Must I assume that "hardball" is allowed against Lexington Catholic but not allowed in defense of Lexington Catholic. We are made aware of the name of the principal of Lexington Catholic whose job it is to represent the school. She is chastised by posters for doing her job in an admirable manner. Why not bring KHSAA's litigator into the discussion? I'm sure that Mr. Martin can handle the exposure. After all, it is only a part of earning that fee that is paid from funds generated by the member schools- including LexCath and the other privates.

 

I am still curious as to how funds are generated to pay fines levied on public schools. We know that the private schools don't resort to the tax dollar to pay fines. Can the same be said of the public schools? I would think that any taxpayer, with the suffocating amount of tax dollars being poured into the public schools with little or no accountability, would be interested.

 

I mean no disrespect toward Mr. Martin or the KHSAA. I just feel that, if we start to name names, we should include the whole list of players. That is applying that popular cry of the publics for a "level playing field". It should work in both directions.

The perpsective athlete received one based on what?

What criteria was used to give him one?

LABS, all students who recived the money were all current students at the time. (No incoming freshmen or transfers.) All students fit the criteria. The scholarships were just not advertised to the entire student body, which is why the KHSAA ruled an athlete recieving the money was a violation. One person in the administration made the decision, while the coaches and AD's(from what I have heard, the principal did not know) had no knowledge.

So this falls in line with the lack of institutional control deal?

Must I assume that "hardball" is allowed against Lexington Catholic but not allowed in defense of Lexington Catholic. We are made aware of the name of the principal of Lexington Catholic whose job it is to represent the school. She is chastised by posters for doing her job in an admirable manner. Why not bring KHSAA's litigator into the discussion? I'm sure that Mr. Martin can handle the exposure. After all, it is only a part of earning that fee that is paid from funds generated by the member schools- including LexCath and the other privates.

 

I am still curious as to how funds are generated to pay fines levied on public schools. We know that the private schools don't resort to the tax dollar to pay fines. Can the same be said of the public schools? I would think that any taxpayer, with the suffocating amount of tax dollars being poured into the public schools with little or no accountability, would be interested.

 

I mean no disrespect toward Mr. Martin or the KHSAA. I just feel that, if we start to name names, we should include the whole list of players. That is applying that popular cry of the publics for a "level playing field". It should work in both directions.

 

No one said anything about not having names out there. From my observations, he is an extremely good young attorney who eats most of his adversaries for lunch if they slip up at all. He had a great teacher in his uncle who is senior counsel at the firm in Lexington. But my only point was that your arguments, which most of the time are very well thought out and thought provoking, are usually more related to process and not having the appearance of any personal attacks or disagreements. To each their own.

Although my experiences with Mr. Martin would not lead me to echo your assessment, I will admit that he represents the interests of KHSAA fervently. I am familiar with the law firm for whom he is employed. It is an excellent law firm with a long history.

 

My concerns are actually with the process more so than with any individual or group of individuals associated with KHSAA. I think most schools, particularly the smaller and less politically influential ones, see KHSAA as their representative acting in a neutral manner to ascertain the facts. However, it seems to me that, in these adversarial matters, KHSAA acts less as a factfinder and more as a prosecutor. It seems that the accused school is guilty until proven innocent. The burden of proof should be on the accuser and not on the accused. That appears not to be the case.

 

In many cases it seems that KHSAA is the accuser (on behalf of the school or individual filing a complaint), the investigator, the prosecution, the judge, the jury, and the executioner. Its own Board of Control even serves as the appeals court and, if one is pretentious enough to want to appeal past that level to a more independent forum, the threats of additional fines and sanctions are made painfully clear. Most schools are brow-beaten into surrender.

 

And, if you don't like the KHSAA rules you can remove yourself from membership. Of course, if you do so, the KHSAA has a "closed shop" and the other schools in the Commonwealth, almost all of which are members of the union, cannot play you. In other words, you accept how we do business or you have no athletic program.

 

Now, I could be wrong but that is how I see it.

Although my experiences with Mr. Martin would not lead me to echo your assessment, I will admit that he represents the interests of KHSAA fervently. I am familiar with the law firm for whom he is employed. It is an excellent law firm with a long history.

