Judge's written order has harsh words concerning how OSSAA has treated private schools

Nearly three months after he issued a motion for a temporary injunction , an Oklahoma County judge has posted a formal order that includes harsh words for the Oklahoma Secondary School Activities Association concerning how it’s treated private schools that are members of the organization.

Five private high schools sued the OSSAA in December, claiming the organization’s Rule 14 — which elevates private schools to higher athletic classifications based on sustained postseason success — is unconstitutional and should be voided. The OSSAA has said the aim of the rule is to create competitive balance between public and private schools in athletics.

In a hearing on April 9, District Judge Richard Ogden allowed a previous version of Rule 14 to stand, but said amendments to the rule made by the OSSAA on July 1, 2023, could not be enforced. Because of that ruling, multiple schools — both private and public — changed classifications and competitive districts had to be redrawn , setting off a mad scramble to revise football schedules at schools across Oklahoma for the season that will begin in late August.

Ogden’s written order in the case, posted last week, formally granted the temporary injunction sought by the plaintiffs in the lawsuit — Bishop McGuinness, Mount St. Mary, Heritage Hall and Crossings Christian, all located in Oklahoma City, and Oklahoma Christian School in Edmond. The order went into effect on July 1 and prohibits the “OSSAA from making any further amendments to Rule 14 or enacting any rules as to competitiveness in athletics between the public and private schools without prior approval of this Court, pending this litigation.”

The judge also encouraged the OSSAA “to spend time in the process of discernment regarding nonpublic and public school athletic competitions.”

Van Shea Iven, a spokesman for the OSSAA, didn’t immediately return a text message from The Oklahoman seeking comment on Ogden’s written order.

Before Ogden’s ruling, the OSSAA’s Rule 14 included a coupling provision, which applied to cross country, soccer, track and field, and Class 6A and 5A basketball. If a school had both boys and girls teams in one of those specific sports that qualifies to move up a classification based on postseason success, then both teams had to advance to the higher classification.

The OSSAA’s amendments also had removed a cap that kept private schools to reach Class 6A. The ruling restored that cap. The preliminary injunction also bars the OSSAA from bumping a private school higher than one classification from where its enrollment might otherwise place it.

The order also forced the OSSAA to revert to a previous “success factor” in determining whether a private school must move up. Now, a private school has to finish in the top eight during two of the past three years to move up.

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Judge says Rule 14 is designed 'to push private schools out of secondary athletics'

Ogden noted in his order Rule 14 never has been applied to public schools and said the rule “is not motivated by the OSSAA’s facially neutral reasons of a ‘level playing field’ or ‘competitive balance.’” He noted members of the OSSAA board of directors, the agency’s governing body, “exhibit this dislike and ill will” toward private schools.

“Rule 14 as amended is written and applied to push private schools out of secondary athletics and has no rational basis and state interest and is not equitable,” Ogden declared. “It is a deviation of each student’s constitutional right to equal protection under the Fourteenth Amendment and it is not only an imminent threat, but it is actually not only on the doorstep but it is in the proverbial house, it has come in.”

The OSSAA contains 484 members – 448 public schools, 10 charter schools (which under Oklahoma law are considered to be public) and 26 private schools. The OSSAA didn’t have any private-school members until 1967, when McGuinness and Tulsa Bishop Kelley were admitted. Rule 14 took effect in 2011 .

Ogden said Rule 14 “is steeped in a long dislike of private schools by the traditional public schools.” He said “in all member-driven organizations, even democracies and republics, such as that in which we live, there is a limitation on the majority over the minority. It is checked by our Constitution and it is indeed to be checked here by the Fourteenth Amendment.”

The OSSAA had argued Bishop McGuinness lost a federal lawsuit in 2014 against the OSSAA regarding Rule 14 and the school challenged the rule in that lawsuit “on the same basic that it is challenging Rule 14 in this matter.” Ogden said, however, the federal-court ruling was “not a final order on the merits” and “not a published opinion.” Ogden also said “more than 10 years of lived application of Rule 14 has shown a bright light into what was unknown or in the shadows in 2014. The Rule has changed materially in form and application since 2014.”

Ogden said that despite established law, it seemed to him the OSSAA regarded as “just advisory” a 2013 Oklahoma Supreme Court decision in another case in which Justice Yvonne Kauger said the OSSAA “no more” should act with impunity and that the organization qualifies as a state actor. The OSSAA oversees extracurricular activities for the vast majority of schools in Oklahoma for students in grades seven through 12, including matters of athletic classification, playoffs, student transfers and eligibility.

Ogden said testimony from OSSAA Executive Director David Jackson “was telling in that his opinion that the OSSAA is not a state actor seems to amount to an honest disagreement with which reasonable people may differ as opposed to what it is,” calling Kauger’s decision “binding authority from the highest court in the state.”

This article originally appeared on Oklahoman: Judge's written order has harsh words concerning how OSSAA has treated private schools