Sports on the Sabbath: Analysis of Religious Discrimination in Interscholastic Sports Scheduling

Patrick Sterk

What happens when high school athletes are forced to decide between playing and praying? The law is undecided on how to handle alleged religious discrimination when it comes to interscholastic sports scheduling.  Patrick Sterk wrote the article, To Pray or to Play: Religious Discrimination in the Scheduling of Interscholastic Athletic Events, which was published in Tulane’s Sports Law Journal (18 Sports Law. J. 235).   Currently, Sterk serves as the Assistant Athletic Director for Compliance at University of North Carolina at Pembroke.  He analyzes a string of Oregon cases that rule on this issue.

How common are religious discrimination lawsuits brought against interscholastic sports organization for scheduling issues?

To my knowledge, such suits are still rather uncommon. It seems to me that this remains a fairly unsettled area of sports law and it provides an avenue for disgruntled individuals or schools to press an issue against an interscholastic (or even intercollegiate) athletic association that they happen to disagree with. Because the area is unsettled, courts have had to rely on parallels within employment, administrative, education and constitutional law as they apply to each individual case that arises. Until there is a seminal case that can serve as persuasive precedent on the matter, these lawsuits will continue to be take place across the country. What interscholastic athletic associations fear is that these costly and time-consuming cases will become more common.

A religious discrimination lawsuit seems like it would be brought under constitutional grounds. How do courts determine if the athletic association in question is a government actor?

To determine the question of state action, the courts look a number of sources in the matter, including legislation and policies as well as case precedent. In the Brentwood case, the U.S. Supreme Court established that there must be a “close nexus” between the agency and the government, and the Court looked at the “entwinement” between the state of Tennessee and the high school athletics association. Cases in Indiana and Louisiana also found their state high school athletics associations to be state actors, but a similar Wisconsin case found that its state high school athletics association was not a state actor. In the Oregon line of cases that I wrote about, all parties to the matter accepted that the Oregon School Activities Association (OSAA) was a government actor given that OSAA received its operating mandate and oversight directly from the Oregon State Board of Education.

An interscholastic athletic association can discriminate based on religion in two ways; 1) failing to make reasonable accommodations for religious observance, or 2) an association’s policy has a disparate impact on a specific religious group. Talk about how each of these is proven and defenses.

In the first instance, the claim is that the aggrieved party has a legitimate religious belief or practice, but that interscholastic athletic association has refused to make an accommodation. For a plaintiff to assert a reasonable accommodation claim, he or she must demonstrate a sincerely held religious belief which is being impinged upon by the operations of the interscholastic athletic association. At that point, the burden shifts to the association, which must prove that there is no reasonable accommodation available; that any accommodation that could be provided would create an undue hardship. The other kind of discrimination is disparate impact, in which a facially neutral rule harms some subset of the population based on a protected characteristic, such as religion. Here, a plaintiff must show that the rule by the interscholastic athletic association adversely affects an entire class of people, and that these people are distinguishable by a Constitutionally-protected characteristic, such as race, gender, or religion. If proven, the association must demonstrate that the rule is necessary and related to the operations of the association, not simply a rule of convenience. If the association fails to demonstrate the necessity of the rule then the entire rule is struck down due to the disparate impact that it causes. This is the power of a disparate impact claim; while reasonable accommodation suits carve our narrow exceptions, disparate impact suits have the ability to wipe away entire rules and policies.

The Portland Adventist Academy Cougars (Courtesy paasda.org)

Describe the factual background behind the line of cases involving Portland Adventist Academy and the Oregon School Activities Association.

Portland Adventist Academy (Academy) is a religious high school. It observes its Sabbath from sundown Friday until sundown on Saturday, and does not participate in extracurricular activities during this time. OSAA made a rule that no school could play in the state basketball tournament unless the school would agree to play in all scheduled games. Because games could potentially be scheduled during its Sabbath, Academy was unable to participate in the state basketball tournament due to the fact that Academy would not unconditionally agree to play in all scheduled games. Academy requested that OSAA rework the state basketball tournament schedule to accommodate Academy’s religious beliefs, and when OSSA refused, Academy filed suit.

One of OSAA’s arguments was that following the Academy’s proposals would create more than an de minimis cost for the OSAA, and there was an undue hardship. How did the court’s respond to that argument?