 

My concerns are actually with the process more so than with any individual or group of individuals associated with KHSAA. I think most schools, particularly the smaller and less politically influential ones, see KHSAA as their representative acting in a neutral manner to ascertain the facts. However, it seems to me that, in these adversarial matters, KHSAA acts less as a factfinder and more as a prosecutor. It seems that the accused school is guilty until proven innocent. The burden of proof should be on the accuser and not on the accused. That appears not to be the case.

 

In many cases it seems that KHSAA is the accuser (on behalf of the school or individual filing a complaint), the investigator, the prosecution, the judge, the jury, and the executioner. Its own Board of Control even serves as the appeals court and, if one is pretentious enough to want to appeal past that level to a more independent forum, the threats of additional fines and sanctions are made painfully clear. Most schools are brow-beaten into surrender.

 

And, if you don't like the KHSAA rules you can remove yourself from membership. Of course, if you do so, the KHSAA has a "closed shop" and the other schools in the Commonwealth, almost all of which are members of the union, cannot play you. In other words, you accept how we do business or you have no athletic program.

 

Now, I could be wrong but that is how I see it.

 

I think you have it right. The BOC at its last meeting actually approved a new form of the Application for Renewal that requires, as a condition of membership, the school to waive its federal and state constitutional rights involving any final decision of the KHSAA. They also require the school to admit that if they play a player under an injunction and the injunction is subsequently overturned, they can be sanctioned by the KHSAA (the "Mitchell Rule"). As an attorney and an officer of the court, I am greatly offended by both of these provisions. Oh and as the icing on the cake, to prevent the KHSAA from allegedly being "homered" in the school's local circuit court, they require the schools to acknowledge that the schools must bring suit against the KHSAA in Fayette County (where the KHSAA is located). In other words, we object to being homered by the schools, but have no objection to homering the schools. Don't ask me why they didn't agree that the suit had to be filed in Franklin County where other state agencies are sued. Wait a minute, I know the answer. They want to homer the schools in the KHSAA's home circuit court.

 

Talk about "its my ball, and you'll play by my rules" childish behavior on behalf of the KHSAA. That is the definition of it. Scooterbob, you have it right my friend.

Leatherneck, as a supporter of our clearly defined constitutional rights as citizens, I am both shocked and appalled to learn of the revisions to the Application for Renewal. Although I am not surprised by the arrogance of KHSAA, I would be surprised (actually flabbergasted) if the legal counsel for any school district recommended that his/her client agree to such an obvious infringement upon the basic rights of third parties. You can be sure that I will not do so.

 

To agree to such an arrangement would, I believe, open the school district to lawsuits initiated by those consitiuents who are harmed by the reckless acts of the school and its representatives.

 

It is foolhardiness at its most extreme to, by your own actions, knowingly and willfully compromise the basic rights of others. It can also be devastating financially. Surely those who make such decisions in our schools will recognize the dangers.

Leatherneck and Scooterbob,

 

How can the KHSAA be expected to administer the rules (rules established by its own member schools, by the way) if the individual member schools can usurp its authority whenever a decision doesn't go their way? I see your points about schools being placed in the middle (such as in the case of the Mitchell episode). It certainly puts schools in a difficult position to have to give up the right to pursue legal action outside of the KHSAA, but I just don't see any other way to have an effective sports governing body (one that is not in constant fear of having its legs cut off by some random judge). Perhaps the logical next step (one that would surely get the blood of you legal types boiling) will be requiring participating student athletes to sign a waiver of their rights to fight KHSAA rulings outside of the established KHSAA appeals process. That would at least give the schools some legal cover (or maybe not--you probably understand if there are legal precedents here). Isn't that similar to giving up one's right to sue in favor of binding arbitration?

H, you raise some interesting questions. It is one matter for an individual to knowingly and willingly agree to limit his/her rights. However, it is a far different matter for a school to consider summarily limiting the rights of its constituents. It is certain that such a school and its representatives would open themselves to possible (probable) litigation.

 

Many associations operate successfully without the need for dictatorial powers for their leadership. KHSAA needs to learn to do the same because, sooner or later, the individual members will either begin to think for themselves or will be devastated from trying to defend a position that has no valid defense.

