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DALLAM v. CUMBERLAND VALLEY SCH. DIST.

March 20, 1975

GEORGE DALLAM, a minor, by WILLIAM M. DALLAM, his guardian, Plaintiff
v.
CUMBERLAND VALLEY SCHOOL DISTRICT; MARJORIE C. KATZMAN; W. BENNETT CONNER, JR.; DENNIS CAVERLY; CAROLYN R. GLACE; CHARLES HEISEY; EARL HOFFMAN; GORDON MYERS; JAMES MILLER; and CHARLES VANCE, as members of the Board of School Directors of Cumberland Valley School District; and SAMUEL M. SANZOTTO, as Superintendent of the Cumberland Valley School District; and PENNSYLVANIA INTERSCHOLASTIC ATHLETIC ASSOCIATION, Defendants



The opinion of the court was delivered by: HERMAN

 The instant case requires this court to decide whether the constitutional protection afforded public school students in Goss v. Lopez, 419 U.S.565, 95 S. Ct. 729, 42 L. Ed. 2d 725, 43 L.W. 4181 (1975), extends to the extracurricular activity of interscholastic athletics.

 The 15-year-old plaintiff transferred to the Cumberland Valley School District from the neighboring Camp Hill School District. Cumberland Valley is a member of the Pennsylvania Interscholastic Athletic Association (P.I.A.A.). The P.I.A.A. is an unincorporated voluntary association of approximately 600 public high schools, 600 public junior high schools and 40 to 50 private schools. The Association's function is to develop and enforce uniform rules governing interscholastic athletic competition among member schools. Cumberland Valley is a member of the P.I.A.A. and is consequently obligated to follow P.I.A.A. directives in order to maintain membership.

 The minor plaintiff seeks a permanent injunction *fn1" to enjoin enforcement of a rule of the P.I.A.A. The rule automatically bars from interscholastic high school athletic competition for one school year any student who transfers from one school district to another, but does not reside in the transferee district with a parent or guardian. Jurisdiction is premised on 28 U.S.C. § 1343 and 42 U.S.C. § 1983.

 The underlying objective of the rule is to prohibit athletically motivated transfers and high school athletic recruiting. The plaintiff has not taken issue with the reasoning behind the regulation. Rather, the plaintiff argues that the automatic ineligibility rule acts as an irrebuttable presumption in violation of his equal protection and due process rights guaranteed under the United States Constitution. *fn2" The defendants concede that no hearing procedure is provided in which a student could establish that he transferred for wholly non-athletic reasons, but following his transfer desired to participate in interscholastic athletics.

 The issues now before the court are the plaintiff's motion for a permanent injunction and the defendants' motion to dismiss for lack of federal jurisdiction. *fn3"

 The defendants correctly view 42 U.S.C. § 1983 as requiring two jurisdictional elements to be present. The first, state action (or action under color of state law) is admittedly present. The Pennsylvania Supreme Court has ruled that the P.I.A.A. is sufficiently tied to the Pennsylvania education system to constitute state action. HARRISBURG SCHOOL DISTRICT v. P.I.A.A., 453 Pa. 495, 502, 309 A.2d 353 (1973).

 The second jurisdictional element of § 1983 is a showing by the plaintiff that the defendant deprived him of a right, privilege or immunity secured by the Constitution or laws of the United States. *fn4" Both sides agreed that the issue at hand in no way qualifies as an "immunity" within the meaning of § 1983. The plaintiff first argued that the right-privilege distinctions of old are no longer relevant to an application of the Due Process Clause of the 14th Amendment, as per GOLDBERG v. KELLY, 397 U.S. 254, 25 L Ed 2d 287, 90 S. Ct. 1011 (1970). The plaintiff misperceives the issue. It is irrelevant indeed whether the instant plaintiff's participation in interscholastic athletics is either a right or privilege. The defendant P.I.A.A., as moving party on the motion to dismiss, must establish that participation in high school athletics is neither a right nor a privilege protected by the Constitution or laws of the United States.

 The case of GOSS v. LOPEZ figures prominently in the matter of this court's jurisdiction. The plaintiff argues that GOSS alone is sufficient to confer jurisdiction, while the defendant contends the decision to be both inapplicable and distinguishable. The majority in GOSS noted:

 
"The Fourteenth Amendment forbids the State to deprive any person of life, liberty or property without due process of law. Protected interests in property are normally 'not created by the Constitution. Rather, they are created and their dimensions are defined' by an independent source such as state statutes or rules entitling the citizen to certain benefits. BOARD OF REGENTS v. ROTH, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972).
 
* * *
 
"Having chosen to extend the right to an education to people of appellees' class generally, Ohio may not withdraw that right . . . absent fundamentally fair procedures . . . .
 
* * *
 
"[In] determining 'whether due process requirements apply in the first place, we must look not to the "weight" but the nature of the interest at stake.' BOARD OF REGENTS v. ROTH, supra, at 570-571. . . . The Court's view has been that as long as a property deprivation is not de minimis, its gravity is irrelevant to the question whether account must be ...

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