection any potential violation of a constitutional right might have to a state interest. Second is the importance of that state interest. Level of connection Rationally related Substantially related Necessary to accomplish Level of importance Legitimate state interest Important state interest Compelling state interestConstitutional Protections: "I Have My Rights' rate by It might seem that there is little significance in the differences between the ords used to define the levels of scrutiny. However, the nuances between the 165 lly n- Words makes all the difference if a particular behavior of a state actor is deter- mined to violate a constitutional right or not. Constitutional Rights Compared to Statutory Rights The constitutional analysis used when someone claims that a constitutional right has been violated involves the question: "Did they have a good reason?" On the other hand, when someone is accused of violating the provisions of legislation, such as Title IX or the ADA, the analytic process is somewhat more objective: "Did they do it?" So although discrimination can be attacked using constitutional analyses, it can also b e attacked using an entirely different process and analysis, through legislation such as Title IX and the ADA. See Chapter 13 for a discussion of statutory rights. INTERIM REVIEW When considering a claim of violation of the right to equal protection, evaluate the claim using the following steps: Step 1: Is a state actor involved, and if "yes," then Step 2: Is the classification the basis of disparate treatment? If "yes," then Step 3: What is the basis for classification? a. If a nonsuspect classification is used, can the state actor successfully claim that the classification is rationally related to a legitimate state interest? b. If a suspect classification (RAN) is used, can the state actor successfully claim that the disparate treatment is necessary to accomplish a compelling state interest? Practice Scenarios: Equal Protection . The school board of Local High School has decided to raise the academic standards of intramural sports participants so that the students will be more aware of the importance of good study habits. The new rule says that in order to participate on a team sport, a player must maintain a B grade point average (GPA), and in order to participate in an individual sport, a player must maintain a B+ GPA. No participation is allowed if the minimum GPA is not met. Is this proposal constitutional? Consider all the constitutional issues. Coach Chris can only have 10 members on the swimming team. Coach Chris uses scores on five different swimming skill tests plus racing times in three strokes to determine team membership. Half of the 20 applicants are excluded from the team. Is this constitutional? Consider all the constitutional issues.166 Legal Concepts in Sport: A Primer such as those lines, so you The NCAA drug testing program is administered only to athletes. 14th Am The rest of the student body is not tested. On this issue alone, what ing to due p constitutional issues should be considered? Clause. If the We have been talking about techniques of constitutional analysis and the gen- cussed abov eral constitutional protections found in the 4th, 5th, and 14th Amendments. The against state analysis of constitutional protections is the same regardless of the source of the upon in the right, but it might be a good idea to briefly review some of the amendments and the rights they convey. Ris Ist Amendment. The Ist Amendment provides protections relating most generally to speech, including symbolic speech and religion, including pregame There prayers. The protections found in the Ist amendment are of a fundamental na- who viola ture and thus are generally reviewed using strict scrutiny. The prohibition of hate tect the de speech, a current topic of discussion, is an issue that would be reviewed using the pay attor principles of the Ist Amendment. The underpinnings of defamation also stem techniqu from the Ist amendment. niques. 4th Amendment. The 4th Amendment provides protections relating most generally to searches. Long considered a fundamental right, the right to be free from warrantless searches has been somewhat eroded by the Supreme Court's Vernonia decision. The courts have been contending with issues of individualized Dea suspicion versus random searches and their acceptability within the framework admini of the 4th Amendment. School violence and drug use have been the two main gence behavioral factors that have seemed to result in some people's desire to erode 4th work Amendment protections for students. However, the courts are still struggling with for a p the issue, so this topic is an interesting one to watch unfold. and co 5th Amendment. The 5th Amendment includes portions of the due process protections that, for instance, relate to expelling or suspending students. The 5th Amendment also relates to protections from self-incriminating that is playing a role in the evaluation of the constitutionality of drug testing on campus. 