Tuesday, February 11, 2025

IHSA acted correctly by not granting strike waiver

-

As a result of the strike by Chicago schoolteachers, the Chicago Public Schools asked the Illinois High School Association to waive one of its by-laws and allow teams to compete in interscholastic competition while their schools were not in session. On Monday, the IHSA denied the waiver.

IHSA executive director Marty Hickman released the following statement to the Chicago Tribune, but the IHSA did not post it on the organization’s website, as of Monday evening:

At the request of the CPS, the IHSA Board considered a request to grant a waiver of IHSA By-law 2.140 which states in part that, “No team or other entity representing a member school may participate in an interscholastic contest or activity during the time the member school is not in session due to a strike by teachers or other school personnel.”

It was the conclusion of the Board that granting such a request extended beyond its authority. The IHSA’s By-laws are developed by and voted into practice by its member school principals, and, after some meaningful discussion, the Board ultimately felt respecting the guidelines put in place by our member schools was the only option available in this situation, and any change to the by-laws would need to be facilitated through the IHSA legislative process.

While IHSA By-law 2.140 prohibits schools that are on strike from participating in interscholastic contests, it does establish conditions under which school boards can approve practice sessions for a school that is on strike, should those local school boards wish to do so.

We believe the IHSA acted correctly in not granting a waiver to Chicago Public Schools athletic teams. We said so in a previous post, and here we explain our rationale.

Karalyos v. Bd. of Educ. of Lake Forest Comm. High Sch. Dist. 115

No. 10 C 2280, March 9, 2011. A federal district court for the northern district of Illinois, sitting in diversity because the plaintiff was a citizen of Canada, ruled that school officials aren’t immune from liability in certain cases involving injuries during athletic activities at the school.

In this case, which happened at Lake Forest High School, a 13-year-old girl was injured during a swimming and diving program at the school. An instructor in the program told her to execute a certain type of dive in the pool, a type that was not specifically allowed by the pool policies. The court held that the school district and its officials were not entitled to immunity under certain provisions of the Illinois Local Governmental and Governmental Employees Tort Immunity Act (ITIA). Specifically, school officials could not claim immunity under the ITIA because (a) the instruction by a school official to the student to dive into the pool was not discretionary in nature; (b) there was no existent condition on public property; and (c) the girl had successfully shown that actions of school officials represented willful and wanton conduct.

Before we take a look at these three findings, note that the Illinois Supreme Court has established a precedent that imposes a common law “duty of reasonable care” by school officials for people who participate in activities on school property. In Karalyos, this involved a duty of care in operating a swimming pool. We believe interscholastic competition or football games would fall under the same common law “duty of reasonable care” held by the Illinois Supreme Court and reaffirmed in Karalyos.

Now let’s consider four facts which, if proven, would make IHSA’s member schools immune from liability for any injuries by football players during the course of interscholastic competition: (a) discretion, (b) existing conditions, (c) non-willful or non-wanton conduct, and (d) athletic waivers signed by parents.

School officials are immune when making discretionary decisions

In order for a policy decision by school officials to be considered “discretionary,” it must be the result of balancing competing interests. In Karalyos, because the high school’s swimming rules forbade such dives, the decision to order it was in violation of a stated policy, not a policy decision that could be considered discretionary. The IHSA wrote and approved their by-laws for the express purpose of informing schools what they could and could not do in the event of a strike. There can be no “discretion” when the rule itself provides no wiggle room.

The term “discretion,” as codified in Illinois law, means, for example, deciding whether a game must finish by 11 p.m. when the rule says “may finish after 10:30 p.m.” In the IHSA’s strike policy and by-law, there is no “may” that would give school officials any “discretion.” It’s black-and-white, in other words.

Therefore, if a football player were to be injured at a game that took place under a “waiver” of the by-laws, school officials would be unable to claim immunity from lawsuits under the “discretionary immunity doctrine” in the ITIA, we believe. They aren’t pushing an envelope that’s permitted under their stated policy; they’re throwing out the policy altogether. That is not what “discretion” means.

They’re immune if they take proper care of the facilities

Another way IHSA’s member schools could claim immunity under ITIA would be the so-called “existent condition” of the facilities, such as a puddle on a football field that was not under the control of school officials. School officials would be protected from lawsuits that allege poor conditions of sports facilities, we believe, as long as their appropriate “duty of care” was followed.

They’re immune if their actions weren’t willful or wanton

Finally, school district officials could claim immunity under ITIA if their actions were not shown to be “willful and wanton.” In Karalyos, the district court said a government (school) official could be found liable under ITIA when an injury is caused by improper supervision, as long as some action on the part of school officials was “a course of action which shows actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property.”

Illinois appellate courts have consistently held that being instructed to engage in a dangerous act is sufficient to charge a school official with “utter indifference or conscious disregard” for the safety of others. It’s possible a court would allow the matter to go to trial, rejecting claims of immunity by school officials.

Signed waivers provide immunity if they’re well written

In Illinois, football players and their parents sign waivers that say they will hold the school and its agents, including the district and the IHSA, harmless in the event of any injury that occurs during the normal course of participation in interscholastic athletics or workouts—key word being “normal.”

These waivers only apply to schools that follow the rules, and it’s not even clear they grant automatic immunity in those cases. But if the IHSA were to waive the rules, all bets are off what a judge would decide, since those rules—the approved IHSA by-laws—would provide a framework for any decision in court, and without that framework, in the case of a waiver of the by-laws, who knows what facts could be introduced?

Waivers don’t necessarily grant a blanket of immunity anyway. For example, the case of Mondelice v. Valley Stream Central High School District, a 2002 New York Supreme Court case, involved a 16-year-old high school football player who was severely injured when he was tackled during a practice session. The injured player sued several school officials, alleging they had negligently failed to inform him of the dangers inherent in the activity.

We believe this fact in Mondelice is similar to football coaches allowing unsupervised practices to take place without informing students of the specific dangers involved in working out without pads or protective gear, for instance.

In Mondelice, the school argued the player had signed a sports participation agreement that included a release of liability clause in which the player agreed to waive all of his rights to sue the school and its agents. The release also contained language detailing all of the sport-specific risks associated with participating in high school football and the document had been signed by both the player and his parents.

The court refused to dismiss the case, holding that it would be a violation of public policy to apply a release of liability in a manner that would totally insulate a school district from liability to an injured student: schools have a special “duty of care” to their students in providing an essential service (education-related activities) and that even if the releases are well written, the schools have excessively superior bargaining power in the formation of the contractual relationships represented by waivers, since students would not be able to participate in sports without signing the waivers.

So the court would not dismiss the case, but when it went to trial, the school prevailed, because the release was well written and included several sport-specific statements. In plain language, the student had assumed the risk. But it took a jury to decide that, along with lots of money to defend. And waivers that are less well written may yield a different outcome at trial. In any event, the school cannot claim automatic immunity from liability just because a waiver has been signed by the student and parents, especially if established rules are being waived.

Paul Katulahttps://news.schoolsdo.org
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

Recent Posts

Some IL superintendents report absenteeism increase

0
Some schools are reporting a momentary uptick in absenteeism, reportedly due to the president's recent executive order tied to immigration enforcement.

Digital Harbor HS closed after vandalism