STEPHEN REID V KENOWA HILLS PUBLIC SCHLS
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STATE OF MICHIGAN
COURT OF APPEALS
______________________________________________
STEPHEN REID and DEBBIE REID, Next
Friends of STEPHEN REID and JUSTIN REID,
Minors, KIM BIRD and PATRICIA BIRD, Next
Friends of COREY BIRD, WESLEY BIRD, and
ADAM BIRD, Minors, TODD GOULD and
TARA GOULD, Next Friends of GRANT
GOULD and JENNA GOULD, Minors, BRIAN
HIJA and TAMMY HIJA, Next Friends of
BREANNE HIJA and REBECCA HIJA, Minors,
JOHN DONNELLY and MARY ELLEN
DONNELLY, Next Friends of ROSEMARIE
DONNELLY, Minor, TROY PARSELL and
ANNE PARSELL, Next Friends of AMBER
PARSELL, Minor, and JAMES TOLBERT and
DENISE TOLBERT, Next Friends of KRISTINA
TOLBERT and JOSHUA TOLBERT, Minors,
FOR PUBLICATION
March 2, 2004
9:05 a.m.
Plaintiffs-Appellants,
v
No. 239473
Washtenaw Circuit Court
LC No. 99-010536-CZ
KENOWA HILLS PUBLIC SCHOOLS,
YPSILANTI PUBLIC SCHOOL DISTRICT,
CARO COMMUNITY SCHOOLS, and
MICHIGAN HIGH SCHOOL ATHLETIC
ASSOCIATION,
Updated Copy
May 21, 2004
Defendants-Appellees.
and
GRANDVILLE PUBLIC SCHOOL DISTRICT,
TUSCOLA INTERMEDIATE SCHOOL DISTRICT,
and PINCKNEY COMMUNITY SCHOOLS,
Defendants,
and
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MICHIGAN ASSOCIATION OF SCHOOL
BOARDS,
Amicus Curiae.
__________________________________________
Before: Meter, P.J., and Talbot and Borrello, JJ.
BORRELLO, J.
Plaintiffs appeal by right from the trial court's grant of summary disposition under MCR
2.116(C)(10). The plaintiffs children, who are homeschooled by their parents, sued through their
parents as next friends when defendant school districts and defendant Michigan High School
Athletic Association (MHSAA) refused to allow the children to participate in defendants'
interscholastic athletic programs. In their six-count complaint seeking a permanent injunction,
plaintiffs alleged that defendants' refusal violated their statutory and constitutional rights.1
Specifically plaintiffs claim that they suffer by not being able to participate in extracurricular
athletic activities. They contend that denial of the right to participate in extracurricular sports
activities denies them an equal opportunity to receive collegiate athletic scholarships, thereby
denying them equal protection under the law. Because we find that the statutes at issue do not
require defendants to allow nonenrolled students to take part in the athletic programs and
because we find no religious discrimination or equal-protection violation, we affirm the trial
court's dismissal.
I. Facts
The next friends homeschool their children "in order to fulfill their God-given
responsibility to raise children that know, love, and serve God and their fellow man," and to
"ensure that the education provided to their children integrates their religious beliefs on a
curriculum-wide basis and to minimize the influence of other world-views (e.g. secular
humanism/scientific naturalism) and other persons (e.g. peers and other authority figures) which
threaten to undermine those sincerely held religious beliefs."
To supplement their children's education, the next friends sought their children's
participation in extracurricular interscholastic athletic programs in the school districts where they
reside. Defendant school districts informed the next friends that their children could not
participate in the districts' extracurricular interscholastic athletic programs unless they were
enrolled in a public school within that district for at least twenty hours a week. Defendant school
1
Plaintiffs also alleged a violation of the Michigan Civil Rights Act, MCL 37.2101 et seq., but
the trial court's dismissal of that claim is not an issue on appeal.
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districts explained this was in accord with the MHSAA rules, which all school districts must
follow to participate in the MHSAA's extracurricular interscholastic athletic programs.
