BEFORE THE JUDICIAL ARBITER GROUP JAG Number 2013-1571A In the Matter of: Nathan Starks and Colorado

High School Activities Association

ARBITRATION BRIEF OF THE CHSAA

The Colorado High Activities Association (CHSAA), by its counsel, submits the following Arbitration Brief. STATEMENT OF THE CASE This arbitration is brought by Nathan Starks, a high school senior enrolled at Cherry Creek High School (Cherry Creek), seeking review of the October 3, 2013, decision of the Board of Directors of the CHSAA denying his request for eligibility to compete in the fall 2013 interscholastic football season as a member of the Cherry Creek varsity team. This arbitration is governed by C.R.S. 22-32-116.5 (9.5)(b), which provides that: A student who has completed the [CHSAA] appeal process . . . may file a petition or complaint with a group of sitting or retired judges or other group of neutral arbitrators approved by the school, school district, or any organization or association to which the school or school district belongs. In rendering his or her decision, the judge or arbitrator shall consider whether any rule was properly applied to the student and whether a waiver of any rule should be granted. A final decision shall be rendered by the judge or arbitrator no later than thirty days after the filing of the petition or complaint and shall be binding on the student, the school, the school district, and any association or organization to which the school or school district belongs. Any cost associated with a judge or arbitrator shall be

charged equally to the student and any association or organization to which the school or school district belong. This statutory provision is mirrored in the governing document of the CHSAA, referred to as its Constitution and Bylaws, at Article 2500.1(b). Nathan Starks (Nathan or the Student) has completed the CHSAA appeals process as provided for in Article 25 of the CHSAA Administrative and General Bylaws. The final level of appeal was the CHSAA Board of Directors. Following a hearing on October 2, 2013, the Board of Directors unanimously adopted the following resolution: The CHSAA Board of Directors upheld the CHSAA Appeals Committee decision that Nathan shall remain ineligible until such time as Bishop Gorman sends documentation that establishes a clear decision that Nathan is fully eligible as of the date of the letter for the remainder of the 2013-14 school year. It is from this decision that this arbitration is brought. The issue before the arbitrator, therefore, is: Is the decision of the CHSAA Board of Directors arbitrary, capricious, or contrary to law? STATEMENT OF THE FACTS I. The CHSAA The Colorado High School High Activities Association is a voluntary, unincorporated association of public and private high schools in Colorado created to provide a state-wide, central body to organize and manage their interscholastic activities. The chief administrative officer of the CHSAA is its Commissioner, Mr. Paul Angelico. Acting through a representative body called the Legislative Council, CHSAAs member schools adopt periodically amend a Constitution and Bylaws establishing, among other things, minimum uniform standards of student eligibility. Each year, CHSAAs member

schools reaffirm their support and agree to submit to CHSAAs bylaws. CHSAA Constitution, Article 600.11. As this is an action for review of administrative decisions made by the CHSAA, we have attached the record before the CHSAA Appeals Committee as Exhibit 1 and the record before the CHSAA Board of Directors as Exhibit 2. II. Statement of the Facts: Nathan Starks is a 17 year old high school senior currently enrolled at Cherry Creek High School (Cherry Creek) in Greenwood Village, CO. Nathan attended Bishop Gorman High School (Bishop Gorman), a private high school in Las Vegas, NV, for his freshman, sophomore, and junior years (school years 2010-11, 2011-12, and 2012-13). Nathan participated in varsity interscholastic football during all three years at Bishop Gorman. The Bishop Gorman Gaels are a highly competitive high school football program, currently ranked 44th in the nation and first in Nevada by MaxPreps. See http://www.maxpreps.com/high-schools/bishop-gorman-gaels-%28lasvegas,nv%29/football/rankings.htm. Nathan is a highly talented football player, currently ranked 8th in the nation at his position (running back). See, e.g., http://recruiting.scout.com/a.z?s=73&p=8&c=1&nid=5794866. On April 25, 2013, near the end of the school year, Nathan was withdrawn for disciplinary reasons from Bishop Gorman. His mother, Mrs. Korie Knotts, contacted Cherry Creek in May 2013 to inquire about enrolling. Cherry Creek is a well-known and highly regarded Colorado high school football program. During that same time period, the family also contacted high schools in California and Arizona.

