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Jordan v. O'Fallon Township High School District No. 203

February 05, 1999


Appeal from the Circuit Court of St. Clair County. No. 98-MR-247

The opinion of the court was delivered by: Justice Kuehn


Honorable Robert J. Hillebrand, Judge, presiding.

This case examines how O'Fallon Township High School (O'Fallon) officials withheld a student's participation in interscholastic athletics as punishment for his violation of the school's zero-tolerance conduct code. Before they are allowed to participate in any extracurricular activity, all O'Fallon students must agree in writing to abide by the code's ban on alcohol and drug use. Students who violate the code's ban are disciplined by school officials under procedures that do not necessarily comport with due process. School officials imposed discipline in this case without affording the student a formal hearing. The student was not allowed to confront witnesses who provided the evidence upon which the discipline was based. Nor was the student permitted to present witnesses to rebut that evidence.

The student sued to enjoin the disciplinary action. The trial court refused to grant an injunction, and the student appealed.On appeal, the student claims that O'Fallon school officials violated the procedural due process component of the fourteenth amendment. U.S. Const., amend. XIV. He argues that school officials were constitutionally obliged to afford him a minimal due process hearing before discipline could be administered. Next, he relies on section 24-24 of the School Code (105 ILCS 5/24-24 (West 1996)), which guarantees notice and a hearing before school officials can ban anyone from attending athletic or extracurricular events. He argues that the proper interpretation of this provision called for notice and a hearing in this case. Finally, he contends that school officials acted in an arbitrary and capricious manner by using information that had been disclosed in violation of section 1-7(8) of the Juvenile Court Act of 1987 (705 ILCS 405/1-7(8) (West 1996)).

We now decide whether a talented high school football player with college athletic scholarship opportunities possesses an interest in playing high school football that due process protects. We further decide whether section 24-24 of the School Code creates and defines a right to notice and a hearing for participants in interscholastic athletics. Finally, we decide whether discipline based on information improperly disclosed under the Juvenile Court Act of 1987 was administered in an arbitrary and capricious manner. We conclude that O'Fallon school officials dispensed that process which was due and acted reasonably under the circumstances presented.

The 1997 O'Fallon High School football season highlighted the skills of a young man named Kevin Jordan. Jordan's ability to break tackles and find daylight brought several postseason honors, including his selection as team captain for the ensuing 1998 season. Jordan's ability also drew the attention of several universities. College coaches from across the country wrote to Jordan and expressed their interest in his future. Although the coaches did not extend scholarship offers, they clearly suggested that such offers would be forthcoming provided Jordan continued to excel as a high school football player in his senior season.Thus, the 1998 season appeared to offer Jordan a legitimate chance to earn an athletic scholarship to a major university. The season's promise ended, however, when Jordan's playing privileges surrendered to enforcement of O'Fallon's zero-tolerance conduct code. School officials determined that Jordan violated the code's ban on alcohol use. As a result, the captain of O'Fallon's football team was suspended from play for the entire 1998 season. Kevin Jordan never played another down of high school football.The suspension stemmed from an early morning encounter with O'Fallon police officers. The officers answered Jordan's 9-1-1 emergency call from a phone booth near an O'Fallon convenience store. When they arrived at the convenience store, they found a dishevelled and shoeless Jordan standing in the parking lot. It was 3 o'clock in the morning, and according to the officers, Jordan evidenced obvious signs of inebriation. His eyes were glazed, his speech was slurred, and he smelled of alcohol. Jordan's condition was confirmed when, according to the officers, he admitted to alcohol consumption.

The officers, pursuant to a reciprocal reporting agreement with the school, reported the incident to O'Fallon school officials. An assistant principal reviewed their report, discussed it with them, and confronted Jordan. Jordan denied alcohol use. He also denied any admission to the contrary. He explained that his condition resulted from an attack by unknown assailants who threw beer bottles at him during the assault. He insisted that the smell of alcohol detected by the officers was misconstrued. The assistant principal weighed what the officers and Jordan told him and decided that Jordan violated his commitment to remain alcohol- and drug-free. Jordan had a prior violation of the code's alcohol ban. Therefore, the assistant principal cited him for a second violation and informed him that he was suspended from participation in high school athletics for a period that encompassed the entire football season.