The theory that any accommodation that would impose greater than de minimis costs would be unreasonable comes from cases involving businesses attempting to accommodate the religious beliefs of their employees. These cases held that if a proposed accommodation subjects the employer to more than de minimis costs then that accommodation is unreasonable and constitutes an undue hardship to the employer. OSAA determined that accommodating Academy would impose more than de mimimis costs, and that these accommodations were therefore unreasonable and an undue hardship upon OSAA. The court, however, disagreed with OSAA’s approach to the matter. The court noted that when profit-making enterprises are involved, it would seem unreasonable that individual employees could impose substantial additional costs upon the employers. But as OSAA is a nonprofit entity, there is no profit motive underlying OSAA operations. Instead, the court directed OSAA to reconsider the matter and to determine what the actual costs of accommodating Academy would be. Once the true costs of an accommodation could be ascertained, OSAA would then have to determine whether such costs would be unreasonable as a whole, not on a lessor de minimis standard.

The OSAA also argued that making special accommodations for a religious group would be tantamount to sponsoring a specific religion. Why did the courts reject that argument?

Oregon and federal law both protect and ensure the free exercise of religion for all citizens. In addition to that, the Establishment Clause provides that the government (and its actors) shall not endorse or support any religion. OSAA argued that to make any accommodation for Academy of more than a de minimis cost would be tantamount to conferring a benefit upon a single religious group, thereby supporting that religion. However, the court explained that the various laws protecting the free exercise of religion provide an equal right to all citizens—the right to freely practice or not practice the religion of one’s choice. As Academy was presently being denied its free exercise rights, OSAA providing an accommodation in this matter would not be a grant of additional religious benefits to Academy, but instead would return Academy to an equal standing as all other citizens.

What factors will the court take into account when determining whether an undue hardship actually occurred for an association?

When evaluating what constitutes an undue hardship for an interscholastic athletic association, the standard is not anything above a de mimimis cost, as OSAA argued, but rather what would be unreasonable when evaluated in light of the stated goals of the association. The court noted that some hardship may be warranted and necessary, and it is only when the hardship is undue that it goes too far. For OSAA, its primary mission is to foster participation in athletics. Given this, it seemed counter to its stated goal that OSAA would be unwilling to incur some additional cost in order to allow Academy to participate in the state basketball tournament. But, fostering participation is not the only goal of OSAA. Other aims of the OSAA include maximizing attendance and revenue at the tournament while minimizing expenses to teams and fans as well as minimizing a loss of school time for the players. Providing an accommodation to Academy so that it may participate in the state basketball tournament may have unintended consequences to the other goals of OSAA, and these consequences may ultimately impose an undue hardship on OSAA.

What is the main take-away from this line of cases?

While religious rights are a protected and important part of civil liberties, there is no easy answer as these rights apply to the scheduling of interscholastic athletic events. If a protected liberty is in question, an athletic association is obligated to determine what possible accommodation could be made and what costs, if any, would be imposed. If a reasonable accommodation is available to maintain the protected liberty, then the association is required to provide the accommodation.

What’s your opinion on how athletic associations should handle alleged schedule discrimination?

It is important for athletic associations to keep in mind that while members have protected rights which need to be respected, the associations themselves have their own rights too. In most athletic associations, the teams which are members have voluntarily joined the association and agreed to subject themselves to the established rules. If a team doesn’t want to play on Saturdays or Sundays, start an association with other like-minded teams. If a team doesn’t agree with the academic requirements of the association, start an association with differing requirements. It seems backwards to me that individual members of an athletics association are allowed to dictate the terms to all other members simply because it does not suit their preferences. When it comes to protected liberties, such as religion, it would be alarming for an athletic association to disregard or antagonize a member based on religion, but that doesn’t mean that the association has to reflexively bend to the request either. When issues are raised which call in to question important liberties, associations should attempt to be as reasonably accommodating as they can. If there is a simple solution that would work, great, implement it. If minor changes can be made without objection, it would probably be best to make them. But when one member wishes to force an association to entirely rework a major component of the association, such as the championship tournament structure, then that is likely a bridge too far. The member chose to join the association because it seemed like a good fit, and the member can equally choose to leave the association if it becomes a bad fit, but a tyranny of the minority is not the proper way for athletic associations to operate.

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2 Responses to Sports on the Sabbath: Analysis of Religious Discrimination in Interscholastic Sports Scheduling

  1. Space Revolver says:

    Instead of claiming religious beliefs to get off on those holidays, you could also claim you have food poisoning. No one will knock you for wanting to leave, let alone be near you. I hear cantaloupe is a good place to start if you’re looking for an excuse this year: http://lawblog.legalmatch.com/2011/10/03/cantaloupe-listeria-outbreak-recall-lotta-lawsuits/

  2. Mark H. Friedman says:

    When an association has a rule prohibiting play on Sunday, it has ALREADY mad accommodation for ONE religious group.

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