[Reprinted from the Sports Litigation Alert, the leading sports law newsletter.]
Tim Tebow will forever be revered in Florida as the Heisman-winning quarterback who helped lead the Gators to national titles in 2006 and 2008. But outside Florida, many identify Tebow as the symbol of a movement towards permitting home-schooled students to participate in interscholastic sports for high schools they don’t physically attend. Tebow was homeschooled in Florida and because, in 1996, Florida had enacted a law allowing home-schooled students to participate in public school sports, Tebow played as quarterback for the Allen D. Nease High School team in St. Augustine. His success at the University of Florida inspired several states to allow homeschoolers to participate in high school athletics.
In many communities across the country, permitting homeschoolers to play sports is a heated issue. The latest state to consider this option is West Virginia, where both legislative bodies passed The Tim Tebow Act that would permit homeschoolers to participate in public school sports and other extracurricular activities. Those students would pay the same activity fees charged to public school students and they would need to prove they are academically eligible based on transcripts, a portfolio of their work and standardized test scores. The bill is on the desk of Governor Jim Justice, who vetoed a similar bill in 2017.
Opponents of the Tim Tebow legislation assert the following:
- It dilutes high school athletics resources that are already stretched thin.
- It is unfair because homeschoolers don’t have to comply with the same rules as those attending the school.
- Permitting “outsiders” to participate diminishes school spirit.
- It encourages recruiting of star athletes.
Those who support Tim Tebow laws make the following points:
- The parents of homeschooled students are taxpayers who have the right to benefit from public school services.
- We need to encourage all students to participate in athletics.
- School spirit is not the primary goal of high school sports.
- High school athletic associations can effectively regulate recruiting.
[https://www.publicschoolreview.com/blog/can-homeschoolers-be-team-players-for-public-schools].
The issue of whether to permit homeschoolers to participate in interscholastic sports is a substantial one, due to the growth of homeschooling. From 1999 to 2016, the number of homeschoolers in the U.S. jumped from 850,000 to nearly 1.7 million, according to the U.S. Department of Education [https://nces.ed.gov/programs/digest/d18/tables/dt18_206.10.asp].
The number of homeschooled children represents about 3.4 percent of all students from kindergarten through 12th grade. This trend is explained in part by the fact that homeschooling has become a more inviting option through technology; there has been an explosion in homeschooling choices through a variety of online books, CD-ROMs, DVDs, and interactive TV programs.
Do homeschoolers have a constitutional right to participate in scholastic athletics? No, according to the Sixth Circuit Court of Appeals. In Alerding v. Ohio High School Athletic Association, 779 F.2d 315 (6th Cir. 1985), non-resident high school students from northern Kentucky who attended St. Xavier High School in Cincinnati were prohibited from playing high school sports in Ohio. The defendant was the governing body that had passed a rule which barred non-resident students from participating. The plaintiffs brought a civil rights action in which they argued that the rule violated the Privileges and Immunities Clause of the U.S. Constitution. The court held that participation in interscholastic athletics is not a fundamental right subject to protection under the Privileges and Immunities Clause, as it is not akin to economic opportunity or medical care.
Similarly, in Bradstreet v. Sobol, 60 N.Y.S. 2d 486 (N.Y. 1995), a homeschooled 9th grader claimed a violation of due process and equal protection when the local school district denied her request to participate in public school sports. The New York Supreme Court held that the policy did not violate due process because participation in athletics is merely an expectation and not a right. The court held that the district did not violate equal protection because the state was upholding the legitimate goals of maintaining academic standards, promoting school spirit and securing role models for other students.
Since homeschoolers have no constitutional right to participate in interscholastic activities, the states must confer that right. Here is a general overview of state laws, provided by the Coalition for Responsible Home Education:
- Twenty states permit homeschoolers to participate in interscholastic activities, though in states such as Ohio, Pennsylvania and Florida they must pass an academic assessment test.
- Five states allow homeschooled athletes to participate in interscholastic activities with the approval of the local school district.
- Five states allow homeschoolers to participate in interscholastic activities if they are enrolled part-time or dual-enrolled.
- Twenty states’ athletic associations bar homeschooled students from participating in interscholastic activities by requiring students to “attend” the school, be enrolled “full time,” or be “bona fide” students of the school.
(A state-by-state summary is available at: https://responsiblehomeschooling.org/policy-issues/current-policy/homeschool-sports-access-by-state/.)
To further complicate the issue, some states offer their own online public schools [https://www.thoughtco.com/free-online-public-schools-4148138]. These virtual programs usually operate from a state office or school district. West Virginia is one such state, which begs the question: If a student is taking virtual classes offered by the state, then why should the state prohibit the student from participating in interscholastic sports or other public-school activities?