FONTES v. IRVINE UNIFIED SCHOOL DISTRICT

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Court of Appeal, Fourth District, Division 3, California.

Melissa FONTES, a Minor, etc., Plaintiff and Appellant, v. IRVINE UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

No. G013256.

Decided: May 26, 1994

Bonnie K. Lawley, Hacienda Heights, for plaintiff and appellant. Parham & Associates and Jackson E. Parham, Irvine, for defendant and respondent.

OPINION

Melissa Fontes was a cheerleader at Woodbridge High in Irvine.   To be eligible for the pep squad, students must maintain a 2.5 cumulative grade point average on a 4.0 scale.   An “F” in any subject or a semester grade point average lower than 2.5 also makes the student ineligible even if the cumulative average remains above the magical 2.5 minimum requirement.

Melissa flunked chemistry.   Her semester grade point average dropped below 2.5 although her cumulative average still exceeded 2.5.   By virtue of both the “F” and the low semester average, she became ineligible for the pep squad.   Had she been on the football team, Melissa would have remained eligible.

And therein lies the rub.   Athletes may continue to participate in their chosen sport so long as they maintain a cumulative 2.0 grade point average.   They are even permitted the indulgence of at least one “F” per semester so long as their cumulative average remains at 2.0 or higher.   These standards mirror standards adopted by the California Interscholastic Federation.   High schools with teams participating in interscholastic sports may adopt higher standards but not lower ones—Woodbridge requires only the minimum for its athletes.   Melissa asks the obvious question—why higher standards for cheerleaders than football or basketball players?

After her request to retake the chemistry test was denied and various appeals to the teacher and school administrators proved fruitless, Melissa and her mother sought relief from the district school board.   In a closed session, her complaints about the chemistry teacher and grade were considered, but no action was taken.   She and her mother then attended a public meeting of the school board and petitioned for a change in the policy which holds cheerleaders to higher academic standards than athletes.   Once again, their efforts failed.

Melissa then filed suit.   At trial, she contended she was denied equal protection, equal privileges and immunities, and due process under the California Constitution.   She also argued that cheerleading was misclassified as an “extracurricular” activity 1 instead of an “athletic” one.2  Under the district's policy, if the pep squad could be classified as “athletics,” cheerleaders would benefit from the more lenient academic standards.

The school district justified its policy by distinguishing between “full year” and “partial year” activities—cheerleading was required for the entire school year while the various sports were seasonal.   Melissa replied by demonstrating that football players spent 125 hours more per year on their activity than cheerleaders.   In addition to practice sessions and games during the regular session, the evidence demonstrated that players were required to attend spring and summer practice sessions.

The school district also maintained cheerleading was not classified as a “sport” because it was not so classified by the California Interscholastic Federation.   To distinguish cheerleading from athletics, the district offered testimony from various school officials to the effect that cheerleaders, as opposed to athletes, “represent” the school to the public and must, therefore, be among the better students.   A school board member testified cheerleaders were “ambassadors for the school district.”   The school principal thought it appropriate to hold cheerleaders to a higher standard than athletics because of the “great status” and “importance” of the pep squad.   At the conclusion of the trial the court found a rational basis for the different policies and gave judgment for the school district.   This appeal followed.

 Several of Melissa's arguments are unpersuasive.   For one thing, she contends she was denied procedural due process when the school district held a closed session meeting to discuss her complaints regarding the chemistry teacher and grade.   However, Government Code section 54957 provides, “Nothing contained in this chapter shall be construed to prevent the legislative body of a local agency from holding closed sessions ․ during a regular or special meeting to ․ hear complaints or charges brought against [an] employee by another person․”

 Melissa also argues that because education is a fundamental right (Serrano v. Priest (1976) 18 Cal.3d 728, 766, 135 Cal.Rptr. 345, 557 P.2d 929), the grade eligibility policy of the school district must be analyzed using the strict scrutiny test.   This argument assumes that “education”—in the sense of a student's right to attend a “free school” in his or her district (see Cal. Const., art. 9, § 5)—includes the opportunity to be a cheerleader.   Case law is clear that extracurricular activities are not encompassed within the concept of education as a fundamental right.   (Steffes v. California Interscholastic Federation (1986) 176 Cal.App.3d 739, 748, 222 Cal.Rptr. 355;  see also 8 Witkin, Summary of Cal.Law (9th ed. 1988) Constitutional Law, § 601, p. 55.) 3

