A federal judge in Alexandria said yesterday he likely will force the Virginia High School League to permit nonpublic high schools to play public schools in financially profitably sports league games and tournaments.
In what is believed to be the first case of its kind in the country. U.S. District Court Judge Oren R. Lewis said the league's reasons for its 52-year rule excluding nonpublic schools have "no support to them."
"Offhand, I'm against you," Lewis told an attorney for the league, but he stopped short of making a formal ruling in the case.
"Looks like you're going to get in," Lewis said, looking forward representatives of Arlington's Bishop Denis J. O'Connell Catholic High School, which sued the league after its membership application was rejected.
The school claims it was rejected solely because it is a nonpublic school and therefore was discriminated against. John Dezio, attorney for the league, conceded in court that the school was rejected because it is private.
Lewis said he will notify the league and O'Connell of his decision today.
Three other states - Idaho, Wisconsin and Massachusetts - have high school sports associations with rules similar to Viriginia's according to William McMurtrie, O'Connell's lawyer.
T. Page Johnson, chairman of the league's legislative council, testified that the league, formed in 1913, coordinates athletic, debating and theatrical activities of almost all the state's 284 public high schools. Private schools were exculded from membership in 1925 after principals of the state's public high schools decided that not all private schools would adhere to the same statewide rules they use.
The league's rules allow nonpublic schools to participate in debating and theatrical activities and compete against public schools if the public schools agree. But they cannot receive financial proceeds from the games, which can amount to about $20,000 yearly for good teams, or play in regional and state tournaments. Most nonpublic schools in Virginia now compete largely against each other.
The state league is a nonprofit organization that does not receive direct state funds, but uses state emplyees on its staff, McMurtrie said.
Specifically, Johnson said admitting any of the 72 accredited nonpublic high schools in the state would cause problems with the league's restricted student transfer policy. Under this policy, students who transfer to another school are barred from participating in interscholastic sports for one semester.
Lewis suggested that the league force all member schools, including nonpublic ones if they are admitted to the league, to follow the same rule. Currently some private schools do not impose any restrictions on transfer students.
Dezio also said allowing parochial schools to play in the league would constitute state aid for religious education. Lewis rejected that contention.
"State aid to religion to play football?" Lewis asked incredulously. "You mean Notre Dame can't play Indiana University? I think they can. It plays all those state universities."
McMurtrie argued that the league violated the O'Connell students rights under the 14th Amendment which calls for equal protection under the law for everyone Lewis seemed to agree with McMurtrie's contention.
"You can't discriminate against teachers, particpation in athletic contests on any of those grounds (race, creed, sex, religion, national origin)," Lewis said.
"Now you go one step further here . . . if you can't exclude a child in public athletic participation, can you do it indirectly by excluding an accredited school like O'Connell?" Lewis asked rhetorically. "If he was a Catholic or a Jew or any other religion going to Washington-Lee (a public Arlington high school), you can't exclude him from using the athletic facilities. I know there are athletes who don't get excluded even if they can't read."
Later, he added: "The biggest deprivation frankly is the denial, indirectly, the public exposure you would get as a member of the league and the public exposure is the lifeblood of three major sports activities - football, basketball and baseball."
McMurtrie said all Arlington public high school principals said that O'Connell should be allowed to join the state league and only its rules are keeping O'Connell out.