On June 4, 2013, CHSAA Commissioner Paul Angelico received an e-mail from Eddie Bonine, the Executive Director of the Nevada Interscholastic Activities Association (NIAA). Exhibit 3 attached hereto. The NIAA is the Nevada equivalent of the CHSAA. Mr. Bonine attached a copy of two articles from the Las Vegas ReviewJournal. The first was dated May 1, 2013, and includes a quote from the Bishop Gorman football coach stating that Nathan would not be competing for the school in the fall season because Hes been dismissed from the school for disciplinary reasons for violation of school rules; and that Thats the schools official statement. The report continues to state that Starks high school career is over, not only at Gorman but in the state. The second article, dated June 3, 2013, stated that Nathan had said on Twitter that he was transferring to Cherry Creek. The article also described Nathans efforts to enroll at other high schools in Arizona and California with highly regarded football programs. The article stated that: Nevada Interscholastic Activities Association rules state that athletes who transfer from a private school such as Gorman must sit out 180 school days or one year. As a result, Starks would not have been eligible to play at any school in Nevada this fall, forcing him to transfer out of state to play his senior season. Exhibit 3. This was the first time Mr. Angelico had any information that Nathan might transfer to Cherry Creek. Mr. Angelico then contacted Jason Wilkins, the Cherry Creek High School Director of Athletics. On June 6, 2013, Mr. Angelico wrote to Mr. Wilkins to advise Mr. Wilkins and, through him, the Starks family that if Nathan transferred to Cherry Creek, under CHSAA rules he would be ineligible for the entire 2013-14 school

year. Exhibit 1-5.1 Mr. Angelico cited CHSAA bylaws 1800.42(g) and 1800.44(c) that deny eligibility for school transfers that are substantially motivated by athletic considerations. He also cited bylaws 1800.43 and 1850.1 that provide that a student who is ineligible for competition in any school may not become eligible by transferring to a different school.2 On June 25, 2013, Cherry Creek obtained a letter from John A. Kilduff, the President of Bishop Gorman, attempting to overcome the problem caused by Nathans ineligibility in Nevada. Exhibit 1-38. Mr. Kilduff wrote that: In accordance with the rules and regulations of the [NIAA], Nate would have been suspended from the first two games of the 2013-2014 football season. There may have been additional disciplinary actions taken had Nate not been withdrawn by the school. Nathan enrolled at Cherry Creek on July 11, 2013. On July 30, 2013, Cherry Creek submitted a Hardship Waiver Form to the CHSAA pursuant to CHSAA rule 2500.22. Exhibit 1-10 through 31. Cherry Creek requested the Commissioner to waive the application of the Nevada 180 days ineligibility period. By letter dated August 5, 2013, Mr. Bonine confirmed to Mr. Angelico that under NIAA rules Nathan would have been presumed ineligible to participate at any/all schools in Nevada for 180 school days from the date of transfer from a private school to any other NIAA member school regardless of the disciplinary piece from the sending school. Mr. Bonine also stated that NIAA rules do not provide for a two game suspension under any circumstances. Exhibit 1-40. On August 16, 2013, the Commissioner denied the waiver based on Nathans ineligibility in Nevada and because his transfer was substantially motivated by athletic
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References to the record are by exhibit number (1) and page (-5), e.g., 1-5 means exhibit 1, page 5. The applicable CHSAA rules are discussed in depth in Section hereinafter.

