Abstract
Robert Kim tackles the question of whether denying students access to extracurricular programs is lawful. Historically, courts have considered the presence or absence of extracurricular activities as a factor in determining whether a district has eliminated vestiges of segregation. Outside the desegregation context, however, courts have been reluctant to recognize a legal right to participate in extracurricular activities. Today, those hoping to define extracurriclar opportutines as a right may find avenues to puruse in case involving school finances and federal enforcement of civil rights statutes.
When we hear the term extracurricular, what stands out is its prefix: extra. As in: Beyond. Outside. Peripheral But what if school-based activities currently labeled extracurricular are more central than meets the eye? “An ever-growing body of research,” notes one recent article (Meier, Hartmann, & Larson, 2018), “suggests that extracurricular participation is linked to a broad range of positive outcomes for youth,” including better social skills, better performance in school, less violence, stronger self-esteem and identity, improved physical activity, better health, and a greater sense of civic responsibility.
So, if extracurricular learning is so essential to human development, then is depriving students of it unfair, immoral, or even unlawful? In other words, is there — or should there be — a legal right of equal access to extracurricular opportunities?
Extracurriculars in the era of racial desegregation
Legal historians might say the answer is yes. The right of equitable access to comparable extracurricular programs was legally recognized more than five decades ago, in the school desegregation context. In Green v. County School Bd. of New Kent County, Va (1968), the U.S. Supreme Court identified the availability of extracurricular activities as one of the six factors for determining whether a school district had eliminated the vestiges of racial segregation. Ever since Green, courts have examined students’ access to extracurricular life at different schools as a litmus test for equal educational opportunity.
For example, in McNeal v. Tate Cty. Sch. Dist (N.D. Miss. 2016), a Mississippi federal court, enforcing a court desegregation order in effect since 1970, ordered a school district to reinstitute sports and extracurricular activities at Coldwater High School, the district’s only predominantly Black high school. The court noted that when the district cancelled the school’s extracurricular activities, it “erected a significant barrier to extracurricular participation by African American students.”
These desegregation-related cases established that depriving students of a particular race of equal extracurricular opportunity violates equal protection principles guaranteed by the Constitution, as well as the core directive of Brown v. Board of Education that states and districts dismantle their separate-and-unequal schools.
Post-civil rights era cases: A privilege, not a right
Outside the desegregation context, however, courts have been reluctant to recognize a legal right to participate in extracurricular activities. For instance, in Palmer by Palmer v. Merluzzi (3rd Cir. 1989) — which involved a 60-day athletic suspension of a student football player due to his illicit drug and alcohol consumption — the Third Circuit Court of Appeals held that participation in extracurricular activities is not a fundamental constitutional right. This is unsurprising, given that the Supreme Court has never explicitly recognized such a right with respect to curricular activities. As stated in another court decision, in Kirby v. Loyalsock Twp. Sch. Dist (M.D. Pa. 2011), “Since there is no fundamental right to a public education, there is no fundamental right to participate in extracurricular school activities.”
The Palmer court did, however, imply that students have a “property interest” in extracurricular activities, and that depriving them of those activities could violate their due process rights. But other courts have all but slammed shut this argument, holding that students do not have a constitutional right of due process to participate in extracurricular activities.
Even when a fundamental right to education has been held to exist under state law, courts have been reluctant to extend that right to extracurricular activities. For example, in Mancuso v. Mass. Interscholastic Athletic Ass’n, Inc (Mass. 2009), the Massachusetts Supreme Judicial Court stated that “[t]he right to a public education, even one with a mandatory physical education component, is not synonymous with the right to participate in extracurricular activities.”
That said, when determining the appropriateness of requiring students to pay fees to participate in extracurricular activities, some courts have struck a different chord. In Hartzell v. Connell (Cal. 1984), for example, the California Supreme Court held that all educational activities that school districts offer — whether curricular or extracurricular — fall within the free school guarantee of the California Constitution. Therefore, the court held, imposing fees on students for participation in extracurricular activities violated California law.
Outside the desegregation context, then, the overall direction of the law appears to suggest that a school does not have to offer extracurricular activities; but when it does, if the state guarantees a “free” public education, it cannot make students “pay to play.”
