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DAN MORALES
 ATTORNEY
       GENERAL                                        July 25, 1997


   The Honorable Paul L. Sadler                                Opinion No. DM-446
   Chair, House Committee on Public Education
   Texas House of Representatives                              Re: Whether University Interscholastic League
   P.O. Box 2910                                               rules con ceming part-time athletic coaches exceed
   Austin, Texas 78768-2910                                    the League’s authority (RQ-930)

   Dear Representative Sadler:

           You inquire about the validity of certain rules adopted by the University Interscholastic
   League (the “UK”). You are concerned that UK. rules applicable to coaches may encroach on the
   authority granted local school boards by the Education Code provisions adopted in 1995 by Senate
   Bill 1.’

           The UIL is a voluntary nonprofit association of Texas public schools,2 which serves as the
   statewide organization for interschool competition in academics, music, and athletics.’ It was
   created by the University of Texas at Austin in 1909 and was operated from the Division of
   Contintig Education for many years! Legislation was adopted in 19845recognizing it as a part of
   the University of Texas at Austin.6 The UIL is not a state agency for purposes of provisions
   excusing state agencies f?om filing security for costs,’ although its role in supervising various public



            ‘Act of May 27,1995,74tb   Leg., R.S., ch. 260,s    I,1995   Tex. Gen. Laws 2207,2347-48    (Senate Bill 1
   reenacted and revised Educ. Code tits. 1,2).

             2Sullivan v. University Interscholastic League, 616 S.W.Zd 170, 172 (Tex. 1981); University
   Interscholastic League v. Maroney, 681 S.W.2d 285 (Tex.,App.-Austin 1984, wit ref d).

             ‘TEx. EDUC. AGENCY,COMPREHENSIVE        Rmsw OFTHERULES,BYLAWS,ANDPROCEDURES            OFTHE
   UNIVERXTYINTERKHOLA?.TIC        LEACXJE1 (Feb. 1991) (review mandated by Act of May 29,1989,71st     Leg., RX,
   ch. 813,s 5.03,1989 Tex. Gen. Laws 3678,371l);       see&o Cm.sfitufion and Contest Rules ofthe University
   Interscholastic League 1996-97,s   1, at 19 (87th ed).

              ‘TEx. EDUC.AGENCY,supra note3.

              ‘Act of June 30,1984,68tb   Leg., 2d C.S., ch. 28, art. N, part. F, 1984 Tex. Gen. Laws 117,168.

              Wluc. Code $ 33.083(b); see ah    Constitution, supa   note 3, 5 20, at 21.

              ‘Maroney, 681 S.W.Zd at 287; cf Saenz v. University Interscholastic League, 487 F.2d 1026 (5th Cir.
    1973)   (upholdingtrial corut’sfindingthat UIL is, despiteits umxtlmdox  shuctwe, agency of State of Texas).
The Honorable Paul L. Sadler - Page 2                     (LM-446)




school activities caused some of its functions to be treated:as state action for purposes of the
Fourteenth Amendment of the United States Constitution and 42 USC $1983.8

        The UIL Constitution provides that its director is a university employee appointed by the
university president9 Public school districts and open enrollment charter schools are eligible for
membership in the UIL.“’ School districts that belong to the UIL must “comply with applicable state
law, Texas Education Agency regulations and the terms of participation in League contests as set
out in the Constitution and Contest Rules.“”

         The rules of the UIL are adopted by its legislative council, a twenty-eight member body
consisting of twenty school administrators elected by the superintendents of the participant school
districts and eight members appointed for four year terms by the chair of the legislative council.‘*
Thus, UIL rules are made by a council that represents member school districts. The Education Code
requires that rules and procedures of an organization conducting interscholastic competition be
consistent with State Board of Education rulesn and that the UIL submit its rules and procedures to
the State Board of &kation for approval, disapproval, or modiftcation.‘4 A statutorily established
advisory council is required to review the rules of the UIL and make recommendations regarding
them to the governor, the legislature, the legislative council of the UIL and the State Board of
Pducation.‘s If any provision of the UK. Constitution or rules is inconsistent with state law, the state
law prevail~.‘~

         You sre concerned about section 1202 of the Contest Rules, which provides that “[a] school
is not eligible for UIL competition in an athletic activity whose head coach or whose assistant high
school coaches are not full-time employees of the school board of the school which the team




          ‘Blue v. Uniwrsity Interscholastic League, 503 F. Supp. 1030,1034   (N.D. Tex. 1980); Sullivan, 616 S.W.Zd
at 172.