considerations. Exhibit 1-33. Mrs. Knotts appealed that decision to a CHSAA Appeals Committee pursuant to CHSAA rules 2500.1 and 2540.2. On September 4, 2013, the familys appeal from the decision of the Commissioner was heard by a three member panel from the CHSAA Appeals Committee. At the hearing, Nathan, his mother, and his legal counsel all spoke in support of the appeal. The Appeals Committee issued its decision that same day. Appeals Committee Decision, Exhibit 2-1. The Appeals Committee voted to support the appeal and overturn the Commissioners decision subject to the following: Nathan is ineligible until written documentation from Bishop Gorman is received by the CHSAA office that would specify that he would have been accepted back as a student/athlete and would regain his eligibility after his two games suspension in the 2013-14 school year. In a letter on that same day, Commissioner Angelico confirmed to Mrs. Knotts that once Bishop Gorman provided the documentation requested by the Appeals Committee, Nathan would be eligible to compete; but until then he would remain ineligible. Exhibit 2-2. On or about September 5, 2013, the family, through their counsel, submitted a second letter from President Kilduff of Bishop Gorman to the Appeals Committee. Exhibit 2-3. This letter stated that: Had [Nathan] requested to be reenrolled [at Bishop Gorman] he would have had to go before the Disciplinary Board which would have taken into consideration, among other things, the facts and circumstances between his withdrawal date and the Board hearing. We cannot speculate as to the decision of the Board regarding reenrollment and the resulting conditions. However, if he were permitted to reenroll, in all probability, the conditions of such reenrollment would not have resulted in him being ineligible to play football after he had served the Nevada Interscholastic Athletic Association imposed two game suspension.

The CHSAA office forwarded this letter to the Appeals Committee members and requested them to advise as to whether the letter satisfied the requirement stated in their decision. None of the three members believed that President Kilduffs letter was satisfactory, although one member felt that she would prefer to give Nathan a second chance. Exhibit 2-4 and 5. As a result, Nathan remained and is presently ineligible for the remainder of this school year. On September 12, 2013, Nathan and Mrs. Knotts, through their counsel, appealed the Appeals Committee decision to the CHSAA Board of Directors pursuant to CHSAA rule 2550.1. Exhibit 2-6. That hearing was scheduled for and held on October 2, 2013. Exhibit 2-7. They also demanded that, if the Board of Directors does not grant Nathan eligibility, this matter be referred to arbitration pursuant to C.R.S. 22-32-116.5(9.5). Exhibit 2-6. Following the hearing, the Board of Directors adopted the following resolution: The CHSAA Board of Directors upheld the CHSAA Appeals Committee decision that Nathan shall remain ineligible until such time as Bishop Gorman sends documentation that establishes a clear decision that Nathan is fully eligible as of the date of the letter for the remainder of the 2013-14 school year. Exhibit 2-11. III. The Transfer Rule A. The General Rule

Under the bylaws, CHSAAs member schools and their student athletes must meet certain eligibility requirements in order to compete. These include Article 18, the transfer rule. The transfer rule imposes a period of athletic ineligibility upon students who transfer into a member high school in certain situations. CHSAA, together with almost all of the other state high school activities associations, is a member of the National Federation of High School Associations

(NFHSA). The NFHSA has published, and CHSAA endorses, the following statement of policy concerning transfer and residency rules: A transfer/residency requirement: assists in the prevention of students switching schools in conjunction with the change of athletic season for athletic purposes; impairs recruitment; and reduces the opportunity for undue influence to be exerted by persons seeking to benefit from a student-athletes prowess. A transfer/residency requirement: promotes stability and harmony among member schools by maintaining the amateur standing of high school athletics; by not letting individuals other than enrolled students participate; and by upholding the principle that a student should attend the high school in the district where the students parent(s) guardian(s) reside. The Plaintiff, Nathan Starks, participated in interscholastic varsity football at Bishop Gorman during the 2010-11, 2011-12, and 2012-13 school years prior to his transfer to Cherry Creek High School (Cherry Creek) in August 2013. Therefore, in the first instance, his eligibility to participate in varsity football at Cherry Creek during the 2013-14 school year is subject to Article 1800.21, which provides that: A student who transfers to a member school following the close of school for the summer and before the beginning of the school year, other than under the provisions stated in 1800.2, 1800.3 and 1800.44, will be ineligible for varsity competition in the first 50% of the maximum regular season contests determined by that classification in any sport in which the student was a participant during the past 12 months. The student's individual performance limits (innings, games, quarters, etc.) shall be adjusted accordingly. The student may practice with the team and participate in an interscholastic contest at the sub-varsity level during this time. If there is no sub-varsity level, the student may not participate in an interscholastic contest until the game restriction is met. [Emphasis added.] In short, absent any other considerations, the Plaintiff would be ineligible to participate in the first fifty percent (four games) of the varsity football competitions this year.

B.