Leatherneck and Scooterbob,

 

How can the KHSAA be expected to administer the rules (rules established by its own member schools, by the way) if the individual member schools can usurp its authority whenever a decision doesn't go their way? I see your points about schools being placed in the middle (such as in the case of the Mitchell episode). It certainly puts schools in a difficult position to have to give up the right to pursue legal action outside of the KHSAA, but I just don't see any other way to have an effective sports governing body (one that is not in constant fear of having its legs cut off by some random judge). Perhaps the logical next step (one that would surely get the blood of you legal types boiling) will be requiring participating student athletes to sign a waiver of their rights to fight KHSAA rulings outside of the established KHSAA appeals process. That would at least give the schools some legal cover (or maybe not--you probably understand if there are legal precedents here). Isn't that similar to giving up one's right to sue in favor of binding arbitration?

 

I don't in anyway believe that the KHSAA needs to force a school to waive its constitutional rights in order to enforce its rules. Does the Employment Services Bureau (or whatever its called) have rules governing who is entitled to unemployment benefits? Of course. Do people have a right to appeal such Bureau's final decision to court and raise constitutional issues like due process and equal protection? Of course. In fact every state agency's final administrative decision is appealable to court and no contitutional waiver is foisted upon them. And make no doubt about it, the KHSAA is a state agency. In fact the U.S. Supreme Court in a decision involving another state high school association set up very similarly to the KHSAA ruled that the association was indeed a state actor.

 

Look at it this way: if the KHSAA is confident that it is making the right decisions, why does it need to hide behind such a waiver? Make the right decisions and you have nothing to fear by court review. Perhaps the BOC doesn't want it decisions reviewed by the judicial system because they are concerned about the legality of their decisions. There is established judicial precedent that gives a lot of deference to administrative decisions, and even more so in administrative decisions involving athletics. What does the KHSAA have to fear by a school demanding that its constitutional rights be protected by the judicial system? Only that the KHSAA's decisions affecting those constitutional rights were arbitrary or capricious.

 

Do they support the waiver to cut down the legal fees paid by the KHSAA? Please. If the KHSAA is legal fee conscious, why then wouldn't the schools likewise be legal fee conscious, and only file lawsuits against the KHSAA when they were convinced the KHSAA had acted improperly? Logic suggest that would be the case. And that is the case. Anyone know any school systems private or public flush with cash willing to pursue frivolous legal suits? I sure don't. To suggest excessive legal fees is any more harmful to the KHSAA than to the schools is in two words simply silly.

 

I will for argument sake acknowledge that some circuit courts can be homers (although I don't think it is near as pervasive as the KHSAA believes). The KHSAA simply appeals the homered decision to the Ct of Appeals where the homerism is less likely to be found. Can that be inefficient in the eyes of some? Sure. But our judicial system, like democrary itself, while inefficient at times, is a very important part of our checks and balance system and is a vital part of the way we do things in America. Has America become so jaundiced by lawsuits that we can choose to ignore the judicial system and force people and associations to waive their constitutional rights just because we think the judicial system is inefficient? Lordy, I hope not or we are in a lot worse shape as a nation than I thought. Can't lots of sins and wrong deeds be rationalized of those in control in the name of efficiency when its convenient for them?

 

Most ironic to me is that the very educators that approved this waiver of constitutional rights, have that very right to appeal decisions concerning their employment to the judicial system and have not been forced to waive their state and federal constitutional rights when they accepted their jobs at their schools. Wasn't their decision to accept employment in the education field voluntary, even more voluntary than a school joining the KHSAA? Yes sir. Yet you can dang well bet that they would not support giving up their right to the judicial system or their constitutional rights affecting their employment as a condition of employment as a teacher. The teacher's union would melt down in anger if the same constitutional waiver was forced upon teachers. Heck if Fletcher proposed such a waiver, we'd have marches in Frankfort the likes have never been seen before. The march of last year involving health insurance benefits would look like a family reunion gathering of the Jonestown survivors (and I apologize for the callousness of that comment) compared to what the march would be like if the teachers had to give up their constitutional rights as a condition of employment.