Defendant school districts voluntarily joined the MHSAA. At issue in this case are the
MHSAA enrollment regulations that provide:
To be eligible for interscholastic athletics, a student must be enrolled in a
high school . . . not later that the fourth Friday after Labor Day (1st semester) or
the fourth Friday of February (2nd semester). Unless a specific exemption is
stated in this or Section 8, a student must be enrolled in at least twenty (20) credit
hours . . . in the school for which he or she competes.
The MHSAA defines "enrolled" as "actually having attended one or more classes in a
school as well as the appearance of a student's name on the books of the school." If a student
attends a school that does not have an extracurricular interscholastic sports program, the student
may participate in another school's athletic program, as long as the student is enrolled in and
passing at least twenty credit hours. If a school allows a student who is not enrolled in accord
with the MHSAA regulations to participate in its interscholastic athletic program, the school is
sanctioned by forfeiting any victory to its opponents, and team records are stricken. Perhaps
most importantly, any school with unsanctioned students is denied the opportunity to participate
in the championship tournaments conducted under the auspices of the MHSAA. The MHSAA
cites a variety of reasons for its enrollment regulation; foremost among them is to prevent
recruiting or "ringers" in high school athletics.
II. Statutory Right to Participate
Plaintiffs first argue that the trial court erred because students not enrolled in a public
school are allowed to enroll in noncore programs. To support this contention, plaintiffs cite
MCL 380.10, MCL 380.1147, and our Supreme Court's rationale in Snyder v Charlotte Pub
School Dist, 421 Mich 517; 365 NW2d 151 (1984).
The Michigan Constitution, Const 1963, art 8, § 2, requires the Legislature to establish a
"system of free public elementary and secondary schools . . . ." MCL 380.10 of the Revised
School Code states:
It is the natural, fundamental right of parents and legal guardians to
determine and direct the care, teaching, and education of their children. The
public schools of this state serve the needs of the pupils by cooperating with the
pupil's parents and legal guardians to develop the pupil's intellectual capabilities
and vocational skills in a safe and positive environment.
MCL 380.1147 states:
(1) A person, resident of a school district not maintaining a kindergarten
and at least 5 years of age on the first day of enrollment of the school year, shall
have a right to attend school in the district.
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(2) In a school district where provision is made for kindergarten work, a
child, resident of the district, is entitled to enroll in the kindergarten if the child is
at least 5 years of age on December 1 of the school year of enrollment. In a
school district which has semiannual promotions, a child, resident of the district,
is entitled to enroll in kindergarten for the second semester if the child is at least 5
years of age on March 1 of the year of enrollment.
In Snyder, supra, our Supreme Court held that a student enrolled in a private school that
did not offer a band class could enroll in a public school's band class because the band class was
a noncore class in which the student had a statutory right to enroll. The Court defined noncore
classes as nonessential elective courses that need not be taught in nonpublic schools, including
classes such as science, band, shop, domestic science, and advanced math. Snyder, supra at 540.
Certainly, the plain meaning of MCL 380.10 gives parents and legal guardians the
fundamental right to determine and direct the education and teaching of their children, and it
requires public schools to cooperate with the pupil's parents and legal guardians in developing
the pupil's intellectual capacities and vocational skills. But plaintiffs have not asserted that
interscholastic sports develop either their intellectual capacities or vocational skills. Rather, they
rely on their proposition that the athletic programs are noncore classes as defined by our
Supreme Court in Snyder, supra. They contend that extracurricular athletic programs are
noncore classes because they are offered as an extension of the classroom and are part of
defendants' educational mission. We disagree.
Our Supreme Court's decision in Snyder was in response to legal challenges surrounding
the passage of what was then known as "Proposal C," which forbade using public monies to
support nonpublic schools. In Snyder, our Supreme Court affirmed the long-established practice
of "shared time" where students enrolled in nonpublic schools are permitted to attend public
schools for instruction, stating:
By couching § 1147 in terms of a child's "right" and "entitlement" to
attend school, the Legislature wished to prevent public school districts from
arbitrarily refusing admission to children who live in the district and meet the age
requirements. Note that under [MCL 380.1561(1)], parents and guardians must
send their children to public schools. There is no requirement that the school be in
the district in which the child resides. When read together, § 1147 and § 1561
guarantee children the right to attend neighborhood public schools, but gives them
the option of obtaining their education at other facilities. [Snyder, supra at 528 n
3]
Additionally, because the court determined that band constituted a noncore course, the
Court held that a student had a statutory right to participate. The Court did not opine or even
suggest that nonpublic school students were entitled to participate in extracurricular
interscholastic athletic events, and nothing in the Snyder opinion dictates that conclusion.
