On March 1, perhaps the most shocking upset in Kansas high school athletics took place inside a basketball gym in Shawnee Mission.
How does the rest of the country handle public vs. private?
States across the country follow the old adage of snowflakes — no two are alike. This holds mostly true for how high school athletics associations across the country govern and classify public and private schools, although some trends emerge.
The Sun contacted officials from associations in all 50 states plus Washington, D.C., to determine how private schools are classified nationwide. Of the 51 associations that are partnered with the National High School Federation — the country’s leading governing body for high school athletics of which KSHSAA is a member — 37 (76%) implement some form of modifier into its classification system.
One of the rarer examples but one of the easiest to comprehend is a population multiplier. Alabama, Illinois, Missouri, New Mexico and Tennessee all apply multipliers to private school enrollment. New Mexico’s is the lowest at 1.3 while Tennessee’s 1.8 is the highest.
Thirty-four states use some form of competitive balance factor, with these varying wildly across the nation. Some are more rigid, some are more subjective and some are outright optional with schools being allowed to play up a class at its own will.
Many of the competitive balance factors apply equally to both public and private schools, such as in Oklahoma.
Included in the Sun’s count of competitive balance factors are seven states that have entirely or mostly separated private schools from competing against public schools for state championships — Louisiana, Maryland, Mississippi, North Carolina, South Carolina, Texas and Virginia.
The Texas University Interscholastic League only has two private schools as members, and both compete in the highest classification automatically. The Virginia High School League has one private school as a member that sued for admittance but is subjected to strict residency guidelines.
Several states also reverse-engineer the solution by applying a reduction in classification to schools with a high percentage of students who qualify for free or reduced-cost lunches. Minnesota uses this model, as does Utah.
Finally, 15 states nationwide classify their schools strictly by enrollment and include private schools in their associations — Delaware, Florida, Kansas, Kentucky, Maine, Massachusetts, Michigan, Montana, Nebraska, Nevada, North Dakota, South Dakota, Washington, West Virginia and Wisconsin.
Many of those states are in the midst of their own efforts to address the public-private school issue. The West Virginia Secondary School Activities Commission proposed and passed a measure that would have factored in enrollment, location and economics into classification before the state’s department of education shot the measure down. The Nebraska School Activities Association put a 1.35 population multiplier to a vote of its member schools that failed to pass.
“We tried to find the different examples out there,” Faflick said. “We tried to study Minnesota because of the reduction. We looked at Missouri’s multiplier and Oklahoma’s success factor. We tried to consider those as a staff and as a board so we can know the impacts. There’s also Texas’ model of a separate division for private schools. Those are the four models we’ve really looked at.”
Demographics and economy are unquestionably factors in determining how each state addresses classification. Texas and Virginia’s separation of private schools is largely the result of a robust private school presence in the state that boasts some of the nation’s most prolific farm systems for high major college recruiters, a niche that doesn’t exist in Kansas. The private schools in Texas and Virginia have no interest in competing against public schools.
If there’s any trend that Kansas’ approach to classification aligns with, it’s that seven of the 15 states that mirror KSHSAA’s system have populations smaller than Kansas, with the Sunflower State ranking in the bottom third (34th) in state population.
What would it take to push a proposal through KSHSAA?
While Faflick is adamant that KSHSAA will further explore solutions for the public-private school issue, that’s just the first step in a long road for any proposal to be enacted.
Hines, the Paola High School athletic director, conducted a statewide survey in January that was sent out to every KSHSAA member school district. Of the 313 schools that responded to the survey, 87% supported some form of change to the current model.
“Kansas is behind the times. We’re definitely not ahead of the times,” said Hines, who’s become a de facto crusader on the issue. “When you hear about all the stuff that goes on at the NFHS, Kansas is supposed to be one of the premiere, cutting-edge leaders. We’re always applying new safety rules, yet we’re one of the last states to react with this competitive imbalance problem.”
Hines’ survey presented four options to schools — a population multiplier, competitive balance factors, separate divisions or no change. Seventy-four percent of the schools responded that they would support a population multiplier. Sixty-four percent would support competitive balance factors, while 51% would support separate divisions.
So why not take the most popular solution, a population multiplier, and submit that as a proposal to KSHSAA?
Here’s where Hines and Faflick align. Both parties are still researching in-depth each potential solution to find the best answer.
“I have the ability as a member school to make a proposal, and it would go up for a vote if it got a second. But we haven’t done that yet because we don’t know what we want to do,” Hines said.
For his part, Faflick wants to conduct his own research separate from Hines’ survey to ensure that a majority of KSHSAA schools would support any changes.
“We’re educators. We work for schools,” Faflick said. “So it’s important to study and to learn and to teach. We need to fully grasp the impacts.”
The procedure for voting on any change would mirror the same process that KSHSAA’s recent reclassification proposal underwent in 2017.
A superintendent of any member school can bring a rule proposal to the association, which would then add it to the agenda of the executive board. If the board votes to affirm the proposal, it would go to all the member schools for a vote.