 

People erroneously think the KHSAA is a truly voluntary association, like a country club is. It is not. It is the ONLY association appointed to run high school sports by the Ky. Dept of Education is it not? It is. If a school wants to participate in the athletic events sanctioned by the State of Kentucky, they have zero, and I mean zero, choice but to join the KHSAA. Does that sound voluntary to you in the real meaning of voluntary? Of course not. It, the KHSAA, is the only game in town and the schools either join it or the schools don't participate in the officially sanctioned State of Kentucky athletic events, and the children of the taxpayers who support the State of Kentucky and indirectly pay the KHSAA dues get left out of the very athletic events and tournaments that their parents make possible with their tax dollars, if their school does not join the KHSAA. Does that really sound voluntary? I'm sorry and I'm not directing this next comment to you H, but only a simpleton that does not think beyond the surface and someone with a power personality disorder thinks the KHSAA is truly voluntary. And I do think this is all about power and the BOC wanting to have all the power. And as we all were taught, absolute power corrrupts absolutely.

 

And as a side note, when I joined a country club years ago (I've since dropped out because that's not me) I didn't have to waive my constitutional rights for what its worth.

 

As to the comment about binding arbitration, if the KHSAA was not a state agency, I could agree with the thought of being able to take final KHSAA decisions to binding arbitration instead of to the judicial system. I'm a fan of binding arbitration actually. But I believe the state involvement in the KHSAA means that participants in the KHSAA, both schools and athletes, should not be forced to waive their constitutional rights or have unfettered access to the judicial system. People like to grouse that the judicial system is too over worked to be dealing with something as minor as athletics. Well, maybe I think the judicial system is too overworked to deal with civil rights issues, or car accidents, or employment decisions, or the right to post the Ten Commandments or just about any issue that you name. Fortunately for all of us we don't get to decide what the judicial system "gets" to deal with, absent a constitutional amendment.

 

Will a school perhaps take the waiver to court when the KHSAA tries to enforce it? To do so will be a big gamble, as I believe the KHSAA will threatene and intimidate that schools with even more severe sanctions if the school contests the validity of the waiver, including possibly throwing the school out of the KHSAA for having the audacity of questioning the validity of one of its rules. Faced with even more sanctions and having their membership denied by the KHSAA, I believe most schools will capitulate and not question the waiver. And make no doubt about it, there is, in my opinion, a mentality of intimidation at the BOC. Why do you think that LexCath didn't appeal the Commissioner's sanctions to the BOC? I fervently believe it was because they were given the message that if they gave the BOC a bite at the "sanctions apple", the sanctions would have been worse. Talk about placing a chilling effect on a school's due process rights. In my opinion, that's no way to run a system, particularly a system run by the very educators whom we expect to teach our children about our how our judicial system is there to protect the rights of people and organizations. Again, the whole thing is quite ironic and very, very disappointing to me.

 

 

Sorry for the diatribe. LN

Leatherneck,

 

I think I understood your post, but I still have the following problems with allowing unfettered access to the court system and disregarding the authority of the KHSAA:

 

1) Allowing individuals or schools to go outside or around the established KHSAA rules and processes encourages long and drawn-out legal battles that muddy the results of athletic seasons. The recent 2-13 Highlands state championship season is a good example of this. The legal system is not really set up to render decisions swiftly and with minimal disruption. It also sends the message to young people participating in HS athletics that a small number of individuals can use the courts to hijack athletic events affecting everyone else.

 

2) The decisions handed down by the KHSAA typically relate to the grimbly details of high school athletics (eligibility, penalties for rules violations). If they made decisions in life and death cases or heady civil rights issues, I agree that waiving rights to the legal system would be a very serious matter.

 

3) The rules the KHSAA attempts to enforce are not the byproduct of a collection of autocrats in Lexington--they are the result of a deliberate legislative process by the member schools. The rules call for authority to be exercised by the KHSAA administration and I'm pretty sure they allow for an appeals process. Regardless of whether membership to the KHSAA is truly voluntary or not (you make an excellent point that not being a member is not really an option), it is an organization governed by the rules established by its membership. If a school doesn't like the way the KHSAA carries out its duties, that school should makes its case for change to the other member schools and seek to correct the problem through the established rule-making channels.

The public has a gripe, regardless of the circumstances. The administration at Lexington Catholic, if I remember correctly, dipped into a fund to cover tuition costs for students whose families couldn't or wouldn't make their tuition payments on time ... a good portion of them were athletes.