          ?Yee Cbnstih~tion,sup0 note 3,s 21, at 22.

          “Id. 5 10.

          “Id. $5 11,52, at 22,31-32.

          ‘*Id. 5 25, at 23-24; Brief (ID# 39505) from Director of University Jntmcholastic League 2 (Apr. 8,1997) (on
tile with this office) (herein&z Brief).

          %duc. Code $33.083(a).

          141d. 5 33.083(b); see also id. 5 7.102(28).

          “Id. 5 33.084.

          %3&ituti011,     SUM=note 3, g 306(d), at 34; Attorney General Opinion MW-43 (1979).



                                                           p.   2495
The Honorable Paul L. Sadler - Page 3                     @+446)




represents.“” The rule defines “full-time” to mean that the person is under contract to the school
board for the entire scholastic or calendar year and has enough contractual duties to be considered
a full-time employee by the Teacher Retirement System and state law.” There are exceptions
allowing retired teachers/coaches and student teachers to serve as assistant coaches.19 In connection
with this regulation, you ask the following questions about part-time employees:

                   1. Does a local school board have the authority to hire part-time
                   employees, except as specified in the code?

                   2. Can a coach of a competitive event (not just athletic, but any
                   interscholastic competitive event)-be a part-time employee?

                   3. Does the University Interscholastic League have the authority to
                   prohibit competition by educational institutions supported by state tax
                   funds which have appointed part-time employees to coaching positions?

                  4. Does the University Interscholastic League or State Board of
                  Education have the rule-making authority to interfere with an
                  employment contract between any class of employee snd a local school
                  board?

        In University InterscholasticLeague        v. Midwestern University, 255 S.W.2d 177 (Tex. 1953),
the Texas Supreme Court addressed similar questions about a UIL rule. Midwestern University sued
Wichita Falls Independent School District and the UIL for specific performance of a contract that
authorized the college to use the school districts’ stadium for its football games. The college wished
to hold an all-star game in the stadium, but the school district, ss a member of the UIL, was subject
to rule 34, which prohibited member schools from using public school facilities for all-star games.
After determinin g that the contract did not apply to the all-star game, the supreme court addressed
questions relevant to the district’s membership in the UIL. On this matter, the court of civil appeals
had stated as follows:

                  It has been pointed out by all parties that the League is a voluntary
               organization not sanctioned by statute. The testimony in this case reflects
               that its functions are so valuable to the athletic society of our public schools
               that most all of the public schools of this state who participate in competitive


          “Id. $ 1202(a)(l), at 170. A brief from the UIL states that this rule was adopted to keep the activities
educational rather than coached by mneone with a “win at any cost” attitude, to guard the safety of the adolescent
participants,and to provide equity among the smallest to largest, and poorest to wealthiest of the high schools that
participate in UK athletic competitions. Brief at 2-3.

         ‘*Id. $ 1202(a)(2), at 170.

         ?d.   $ 1202(a)(3), at 170.



                                                         p.   2496
The Honorable Paul L. Sadler - Page 4                    (M-446)




               athletics have become members. . . . The testimony further shows that it is
               imperative for a public school of this state to belong to this organization if it
               expects to participate in competitive athletics with other public school
               districts.2~

        The court of civil appeals agreed with the school district that rule 34 placed it in a dilemma,
by compelling it to choose between carrying out its public duty to maintain competitive athletics and
exercising its authority to control school district property, and held that the rule could not be
enforced against the district. It stated as follows:

                    The duties of an athletic director, coach, teacher or administrator of
               a public school in this state can only be regulated by the officers of the
               school system of the state in accordance with the provisions of statutes
               pertaining to this subject. If appellant’s motive in striving to stamp out
               all-star football games, such as the one under discussion here, is for the
               best benefit of the school, same may be controlled by statute?’