Unlike noncore programs taught in schools, extracurricular activities are not required.
Attorney General v East Jackson Pub Schools, 143 Mich App 634, 636; 372 NW2d 638 (1985).
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Our courts have recognized a difference between noncore programs and extracurricular activities
within the mandates prescribed by MCL 380.10 and MCL 380.1147(1).
In addition to finding a demarcation between noncore programs and extracurricular
activities, our courts have also held that participation in interscholastic sports is a privilege, not a
right. In Cardinal Mooney High School v MHSAA, 437 Mich 75; 467 NW2d 21 (1991), our
Supreme Court held that "compliance with MHSAA rules on the part of student athletes is an
appropriate and justifiable condition of the privilege of participating in interscholastic athletics
under the auspices of the MHSAA." Id. at 81, and also quoted in Kirby v MHSAA, 459 Mich 23,
34; 585 NW2d 290 (1998).
Plaintiffs also argue that because MCL 380.1502(1) mandates that all physically fit
students take a course in physical education, and because MCL 380.1502(2) allows students to
receive credit to meet the physical education requirement for participation in extracurricular
activities involving physical activity, such activities are analogous to noncore courses. But our
Supreme Court, following the Indiana Supreme Court's reasoning, has held that there is a legal
distinction between a physical education class and interscholastic athletics. See Cochrane v
Mesick Consolidated School Dist Bd of Ed, 360 Mich 390; 103 NW2d 569 (1960). In Cochran,
our Supreme Court stated:
State, ex rel. Indiana High School Athletic Assn., v. Lawrence Circuit
Court, [240 Ind 114, 122-123; 162 NE2d 250 (1959)], points out a distinction
between interscholastic athletics and the physical training contemplated by State
statute. Physical training is a course of training for all of the pupils of a school
and not for a select few. It may, but does not necessarily, include football and
certainly not interscholastic games. Football contests between schools are
extracurricular in nature. The right to provide such activities is clearly
recognized. Constitutional provisions and statutes giving the right to receive
education and physical training cannot properly be said to include interscholastic
sports as a necessary requirement of education. [Id. at 418.]
Thus, our courts distinguish between areas of instruction that are educational
requirements and extracurricular interscholastic athletic activities that are not required by the
state's educational system.
This Court revisited this issue in Berschback v Grosse Pointe Pub School Dist, 154 Mich
App 102; 397 NW2d 234 (1986), holding that "[e]xtra-curricular interscholastic athletic
programs are not statutorily mandated courses of instruction." Id. at 119, citing MCL 380.1502.
MCL 380.1502 "only requires a school district to provide a course in physical education, not
interscholastic athletic programs. In addition, the language of MCL 380.1521; MSA 15.41521
makes it clear that the participation of a school district in an interscholastic athletic association is
merely permissive and not required." Berschback, supra at 119. Thus, consistent with our
previous reasoning, we hold in this case that "[b]ased on the fact that Michigan statutory and
case law merely allows a school district to participate in interscholastic athletics and does not
mandate such participation, we conclude that Michigan law does not provide plaintiffs with a
basis for a legitimate claim of entitlement to participation in interscholastic athletics." Id. at 119.
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In sum, we hold that Michigan statutes do not require public schools to admit
homeschooled students to their athletic programs and that plaintiffs do not have a statutory right
to participate in extracurricular interscholastic athletic events.
III. Freedom of Religion
Plaintiffs next contend that defendants have conditioned participation in the
extracurricular interscholastic athletic programs in such a way that it violates their right to freely
practice their religion. Plaintiffs argue that to exercise their religious freedom, they must be
homeschooled. Because they desire to participate in extracurricular interscholastic athletic
events, they contend that the MHSAA's enrollment requirement denies their right to freely
exercise their religion by being educated at home. Additionally, they argue that the state may
not condition their participation in extracurricular interscholastic athletic events on forfeiture of
their constitutionally guaranteed right to freely practice their religious beliefs. The trial court
held that plaintiffs' choice to be homeschooled is not unconstitutionally burdened by the
MHSAA's enrollment requirement, and we agree.
