Mary Seminara Schostok
Concerned by an increasing pool of foreign talent that could tip competitive scales, Illinois’ high school athletics governing body in 2013 limited which exchange students could play sports.
The new Illinois High School Association rule allows students on one-year visas to play, but excludes foreign students staying in the U.S. for longer periods of time.
After a Congolese student at a west suburban boarding school challenged the rule’s constitutionality, a Kane County judge enjoined the rule’s enforcement so he could play basketball during his senior year.
Last week, a state appeals panel found the IHSA didn’t show proof that the rule actually maintains fairness in interscholastic sports.
The 2nd District Appellate Court didn’t address merits of plaintiff Rodrigue Ceda Makindu’s 14th Amendment claims.
But the panel backed a December 2014 decision by Kane County Circuit Judge David R. Akemann to issue a preliminary injunction against the IHSA, preventing the organization from enforcing the rule and saying the plaintiff raised a “fair question” about his constitutional rights.
In a 17-page decision authored by Justice Mary Seminara Schostok, the panel said there was no evidence the rule actually served the purpose of preventing competitive imbalance.
Makindu came to the United States in 2012 for multiple years of school, attending and living at Mooseheart Child City and School Inc. in an unincorporated area outside of Aurora.
Under the transfer rules originally in effect, he only had to sit out one year before being eligible for sports.
But the IHSA changed its rule in 2013, limiting participation to those foreign students who had either gone through an approved exchange program or who lived with their parents or legal guardian.
Central to the IHSA’s sports eligibility rules is the principle that students live with their parents and attend school in the district where they reside.
The rules are intended to keep academics as the focal point for students as well as prevent schools from gaining a competitive edge by recruiting outside their boundaries.
An exception is carved out for foreign-exchange students on one-year visas. Since those students go through exchange programs that are monitored by the association and typically don’t have control over which school they go to, they’re allowed to play sports during the year they attend high school in the United States.
The group cited a concern that the long-term visas were “ripe for abuse,” saying such students could choose schools based solely on sports opportunities. The organization also cited a growing number of students using long-term visas, saying the total had ballooned from 6,500 in 2007 to 77,000 in 2013, as part of its rationale.
Another concern was Mooseheart’s previous scuffle with the IHSA. The school benefited from the play of three Sudanese students — brought to the United States by an outside organization specifically for basketball — en route to a state championship the previous season.
The IHSA deemed them eligible but put the school on probation.
Schostok wrote that “there was no evidence that the plaintiff’s individual ability would disrupt competitive balance. Further, there was no evidence that a student who lives at a residential school, as opposed to with a parent or guardian, and participates in interscholastic sports will disrupt fair competition.
“Thus, the evidence does not establish any correlation between the IHSA’s amended bylaw and its purported objective in amending it,” the court wrote. “As such, we cannot say that the trial court abused its discretion in determining that the plaintiff has raised a fair question that the IHSA’s amended bylaw violates his right to equal protection.”
Justices Susan Fayette Hutchinson and Michael J. Burke concurred in the opinion issued last week. The ruling remands the case back to the trial court.
Judd M. Lofchie, principal at Lofchie & Associates Inc. in Aurora, represented Makindu.
He said that the trial court’s decision in the case allowed Makindu to play the entire senior year of basketball.
“It was just really about fairness,” Lofchie said. “He was a kid (who) came from the Congo, where there’s a civil war … He had a hardship and no money.”
And even though Makindu graduated, the court may still have a reason to try the case.
Thomas G. Olp, general counsel at Connor-Winfield in Aurora who assisted Lofchie with the case, said even though Makindu has already completed his final year of basketball, the case could still reach a conclusion on the constitutional issues.
Since the case began, he said, the IHSA has changed its bylaws, and his team is still waiting to see exactly what they say and how to interpret them.
If the bylaws say, for instance, that students on long-term visas will get one year of eligibility for sports, that could still be a constitutional issue, he said.
“The question is, does that comport with constitutional requirements?” Olp asked. “And is it fair to give him one year? And is it fair to only participate by way of an approved program?”
The IHSA was represented by David J. Bressler, a partner at Dykema, Gossett PLLC. He could not be reached for comment.
The case is Rodrigue Ceda Makindu v. Illinois State High School Association, 2015 IL App (2d) 141201.