         The supreme court disagreed with these views of the court of civil appeals and reversed its
judgment, holding that the restriction imposed by rule 34 was valid and that enforcement of the rule
could not be enjoined. It pointed out that the school district was subject to direct statutory control
by the legislature, but that the legislature had also delegated to the local trustees authority to resolve
“all ,the minute problems inevitably arising in the operation and management of public schools.“zz
Thus, the school trustees had the discretionary authority to decide how the district’s stadium should
be used. The supreme court then concluded that the trustees’ action in taking membership in the UIL
and agreeing to abide by its rules did not interfere with the performance of their duties to the
pubk” The district superintendent had testified that the advantages of belonging to the UIL were
so great “that he deemed it his duty and obligation” to provide those advantages to his students,”
and the court noted that these advantages existed despite rule 34. Because of the overwhelming
advantages of belonging to the UlL, “it simply cannot be plausibly maintained that its membership
and consequent agreement to abide by Rule 34 interfered with the performance of the duties owed
by the District and its officers to the public.“*5


         %nivemity Interscholastic League Y. Midwestern Univ., 250 S.W.2d 587, 590 (Tex. Civ. App.--Fort Worth
1952), rev’d, 255 S.W.2d 177 (Tex. 1953).

        “Id.

        22Mdw&em,       255 S.W.Zd at 183.

        uId.

        *?d.   at 184 (emphasisin original).

        ?d.    The Supreme Court of Kansas addressed the rule-malting audmity of an organization similar to the UIL
                                                                                                     (continued...)



                                                         p.   2497
The Honorable Paul L. Sadler - Page 5                       (DE5446)




        It is well established that the courts will not interfere with school trustees in the exercise of
their broad powers of control and management unless a clear abuse of power and discretion is
showr1.2~The Texas Supreme Court opinion in Midwestern applies this policy, even though it does
not expressly recite it, by treating the school board’s decision to join the UIL and to be subject to
UK. rules as a matter for the exercise of the board’s reasonable discretion to manage the district and
its property. The board could reasonably choose the advantages of UIL membership over the fee it
would receive for allowing Midwestern to hold an all-state game in the district stadium.27

         Thus, a school board has discretionary authority to join the UK. and agree to comply with
its rules on part-time coaches, unless constitutional or statutory provisions bar the school district
tiom agreeing to comply with those rules. The board of trustees of each independent school district
is required to adopt a policy providing for the employment and duties of district personnel, which
may specify the temts of employment with the district or authorize the superintendent to determine
the terms of employment with the district. ** We find no provision expressly addressing the district’s
employment of part-time personnel, nor have you pointed out such a provision. In the absence of
a statute that controls the school board’s decisions about part-time employment, it has authority, in
the exercise of reasonable discretion, to make such decisions itself. Accordingly, a school board has
authority to decide not to hire part-time athletic coaches in order to comply with UIL rules making
the school district eligible for athletic competition, its decision being subject to review for abuse of
discretion.

        You next ask whether a coach of a competitive event, not restricted to athletic competitions,
but including any interscholastic competitive event, may be a part-time employee. We have already
concluded that a school board, if it wishes to belong to the UIL, may comply with UIL rule 1202,
which denies eligibility for athletic competitions to school districts whose head coach or assistant
high school coaches are not full-time employees of the school board. Rule 1202 applies only to
competition in an athletic activity. Another rule provides that “[d]irectors in the one-act play contest




in Robinson v. Kansac State High School Activities Association, Inc., 917 P.2d 836,843 (Kan. 1996). The Kansas State
High School Activities Association (“KSHSAA”), lie the UIL, is a voluntary association. “Nothing compels a high
school to join KSHSAA or refrain from withdrawing its membership, if the school is willing to accept the consequences,
however unpalatable. Schools are not required to have an interscholastic athletic program.” Id. at 843.

           26CitizemforBetterEduc.      Y. Goose Creek Cmsol. Indep. Sch. Diet, 719 S.W.Zd 350 (Tex. Civ. App.-Houston
[ 1st Dist.] 1986, writ ref d n.r.e.), appeal dim ‘d, 484 U.S. 804 (1987).

           *‘It is not unusual for a school board to decide to accept certain liits on its discretion to control the school
district in exchange for specific benefits. For example, in Mtduwtern, 255 S.W.2d 177, the Wichita Falls’ school board
decided to enter into a conhact whereby Midwestern paid the district a fee to use its stadium for itF,football games, with
the result that the school district could not use the stadium at the times Midwestern was authorized to use it.