The Rule When an Ineligible Student Transfers Schools

Nathan left Bishop Gorman due to a disciplinary withdrawal the equivalent of an expulsion from a public school. Article 1720, General Eligibility Requirements provides at subsection (c) that: EXPULSIONS -- A student who would be ineligible in any school because of expulsion, denial of admission or negotiated withdrawal may not become eligible for competition at any level by transferring. The period of ineligibility is determined by the school at which the ineligibility occurred. A transfer at the beginning of the school year does not decrease or eliminate the period of ineligibility caused by the expulsion. A student may not transfer schools to avoid expulsion time periods. [Emphasis added.] This provision is restated in Article 1850.1: A student who would be ineligible in any school may not become eligible for competition at any level by transferring. The period of ineligibility is determined by the school at which the ineligibility occurred. A transfer at the beginning of a school year does not decrease or eliminate the period of ineligibility (see 1720 [c]). [Emphasis added.] To exactly the same effect, C.R.S. 22-32-116.5(5) provides that: A student who has not met all eligibility requirements for or who would have become ineligible at a school cannot gain or regain eligibility by applying to participate in activities at another school pursuant to this section. A student shall pay any penalty assessed against the student at the students school of attendance or school of participation before the student may regain eligibility at the school of attendance or school of participation or become eligible to participate in any activity at another school. Thus, by state law and CHSAA rules, the question of the Plaintiffs period of ineligibility at Cherry Creek is to be determined by the period of his ineligibility at Bishop Gorman and according to the rules of the NIAA. This serves the important purpose of preventing students from avoiding the athletic eligibility consequences of an expulsion or disciplinary withdrawal by transferring schools, whether within Colorado or

entering Colorado from another state. The effect is that the students ineligibility follows him or her to the new school.3 Under the Nevada rules, Nathan is ineligible for 180 school days. NIAA rule NAC 386.784, para. 14 provides that Any pupil who transfers to another school is presumed ineligible to participate in any sanctioned sport at the school to which the pupil transfers for 180 school days. A transfer is defined as the withdrawal of a pupil from a school in which he or she is enrolled and the subsequent enrollment of the pupil in another school. NAC 386.6207. Therefore, by application of CHSAA rules 1800.21, 1720, and 1850.1, Nathan is ineligible in Colorado for 180 school days. Any other conclusion would permit him to circumvent the eligibility sanction that applied to him in Nevada by the NIAA rules that govern Bishop Gorman. C. Transfers Substantially Motivated by Athletic Considerations

CHSAA also found that Nathans transfer to Cherry Creek was substantially motivated by athletic considerations. Article 1800.3 provides that: Any transfer substantially motivated by athletic considerations will cause the student to be ineligible for varsity competition for one calendar year from the date of the transfer in any sports(s) they participated in during the twelve months prior to the transfer. [Emphasis added.]

CHSAA rule 1850.4 includes a similar provision for transfers by a student who is academically ineligible: Any student who transfers schools within Colorado or from out of state shall carry the academic eligibility of the previous school. A student who was academically eligible at the sending school shall be eligible at the new school regardless of the receiving schools academic requirements. Likewise, a student academically ineligible at the sending school shall be ineligible regardless of the receiving schools eligibility requirements.

The NIAA rules are adopted as statutes by the Nevada legislature.

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Article 1800.42(g) specifies that Transfer waivers cannot be approved for a school transfer found to be substantially motivated by athletic considerations. Article 1800.44(c) further provides that: Under no circumstances may a school transfer that is motivated by athletic considerations be considered a bona fide family move. The student shall have the burden to prove by clear and convincing evidence that athletic participation at the new school was no more than an incidental consideration. Therefore, by application of Article 1800.3, Nathan is ineligible for interscholastic varsity football for a term of one year from the date of his transfer in July 2013. D. The Hardship Waiver Rules

