OAG 96-27

June 27, 1996

Subject: Home-schooled students participating in interscholastic sports.

Written By: Diane Schuler Fleming

Requested By: Edward P. Roark, attorney, Garrard County Board of Education; Jerry L. Horn, attorney; and Mark H. Metcalf, Garrard County Attorney

Syllabus: In the absence of a protected property interest, a school board may choose to preclude home-schooled and out-of-district students from participating in a school-sanctioned basketball league.

Constitutional Provisions: United States Constitution, Amendment XIV, � 1


The following questions have been presented to the Office of the Attorney General for consideration:

1. May a local school board legally preclude all “home-bound” and out-of-district students from participation in a school sanctioned basketball league?

2. Under Kentucky Constitution Sections 184 and 186, may a local school board expend its funds to pay a corresponding share of the costs of providing a gymnasium, facilities, maintenance personnel, etc., for use by home-bound students (for whom no state funds are

paid to the local school) in a school-funded little league basketball program?

3. Is a local board under an obligation to permit home-bound students to participate in a basketball league when such students are not covered by the school's liability insurance policy?

Note: The questions presented for our review make reference to “home-bound” students. This term is commonly used to refer to students who, for example, due to illness, are out of school for an extended period of time. Therefore, for purposes of this opinion, we are presuming that the requester intended to use the term “home-schooled” students.


The Garrard County Youth Basketball League

During the 1991 - 1992 school year, school sports teams on the elementary level were discontinued in Garrard County following incidents of property damage, alcohol consumption and vandalism. In an effort to gain control of the situation and reinstate sports activities, the elementary school principals in Garrard County agreed to form and support a little league program. Separate leagues were formed for football, basketball and baseball.

According to Garrard County Superintendent, Dr. William Wesley, the Garrard County Youth Basketball League has close ties to the school system. A commissioner is appointed by the school board to administer the program. In addition, the program is supervised by the Elementary Activities Director who is also responsible for auditing the books each year. Parents participate in the program as volunteer coaches, subject to approval by the school board. Proceeds from the basketball games are returned to the little league fund, and the league is permitted to use school facilities at no charge.

Clearly, the Garrard County Youth Basketball League possesses unusual characteristics which results in some distinctions from more traditional interscholastic sports teams. However, in the interest of clarity, we are treating the Garrard County program the same as any other interscholastic sports program and shall apply the law accordingly.

The first question put forth to our office is whether the Garrard County School Board may preclude home-schooled and out-of-district students from participating in the County Youth Basketball League. This opinion is specifically confined to whether the school board is compelled as a constitutional matter to permit the aforementioned children to participate in the league. We leave the debate over the wisdom, propriety or availability of alternatives to others. We begin our analysis with an overview of home-schooled students and their participation in interscholastic sports.


Interscholastic Sports and Home-Schooled Students

The increasing number of parents who choose to educate their children at home has resulted in a corresponding rise in the number of questions concerning such students participation in school sports. Specifically, home-schooled students want to know if they can participate in interscholastic sports, and they are challenging laws which prohibit them from doing so. The basis of their claims centers upon due process and equal protection violations.

Recently, this issue was addressed in Bradstreet v. Sobol, 630 N.Y.S.2d 486 (Sup. 1995) where a home-schooled student challenged the public school district's regulation which allowed only those students in regular attendance at a school to participate in interscholastic sports. The court quickly dismissed the due process claim, stating that a student's interest in participating in interscholastic sports is a “mere expectation.” Id. at 487, quoting, Matter of Caso v. New York State Public High School Athletic Assn., 78 N.Y.A.D.2d 41, 46, 434 N.Y.S.2d 60 (1980). Therefore, because a student's interest in playing interscholastic sports is merely an expectation and not a property right, there is no due process violation.

Turning to the equal protection challenge, the court noted that absent a suspect classification or violation of a fundamental right, if a regulation “bears some rational relationship to a legitimate state purpose,” then it will withstand an equal protection challenge. Id. at 488. Having stated the standard, the court then reviewed the lengthy list of objectives supplied by the commissioner. The list included:

. . . promoting loyalty and school spirit that leads to cohesion of the student body of a school; securing role models for other students, which cannot be accomplished if the student athlete has little contact with the general student population of the school; maintaining academic standards for participation in interschool sports activities; . . . and [avoiding the] havoc [that] may be wreaked upon the public school system if home schoolers are permitted to opt out of the public school program generally and yet selectively participate in interschool athletics . . . .

Id. at 487. The court concluded that one of the “privileges” of attending school is the possibility of being on a high school sports team. It could not find a good reason why the privilege should be extended to students who do not attend the school. Id. at 488.

We agree with the New York trial court's decision and believe that the constitutional issues which it addressed are determinative of the questions presented by the Garrard County School Board.


Property Rights, Procedural Due Process and Participation in School Sports Activities

The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive any person of . . . property without due process of law.” United States Constitution, Amendment XIV, � 1. The first step in determining whether or not one's due process rights have been violated is to find that a constitutionally protected property interest is at stake. This leads us to ask, what are the property interests and how are they created. In Board of Regents of State Colleges v. Roth, the Supreme Court offered the following guidelines and analysis:

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined . . . . Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law - rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

Roth, 408 U.S. 564, 578, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). See also, Derda v. Brighton, Colorado, City of, 53 F.3d 1162, 1164-65 (10th Cir. 1995); Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 463, 109 S.Ct. 1904, 1910, 104 L.Ed.2d 506 (1989).