 

QUOTE]

 

As far as I know, one was an athlete.

Leatherneck,

 

I think I understood your post, but I still have the following problems with allowing unfettered access to the court system and disregarding the authority of the KHSAA:

 

1) Allowing individuals or schools to go outside or around the established KHSAA rules and processes encourages long and drawn-out legal battles that muddy the results of athletic seasons. The recent 2-13 Highlands state championship season is a good example of this. The legal system is not really set up to render decisions swiftly and with minimal disruption. It also sends the message to young people participating in HS athletics that a small number of individuals can use the courts to hijack athletic events affecting everyone else.

 

2) The decisions handed down by the KHSAA typically relate to the grimbly details of high school athletics (eligibility, penalties for rules violations). If they made decisions in life and death cases or heady civil rights issues, I agree that waiving rights to the legal system would be a very serious matter.

 

3) The rules the KHSAA attempts to enforce are not the byproduct of a collection of autocrats in Lexington--they are the result of a deliberate legislative process by the member schools. The rules call for authority to be exercised by the KHSAA administration and I'm pretty sure they allow for an appeals process. Regardless of whether membership to the KHSAA is truly voluntary or not (you make an excellent point that not being a member is not really an option), it is an organization governed by the rules established by its membership. If a school doesn't like the way the KHSAA carries out its duties, that school should makes its case for change to the other member schools and seek to correct the problem through the established rule-making channels.

Without wanting to dredge up the Mitchell case in full all over again, the delays present in the Mitchell case fall squarely in the KHSAA's lap. A big part of the delay was caused by the Commissioner taking more time than she should have in making her initial decision. Mitchell transferred in January and immediately asked for a determination. Instead of the normal 30 days, it took her several months to make that call as I recall. Big, big delay. The second delay was caused by the KHSAA's attorney making a strategic decision to go to the Supreme Ct for an emergency hearing after the Ct. of Appeals refused to give an emergency hearing. The Supreme Ct refused, which meant that the KHSAA had to go back to the Ct of Appeals to request a normal hearing. The Ct of Appeals meets monthly to decide which judges will decide which cases (usually the Ct of Appeals hears cases in groups of three judges). This strategic decision probably added a month to the timeline. Those two delays resulted in the Ct. of Appeals making its "final decision" by months. Had things been handled in the normal course the Ct of Appeal would have made its final decision before the playoff tournament and maybe even before district competition began. And the chances that the Supreme Ct would have overturned the final decision of the Appeals Court are about zero. So the whole thing could have been resolved prior to Mitchell really ever having an effect in playoff games. People either forget about it or don't know the facts. But even if that was not the case, the inefficiency of the judicial system is not justification for people to have the right to ignore it. Not even for something as trivial as high school sports which aren't really trivial when you think of the effect that playing in games can have on scholarships which are worth a lot of money (as anyone with a kid in or about to got to college can appreciate).

 

As for changing the KHSAA rules, thats great for perspective decisions but doesn't really right past wrong decisions does it? If they can't be addressed, someone is unfairly harmed. And what if the majority of the schools have no problems with unfair decisions that affect a minority of the schools. Do the minority schools just get stuck? Should we have gone with Proposal 20 just because the majority (by over a 2 to 1 margin) of the schools were in favor of it? I don't think so.

 

Allowing schools to retain their constitutional rights is not going to create some avalanche of lawsuits by schools. They've had those rights in the past and the KHSAA has not been beseiged by lawsuits from schools have they? This whole waiver comes from the Brentwood Academy case in Tenn where the federal 6th Circuit Ct of Appeals ruled the THSAA had violated Brentwood Academy's First Amendment right of free speech. The KHSAA legal counsel decided that rather than hoping the BOC made proper and defendable positions concerning a school's constitutional rights, lets just force them to waive their rights so the KHSAA doesn't have to "worry" about a school's constitutional rights when it makes a decision. And that stinks anyway you want to smell it.

From my understanding, there is a thought with the KHSAA that LC has been involved in several/few illegal activities and cannot prove it. What you believe/know is different from what you can prove. Tom Cruise in "A Few Good Men" made this point.

" A lie told often enough becomes the truth" V.I. Lenin