8th Amendment. Although it has not found success as a bar to corporal pun- punishment. ishment, the 8th Amendment has been employed in the fight against corporal 11th Amendment. The 11th Amendment relates to state immunity from law- suits based in federal law. It seems very far afield from any application to schools, physical education, or sport programs. However, there are several cases currently at the Supreme Court which are using the 11th Amendment, and its historic re- lationship to Article 3 of the Constitution, to argue that federal legislation such as Title VII (anti-discrimination in the workplace), ADA (anti-discrimination based on disability) and Title IX (anti-discrimination in schools based on gender) should not be applicable to state institutions such as state colleges and universities. If the Supreme Court interprets the issues to bar the application of federal lawsConstitutional Protections: "I Have My Rights" 167 such as those noted above to state institutions, there will certainly be big head- lines, so you won't miss it. This is an extremely significant area of the law to watch. 14th Amendment. The 14th Amendment includes additional issues relat- en- ing to due process, but its main claim to fame derives from its Equal Protection Clause. If the 11th Amendment issues currently at the Supreme Court (and dis- cussed above) result in the Barring civil rights lawsuits based on federal statutes he nd against state institutions, the 14th amendment will need to be more heavily relied upon in the area of civil rights. Risk Management Regarding Constitutional Issues There is no coverage through insurance or hold harmless laws for someone who violates another's constitutional rights. Some insurance policies at least pro- tect the defendant who is later found by the courts to be not guilty from having to pay attorney's fees for the successful defense. However, the best risk management technique is to understand the basic constitutional guarantees and analysis tech- niques. Constitutional Issues in Practice Dealing with constitutional issues in our work lives as coaches, teachers, and administrators may seem less critical than acting on our understanding of negli- gence issues. However, a closer look tells us that much of what we do in any given work day has potential involvement of constitutional issues, especially if we work for a public institution. Certainly issues relating to interactions with our students and colleagues have constitutional connections. Should we fire Chris? Should I add Pat to the team instead of XXX? What do I need to do to treat a transgendered student fairly? How can I control the hateful language of some of the spectators at the games? How can we increase security at games without violating someone's rights? My players want to gather for a pre-game prayer, but should I let them? How can we eliminate bullying? We know there are weapons and drugs in some students' lockers but what can we do about it? Should I write a letter to the editor about how bad the new curriculum is? Can I "listen in" on my athletes' social media postings hoping to keep them safe from Internet predators? So consider this chapter as the place to understand constitutional concepts in general. Then wander over to Chapter 15 for a more specific look at a few instance es of constitutional issues in practice.168 Legal Concepts in Sport: A Primer New Jersey v. TLO way we view th How About Looking Up a Few Cases? student's locke If you're near a law library, you might find it interesting to read some of the pickering v. Board following cases. Some have value as precedents within their jurisdictions, others ment rights a don't. So don't assume that the outcome would be the outcome in your j tion. However, read them to gain an insight into how the issues of constitutional your jurisdic Pietrylo v. Hillsto protection are evaluated. As you read them, develop arguments of your own for employee de the plaintiff and then for the defendant. If you plan on using the Internet to find and employ cases, check the Appendix for suggested sites. the commer brings up cu Board v. Earls, 122 S. Ct 2559 (2002). High school drug testing is the topic of this rights if the case. Pinard v. Clats Borden v. East Township School District, 555 U.S.1212 (2009). A coach at a public ized their c school developed a variety of ways of including prayer in the pre-game setting. speech, Ist The case offers an interesting review of prior c prior cases concerning prayer in school Santa Fe Indep settings. is a dyna Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001). Is an athletics association a state actor? makes sig Demers v. Austin, 729 F.3d 1011 (2013). Does it matter whether a teacher's speech San Francisc concerns academic topics or administrative topics when Ist Amendment is- al., 483 sues are concerned? pic" by a Garcetti v. Ceballos, 547 U.S. 410 (2006). Does it matter what the topic is when Amend an employee speaks critically of campus decisions? Compare this Ist Amend- addition ment case to Hong below. ernmer Goss v. Lopez, 419 U.S. 565 (1975). Suspension of students raises constitutional Tinker v. D issues. Goss provides the classic and controlling view of the issues. speech Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988). Can curricular based speech be lim- studen ited under Ist Amendment protections? Compare to the Ward case below. United St Hong v. Grant, 403 Fed. Appx 236 (9th Cir. 2010). Can the employer punish the case, employee because of the employee's statements criticizing administrative de- discr cisions? How far does free speech, Ist Amendment protection extend in the Vernonia workplace? Compare to the Garcetti case above. 