Plaintiff has applied for a hardship waiver of the transfer rule based upon a bona fide family move. Article 1800.4 permits the Commissioner to grant a waiver to the transfer rule and grant varsity eligibility to a transfer student based upon a finding of hardship: 1800.4 The Commissioner may grant varsity eligibility in the case of transfers after the beginning of the school year caused by "hardship", pursuant to the provisions of Article 25 of these Bylaws. 1800.41 "Hardship" means an unforeseen, unavoidable and/or uncorrectable act, condition or event that imposes a severe, non-athletic burden upon the student or his/her family. The Commissioner shall have broad discretion in applying this standard to specific cases. He/She may take into consideration not only the needs of the student and family directly involved, but also the best interest of member schools and interscholastic athletics/activities generally as he/she understands those interests. Article 1844 provides that: A bona fide family move to a residence that requires a transfer to a school in that school's attendance area and/or a new school district, verified by the receiving school, will permit full transfer eligibility. Article 1800.42 defines the procedure for students to apply to the Commissioner for hardship waivers and permits an

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appeal of the Commissioners decision to an appeals committee and to the CHSAA Board of Directors pursuant to Article 25. Two provisions in the bylaws limit the Commissioners right to grant a hardship waiver in this case: Article 1800.43 states that: No transfer waiver may be granted that would cause a student who is ineligible in the sending school to become eligible at the receiving school. And Article 1800.42(g) states that [t]ransfer waivers cannot be approved for a school transfer found to be substantially motivated by athletic considerations. Thus, Commissioner Angelico was barred by the governing CHSAA rules from granting a hardship waiver, and whether or not Nathan transferred to Cherry Creek pursuant to a bona fide family move is not a relevant issue. Finally, Article 1800.42(f) specifies that on appeal, [t]he decision of the Commissioner shall be upheld unless it is shown by clear and convincing evidence in the record to be arbitrary or capricious. ARGUMENT I. The CHSAA Transfer Rules Are Valid The validity of transfer rules has been definitively established in jurisdictions across the country for decades. E.g., Indiana High Sch. Ath. Ass'n v. Carlberg by Carlberg , 694 N.E.2d 222, 238-239 (Ind. 1997) (IHSAA); Griffin High School v. Illinois High School Assn, 822 F.2d 671 (7th Cir. 1987); Whipple v. Oregon Sch. Activities Ass'n, 52 Ore. App. 419, 629 P.2d 384 (Or. Ct. App. 1981); and Kentucky High Sch. Athletic Ass'n v. Hopkins County Bd. of Educ., 552 S.W.2d 685, 687 (Ky. App. 1977). The Indiana Supreme Court described the purposes of the transfer rule as follows: The Transfer Rule is designed "to preserve the integrity of interschool athletics and to prevent or minimize recruiting, proselytizing and school 'jumping' for

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athletic reasons . . . ." Rule C-19-4. We find this to be a legitimate interest and conclude that the Transfer Rule is rationally related to the attainment of this goal. By establishing objective standards for eligibility "governing residence and transfer," including the provision allowing for only limited eligibility upon a transfer not accompanied by a parental change of residence, Rule 19(c) acts as a deterrent to athletically motivated transfers. As mentioned supra, the absence of such a rule might reasonably "invite strategically motivated transfers thinly disguised as transfers in the best (nonathletic) interest of the student." IHSAA, 694 N.E.2d at 236-37 (citation omitted); see also, Walsh v. Louisiana High Sch. Ath. Assn, 616 F.2d 152, 159-160 (5th Cir. 1980). The United States Supreme Court recognized the dangers of athletic based decision-making in students choice of schools in Tennessee Secondary School Athletic Ass'n v. Brentwood Academy, 551 U.S. 291, 300 (2007). The Court upheld the validity of an antirecruiting rule in the face of a First Amendment challenge: [H]ard-sell tactics directed at students could lead to exploitation, distort competition between high school teams, and foster an environment in which athletics are prized more highly than academics. [The antirecruiting rule] discourages precisely the sort of conduct that might lead to those harms, any one of which would detract from a high school sports league's ability to operate efficiently and effectively. [Citation omitted.] 2. Athletic Eligibility Is Not a Protected Property Right under the Due Process Clause CHSAAs Constitution, Article 1710 provides: Participation in interscholastic activities as a part of a schools educational program is a privilege and not a right. Students wishing to participate are required to meet standards of personal behavior and academic performance which are related to school purposes. In this regard, the CHSAA and its member schools may exercise the fullest discretion permitted under the law. [Emphasis added.] It is wholly within CHSAAs authority as an association of schools to regulate student interscholastic participation, to enforce its rules, and to sanction rules violations. The plaintiff has many rights as a citizen and as a high school student, but he has no vested right in eligibility . . . . The defendant Board of Control was clothed

