Mass. Supreme Court hears arguments in high school eligibility dispute involving bullying

The state Supreme Judicial Court heard oral arguments Tuesday on the Massachusetts Interscholastic Athletic Association’s appeal of a lower court injunction permitting a student-athlete to participate in a fifth year of high school football and basketball after he allegedly was traumatized by bullying in the Woburn Memorial High football program.

The student transferred to another school and repeated his junior year, prompting him and his new school to seek a waiver of an MIAA rule that limits high school athletes to four years of interscholastic competition.

The MIAA denied the waiver request, but a Middlesex Superior Court judge issued an injunction, clearing the student to play football and basketball during the 2021-22 academic year.

The MIAA asked the SJC to reverse the lower court’s ruling and establish a legal standard for lower courts to review the agency’s eligibility decisions. In a statement to the Globe, the MIAA said the lack of a clear review process in the court system “wholly undermines the consistency and equity of MIAA’s rules and its enforcement procedures.”

The Globe is not identifying the former Woburn football player or his new school because the Superior Court judge sealed the case over privacy concerns and the student was not identified during the SJC hearing.

Several justices said they supported the MIAA’s decision in the former Woburn player’s case, but they questioned whether the MIAA has been sufficiently transparent in documenting and publishing its waiver eligibility decisions.

Students previously denied waivers have challenged the decisions as “arbitrary and capricious.”

“How does a judge know whether the MIAA is being arbitrary and capricious unless they know what the prior decisions have been?” Justice Frank Gaziano asked.

MIAA attorney Kay Hodge acknowledged the MIAA’s decisions have not been publicly disseminated. She said they are “internally maintained.”

In the last 16 months, at least nine high school student-athletes have sought relief in Massachusetts Superior Courts after the MIAA denied waiver requests. Hodge said the number of waiver requests is rising and is expected to continue to increase, in part because of COVID-19.

The former Woburn student’s new school noted in an affidavit that the MIAA, while denying his waiver request, granted waivers to three athletes who competed in the same conference, including one “who was widely considered one of the best athletes in the state and was a serious contender for the most valuable player.”

Justice Scott Kafker indicated that making that kind of information generally available to the courts could be vital to deciding cases.

“It becomes really significant because that seems to be the only way of judging whether something is arbitrary and capricious,’’ Kafker said.

He added, “I don’t know why, if the most valuable player in the state gets a fifth year, why doesn’t this kid get a fifth year?”

Gaziano, a former Superior Court judge, expressed concern about similar cases yielding disparate outcomes.

“One kid was bullied,” Gaziano said. “Another kid has another tragedy. One kid gets a waiver. One kid doesn’t get a waiver. I’m just really concerned about the arbitrariness of that. It basically depends on Superior Court judge roulette, which Superior Court judge you draw.”

Hodge said, “I hear that there are refinements the MIAA can consider, but as a corporate body they can decide whether to do that or not” based on state law.

Historically, the SJC has generally sided with the MIAA on how it governs its member schools, which now total 374, with more than 230,000 student-athletes.

None of the seven justices publicly criticized the criteria the MIAA uses to decide requests for fifth-year eligibility waivers. The criteria weigh the potential impact on the student, their school, their team’s competitive strength, and the MIAA’s general athletic objectives.

“They’re all good factors,” Kafker said, “but the only way you can judge whether something is arbitrary and capricious is whether they apply it evenly.”

In the case of the former Woburn player, Hodge said he played four years of high school basketball and football before he requested a fifth-year waiver.

“I don’t want to minimize it, but the issue of bullying was considered,” as was a psychological report submitted by the student’s parents, Hodge said. “I would cut the slack to the individuals who are making this decision” for the MIAA.

She said, “The injunction should not have been issued, and, indeed, if it was going to overturn the decision of the [MIAA], it should at least ought to have described why it was doing what it did.”

Justice Serge Georges Jr. said he was sensitive to the alleged bullying. Woburn school officials have hired an outside law firm to investigate the complaints involving the football program.

But Georges challenged Andrew Hamilton, the lawyer for the student and his new school, to provide more compelling evidence that the student deserved to play more than four years of high school basketball and football.

Hamilton, citing the “incredible emotional and physical abuse he suffered at his previous high school,” said he expects the student to gain long-term “therapeutic benefits” from having been able to play sports in his final year of high school.

The court is expected to issue a written opinion in the coming months.