For the measure to pass the vote, a simple majority of all schools must vote in favor of the proposal as well as a majority of impacted classes — four of six in this case.
Faflick told the Sun that he hopes to have completed his inquiry into the level of interest among schools in the state within the next few months.
Hines believes KSHSAA, and Faflick in particular, are heading in a direction that leads to change. But Hines added that he’s also preparing to take charge and bring a proposal to the board himself within the next year.
“If we feel like we’re being given lip service or we feel like KSHSAA is taking too long, our league will jump and make a proposal,” Hines said. “But Bill deserves the opportunity to look at the issue.”
A statute in the way
One obstacle standing in the way of any potential change in how private schools are classified — an obstacle perhaps exclusive to Kansas — is state law.
According to state statute K.S.A. 72-130, any association with a majority of high schools in the state must “establish a system for the classification of member high schools according to student attendance.”
Welcome to KSHSAA’s Great Wall.
“Our legal counsel says to do anything other than student enrollment would be contrary to the statute,” Faflick said. “We’ve looked at a lot of different solutions, but they’d all be contrary to that. If you read the statute in plain English, most people would agree.”
How that statute would be interpreted in court is a point of contention. KSHSAA told the Sun that its legal representation confirmed its interpretation as recently as a year ago.
In 2013, attorney Randall Forbes of Frieden, Unrein and Forbes law firm based in Topeka wrote a letter to then-KSHSAA Executive Director Gary Musselman.
In the letter, obtained by the Sun, Forbes wrote, “If the Kansas Legislature ... intended that only student attendance be considered when establishing the classification system, then an Association rule classifying private schools using one or more other factors would seem to violate that provision of Kansas law.”
KSHSAA bylaws prohibit any proposals going into effect that would violate state law. Faflick said that KSHSAA is still willing to move forward in researching and even voting on a proposal, but that any passage would result in the association pursuing a change in the law from the Kansas Legislature before it could be implemented.
“We could go at some point to the Legislature and say we want to make a change,” Faflick said. “That’s the whole intent of learning from schools what their true desire is. We still don’t know if we have a vocal minority or a majority of schools that want a change.”
John Wyrick, the superintendent of USD 506 in Altamont, disagrees with KSHSAA’s interpretation of K.S.A. 72-130.
“If you share that same letter with other lawyers, they don’t agree with that,” Wyrick said. “I reached out and spoke with our district’s legal team. Our legal team said it doesn’t agree with the attorney for KSHSAA.”
Timothy Epstein, a lawyer for the Duggan Bertsch firm based in Chicago that specializes in sports law, published an academic paper for the University of Texas School of Law that analyzed classification modifiers being applied to private schools.
Epstein, after being asked about the statute in Kansas, told the Sun that high school athletic associations nationwide are granted the necessary powers to manage classification, but that the statute could open the door for a lawsuit from any affected schools.
“Generally, high school associations in the country are given the authority to regulate membership,” Epstein said. “The specific wording within the Kansas statute, would (KSHSAA) have the ability to do something in addition to simple calculation of student population? On its face, there’s an argument that could be made by someone that would file a suit if a multiplier or similar measure was implemented.”
There is recent precedent in federal court where a modifier being applied to private schools survived judicial scrutiny.
In Alabama, St. Paul’s Episcopal School filed suit against the Alabama High School Athletic Association over its competitive balance factors.
The lawsuit, filed in May 2018, was dropped almost a year later. Twenty-three private schools signed letters of support backing AHSAA in the case.
During oral arguments of a hearing in the case, attorney William Shreve argued on behalf of AHSAA that the case didn’t infringe upon any constitutional rights.
“This case does not involve any fundamental rights or suspect class,” Shreve argued. “So to pass scrutiny under equal protection, a multiplier and (competitive balance factor) to apply to private schools only have to be rationally related to a legitimate state interest.
“This is an extremely lenient standard. The state actor has no obligation to produce evidence for any classification. Classification can be based on rational speculation, unsupported by evidence or empirical data. The rationale for the classification does not have to be accurate, but only arguable.”
In layman’s terms, Shreve argued in federal court that high school athletic associations have the authority to implement any classification measures that are in the interest of its members.
St. Paul was denied an injunction early in the case. The school argued that modifiers in Alabama violated equal protection, but the court disagreed.
“The AHSAA has a legitimate interest in promoting competitive balance for its members,” Judge William Steele ruled.
Essentially, the court ruled that AHSAA had the authority to enact its modifiers because it was in the interest of competitive balance statewide. KSHSAA could use that precedent in implementing modifiers into its classification model.
But that statute still exists, and it’s one KSHSAA doesn’t wish to challenge as it stands.
“We have to live with what our attorney tells us until we’re told differently by the courts or Legislature,” said KSHSAA Executive Board member Mike Kastle, who also serves on the USD 503 Board of Education in Parsons.
So can the law be changed?
