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Appeals court finds that IHSA constitution and by-laws don’t address schools placed on probation

Wednesday, Oct 20, 2021

* Context from a story in August

The decision by the IHSA board of directors means that high school athletes will be banned from playing in the postseason for a sport if their school is still on the Illinois State Board of Education’s probation list for non-compliance with the mask mandate on the “seeding” date — the deadline for entering the playoffs — for a fall sport, IHSA officials said in a statement.

* But a Fifth District appellate judge took a look at the IHSA’s legal makeup and found this

(T)he IHSA constitution and by-laws are devoid of any reference to schools that have a probationary classification issued by the ISBE, regardless of the reason for the classification. There is also nothing in the IHSA constitution or by-laws that allows the organization to issue emergency rules on the eligibility of a member school or athlete.

If the school’s state recognition is revoked, that’s another matter.

So, the appeals court overruled a circuit judge’s denial of a TRO against the IHSA in a case involving Hutsonville High School.

* More from the opinion

(T)he issue underlying this case is not the Governor’s mandate or the refusal of petitioners to comply with the Governor’s mask mandate at IHSA’s events. The TRO concerns only respondents’ authority to change a member school’s eligibility to participate in the State Series based on an ISBE’s “on probation” status. Because the executive orders and ISBE did not direct respondents—explicitly or impliedly—to preclude participation based on a school’s “on probation” status, their authority is limited to the IHSA’s constitution and by-laws. Here, petitioners alleged sufficient facts to establish a prima facie case that respondents violated their rights by failing to adhere to its constitution and by-laws.

Under these circumstances, the trial court erred in denying petitioners’ TRO and keeping the status quo until the merits of the arguments could be determined. “Status quo,” for purposes of obtaining a preliminary injunction, means the last actual, peaceable, uncontested status which preceded the pending controvers

My reading of this is that the governor and the ISBE could conceivably amend the orders to include probationary status.

- Posted by Rich Miller        

11 Comments
  1. - Downstate - Wednesday, Oct 20, 21 @ 9:22 am:

    Slippery slope. I’ve seen this play out with other state agencies and it’s ugly.

    Private companies have been placed on a “probationary” list by a state agency even though there was no legal foundation for the creation of the list. Do we want state agencies creating their own rules outside of the legislative and judicial process?

    What if an agency director decides that the probationary list includes any entity that donates to the wrong non-profit?

    What if the agency director decides he wants to “punish” a firm that brought legal action against the state, and won?

    Of course, the ISHA is not a state entity. But the ISBE is.

    “Secret lists” are wrong in the state agency environment, but sadly they are real. This only adds to more authoritarianism.


  2. - Ron Burgundy - Wednesday, Oct 20, 21 @ 9:29 am:

    Not uncommon, but a bit distressing that entities often shoot first and ask questions later, rather than reviewing their authority up front before acting. Looking at their constitution and by-laws should have been the first thing they did.


  3. - Oswego Willy - Wednesday, Oct 20, 21 @ 9:35 am:

    === Slippery slope.===

    It’s really not. Nope.

    Sports parents: we teach our kids to play by the rules. Rules are there for fairness

    Also sports parents: rules can be arbitrary, interpreted different, we want sports

    It’s so silly, truly the term silly, when you think about how any sport is played, and the rules.


  4. - Steve Polite - Wednesday, Oct 20, 21 @ 9:49 am:

    “Do we want state agencies creating their own rules outside of the legislative and judicial process?”

    This does not happen.

    I am sure there are contributors to this blog that know far more about administrative rule making than I do. With that said, my simple understanding is Agencies (Executive Branch) create or change their administrative rules and submit them to the Joint Committee on Administrative Rules (JCAR - Legislative Branch) for approval. In other words, the Legislative branch has oversight of Administrative Rules for all agencies.


  5. - Downstate - Wednesday, Oct 20, 21 @ 9:55 am:

    “This does not happen.”

    Let me assure you, “probationary lists” absolutely occur in at least one state agency. First hand knowledge and experience.


  6. - Oswego Willy - Wednesday, Oct 20, 21 @ 9:57 am:

    === First hand knowledge and experience.===

    Did you report it? Did you tell an inspector general office?

    Sounds like something someone would report, firsthand knowledge and all


  7. - Skeptic - Wednesday, Oct 20, 21 @ 10:29 am:

    ‘Let me assure you, “probationary lists” absolutely occur in at least one state agency.’ Yes, they absolutely occur in many State agencies. But you’ve not provided any evidence that they’re outside of either the rules or the statutes.


  8. - Rich Miller - Wednesday, Oct 20, 21 @ 10:30 am:

    ===probationary lists” absolutely occur in at least one state agency===

    Who cares? Move along now and get back to the topic at hand.


  9. - JS Mill - Wednesday, Oct 20, 21 @ 11:01 am:

    I do not believe, based on an extensive understanding of the IHSA constitution and by-laws that the judges ruling will stand for long.

    The IHSA constitution and bylaws grants the association and the executive director extensive powers to make the determinations that have occurred.

    there are two different references to “recognized” schools in the constitution and also the exec directors authority to make determinations. “Probation” is not specifically addressed, as are many other possibilities. But, probation is a change in the recognition process and would justify action by the IHSA. The constitution and bylaws do include several umbrella statements granting the executive director final decision making authority.

    I believe that these provisions allow the IHSA to suspend schools on probationary or unrecognized status and believe that ultimately the court will agree.

    I have stated before that I am no fan of the IHSA but in this case they are correct in their actions. Their by-laws do not cover every possibility. No legal document ever does, no by-laws book will ever do that but you can bet that they will next year.

    =This only adds to more authoritarianism.=\

    You don’t seem to understand what authoritarianism actually means.


  10. - Jocko - Wednesday, Oct 20, 21 @ 12:04 pm:

    Remember when Republicans used to rant about the overreach of activist judges? Now they’re throwing around TROs like they’re going out of style.


  11. - G'Kar - Wednesday, Oct 20, 21 @ 3:36 pm:

    I suspect this is not the first time a school on probation has wanted to participate in postseason sports. Were they allowed to or not? Is there a precedent?


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