         28Eiluc. Code 5 11.163.



                                                            p.   2498
The Honorable Paul L. Sadler - Page 6                       (DE5446)




must be full-time employees of the school districts of the schools which the plays represent.“z9 UIL
states that this rule was adopted because public schools located near university or college drama
departments hired college drama coaches part-time for the one-act play contest, thus giving those
schools an unfair competitive advantage. M A school district that wishes to participate in the UIL
one-act play contest may comply with this rule, just aa it may comply with the rule requiring athletic
coaches to be full-time employees.

         You phrase your third and fourth questions in temis of whether the UIL has certain authority
over the employment decisions of member school districts. As we have shown in answer to your
first question, a school board, in the exercise of its reasonable discretion, may decide to join the UIL
and agree to comply with its rules in order to secure for its students the opportunity to engage in UIL
sponsored competitions.

        You also inquire about contest rules that limit the off-season activities of coaches. For
example, coaches must adhere to m-season and out-of-season practice regulations,” and, with certain
exceptions, school coaches may not coach students Tom their own attendance zone on a nonschool
team during the off-season. 32 You ask the following question:

                   In light of the massive transfer of power [by Senate Bill l] t?om the
              Texas Education Agency and the State Board of Education, does the
              University Interscholastic League have the rule-making authority to
              restrict a school employee’s activity outside the classroom and off the
              playing field?

You also ask whether “the power to restrict the school employee and the activity of the student
reside[s] with the local school board.” We will address these questions in the context of a school
district’s participation in the UIL.

        Senate Bill 1 of the Seventy-fourth Legislature, which rewrote titles 1 and 2 of the Education
Code, greatly restricted the functions to be performed by the Texas Education AgencyT3 Section
7.003 of the Education Code, adopted by Senate Bill 1, provides that “[a]n educational function not
specifically delegated to the agency or the board under this code is reserved to and shall be



                     supra note 3, 5 1033(5)(A),at 119-20.
         29Comtihrtion,

         ‘%ief   at 3.

        3’Cimstitition,   supra note 3, 0 1201(b)(5), at 170; see also id. 0 1206(a)(Z) (rules applicable during school
and intmeuions).

         ‘*Id. p 1209(f)(l),   at 183.

         33Act of May 27,1995,74th       Leg.,RS., ch.260,§ 1,1995   Tex.   Gen.Laws2207.2207;see FiscalNote, S.B.1,
74th Leg., R.S. (1995).



                                                            p. 2499
The Honorable Paul L. Sadler - Page 7                       (DE5446)




performed by school districts or open-enrollment charter schools.” It has been suggested that this
language undermines the authority of the UIL to regulate competition among its member school
districts. We do not believe that section 7.003 of the Education Code has this effect. As the supreme
court of Texas found in Midwestern, the decision to participate in the UIL was a function of the local
school board long before section 7.003 of the Education Code was adopted.

        Senate Bill 1 moreover, reenacted the provisions that expressly recognize and regulate the
UIL, with amendments. It invalidated certain UIL rules limiting student eligibility for competitions,
by providing that participation rules would apply “only when the student is under the direct supetvi-
sion of an employee of the school or district in which the student is enrolled or at any other time
specified by resolution of the board of trustees of the district.“34 It also provided that “[elach rule
of the University Interscholsstic League adopted before September 1,1995 expires August 3 1,1996,
unless readopted by the league and approved by the State Board of Education after
September 1, 1995.“35 The rules have been readopted and approved, as required by this provisionr6

        Thus, while Senate Bill 1 expressly invalidated certain UIL requirements, the bill also
expressly provided for the readoption of the remaining rules by the UIL and the State Board of
Education. The text of Senate Bill 1 reflects the legislature’s intent to permit the UIL to continue
enforcing its existing rules except where expressly invalidated. We find no basis for concluding that
rule 1202 is inconsistent with Senate Bill 1. As we have already noted, an express statute or
constitutional provision may bar a school board from agreeing to comply with a particular UIL
regulation, but in the absence of such contrary legislation, the decision to join the UIL and comply
with its rules is a matter for the exercise of the school board’s reasonable discretion.

