1. C H A P T E R 7
Constitutional Law
Chapter ??

2. Chapter Objectives
After reading this chapter, you will know the following:
How the United States Constitution applies to private and public sport entities
The free speech and freedom of religion protections provided for by the First Amendment
How the First Amendment regulates religious prayers and activities in sport settings
The definitions of substantive and procedural due process and how their requirements apply to sport organizations
How the Equal Protection Clause of the Constitution affects sport-related affirmative action plans

3. Application
Constitutional law involves the application of the federal and state and local governments and whether their actions violate one or more terms of the U.S. Constitution
Purely private entities are generally not subject to constitutional claims
State action must be shown in order to proceed with a claim

4. State Action
Except for the Thirteenth Amendment’s prohibition on slavery, the U.S. Constitution requires state action (otherwise known as government action)
State actors are those who act in furtherance of their positions as employees of government agencies
Examples are public school teachers, police officers, IRS employees, county government employees, staff at the DMV, athletic directors at state-run universities

5. When Private Entities Are State Actors
The law is less clear when private actors are involved
Sometimes private parties can become state actors through their actions

6. Private Actors or State Actors
NCAA not a state actor: NCAA v. Tarkanian
High school athletic associations typically are state actors; Burrows v. Ohio High School Athletic Association is an exception
Professional sport leagues and teams are not state actors

7. First Amendment
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances.
Religion: contains establishment clause and free exercise clause
Speech: protects free speech, freedom of the press, and right to assemble

8. Religion Clauses Establishment clause Free exercise clause
Prohibits the establishment of a church by the state as well as the endorsement or preference of religion and coercion of religious practice
Free exercise clause
Prohibits the government from standing in the way of private religious exercise; government actions that infringe on religious exercises are subject to strict scrutiny

9. Establishment Clause Tests
There is no overriding test to determine whether government acts violate the establishment clause
The courts have developed three tests
Lemon test
Coercion test
Endorsement test

10. Test 1: The Lemon Test It is a disjunctive three-part test
Under this test, a government practice is unconstitutional if one of the following is true
It lacks a secular purpose
Its primary effect either advances or inhibits religion
It excessively entangles government with religion (Lemon v. Kurtzman)
(continued)

11. Test 1: The Lemon Test (continued)
Test has not been applied by the court in years
Its continued validity has been questioned by scholars, but it has not been overruled by the court

12. Test 2: Coercion Test
The government directs a formal religious exercise in such a way as to obligate the participation of objectors (Lynch v. Donnelly)

13. Test 3: Endorsement Test
Seeks to determine whether the government endorses religion by means of the challenged action
Government endorses a religion when religion is favored, preferred, or promoted over other beliefs (Lee v. Weisman, 1992)

14. School Prayer Classroom prayer is not permitted
In most cases, a nonsectarian and nonproselytizing student-initiated prayer before and after a sporting event is a safe haven
This is hard to establish for school sporting events
School typically picks student speakers
School can’t direct the process that results in prayer
The prayer must truly be student initiated

15. Other First Amendment Issues
Political speech
Strong protection for political speech unless it causes imminent lawless action (strict scrutiny)
In a school setting, the right is more limited
Freedom of the press
Same as for political speech
Exception is defamation
(continued)

16. Other First Amendment Issues (continued)
Commercial speech
Defined as expression related to economic interests of the speaker and audience
Is protected, but less than other types of speech (e.g., political speech)

17. Fourteenth Amendment
The equal protection clause (EPC) prohibits the government from denying persons equal protection under the law
Strict scrutiny
Applies to classifications based on race or national origin or any classification linked to a fundamental right
State discrimination must be necessary to achieve a compelling governmental interest
(continued)

18. Fourteenth Amendment (continued)
Intermediate scrutiny
Applies to discriminations based on gender, illegitimacy, and alienage; state discrimination must be substantially related to achieving an important governmental interest
Rational basis
Lowest standard and requires only a rational basis for action

19. Equal Protection Types
De jure discrimination: policy with a discriminatory purpose
De facto discrimination: policy that lacks expressed discriminatory purpose but has discriminatory effect
(continued)

20. Equal Protection Types (continued)
Affirmative action: programs designed to reverse the effects of past discrimination
EPC applies to AA programs implemented by state actors
Must survive strict scrutiny
Courts have held that AA serves a compelling governmental interest
But AA must be necessary (i.e., the least discriminatory means)

21. Due Process
A course of legal proceedings that have been established for the protection and enforcement of private rights
Guaranteed by the U.S. Constitution and state constitutions
(continued)

22. Due Process (continued)
Fifth Amendment applies to acts of the federal government
“No person shall be deprived of life, liberty, or property without due process of law.”
Fourteenth Amendment extends due process to the states
(continued)

23. Due Process (continued)
Life
A person’s life or freedom
Liberty
Those privileges recognized as essential to the orderly pursuit of happiness by free men
Example: right someone has to pursue a career or professional livelihood
Property
All valuable interests that can be possessed outside of oneself, which have an exchangeable value or add to an individual’s wealth or estate
Example: athletic scholarship
(continued)

24. Due Process (continued)
Developed to prevent arbitrary, capricious, and unreasonable decisions
Guarantees fairness, impartiality

25. Types of Due Process
Substantive
Procedural

26. Substantive Due Process
Requires the rules and regulations to be fair and reasonable in content and application
To protect from arbitrary and capricious actions
Government must show a rational basis for rules and regulations (easy to do)

27. Substantive Due Process and Voluntary Athletic Associations
Generally, courts will not interfere with the internal affairs of voluntary associations
Fraud, violate own rules, other laws
The decisions of the governing body of an association will be accepted as conclusive

28. Procedural Due Process
Addresses the method used to enforce the rule or regulation
Goal is to ensure fair treatment
Examines the decision-making process that is followed to determine whether the rule or regulation has been violated and what sanctions, if any, will be imposed

29. Minimal Due Process Requirements
Statement of the specific violation
Notice of the sanctions that will be imposed
An opportunity for accused to comment

30. Maximum Due Process Requirements
Written notice of hearing
Written statement of the charges
Provision of adversarial hearing
Written or taped record of proceedings
Right of appeal