 Finally, Melissa argues she was denied equal protection because the eligibility requirements for pep squad membership discriminates against females.   The answer is:  they do not—they discriminate against cheerleaders.   The record here reveals that cheerleading is open to individuals regardless of sex and males have been encouraged to try out for the squad.   The fact that there were more female cheerleaders than male cheerleaders does not compel the conclusion that cheerleading is a “suspect class” based on gender.   There is nothing in the record to indicate that the discrimination against cheerleaders was motivated by the proportion of female to male cheerleaders.

 Still, the judgment must be reversed.   The distinction between cheerleading and interscholastic athletics flunks the rational basis test.   (See Miller v. Union Bank & Trust Co. (1936) 7 Cal.2d 31, 34–35, 59 P.2d 1024, quoting Colgate v. Harvey (1935) 296 U.S. 404, 423, 56 S.Ct. 252, 256, 80 L.Ed. 299 [differences in regulations applying to similarly situated groups must be “ ‘founded upon pertinent and real differences, as distinguished from irrelevant and artificial ones' ”];  see also Bailey v. Truby, supra, 321 S.E.2d 302 at p. 316 [noting that academic eligibility rules for participation in nonacademic extracurricular activities have been found to “bear a rational relationship to a legitimate purpose”].4 )

Interscholastic sports and cheerleading are both non academic extracurricular activities.   There is nothing about cheerleading that makes it qualitatively any more or less scholarly than football, baseball or some other sport.   Cheerleading, football and basketball are intertwined in common presentation and popular imagination.   Cheerleaders are not mere passive supporters of football and basketball teams, but, like athletes in spectator sports, entertainers in their own right.5  Once one draws a line between academic and nonacademic extracurricular activities, it is beyond cavil that football, basketball and cheerleading all fall on the same side of that line.6

The district attempts to distinguish between partial and full-year activities based upon the time spent away from school work.   This argument fails on the evidence, which established that football requires far more time than cheerleading.   Athletes were required to practice during the spring and summer and approximately half of the athletes went on to play other sports throughout the year.   If athletics was classified as a “partial-year” activity so should cheerleading.

Nor can the “ambassador” theory justify the distinction either.   Cheerleaders are no more or less the “official” representatives of their high school than athletes who wear the school uniform and play for the school team.

After a “serious and genuine judicial inquiry,” the district's justification of the discrimination between student athletes and members of the pep squad cannot be found to be rationally related to a realistically conceivable purpose.  (Newland v. Board of Governors (1977) 19 Cal.3d 705, 711, 139 Cal.Rptr. 620, 566 P.2d 254;  Cooper v. Bray (1978) 21 Cal.3d 841, 855, 148 Cal.Rptr. 148, 582 P.2d 604.)   No legitimate state interest is served by permitting athletes—who participate in their sport for more hours than do cheerleaders, practice during spring and summer, and participate in other sports throughout the year—to benefit from minimal academic requirements while demanding higher requirements for the pep squad.  (Newland v. Board of Governors, supra, 19 Cal.3d at p. 711, 139 Cal.Rptr. 620, 566 P.2d 254;  Cooper v. Bray, supra, 21 Cal.3d at p. 855, 148 Cal.Rptr. 148, 582 P.2d 604.)   Both sets of activities are equally situated when it comes to the need to provide an incentive to get good grades.7

We do not address the question of eligibility standards for academic extracurricular activities, such as the debate team, school newspaper or yearbook.   However, we do observe that there may be a correlation between performance in at least some extracurricular activities, such as the debate team or science club, and scholastic performance.8

While we sympathize with the attempt to impose high academic standards on cheerleaders, the distinction between cheerleading and athletics cannot pass.   That does not mean the school board must necessarily lower the academic standards for the pep squad.   They could raise them for the athletes.   That choice is left to the district.9

DISPOSITION

The judgment is reversed.   Fontes shall recover her costs on appeal.

SILLS, Presiding Justice.

WALLIN and SONENSHINE, JJ., concur.

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