2386 Hysaw v. Washburn University, 690 F. Supp. 940 (1987). This case discusses the of d property rights players have or don't have in collegiate athletics and Ist Ward v. Amendment rights. cur Lee v. Weisman, 505 U.S. 577 (1992). The impact of subtle coercion as might occur late during school prayers was an issue here. Lemon v. Kurtzman, 403 U.S. 602 (1971). This is a landmark case on the topic of prayer in schools and the Ist Amendment. Menora v. Illinois High School Association, 527 F. Supp. 637 (1981). This case in- volves constitutional issues concerning basketball headgear.Constitutional Protections: "I Have My Rights' New Jersey v. TZO, 469 U.S. 325. (1985). This is a classic case that changed the 169 student's locker. way we view the obligations incurred when a school official wants to search a pickering v. Board of Ed., 390 U.S. 986 (1968). Do teachers lose their Ist Amend- ment rights at the school house doors? pietrylo v. Hillstone Restaurant aurant Group, 2008 U.S. Dist. LEXIS 88702 (2008). An employee developed a Myspace site where nasty comments about customers and employers were posted. The employee was fired when the employer read the comments. The case, based on statute rather than constitutional right, brings up current monitoring issues that might also apply to Ist Amendment rights if the actions were taken by a state actor. pinard v. Clatskanie School District, 319 F. Supp. 2d 1214 (2004). Students verbal- ized their criticisms of their coach. Retaliation against the exercise of their free speech, Ist Amendment rights is the issue of this case. Santa Fe Independent School District v. Doe, 530 US 290, (2000). Prayer in schools is a dynamic issue today. This case discusses both the judicial history and makes significant changes in the concepts involved. San Francisco Arts & Athletics, Inc. et al. v. United States Olympic Committee, et al., 483 US 22 (1987). Does the USOC's blocking the use of the word "Olym- pic" by a gay group organizing an athletic competition violate the group's Ist Amendment rights? This case includes some interesting discussions and, in addition, is informative about the USOC's relationship with the federal gov- ernment. Tinker v. Des Moines School District, 383 F.2d 988, rev.d 393 U.S. 503 (1969). Free speech and the Ist Amendment are the focus of this landmark case involving students wearing political arm bands. United States v. Virginia, 518 U.S. 515 (1996). This case, often known as the VMI case, was among the first to develop a mid-level scrutiny and apply it to gender discrimination in an educational setting. Vernonia School District 47J v. Acton et al., Guardians ad Litem for Acton. 115 S.Ct. 2386 (1995). This 5-4 opinion provides very interesting reading about the use of drug testing for high school athletes. Ward v. Polite, 667 F.3d 727; 2012. Can censorship or barring membership in a curricular program be applied based on 'educationally defensible' reasons re- lated to the participant's religion-based discriminatory speech? Race to Constitutionality The diagram on the following page is a memory tickler designed to help you remember the various hurdles (levels of scrutiny) over which a state actor must jump in order to violate various constitutional rights. Follow the race, step-by-step, to determine which path a particular contestant/violator must travel. Note: the courts have made an intermediate, ill-defined path, calling for greater scrutinyLegal Concepts in Sport: A Primer 170 than the low hurdles but less than the high hurdles. The intermediate path is an area of developing law and currently includes discrimination on the basis of gen. der, age, and disability. However, because the intermediate level is in flux, it is not represented on the diagram. FINISH LINE CONSTITUTIONAL No Hurdles Low Hurdles Nonstate Actors Enter Here Legitimate state Interest AMENTAL RIGHTS Rationally Related RESERVED FOR VIOLATORS OF NONFUNDA High Hurdles NNTAL RIGHTS AND THOSE WHO USE SUSPECT CLASSIFICATION Compelling Necessary state interest State Actors Enter Here RESERVED FOR VIOLATORS OF FUNDA156 Can you think Legal Concepts in Sport: A Primer On the other h We will talk later about how some of these specific promises (amendments) drug testing prog relate to sport situations, but first let's talk about the promises made in the U.S. tion that the NCA Constitution in general. It is important to understand how the promises work stitutional right a because the same process applies to all of the amendments. Once you understand that the NCAA is how to evaluate a constitutional right, you can apply that evaluation process to The truth is t everything from whether you can order your players to take a drug test to whether NCAA will be d denial of your promotion violates one of your constitutional rights. NCAA