Because the regulations set forth by the MHSAA constitute state action, we analyze
plaintiffs' claim that the statute violates their religious freedom under Const 1963, art 1, § 4 using
the compelling state interest test set forth in McCready v Hoffius, 459 Mich 131; 586 NW2d 723
(1998), vacated in part 459 Mich 1235 (1999):
The test has five elements: (1) whether a defendant's belief, or conduct
motivated by belief, is sincerely held; (2) whether a defendant's belief, or conduct
motivated by belief, is religious in nature; (3) whether a state regulation imposes a
burden on the exercise of such belief or conduct; (4) whether a compelling state
interest justifies the burden imposed upon a defendant's belief or conduct; and (5)
whether there is a less obtrusive form of regulation available to the state. [Id. at
144, citing Wisconsin v Yoder, 406 US 205, 214-230; 92 S Ct 1526; 32 L Ed 2d
15 (1972).]
We concur with the trial court that plaintiffs have met the first two elements. The
question for this Court is whether this state regulation imposes a burden on the exercise of
plaintiffs' belief or conduct. Our Supreme Court set forth the elements of whether a state
regulation imposes a burden on the exercise of a religious belief in People v DeJonge (After
Remand), 442 Mich 266; 501 NW2d 127 (1993), stating:
A burden may be shown if the "affected individuals [would] be coerced by
the Government's action into violating their religious beliefs [or whether]
governmental action [would] penalize religious activity by denying any person an
equal share of the rights, benefits, and privileges enjoyed by other citizens."
Hence, "[a] claimed burden on religious beliefs may be deemed constitutionally
insignificant, but only (1) if the claimant's beliefs do not create an irreconcilable
conflict between the mandates of law and religious duty, or (2) if the legal
requirement does not directly coerce the claimant to act contrary to religious
belief . . . ." Put simply, the petitioner must prove that he has been "enforced,
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restrained, molested, or burdened . . . [or] otherwise suffer[ed], on account of his
religious opinions or beliefs . . . ." The burden on religious liberty, however, need
not be overwhelming, because "[e]ven subtle pressure diminishes the right of each
individual to choose voluntarily what to believe." [Id. at 283-284 (internal
citations omitted).]
In DeJonge, supra, the parents of homeschooled students argued that Michigan's
requirement that all children be taught by certified teachers violated their religious beliefs
because the parents believed that they were mandated by the scriptures to teach their children
and that complying with the statute would require them to sin against God. Id. at 271 n 4. The
parents also were troubled by the fact that they perceived that many of the courses required by
the state were based on "'a false and pagan religion known as secularism or secular humanism.'"
Id.
We find DeJonge inapplicable because the MHSAA enrollment requirement does not
inescapably compel conduct that plaintiffs find objectionable for religious reasons. Id. at 285.
Unlike the parents in DeJonge, who were faced with criminal violations of state law for
exercising the freedom to practice their religious beliefs, the MHSAA enrollment requirements
do not infringe on plaintiffs' right to be homeschooled. Nor do the enrollment requirements
subject the next friends to criminal prosecution. Rather, by exercising their right to practice their
religion through homeschooling, plaintiffs and the next friends made a choice between
homeschooling and having the children participate in extracurricular interscholastic athletic
competition. Moreover, the next friends' desire to have their children participate in
extracurricular interscholastic athletic activities runs counter to their stated religious purpose to
"ensure that the education provided to their children integrates their religious beliefs on a
curriculum-wide basis and to minimize the influence of other world-views (e.g. secular
humanism/scientific naturalism) and other persons (e.g. peers and other authority figures) which
threaten to undermine those sincerely held religious beliefs."
In Cardinal Mooney, supra at 81, our Supreme Court stated that "compliance with
MHSAA rules on the part of student athletes is an appropriate and justifiable condition of the
privilege of participating in interscholastic athletics under the auspices of the MHSAA."
