A federal appeals court in Virginia is expected to rule soon on whether Bishop Denis J. O'Connell High School can become a member of the Virginia High School League (VHSL) and regularly participate in public school athletic competition.
U.S. District Court Judge Oren R. Lewis ruled last fall that VHSL's attempts to keep the Arlington school out of the league were in violation of the 14th Amendment. Lewis' ruling apparently opened the door for O'Connell to join the league which governs athletic and other extracurricular activities for a majority of public high schools in the state.
The league appealed Lewis' decision and both groups presented arguments before the Fourth Circuit Court of Appeals in Richmond on March 8.
In February 1977, O'Connell was denied membership in the league on the grounds that Section 8 of the VHSL constitution limits membership to public schools. Membership would permit O'Connell to compete against nearby public schools which would "triple our income from athletic events," according to athletic director Tom Nichol.
Following Lewis' favorable ruling, O'Connell principal Al Burch sent the league a check for $150 to cover registration fees so the school could schedule spring sports against local public schools.
"They kept our check for over a month and then sent it back because they'd decided to appeal," Burch said. "Then we had to take games all over the place to fill up our spring schedule. There are people who would say they appealed just to bide their time."
John Dezio, attorney for the league, said the appeals procedure has been expedited for this case. "You have 30 days to appeal, and normally it takes six months or so before arguments are presented," Dezio said. "We wanted things expedited. It's unfortunate if anyone thinks otherwise."
The league's appeal is based on the same basic points of contention Lewis ruled on.
Dezio maintains the league is a private organization and that a federal court should not have ruled on the case. "The major point in the appeal is that Judge Lewis' court didn't have jurisdiction in this case," Dezio said. "A federal court can't take a position except in certain matters and this wasn't a federal question.
"Judge Lewis has agreed with us on that point in other cases involving the VHSL, although they've involved individual students and the VHSL. We've argued about the court from the start."
Judge Lewis has declined comment on the case while it is being appealed.
O'Connell attorney William McMurtrie said, "There's no way a federal court doesn't have jurisdiction in this case. It's a clear violation of the Fourteenth Amendment."
McMurtrie has argued that the state performs free services for the league and is directly involved in the league's operation.
"Since all the citizens support the league (through tax money), all citizens are entitled to it," McMurtrie said. "It becomes a question of exclusion - excluding a group from the Fourteenth Amendment, so it is a federal question."
McMurtrie said that in the appeal brief the league also suggested that admitting O'Connell would pose a violation of the First Amendment, constituting state aid to religious education. That point was countered, McMurtrie said, in his own brief which noted that the league excludes all private schools, not just Catholic schools.
"The First Amendment was never brought up in oral arguments," McMurtrie said.
If either group should decide to appeal the Fourth Circuit Court's ruling when it is announced, it will have to appeal to the United States Supreme Court. McMurtrie said he does not expect the league to appeal again if the ruling goes against it, and Dezio said. "We haven't even talked about it. I'd present the possibility to the league and see what they say."
McMurtrie and O'Connell are prepared to appeal to the Supreme Court if the Appeals Court reverses Lewis' ruling. "Sure, we'll go across the river with our case," Burch said. "It's not that far."
"In the theory of constitutional law, there is what is known as the Rational Basis Theory,"' McMurtrie said. "It means that there's always the possibility of excluding a group if there is a rational basis. In this case there isn't one. They want to exclude O'Connell simply because it's not a public school, but O'Connell isn't asking for anything it's not entitled to."
Several area principals have indicated they have no objection to O'Connell being admitted into the Northern Region of the VHSL, noting that geographically O'Connell presents a natural river which would make it a gate attraction.
"The delay caused by the appeal is causing everyone to get behind in scheduling events for the fall," according to McMurtrie.