There was a hearing in the Kansas State Senate Committee on Education in February 2017 on SB 145, a bill that would have removed the part of the statute that stipulates classification must be based on student enrollment.
Wichita Collegiate, Thomas More Prep, Bishop Miege and St. Thomas Aquinas were among the opponents for any change in the law that submitted written testimony. Hines, representing USD 368, as well as Randy Heatherly, the principal at Girard Middle School, submitted testimony in favor of the change. KSHSAA presented its testimony as a neutral party.
The bill died in committee a year later. Sen. Molly Baumgardner, who chairs the education committee, said that KSHSAA’s stance as a neutral party played a role in the bill’s death.
“The sense of the committee was that if we’re going to make a change that has a long-term ripple effect, we want the organization to come to us and say this is what we’re wanting,” Baumgardner said. “We want representation from other-sized schools to weigh in and there was none of that.”
If KSHSAA ends up passing any proposals for any modifiers, Kastle said the association would be willing to present that to the Legislature in another attempt to pass a bill modifying K.S.A. 72-130.
“In my opinion, the board would be open to that,” Kastle said. “We’re always open to good change. The executive board will do what the member schools wish us to do.
“If the association came out in favor of change, the result would change. The association needs to be endorsing any sort of change.”
The path to enacting change to KSHSAA’s classification model
It seems KSHSAA is moving toward making tangible change to its classification that would address any imbalances between public and private schools.
If the schools all pass a proposal, KSHSAA is ready to take that to the Kansas Legislature to try to get K.S.A. 72-130 changed, thus empowering the association to enact any modifiers.
That won’t be where change starts or stops. Any modifiers will almost certainly face the challenge of a lawsuit. Any appetite for change has to include an appetite for withstanding legal costs.
“I’m not terrified by lawsuits, but I certainly don’t relish them either,” Faflick said. “When you do things the right way and follow the process in place, you generally are in pretty good shape. Courts want to know whether you followed the processes and if the decisions adhere to state laws and federal laws.”
The Ohio Supreme Court recently allowed a Catholic private school’s lawsuit against the Ohio High School Athletic Association to move forward. Ohio commissioned a competitive balance committee in 2010 that needed four tries at proposals before one finally passed in 2014. Those rules are now being challenged with a lawsuit.
Wyrick, the USD 506 superintendent, said school districts across the state should be willing to stomach any legal challenge.
“Let ’em sue us,” Wyrick said. “What do we have to lose? We’re in this for our kids. If athletic directors, principals and superintendents say and believe that they’re in it for the kids, then why should we be afraid of a lawsuit?”
A private school that sues KSHSAA over any modifiers could argue discrimination. Former Bishop Miege Athletic Director Mike Hubka testified to the Kansas Senate that “by weighting private schools, it sends a message to the public schools that their students are worth less and does the opposite of what is intended, leveling the playing field.”
Hines is staunchly against that narrative.
“What annoys me more than anything else is that these schools have cried discrimination,” Hines said. “My response is that every time they deny admission, they exhibit discrimination in its most basic form.”
Parsons High School Athletic Director Rob Barcus said that any modifiers added to private schools would be a move toward equity. He highlighted the fact that private schools can devote more financial resources to its athletic programs at its own will compared to public schools, which have to meet the needs of any student that walks the hallways.
“With our socioeconomic position we’re in right now, we don’t have a lot of extra money to devote to athletics,” Barcus said. “We’re trying to focus on academics. It’s very difficult. When you look at all the needs the school district has, it’s difficult to push for facility upgrades and stuff for athletics.”
The Kansas State Senate and KSHSAA have essentially asked one another to move first, with neither giving up its ground. Under Faflick’s leadership, KSHSAA is more motivated to try to move the needle in a direction it sees fit.
“KSHSAA passing something forces them to have an appetite for it,” Hines said. “They have to interpret whether or not what we’re doing is right or wrong.”
Baumgardner said that if KSHSAA comes out in favor of any change, she would be more open to submitting a new bill that would change the statute.
“We wanted to let the new KSHSAA executive director have a fresh bite of the apple,” Baumgardner said.
Part of KSHSAA’s process is arduous study of other states’ implementations of modifiers. Faflick followed closely the lawsuit in Alabama. He’s also mindful of Missouri’s population multiplier, which was scrapped in June by the Missouri State High School Activities Association in favor of competitive balance factors judged sport by sport that will be implemented in 2020-21.
Ultimately, Faflick wants to once and for all find out what the state wants from KSHSAA.
“It is a process of surveying, going out and meeting with leagues and continuing to look at what the majority of member schools want,” Faflick said. “We don’t have that answer yet. I’m hopeful over the next few months we’ll have a clearer picture.”
The timeline for any change to the classification model in Kansas will likely be measured in years due to the hurdles at hand. That includes getting the majority of the state across all classes on the same page, changing state law and a readiness to defend any modifiers in court.
“If a majority of member schools say they’re in favor of a change,” Wyrick said, “they better be ready to fight for it.”