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Challenge to Athletic-Eligibility Rule Reaches Appellate Level in Michigan

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After 19 unsuccessful legal challenges to a rule adopted last Jan. 1 by Michigan's high-school athletic association to curb transfers for athletic reasons, a 20th case has moved beyond the trial-court stage.

The rule requires a student who transfers from one school to another to sit out one semester at the new school before taking part in interscholastic athletic competition.

A spokesman for the National Federation of High School Athletic Associations said that "about half" of the states require a year of ineligibility for students who change schools without a corresponding family move. The federation recommends that policy to its members, the spokesman said.

The current case, involving a 16-year-old swimmer named Shawn Bales, is now in the state's Court of Appeals, which issued a temporary restraining order against the athletic association last month. Ms. Bales joined the swimming team at her new school this semester, her first after transferring from a private school.

The student's attorney, Gerald Surowiec, contended in court that Ms. Bales was denied due process guaranteed by the U.S. Constitution because the athletic association did not give her a formal hearing. Mr. Surowiec also said participation on the team is a constitutional "property right."

Both sides in the case agree, they insist, on the need for a regulation regarding transfer students. But Ms. Bales says the association has been too rigid in applying the rule, and the association says to do otherwise would be to apply the standard unevenly, an impractical and unfair solution.

"People are always challenging the school districts," said the association's lawyer, Edmund P. Sikorski. "They say it's arbitrary, capricious, unreasonable, you name it. But no other case we've had has made it this far in the courts."

In defense of the association's position, Mr. Sikorski cited the 1973 U.S. Supreme Court's decision in San Antonio Independent School District v. Rodriguez, which stated that education is not a fundamental right guaranteed by the U.S. Constitution. "If the court doesn't guarantee a right to education, you can't say there's a right to after-school sports," Mr. Sikorski said.

Ms. Bales transferred this fall from Our Lady of Mercy School in Northville, Mich., to Northville High School because, she told the court, her family could no longer afford to send her to a private school.

George Bell, Northville's superintendent of schools, agreed that the girl's reason for transferring was mostly financial, but he acknowledged that her decision was partly related to the quality of Northville's swimming program. Mr. Bell, after being contacted by the school's athletic director, appealed to the athletic association to allow her to swim.

The athletic association, which governs practically all of Michigan's school sports programs, adopted the new transfer restriction after a rash of school transfers that were based solely on athletic considerations, Mr. Sikorski said.

"All we know [about athletic recruiting] is what we hear from the principals," Mr. Sikorski said. "I know it was an ongoing problem of some substance--kids were sleeping in coaches' homes" in order to qualify as students at certain schools.

Alwynne Bales, the swimmer's mother, filed the suit in June when she learned that Ms. Bales would be barred from competitive swimming this fall if she transferred. She appealed to school officials, who eventually got a hearing with the athletic association's executive committee.

The legal case was first heard in the Wayne County Circuit Court, which imposed, then withdrew, a temporary restraining order in September. The appeals court restored the order and will hear the case by early next year.

The wait-period rule states that exceptions can be made by the association's excecutive committee "if the rule fails to accomplish the purpose for which it is intended or creates undue hardship."

The athletic association has received about 500 requests for exemptions so far this year, Mr. Sikorski said, and the executive committee has considered about 50.

The two exemptions that were granted involved a student who transferred back to a school after only four days in another school and a handicapped student who could not find an appropriate program in his old school.

Alwynne Bales said that the rule caused unnecessary hardship for her daughter.

"This is Shawn's junior year, and that's a very important year for school and getting scholarships," she said. "My main concern is what this will do to Shawn. That's why I have fought to let her swim."

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