Because the next friends are free to be homeschooled under the MHSAA regulation, we
cannot find a nexus between the plaintiffs' right of freedom of religion and the MHSAA's
enrollment requirement. Nor can we find that the next friends have been, as they claim, "coerced
by the Government's action into violating their religious beliefs." For the reasons set forth, we
hold that the MHSAA regulation does not constitute a legally sufficient impediment on plaintiffs'
freedom to exercise their religious beliefs.
IV. Equal Protection
Finally, plaintiffs contend that defendants' enrollment requirement creates a classification
scheme that deprives plaintiffs of their rights to equal protection of the law. The essence of
plaintiffs' contention is that the enrollment requirement is actually a scheme to benefit that class
of citizens who enroll their children in public schools by doling out athletic scholarships and
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restricting participation. Of course it is pure speculation that a student participating in an
extracurricular athletic event will receive an athletic scholarship. Plaintiffs' contention is that
they should at least have access to the opportunity to receive an athletic scholarship to attend a
public institution of higher education. We disagree. Plaintiffs merely assert this argument
without supplying this Court with any evidence that there is a legally cognizable cause of action
under the Equal Protection Clause of the Michigan or United States constitutions to a right to an
athletic scholarship, predicated solely upon the denial of participation because of
homeschooling.
The next friends also argue that the regulation denies them the fundamental right to
supervise the education of their children pursuant to their religious convictions, and therefore,
we should apply a "strict scrutiny" analysis to the regulation. The trial court held that the next
friends failed to prove they were treated different from similarly situated individuals. We affirm
the judgment of the trial court, but on different grounds.
In Doe v Dep't of Social Services, 439 Mich 650; 487 NW2d 166 (1992), our Supreme
Court set forth the applicable test in such cases:
Thus, when legislation is challenged as violative of the equal protection
guarantee under either constitution, it is subjected to judicial scrutiny to
determine whether the goals of the legislation justify the differential treatment it
authorizes. As the Court of Appeals panel concedes, in deciding such cases the
appellate courts of this state have employed a mode of analysis similar to that
which has been developed by the United States Supreme Court. Generally
speaking, legislation challenged on equal protection grounds is accorded a
presumption of constitutionality, and it is reviewed by applying a rational basis
standard. Under that standard, a statute will not be struck down if the
classification scheme it creates is rationally related to a legitimate governmental
purpose. [Id. at 661-662 (internal citations omitted).]
We hold that the MHSAA enrollment requirement is neutral on its face. It applies
equally to everyone. The requirement does not single out any person on the basis of the person's
membership in a particular class or the person's religious beliefs. Thus, strict scrutiny is not
appropriate; rather, we must employ a rational basis level of scrutiny and discern whether the
regulation is rationally related to a legitimate governmental purpose.
In Berschback, supra, this Court noted that the United States Supreme Court "has held
that public education itself is not a fundamental right for purposes of equal protection analysis."
Berschback, supra at 114, citing San Antonio Independent School Dist v Rodriguez, 411 US 1;
93 S Ct 1278; 36 L Ed 2d 16 (1973). Thus, we concluded that "participation in high school
interscholastic athletics does not constitute exercise of a fundamental right." Berschback, supra
at 114, citing San Antonio, supra. We further recognize that "[u]nder traditional equal protection
analysis where classifications do not involve a suspect class or a fundamental right, once a
legitimate regulatory purpose has been identified, the only question remaining is whether the rule
makers reasonably believed that use of the challenged classification would promote that
purpose." Berschback, supra at 114. Thus, the only question left to resolve is whether the rule
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makers reasonably believed that use of the challenged classification would promote their stated
purpose. We find that it does. Plaintiffs have not directed us to any fact that rebuts the
contention of the MHSAA that the stated goal of the enrollment requirement was to eliminate
recruiting or the use of "ringers" in high school athletics. That goal is a legitimate governmental
purpose.
Affirmed.
Meter, P.J., concurred.
/s/ Stephen L. Borrello
/s/ Patrick M. Meter
Talbot, J. I concur in result only.
/s/ Michael J. Talbot
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