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with ample authority to so construe, apply and enforce this rule, with its specific provision for ineligibility for one year. Oklahoma High Sch. Athletic Assn v. Bray, 321 F.2d 269, 273 n.4 (10th Cir. 1963) (upholding transfer rule); accord, Zuments v. Colorado High School Activities Assn., 737 P.2d 1113, 1115 (Colo. App. 1987) (Zuments). It has been unequivocally established for fifty years that a student-athlete who has been found to be ineligible for interscholastic sports has no claim under the due process clause against the high school activities association that made that decision: Such complaints are not within federal cognizance, are not subject to review in federal court, and, indeed, are not subject to review in the state courts of Oklahoma. Had this case not been voluntarily dismissed by plaintiff it would have been the duty of the trial court, upon the present record, to have dismissed it for lack of a federal question. Oklahoma High Sch. Athletic Assn, supra, 321 F.2d at 273 (footnote omitted). Every Colorado resident of school age is constitutionally entitled to a public school education, COLO. CONST., Art. IX, 2. That entitlement is sufficient to invoke the protection of the due process clause of the Fourteenth Amendment. Goss v. Lopez, 419 U.S. 565 (1975). Although participation in interscholastic athletics (like many other programs) is certainly a valuable component of a public education, it is not a constitutionally protected civil right. The educational process is a broad and comprehensive concept with a variable and indefinite meaning. It is not limited to classroom attendance but includes innumerable separate components, such as participation in athletic activity and membership in school clubs and social groups, which combine to provide an atmosphere of intellectual and moral advancement. We do not read Goss to establish a property interest subject to constitutional protection in each of these separate components. Albach v. Odle, 531 F.2d 983, 985 (10th Cir. 1976).

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On the contrary, athletic participation is no more than a mere expectation and not a property right of constitutional dimension. The due process clause of the fourteenth amendment extends constitutional protection to those fundamental aspects of life, liberty, and property that rise to the level of a "legitimate claim of entitlement" but does not protect lesser interests or "mere expectations." . . . A student's interest in participating in a single year of interscholastic athletics amounts to a mere expectation rather than a constitutionally protected claim of entitlement. . . . [I]t falls "outside the protection of due process." In re State ex rel. Missouri State High Sch. Activities Assn, 682 F.2d 147, 153 n.8 (8th Cir. 1982), quoting Walsh v. Louisiana High School Athletic Association, 616 F.2d 152, 159-61 (5th Cir. 1980), cert. denied, 449 U.S. 1124 (1981) [emphasis added]. 3. The Equal Protection Claim Is Reviewed under the Rational Basis Standard It is universally held that transfer rules do not per se violate the equal protection guarantee. See IHSAA, 694 N.E.2d at 236-39 and cases cited therein. To the extent that the Student claims that the transfer rule as applied to him violates his right to equal protection, the applicable standard absent either a suspect classification or a fundamental right, is the rational basis test: The constitutional right to equal protection of the laws is guaranteed by the Fourteenth Amendment to the United States Constitution and the Due Process Clause of Article II, Section 25, of the Colorado Constitution. This right ensures that similarly situated persons will receive like treatment under the law. If a classification does not adversely affect a suspect class or infringe a fundamental right, an equal protection challenge is analyzed under a rational basis standard of review. When a classification is challenged under a rational basis standard, a presumption of constitutionality attaches and the challenging party must prove the unconstitutionality of the classification beyond a reasonable doubt. Montrose County School District Re-1J v. Lambert, 826 P.2d 349, 351 (CO 1992) [Footnotes and internal citations omitted]. Under the rational basis test, the