As the court in Roth pointed out, constitutionally protected property interests are not created by the Constitution. Oftentimes, they arise from state rules or laws which secure benefits and support claims of entitlement. This claim of entitlement must be legitimate, not merely an abstract need or the subject of a unilateral expectation.

For example, in James v. City of St. Petersburg, Florida, 33 F.3d 1304 (11th Cir. 1994), a young woman filed suit when the city turned her water off without giving her prior notice. The court found that the plaintiff failed to comply with the city's rules for initiating water service - agreeing to pay for the service and paying a deposit. In accordance with Roth, the court ruled that the woman had no legitimate claim of entitlement to water service pursuant to Florida law, and thus no protected property interest under the Fourteenth Amendment. Id. at 1307.

Another challenge involving the concept of a statutorily created property right was heard in Zipperer v. City of Fort Myers, 41 F.3d 619 (11th Cir. 1995). There, a mortgagee challenged the lien priority of special assessments imposed on the mortgaged property, based upon the city's failure to notify him of the levy. To determine if a procedural due process violation has occurred, there must be: (1) a protected property interest; (2) deprivation of that interest; and (3) failure to afford due process procedures before the deprivation occurred. Id. at 623. See also, Thompson, 490 U.S. at 460; Logan v. Zimmerman Brush Co., 455 U.S. 422, 432-33, 102 S.Ct. 1148, 1156, 71 L.Ed.2d 265 (1982).

While the court acknowledged that a mortgage was a constitutionally protected property interest, it noted that neither the Florida Constitution nor the statutes afforded a remedy to individuals challenging special assessments. Id. at 624. Thus, as in James, without a legitimate claim of entitlement, there is no protected property interest under the Fourteenth Amendment. Furthermore, the court found that the imposition of a special assessment and attendant lien prioritization “do[es] not constitutionally impair or deprive a mortgagee of his interest in [the] mortgaged land.” Id. To the contrary, the property actually benefitted from the improvements which resulted from the special assessment.

Property interests may arise from sources other than state statutes, but they are arguably even more difficult to prove. In Miller v. Crystal Lake Park District, 47 F.3d 865 (7th Cir. 1995), a park district employee filed suit following his dismissal. The plaintiff claimed that the language in the personnel manual stating that an employee may be dismissed for “just cause” created a property interest in employment. However, language in the beginning of the manual plainly stated that the contents are merely a guideline and not intended to stand as an employment contract. The plaintiff conceded this point and the court dismissed the claim as being too “evanescent” and concluded that the lack of foundation in state law prohibited viewing this as a protected property interest. Id. at 866-67.

The court, however, expounded upon the concept of a property interest arising in situations similar to this, stating:

A “legitimate claim of entitlement” is one that is legally enforceable - one based on statutes or regulations containing “explicitly mandatory language” that links “specified substantive predicates” to prescribed outcomes. (Thompson, 490 U.S. at 463). [Citations omitted.] Statutes and regulations are not the only sources of property, but when they are missing the claimant must supply some equivalent “expectancy . . . that was legally enforceable,” O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 778 n.21, 100 S.Ct. 2467, 2477 n.21, 65 L.Ed.2d 506 (1980), such as a mutually binding obligation, Jago v. Van Curen, 454 U.S. 14, 18-20, 102 S.Ct. 31, 34-35, 70 L.Ed.2d 13 (1981). “Mutually binding obligation” is just fancy language for “contract” . . . .

Id. at 867. In essence, the language in the personnel manual in the Miller case evidenced that it was not “mutually binding.” Thus, because there is no legally enforceable interest, nor a legitimate claim of entitlement, there exists no protected property interest.

The final case of note in this area is Kim Construction Co., Inc. v. Board of Trustees of Village of Mundelein, 14 F.3d 1243 (7th Cir. 1994). There, a contractor who initially submitted the lowest conforming bid, but was not awarded the contract, sued the municipality claiming that he was deprived of a property interest without due process. Following the precedent set forth in Roth, the court dismissed Kim's claim that the mutual understanding “implicit in the overall workings” of the competitive bidding system created a protected property right. Id. at 1250. The plaintiff failed to show a legitimate claim of entitlement. Absent such a showing, the mere hope or expectation of a benefit does not create a protected property interest.

In summary, the aforementioned cases stand for the proposition that a protected property interest is created by existing rules or “understandings” which are based upon statutes or regulations that secure specific benefits and support claims of entitlement. The mere expectation of a benefit does not create a constitutionally protected property interest.

Applying this analysis to the fact situation presented by Garrard County leads us to a decision which is parallel to that reached by the court in Bradstreet. If a home-schooled child or an out-of-district student is precluded from participating in the Youth Basketball League, no due process violation has occurred. We have seen no evidence of any law or “understanding” which would support a legitimate claim of entitlement. At best, the interests of these children can be characterized as an expectation or the hope of a benefit. Such hopes and expectations do not rise to the level of a protected property interest.



A person's property interests can only be violated when such persons are possessed of a legitimate claim of entitlement. Our analysis leads us to conclude that home-schooled and out-of-district students lack a legitimate claim of entitlement to participate in the Garrard County Youth Basketball League. Thus, in the absence of a protected property interest, the school board may preclude these children from participating in the school-sanctioned basketball league.

In summary, there is nothing in the Constitution to prohibit a school board from devising a policy to exclude home-schooled students from participation in school sanctioned leagues. Having reached this conclusion, we believe the other questions submitted by the board are moot.