on unrel Evaluation Process Step 1: Is a State Actor Involved? actor, and many The decision The only actors that promised us anything in the Constitution are the federal actors have an and state governments. The federal and state governments, and any subunit of you work for them, are considered "state actors." The first question in the evaluation process, dub or center "Is a state actor involved?" is vitally important because if no state State actor without viola actor is involved, there is no protection promised us, and our prog- ress through the remaining evaluation process would be futile. prohibiting s Over the years, the Constitution has been interpreted to include promises tutional law. made not just by the federal and state governments, but by any group that acts in a governmental way. The "governmental way" idea is confusing, but let's try Evaluati to define it by listing some groups that are consistently considered to be acting Violated in a governmental way and thereby are state actors. On that list would be public school districts, city and county governments, police departments, and municipal If we d recreation departments. then we p We also know that some groups are definitely not state actors. Included on the of the righ "non-state actor" list would be private fitness programs, diet salons, health spas, For th and proprietary cardiac rehabilitation centers. constitu Some groups are state actors and are thus bound whereas others are nonstate to becon actors and are not bound by the promises in the Constitution. But there still re- main other groups whose status is uncertain. For instance, is the National Colle- actor ca giate Athletic Association a state actor and thus bound to honor the promises of trary. A the Constitution? has a g If you were a student athlete who believed the NCAA's drug testing program of righ violated your 4th Amendment right against being searched (a drug test consti- right tutes a search), you would first need to find logical arguments to support the no- level tion that the NCAA is a state actor. This would be necessary because only state stric actors must honor constitutional rights. Let's begin your argument in support of the notion that the NCAA is a state actor by noting that 1. the majority of NCAA membership is made up of public colleges and uni- versities, which are state actors themselves; 2. the NCAA functions in a regulatory, "governmental way" as it administers college sports; and 3. drug testing is more of a governmental than a private function.Constitutional Protections: "I Have My Rights" ments) Can you think of more arguments? 157 e U.S work on the other hand, if you were the NCAA and you wanted to support your stand drug testing program, you would need to develop arguments to support the no- ss to tion that the NCAA was not a state actor and thus not bound to honor the con- ther stitutional right against searches. Try to build an argument supporting the notion that the NCAA is not a state actor . The truth is that we are not yet certain whether, for drug testing purposes, the NCAA will be determined to be a state actor or not. Some lawsuits involving the NCAA on unrelated, yet constitutional issues have decided the NCAA is a state ral actor, and many others have decided that the NCAA is not a state actor. of The decision whether an entity is a state actor is important, because only state ss. actors have an obligation to protect our constitutional rights. So, for instance, if you work for a nonstate actor, such as a private beach club or fitness center, the club or center can insist on a drug test, and your employer can search your locker without violating your constitutional rights. Of course, there may be state laws prohibiting such actions, but at the moment, we are only considering U.S. Consti- tutional law. Evaluation Process Step 2: How Important Is the Right Being Violated, and How Important Is the Reason for Violating It? If we determine that the person or group violating our rights is a state actor, then we proceed to step 2 in our evaluation. In step 2, we review the importance of the right being violated. For the sake of simplicity, our discussion so far has sounded as though our constitutional rights cannot be violated by a state actor with impunity. It is time to become a little more complex in our conceptualization. In reality, any non-state actor can violate our rights all they want in the absence of specific laws to the con- trary. Additionally, a state actor can violate our rights if, but only if, the state actor has a good enough reason. How good the reason has to be depends on the type of right being violated. In other words, is the right being violated a fundamental right or a nonfundamental right? A nonfundamental right requires only a mild level of scrutiny, whereas the violation of a fundamental right requires a higher, stricter level of scrutiny. Any state actor that undertakes to violate a nonfundamental constitutional right must be able to show that the reason for doing so is rationally related to a legitimate state interest. If the state actor can show such a reason, that party can proceed with impunity. For example, assume a