1. chapter
7
Constitutional Law

2. Chapter Objectives
After reading the 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
• What substantive and procedural due process are
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 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 governmental
agencies.
• Examples: 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. Theories of Private Actors
• Nexus/entanglement examines whether the state’s
involvement or entanglement with a private actor’s
conduct is sufficient to transform the private
conduct into state action and thus subject to
constitutional review.
• Public function theory: A court can find state action
in the activities of a private party if that party
undertakes functions or assumes powers that the
government ordinarily performs or exercises.

7. Private Actors/State Actors
Application
• NCAA not a state actor: NCAA v. Tarkanian
• High school athletic associations typically
are state actors: Brentwood Academy v.
TSSAA
– Burrows v. Ohio High School Athletic Association is
an exception
• Professional sport leagues and teams: Not
state actors

8. 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.

9. Establishment Clause
Prohibits the establishment of a church by the
state as well as the endorsement or
preference of religion and coercion of
religious practice

10. Free Exercise Clause
Prohibits the government from standing in the
way of private religious exercise

11. Three Tests
• There is no overriding test in these cases.
• The courts have developed three tests :
1. Lemon test
2. Coercion test
3. Endorsement test

12. Test 1: Lemon Test
• It is a disjunctive three-part test.
• Under this test, a government practice is
unconstitutional if
– it lacks a secular purpose,
– its primary effect either advances or inhibits religion, or
– it excessively entangles government with religion (Lemon v.
Kurtzman).
• 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.

13. 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).

14. Test 3: Endorsement Test
• This test seeks to determine whether the
government endorses religion by means of
the challenged action.
• The government endorses a religion when
religion is favored, preferred, or promoted
over other beliefs (Lee v. Weisman, 1992).

15. School Prayer
• In most cases, a nonsectarian and
nonproselytizing student-initiated prayer
before and after a sporting event is a safe
haven. Classroom prayer is not.
• 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.

16. Other First Amendment Issues
• Political speech
– Strong protection for political speech unless it
causes imminent lawless action (strict scrutiny)
– Note that in a school setting, the right is more limited
(Morse v. Frederick)
• Freedom of the press: Same as for political
speech.

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

18. 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)

19. Due Process (continued)
• Developed to prevent arbitrary, capricious,
and unreasonable decisions
• Guarantees fairness, impartiality
• The manner in which caring people treat
others

20. Life, Liberty,
or Property Interest
The Due Process Clause is triggered when the
government deprives someone of a life, liberty, or
property interest
• Life: A person’s life or freedom
• Liberty: Those privileges recognized as essential to
the orderly pursuit of happiness by free men
• Property: All valuable interests that can be
possessed outside of oneself, which have an
exchangeable value or which add to an individual’s
wealth or estate
• College: Athletic scholarship, future pro career

21. Two Types of Due Process
• Substantive
• Procedural

22. 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)

23. 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.

24. 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.

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

26. 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

27. Fourth Amendment
Protection against unreasonable searches
and seizures
(continued)

28. Fourth Amendment (continued)
The right of the people to be secure in their
persons, houses, papers, and effects
against unreasonable searches and
seizures shall not be violated, and no
warrants shall issue, but upon probable
cause, supported by oath or affirmation, and
particularly describing the place to be
searched and the persons or things to be
seized.

29. Drug Testing
in Public Schools
• Vernonia v. Acton
– Strong dissent from three justices who stated that
suspicionless searches are generally considered
unreasonable and in violation of the Fourth
Amendment.
– Court upheld school district’s testing procedure by
applying a balancing test.

30. Balancing Test
• Weighed the student’s privacy interests
against government’s need for testing.
• Privacy interest:
– Few activities are more private than urinating.
– Monitoring of the event is degrading and
embarrassing.
– Chemical analysis of urine reveals much more than
just drug use (e.g., pregnant, diabetic, epileptic).
(continued)

31. Balancing Test (continued)
• Interferes with privacy right to control one’s
own medical treatment.
• Regulates off-the-field conduct and thus
violates a person’s privacy.

32. Results of Balancing Test
in Vernonia
• Reduced privacy expectation: Students have to suit
up before each practice or event and shower and
change afterward.
• Health examinations of student-athletes are fairly
routine.
• The school system in Vernonia used a testing
method that afforded protection to the privacy
interests of the students: Searched only for drug
use, few personnel saw info, and results not turned
over to law enforcement.

33. Alternative Dispute Resolution (ADR)
• Arbitration: Final and binding
• Mediation: Up to the parties to agree