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classification will be upheld if it has some rational basis in fact and is reasonably related to a legitimate governmental interest. Id. The Student cannot claim that participation in interscholastic activities is a fundamental right entitled to enhanced judicial scrutiny. He does not claim that he has been discriminated against on the basis of a suspect classification. In fact, the Student fails to identify any classification whatsoever. Their claim is at most that other students have been granted waivers, but he has not. This is at most a repetition of the claim of arbitrary and capricious action, discussed below. 3. The Applicable Standard of Review Is Whether the Decision of the Board of Directors Was Arbitrary or Capricious Article 2530.23 of the CHSAA bylaws restates the legal standard for judicial review of eligibility decisions: If judicial review is sought of a decision by the Commissioner, Appeals Committee or Board of Directors, the court shall affirm such decision unless it finds upon clear and convincing evidence that the decision was arbitrary, capricious, or contrary to law. This standard was affirmed in Zuments, 737 P.2d at 1115-16, where the court of appeals held that we conclude that, as a matter of law, there was nothing, arbitrary, capricious, or haphazard about the way in which the waiver provision was applied. Accord, IIHSA, 694 N.E.2d at 230-31. In Nicholls v. Colorado High School Activities Association, District Court, Arapahoe County, CO, Case No. 12 CV 1663 (September 27, 2012), decided one year ago, Judge Mark Hannen affirmed that CHSAA eligibility decisions are reviewed using the arbitrary and capricious standard: Because CHSAA decisions are analogous to government agency decisions courts should use the arbitrary and capricious standard of review used when courts

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review government agency decisions. This conclusion is supported by the Court of Appeals decision in Zuments . . . versus Colorado High School Activities Association, 737 P.2d 1113 at pages 115 to 16, a 1987 decision, where the Court of Appeals applied the arbitrary and capricious standard in reviewing decisions denying waivers of CHSAA's outside competition rule. The court held that there was nothing arbitrary, capricious or haphazard about the way in which the waiver provision was applied in that case. Nicolls Transcript at pp. 9: 25; 10: 1-11 (copy attached as Exhibit 4). The Colorado Court of Appeals described both the clear and convincing evidence and arbitrary and capricious standards in J.S. v. Chambers, 226 P.3d 1193, 1201 (CO APP 2009), cert. denied sub nom. Stene v. Chambers, 2010 LEXIS 220 (CO 2010). "Clear and convincing evidence is that evidence which is stronger than a preponderance of the evidence and which is unmistakable and free from serious or substantial doubt." DiLeo v. Koltnow, 200 Colo. 119, 125-26, 613 P.2d 318, 323 (1980) (internal quotation omitted); Metro Moving & Storage Co. v. Gussert, 914 P.2d 411, 414 (Colo. App. 1995) (same). "[T]o constitute arbitrary or capricious exercise of discretion it must appear that 'By exercising its discretion in such manner after a consideration of evidence before it as clearly to indicate that its action is based on conclusions from the evidence such that reasonable men fairly and honestly considering the evidence must reach contrary conclusions.'" Geer v. Susman, 134 Colo. 6, 8-9, 298 P.2d 948, 949 (1956) (quoting Van De Vegt v. Board of Comm'rs, 98 Colo. 161, 16667, 55 P.2d 703, 705 (1936)) (emphasis in original); see also Lawley v. Dep't of Higher Educ., 36 P.3d 1239, 1252 (Colo. 2001). An abuse of discretion occurs where the decision is manifestly arbitrary, unreasonable, or unfair. See E-470 Pub. Highway Authority v. Revenig, 140 P.3d 227, 230 (Colo. App. 2006). A reviewing court asks "not whether we would have reached a different result," but rather whether the "decision fell within a range of reasonable options." Id. at 230-31. "'[D]iscretion is abused only where no reasonable person would take the view adopted . . . .'" People v. Hoover, 165 P.3d 784, 802 (Colo. App. 2006) (quoting State v. Heywood, 245 Kan. 615, 783 P.2d 890, 894 (Kan. 1989)); see also Freedom Colo. Info., Inc. v. El Paso County Sheriff's Dep't, 196 P.3d 892, 899900 (Colo. 2008) (agency abuses its discretion if "decision under review is not reasonably supported by competent evidence in the record.").

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The evidence in this case clearly provides a sufficient basis for first the Commissioner, then the Appeals Committee, and then the Board of Directors to conclude that the Student was ineligible under all of the applicable rules. CONCLUSION For the foregoing reasons, the decision of the CHSAA Board of Directors should be affirmed. Dated this 4th day of October, 2013.

Respectfully submitted, HALPERN MEACHAM

By:

Original signature on file Alexander Halpern Madeline Meacham ATTORNEYS FOR DEFENDANT

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