Potential avenues for extracurricular rights
However, not all hope is lost for those who would define extracurricular opportunity as a legal right. Specifically, they might find avenues to pursue in notable school finance cases and federal enforcement of civil rights statutes.
In the school finance context, plaintiffs have successfully incorporated the presence or absence of extracurricular activities into definitions of what constitutes adequacy in public education. For example, in Edgewood Indep. Sch. Dist. v. Kirby (Tex. 1989), the Texas Supreme Court pointed to disparities not only in school spending and academic courses but in extracurricular activities, including band, debate, and football, as evidence that the state’s school funding system violated the state Constitution’s mandate to support and maintain an “efficient” system of public free schools.
That same year, in Rose v. Council for Better Educ., Inc (Ky. 1989), the Kentucky Supreme Court — while not directly addressing extracurricular offerings — held that, under the state’s constitution, public schools must help each and every child develop at least seven “capacities,” including “sufficient grounding in the arts.” The Rose court also approvingly cited Pauley v. Kelly (W. Va. 1979), in which the West Virginia Supreme Court held that civics, recreation, and “creative interests” were among the essential capacities West Virginia public schools must develop in students. And in Abbott by Abbott v. Burke (N.J. 1990), the New Jersey Supreme Court held that school districts that were “denuded” of art, music, drama, and athletics violated the state’s constitutional obligation to provide a “thorough and efficient” education to every child.
Plaintiffs in more recent school-finance litigation have folded the lack of extracurricular opportunity into claims of inequitable or inadequate school funding. Cases include New Yorkers for Students’ Educational Rights v. New York (N.Y. 2014), which highlighted the elimination of civics-related extracurricular offerings such as Model UN and moot court programs; Shelby Cty. Bd. of Educ. v. Haslam (Tenn. 2015), which protested cuts to before- and after-school, extracurricular, and athletic programs; Stephen C., et al. v. Bureau of Indian Educ., et al. (N.M. 2018), which alleged that students of the Havasupai tribe were denied access to any extracurricular activities; and A.C., et al. v. Raimondo, et al. (R.I. 2018), which challenged the lack of experiential and extracurricular activities needed to provide students with civic knowledge, skills, and values necessary for capable citizenship.
In the federal civil rights enforcement context, it is well-established that, under specific federal laws, participation in extracurricular activities must be available to all qualified students regardless of religion, sex, race, or disability (Cary, 1992). Perhaps the most prolific assertion of rights in this realm is under Title IX, which prohibits sex discrimination in schools. See, for example, Ollier v. Sweetwater Union High Sch. Dist (9th Cir. 2014), which holds that a school district violated Title IX by not fully and effectively accommodating its female high school athletes, and Hecox v. Little (D. Idaho 2020), which holds that transgender athletes barred from participating in school sport teams in accordance with their gender identity were likely to succeed in their legal claims against the state.
Beyond Title IX, federal enforcement policy guidance suggests a right of equal access to extracurricular activities for specific student populations. For example, the U.S. Department of Education’s Office for Civil Rights (OCR) issued guidance in 2013 clarifying that, to comply with Section 504 of the Rehabilitation Act, school districts must ensure qualified students with disabilities have an equal opportunity to participate in extracurriculars. One year later, OCR issued guidance strongly signaling that unequal access to extracurricular activities for students of color could violate Title VI of the Civil Rights Act and subject schools to federal investigation. Finally, in 2015, OCR issued additional Title VI guidance articulating the obligation of states and school districts to provide English learner students with equal opportunities to meaningfully participate in curricular and extracurricular activities.
Given the breadth of curricular inequality that exists in U.S. public schools, it is perhaps understandable that the issue of equal extracurricular opportunity has not gained more prominence. But maybe it’s time to break down the distinction between curricular and extracurricular. After all, many “extracurricular” activities (such as newspaper or yearbook clubs, school musicals, art shows, mock trial/debate, and STEM clubs) are essentially cocurricular in nature. Relatedly, many “curricular” subjects (such as physical education, foreign languages, music, art, math, science, and civics) are pursued effectively in extracurricular settings.
In sum, perhaps we ought to view fulsome access to extracurricular opportunities not merely as a welcome option, but as a legal entitlement central to the promise of an adequate, equitable, and holistic education for every child.