        Your last question is aa follows:

                    What equity issues are created when the University Interscholastic
                 League proposes and the State Board of Education approves a rule which
                 applies to a small number of public education employees?

         The requestor’s concern relates to the students who participate in an extracurricular activity
coached by a part-time employee of the school district and who are therefore disqualified l?om
participating in UIL-sponsored competitions.         We will address the interests of students in
participating in UIL activities, rather than the interests of persons who coach these activities in
working as part-time employees of the school district.




        “J?duc. Code $33.081(b); see Constitution and Contest Rules of the University Interscholastic   League 1995-
96, Appendix V: Rules Deleted By Enactment of Senate Bill One (86th ed.).

         “Act of May 27,1995,74th     Leg., R.S.,   ch. 260,§        1,1995 Tex. Gen. Laws 2207,2348.

         ‘%ief    at 4.



                                                                p.     2500
The Honorable Paul L. Sadler - Page 8                         (CM-446)




         Students do not possess a wnstitutionally protected interest in their participation in
extracurricular activities.37 Participation in such activities is not a property right for purposes of due
process, nor is it a fin&mental right under the equal protection clause?’ Rule 1202 of the UIL,
which creates two classes of students based on the full-time or part-time employment of their athletic
coaches, does not infringe upon tklamental rights or burden a suspect clam. Thus, equal protection
analysis would require the classifications created by this rule to be rationally related to a legitimate
state interest.39 Whether a particular rule, including rule 1202, is rationally related to a legitimate
state purpose must be answered on a case by case basis, in light of all relevant facts.” Accordingly,
this question cannot be resolved in the opinion process.

        We have already mentioned that Senate Bill 1 of the Seventy-fourth Legislature included
provisions that expressly invalidated certain UIL rules. The legislature clearly has authority to repeal
rule 1202 if it wishes to do so.




           “Spring Branch MD.      v. Stamos, 695 S.W.2d 556 (Tex.), appeal dism ‘d, 475 U.S. 1001(1986).

          “Niles v. University Interscholarttc Lxgue, 715 F.2d 1027 (5th Cir. 1983). cert. denied, 465 U.S. 1028 (1984)
(rule requi&g bigb school student to reside in district for at least one year prior to participating in interscholastic events
did not violate equal pmtection clause); Blue v. University Interscholastic League, 503 F. Supp. 1030,1035 (ND. Tex.
1980); Stamos, 695 S.W.2d at 561-62.

          39SuUivan, 616 S.W.Zd at 172 (Tex. 1981) (fading unconstitational UIL rule restricting transfer students’
participation in certain sports at new school, because not rationally related to purpose of preventing recmiting); see
Universiry Interscholastic League v. North Dallas Chamber ofCommerce Soccer Ass ‘n, 693 S.W.Zd 5 13 (Tex. App.--
Dallas 1985, no writ) (UIL rule restricting club soccer activities of varsity school athletes did not violate equal protection
Clause).


         4oSection 1200 of the UK. rules states that one purpose of the athletic program is “to devise and prepare
ebglbtity rules that will equalize and stimulate wholesome compstition between schools of similar size.” Constihrfion,
supra note 3,s 1200(a), at 170.



                                                              p.   2501
The Honorable Paul L. Sadler - Page 9             (E’l-446)




                                       SUMMARY

               The University Interscholastic League (“UJL”) is a voluntary nonprofit
           association of Texas public schools, which serves as the statewide
           organization for mterschool competition in academics, music, and athletics.
           A school board has discretionary authority to join the UJL and to agree to
           comply with ita rules, unless constitutional or statutory provisions bar the
           school district from agreeing to a particular rule. A school board may agree
           to comply with a UIL rule that makes a school district ineligible for
           competition in an athletic activity if its coach is not a full-time employee of
           the school district.

               A public school student’s interest in participating in extracurricular
           activities is not a property right for purposes of due process, nor is it a
           fundamental right under the equal protection clause. Classifications created
           by rules of the UJL must be rationally related to a legitimate state purpose.
           Whether a particular rule is rationally related to a legitimate state purpose
           cannot be resolved in the opinion process.




                                              DAN MORALES
                                              Attorney General of Texas

JORGE VEGA
Fit Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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