school prohibits the wearing of earrings during physical education classes. Students might argue that the school is infringing on the students' right to dress as they wish. The reason the school might use to show that the prohibition of earrings is okay could be:Does the argu 158 Legal Concepts in Sport: A Primer So we must d The argument: Rationally related mental right. The instead, the U.S. Earrings can cut fellow students, get caught in nets or clothing, thus in- identified a few juring the wearer. Prohibiting earrings is a rational method of preventing is a fundamenta such injuries. from warrantles Let's return Legitimate state interest: that the NCAA Preventing injuries among its students is a legitimate interest of the school mentalonfun (in its role as a state actor). The 4th An Does the argument seem reasonable? Probably. Amendment r drugs is "testi However, any state actor that undertakes to violate a fundamental constitu- olate the 4tha tional right must be able to show a more substantial reason for doing so. The demonstrate a state actor must be able to show that the reason for violation and the method test is "ration of violation is necessary to accomplish a The NCA Nonfundamental rights compelling state interest. Assume a school complish a c Lower standard (mild scrutiny): requires students to recite a particular prayer at the beginning of each athletic served if the Rationally related to a legitimate this brief list state interest practice and competition. Students might argue that the school is infringing on the The students' right to be free from state-im- Dru Fundamental rights posed religious behavior, a fundamental Ath Higher standard (strict scrutiny): Necessary to accomplish a com- right (a violation of the Ist Amendment). Ke The school would have to find a sufficient- pelling state interest ly impressive reason in order to meet the Assum level of scrutiny required for a violation of interest in a fundamental right: that it is necessary to accomplish a compelling state interest. met: the It is difficult to comprehend that the school could find such a reason. The school the testing might argue the following: of accom The argument: This Necessary Recitation of the prayer is the least intrusive, most effective method of accomplishing the school's goal. Compelling State Interest Increasing the students' sense of religious identity and thus fostering more Ca disciplined behavior on their part is a compelling state interest similar in used i level to preventing airplanes from being bombed by searching potential goal? passengers or preventing someone from crying "fire!" in a crowded the- ater.Constitutional Protections: "I Have My Rights" Does the argument seem reasonable? Probably not. 159 thus in- venting So we must decide whether the right is a nonfundamental right or a funda- mental right. There is no list of fundamental rights delineated in the Constitution. Instead , the U.S. Supreme Court, through its series of decisions (case law), has identified a few rights as being fundamental. For instance, the right to free speech is a fundamental right. Also among our fundamental rights are the right to be free school from warrantless searches and the right against self-incriminatin Let's return to our discussion of the drug-testing problem. If we determine that the NCAA is a state actor, then we need to decide what type of right (funda- mentalonfundamental) a drug test would violate. The 4th Amendment right to be free from warrantless searches and the 5th constitu- Amendment right against self-incriminatingesults of a urine test for illegal g so. The drugs is "testimony") are both fundamental rights. Because a drug test would vi- method olate the 4th and 5th Amendment fundamental rights, the NCAA would have to mplish a demonstrate a more substantial reason for conducting its test than simply that the a school test is "rationally related to a legitimate state interest." articular The NCAA would have to meet the higher standard of being "necessary to ac- athletic complish a compelling state interest." What might be the compelling state interest served if the NCAA administered drug tests to athletes? Try to add arguments to s might on the this brief list: The state has an interest in a drug free citizenry. ate-im- Drug abuse is a problem that goes to the core of the future of our country. mental Athletes serve as role models for their peers. Iment) . Keeping athletes drug free helps society at large become more drug free. ficient- eet the Assuming you have convinced yourself that the NCAA has a compelling state tion of interest in conducting drug tests, the second half of the reasoning must also be terest. met: the means must be necessary. Is random drug testing necessary? That is, is school the testing program the least restrictive, least invasive, and most effective method of accomplishing the compelling state interest? This time try to argue against the necessity of a testing program. For instance: . There are many false-positives in the drug tests. . A urine collection in the presence of another is invasive of personal pri- vacy. . Is there, in fact, data to support the notion that drugs are widely