chapter 7

1. chapter7 Constitutional Law

2. Chapter Objectives After reading the chapter, you will know the following: • How the United States Constitution applies to private and public sport entities • The free speech and freedom of religion protections provided for by the First Amendment • How the First Amendment regulates religious prayers and activities in sport settings • What substantive and procedural due process are and how their requirements apply to sport organizations • How the Equal Protection Clause of the Constitution affects sport-related affirmative action plans

3. Application • Constitutional law involves the application of the federal and state and local governments and whether their actions violate one or more terms of the U.S. Constitution. • Purely private entities are generally not subject to constitutional claims. • State action must be shown to proceed with a claim.

4. State Action • Except for the Thirteenth Amendment’s prohibition on slavery, the U.S. constitution requires state action (otherwise known as government action). • State actors are those who act in furtherance of their positions as employees of governmental agencies. • Examples: Public school teachers, police officers, IRS employees, county government employees, staff at the DMV, athletic directors at state-run universities.

5. When Private Entities Are State Actors • The law is less clear when private actors are involved. • Sometimes private parties can become state actors through their actions.

6. Theories of Private Actors • Nexus/entanglement examines whether the state’s involvement or entanglement with a private actor’s conduct is sufficient to transform the private conduct into state action and thus subject to constitutional review. • Public function theory: A court can find state action in the activities of a private party if that party undertakes functions or assumes powers that the government ordinarily performs or exercises.

7. Private Actors/State Actors Application • NCAA not a state actor: NCAA v. Tarkanian • High school athletic associations typically are state actors: Brentwood Academy v. TSSAA • Burrows v. Ohio High School Athletic Associationis anexception • Professional sport leagues and teams: Not state actors

8. First Amendment • Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances. • Religion: Contains establishment clause and free exercise clause.

9. Establishment Clause Prohibits the establishment of a church by the state as well as the endorsement or preference of religion and coercion of religious practice

10. Free Exercise Clause Prohibits the government from standing in the way of private religious exercise

11. Three Tests • There is no overriding test in these cases. • The courts have developed three tests : • Lemon test • Coercion test • Endorsement test

12. Test 1: Lemon Test • It is a disjunctive three-part test. • Under this test, a government practice is unconstitutional if • it lacks a secular purpose, • its primary effect either advances or inhibits religion, or • it excessively entangles government with religion (Lemon v. Kurtzman). • Test has not been applied by the court in years. • Its continued validity has been questioned by scholars, but it has not been overruled by the Court.

13. Test 2: Coercion Test The government directs a formal religious exercise in such a way as to obligate the participation of objectors (Lynch v. Donnelly).

14. Test 3: Endorsement Test • This test seeks to determine whether the government endorses religion by means of the challenged action. • The government endorses a religion when religion is favored, preferred, or promoted over other beliefs (Lee v. Weisman, 1992).

15. School Prayer • In most cases, a nonsectarian and nonproselytizing student-initiated prayer before and after a sporting event is a safe haven. Classroom prayer is not. • This is hard to establish for school sporting events • School typically picks student speakers. • School can’t direct the process that results in prayer. • The prayer must truly be student initiated.

16. Other First Amendment Issues • Political speech • Strong protection for political speech unless it causes imminent lawless action (strict scrutiny) • Note that in a school setting, the right is more limited (Morse v. Frederick) • Freedom of the press: Same as for political speech.

17. Due Process • A course of legal proceedings that have been established for the protection and enforcement of private rights. • Guaranteed by the U.S. and state constitutions. (continued)

18. Due Process (continued) • Fifth Amendment applies to acts of the federal government: “No person shall . . . be deprived of life, liberty, or property without due process of law.” • Fourteenth Amendment extends due process to the states. (continued)

19. Due Process (continued) • Developed to prevent arbitrary, capricious, and unreasonable decisions • Guarantees fairness, impartiality • The manner in which caring people treat others

20. Life, Liberty, or Property Interest The Due Process Clause is triggered when the government deprives someone of a life, liberty, or property interest • Life: A person’s life or freedom • Liberty: Those privileges recognized as essential to the orderly pursuit of happiness by free men • Property: All valuable interests that can be possessed outside of oneself, which have an exchangeable value or which add to an individual’s wealth or estate • College: Athletic scholarship, future pro career

21. Two Types of Due Process • Substantive • Procedural

22. Substantive Due Process • Requires the rules and regulations to be fair and reasonable in content and application • To protect from arbitrary and capricious actions • Government must show a rational basis for rules and regulations (easy to do)

23. Substantive Due Process and Voluntary Athletic Associations • Generally, courts will not interfere with the internal affairs of voluntary associations. • Fraud, violate own rules, other laws. • The decisions of the governing body of an association will be accepted as conclusive.

24. Procedural Due Process • Addresses the method used to enforce the rule or regulation. • Goal is to ensure fair treatment. • Examines the decision-making process that is followed to determine whether the rule or regulation has been violated and what sanctions, if any, will be imposed.

25. Minimum Due Process Requirements • Statement of the specific violation • Notice of the sanctions that will be imposed • An opportunity for accused to comment

26. Maximum Due Process Requirements • Written notice of hearing • Written statement of the charges • Provision of adversarial hearing • Written or taped record of proceedings • Right of appeal

27. Fourth Amendment Protection against unreasonable searches and seizures (continued)

28. Fourth Amendment (continued) The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

29. Drug Testing in Public Schools • Vernonia v. Acton • Strong dissent from three justices who stated that suspicionless searches are generally considered unreasonable and in violation of the Fourth Amendment. • Court upheld school district’s testing procedure by applying a balancing test.

30. Balancing Test • Weighed the student’s privacy interests against government’s need for testing. • Privacy interest: • Few activities are more private than urinating. • Monitoring of the event is degrading and embarrassing. • Chemical analysis of urine reveals much more than just drug use (e.g., pregnant, diabetic, epileptic). (continued)

31. Balancing Test(continued) • Interferes with privacy right to control one’s own medical treatment. • Regulates off-the-field conduct and thus violates a person’s privacy.

32. Results of Balancing Test in Vernonia • Reduced privacy expectation: Students have to suit up before each practice or event and shower and change afterward. • Health examinations of student-athletes are fairly routine. • The school system in Vernonia used a testing method that afforded protection to the privacy interests of the students: Searched only for drug use, few personnel saw info, and results not turned over to law enforcement.

33. Alternative Dispute Resolution (ADR) • Arbitration: Final and binding • Mediation: Up to the parties to agree