The assistant principal's action was reviewed by the O'Fallon Activity Council (Activity Council). The Activity Council is a body comprised of the principal, all assistant principals, the dean of students, the athletic director, the assistant athletic director, the band director, the head of speech activities, and the student council sponsor. The Activity Council reviews discipline only to determine whether the conduct code is interpreted consistently and applied uniformly. Its members agreed unanimously that the code was properly applied in Jordan's case.

Jordan's stepfather appealed to the school superintendent, who was empowered to review and override the disciplinary action. After agreeing to review the matter, the superintendent met with Jordan, his attorney, and his stepfather. Jordan, assisted by counsel, reiterated his version of the early morning encounter with O'Fallon police officers. Jordan was afforded the opportunity to present any information or make any comment he deemed important to the superintendent's review.

The superintendent listened to everything Jordan presented and reserved judgment until he could meet with the officers involved in the incident. Jordan's attorney was apprised of a planned meeting with the officers and was invited to attend. His schedule did not permit attendance, and the meeting was held without him. The superintendent told the officers of Jordan's claims. The officers questioned the veracity of those claims, noting that Jordan's story had significantly changed from what he had earlier told them. They insisted that Jordan admitted to them that he had been drinking alcohol. They also expressed their opinion that Jordan's glassy eyes and slurred speech were the result of alcohol consumption. The possibility that the smell of alcohol resulted from an assault with beer bottles did not alter their opinion of Jordan's inebriated condition.

The superintendent told Jordan's attorney what the officers conveyed to him. He advised Jordan's attorney that he would not overrule the suspension and invited him to appeal to the O'Fallon Board of Education, the final arbiter of student discipline.

Throughout this process, Jordan's stepfather and attorney repeatedly requested a more formal proceeding. They wanted to confront the police officers and to call witnesses who could account for most of Jordan's activities on the night in question. Their call for a formal hearing went unheard.Jordan did not appeal to the O'Fallon Board of Education. Instead, he commenced this action. He obtained a temporary restraining order that enjoined the suspension. The matter proceeded to a hearing on Jordan's request for a preliminary injunction pending a trial on the merits of the underlying lawsuit. Jordan argued that the disciplinary action was arbitrary and capricious and that the procedures employed were constitutionally infirm. The trial Judge found that the evidence failed to establish a protected property or liberty interest. Therefore, the Judge did not determine whether the process afforded met minimal constitutional procedural standards. He did hold, however, that the disciplinary action was neither arbitrary nor capricious. This appeal ensued.

Jordan challenges the school's power to sideline him in the manner employed. He argues that school officials cannot suspend him from participation in interscholastic athletics without first affording him a minimal due process hearing to contest the disciplinary action. At a minimum, he claims a right to confront his accusers and to present witnesses who could corroborate his denial of alcohol use.The fourteenth amendment forbids the State to deprive any person of life, liberty, or property without due process of law. U.S. Const., amend. XIV. Therefore, any person who raises a procedural due process claim must demonstrate that a protectable property or liberty interest is at stake. Hawkins v. National Collegiate Athletic Ass'n, 652 F. Supp. 602, 610 (C.D. Ill. 1987). Protected property interests are created "`and their dimensions are defined' by an independent source such as State statutes or rules entitling *** citizen[s] to certain benefits." Goss v. Lopez, 419 U.S. 565, 572-73, 42 L. Ed. 2d 725, 733, 95 S. Ct. 729, 735 (1975), quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 561, 92 S. Ct. 2701, 2709 (1972). In Board of Regents of State Colleges, the Supreme Court addressed the parameters of a constitutionally protected property interest. In reviewing several cases that defined protected property interests in different contexts, the Supreme Court wrote:

"Certain attributes of `property' interests protected by procedural due process emerge from these decisions. 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." Board of Regents of State Colleges, 408 U.S. at 577, 33 L. Ed. 2d at 561, 92 S. Ct. at 2709.

Based upon this definition, courts have repeatedly held that there is no property or liberty interest in taking part in interscholastic athletics. Clements v. Board of Education of Decatur Public School District No. 61, 133 Ill. App. 3d 531, 533, 478 N.E.2d 1209, 1210 (1985).Students can need, want, and expect to participate in interscholastic athletics, but students are not entitled to participate in them. Football is neither an integral part of a quality education nor a requirement under any rule or regulation governing education in this State. Consequently, not every public high school in this State fields a football team. Those students who attend O'Fallon Township High School thus enjoy an opportunity that many other ...

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