used by athletes? Can you think of other arguments to support the notion that the drug test used is not the least restrictive and most efficient means of accomplishing the goal?160 Legal Concepts in Sport: A Primer INTERIM REVIEW Due Th Evaluation of a Claim of Violation of Constitutional Rights Step 1: Is a state actor involved, and if "yes," then intere Step 2: What type of right is being violated, and is the right being violated proce for a sufficient reason? inter Ordinary, non-fundamental right requires: The rationally related to a legitimate state interest our exai Fundamental right requires: sor necessary to accomplish a compelling state interest em Now that you have practiced arguing both sides of the issue, let's review cla what has to be shown by someone who is claiming that constitutional rights is a are being unjustly violated. pre be Practice Scenarios: Constitutional Rights Evaluate both of the following scenarios and develop arguments for and against constitutionality. tel ex Four athletes each shave their heads, leaving hair in the form of a ed different letter of the alphabet on the head of each student. When the four students stand in the correct order, the heads spell out a four-letter word they are planning to show to the rival team. The school's coach and principal learn of the plans and schedule an interview with the students and their attorneys. After the formal interview, the principal and coach decide that the students must either shave the rest of their hair or wear a cap if they wish to play in the game. What issues would need to be considered in order to decide if this action is constitutional? An athlete's wallet is stolen at practice. The coach decides to (a) search the lockers of all team members, (b) search the book bags of all team members, and (c) conduct body searches of all team members. Are any con. or all of these searches constitutional? Develop arguments pro and Due Process and Equal Protection in their analyses. The Constitution's due process and equal protection clauses involve extra stepsIM REVIEW Due Process Constitutional Protections: "I Have My Rights" 161 violated "The 5th and 14th Amendments both promise that no life, liberty, or property interest can be terminated without due process. "Due process" means that "fair procedures " will be used . A few examples will help illustrate what is meant by life, liberty, and property interests. Capital punishment obviously deprives someone of an interest in life. The 5th and 14th Amendments guarantee that no state actor can deprive us of our lives without due process, or in other words, fair procedures. A less extreme example would be if, wit if, without fair procedures, a state actor barred a college profes- sor from teaching anywhere in the state. The professor's liberty interest in seeking employment elsewhere in the state would be lost by the ban. Of the three interests (life, liberty, and property) protected by the due process clauses, the interest most frequently involved in sports-related due process cases is a property interest. We have a property interest in our jobs. An athlete has a property interest in a scholarship and an education. None of these interests may be terminated by a state actor without some level of due process being provided. But what level of process is due? The more important and substantial our in- terest is, the more we can expect fair procedures and the more levels of appeal will exist within that fair process. Let's consider the example of Pat, who is a physical education teacher. Pat has a one-year contract. At the end of the year, Pat is not reappointed. Pat's property interest in the next year's job is slight, thus little or no pro- cedural fairness is owed to Pat. Pat has a one-year contract. Pat is fired after six months. Unlike the first scenario, Pat has a rather substantial property interest in the last six months of the job. Someone who is in the midst of a contract period has a strong expectation that the job will continue through its term. That ex- pectation cannot be denied without due process. In this specific situation, due process would most likely require Pat's employer to at least (a) iden- tify specifically, significant deficiencies generally found under one of the "Three I" categories of immorality, insubordination, and incompetence, and/or (b) warn or notify Pat of deficiencies and give Pat an opportunity to rebut or repent. . Pat has tenure. Pat is fired. A tenured teacher has a great expectation of the continuation of employment. Greatly expanded procedural safeguards beyond those listed in the second scenario would have to be used to meet the elevated requirements of due process. Hearings, with Pat having the right to have an attorney present, would be among the expanded proce- dures. Also, appeal procedures no doubt would be required as well as full documentation of significant errors by Pat in one or more of the "Three I" categories.162 Legal Concepts in Sport: A Primer Pat is a se Does a hearing mandated by the conventions of due process have to be com- testing p pleted before terminating a property interest such as a job? Not always. It is im use of an portant to remember that lack of due process can be justified in some instances of a colle in much the same manner that other rights can be violated-if the reason is good consister enough. For instance, if a tenured teacher has adopted the active behavior of an from the arsonist, bomber, child abuser, or other extremely dangerous person, the teacher can be removed first and hearings can be held after the fact. Certainly in such instances, the protection of the lives of students is a compelling state interest, and Evaluate th the immediate removal of the dangerous teacher may be the least restrictive and most effective necessary method of accomplishing that compelling state interest, Equal Protec However, the obligation of providing an appropriate hearing and other due pro- The 14th cess requirements after the removal is not lessened. and that we w INTERIM REVIEW be classified a category or c When considering a claim of lack of due process, evaluate the claim using ently from in the following steps: the disparity Step 1: Is a state actor involved, and if "yes," then remembered Step 2: Is an interest in life, liberty, or property being infringed, and if as used in E "yes," then (non-funda Step 3: How significant is that interest, thus what level of fair procedures is Let's co required? rizes potent Step 4: If the procedures were insufficient compared to the intensity of the ment (state interest involved, is there a sufficient reason for violating the right to due process? only hire th Yes, but it Practice Scenarios: Due Process nation by Evaluate each of the following scenarios and develop arguments on both you think sides. actions? P . Chris, a college senior on an athletic scholarship, is hoping for a 1. Th lucrative professional sports career. Chris is late to practice for the third te time in a row, so the coach benches Chris for the week's big game at 2. T which professional scouts will be looking for recruits. What interest is met? being deprived, and what due process requirements might need to be In fa . Jay is a student teacher in the local junior high school. Jay is angered interest. by the constant criticism received from the master teacher, so Jay walks tionally, out on the gymnastics class that is supposed to be taught that day by into. Jay. The master teacher calls the college's student teaching coordinator Ho saying that Jay's actions were insubordinate. Jay thus fails the student tions a teaching course and cannot graduate and cannot get a job.Constitutional Protections: "I Have My Rights' 163 e com- is im- Pat is a senior high school athlete. Pat's high school employs a drug testing program for its athletes. Pat's stances Pat's drug test results indicate the use of anabolic steroids so Pat is cut from the team. Pat was assured good of a college athletic scholarship if the senior year participation was of an consistent with prior years years of participation. There is no appeal allowed acher from the decision to ban Pat from the high school team. such , and Evaluate these scenarios using the steps discussed in this chapter. e and rest. pro- Equal Protection The 14th Amendment guarantees that state actors will treat all of us equally and that we will receive "equal protection under the law." This means that we can't W be classified and then treated differently based on our membership in a particular category or class. Anytime a state actor treats a class or category of people differ- ently from individuals not in that class, the state actor must be able to show that the disparity of treatment is rationally related to a legitimate state interest. Yes, you remembered correctly: The test of rationally related to a legitimate state interest as used in Equal Protection cases is the same as the test for violating any ordinary (non-fundamental) right found in the Bill of Rights. Let's consider the following example. The city recreation department catego- rizes potential lifeguards according to certification. The city recreation depart- ment (state actor) then treats the potential lifeguards differently because it will only hire those who are certified. Is this a violation of the Equal Protection Clause? Yes, but it is permissible if the recreation department can show that its discrimi nation by certification status is rationally related to a legitimate state interest. Can you think of arguments the city recreation department might use in support of its actions? Perhaps the department might argue the following: 1. The maintenance of safe beaches and swimming pools is a legitimate in- terest of the state. 2. The imposition of minimum certification requirements is rationally relat- ed to keeping the city's beaches and swimming pools safe. In fact, it is quite easy to meet the test of rationally related to a legitimate state interest. If we look at our daily lives we will find we are frequently, and constitu- tionally, categorized and then treated differently based on the classification we fall into . However, some forms of classification are suspicious. These suspect classifica- tions are based on the "RAN" classifications of race, . alienage (e.g., grandparents were Irish), and . national origin (e.g., born in Ireland)