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Bishop England, Oceanside file suit against SCHSL

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Oceanside’s football team advanced to the Class AA Lower State championship game in its fourth season this fall.

Bishop England and Oceanside are among 12 South Carolina charter and private schools that together filed suit against the S.C. High School League in state court on Monday.

The group is seeking a temporary restraining order and injunction that would prohibit the league from enforcing amendments to its by-laws approved in March. The schools contend the by-laws are discriminatory against public charter and private schools and could violate state and federal laws that protect school choice.

The amendments are set to take effect June 1.

“The (S.C. High School) League oversees many games in South Carolina, but it should not be permitted to play games with the lives of South Carolina students and families,” reads the memorandum submitted by the schools to the court. “That is what is happening now, as the future careers, both academic and athletic, of South Carolina students are being tossed around in a high-stakes game in which traditional public schools are trying to protect and enhance their competitive advantage.”

The suit is centered on athletic eligibility.

Students have, in the past, been immediately eligible to compete for a charter or private school, no matter its location, so long as they are enrolled by the ninth grade. This is commonly referred to as the “ninth-grade rule.”

The new legislation would now require incoming freshmen who enroll at a charter or private school but live outside of its assigned attendance zone to sit out a year of any athletic competition, sub-varsity included. Charter and private schools typically attract a wider reach of students than the immediate surrounding area.

Public charter and private schools are required by the league to define their attendance zones as that of the traditional public school closest to it. Oceanside, a public charter school in Mount Pleasant, has shared an attendance zone with neighboring Wando, a traditional public school, since the former opened four years ago. Bishop England, a private school on Daniel Island, has traditionally used Charleston County as an attendance zone but will now be required to match that of neighboring public school Philip Simmons.

So now, under the new rules, any incoming freshman of Oceanside or Bishop England who lives outside of those assigned attendance zones will be ineligible to play sports of any kind until their sophomore year.

“The League-assigned attendance zone for a public charter or private school is a fiction and essentially arbitrary; it bears no resemblance to the area from which these schools actually draw their enrollment,” the memorandum states.

The suit cites the state’s open-enrollment districts, of which Charleston County School District is, that allow students to attend traditional schools outside of their defined attendance zones as part of school choice.

“The same rights and privileges are plainly not being provided to Plaintiff Schools when a traditional public school in an open enrollment district can welcome any student from any other traditional public school in the district or any other public charter or private school located in that district in ninth grade and the student will be fully eligible for League athletics … no matter where that student lives,” the memorandum continues. “But in contrast, Plaintiff Schools will be forced to bar from athletics any student who transfers in ninth grade unless that student happens to live in the League-assigned attendance zone of the Plaintiff School.”

The league’s new amendments will also impact the eligibility of upperclass transfers within the same school zones.

In the past, students have been able to transfer from public schools to a charter or private — and vice versa — within the same zone and remain immediately eligible to participate athletically.

That same transfer would now be required to sit out a year, similar to a transfer from outside of the school zone. Transfers between traditional public schools within the same district would still be allowed, however, provided the transfer receives administrative approval.

“In other words,” the memorandum says. “Almost all South Carolina families that exercise their right to choose a public charter or private school will be punished by having their children sit out of interscholastic athletics for a full year.”

The suit contends that the amendments will inflict irreparable harm and “are already having a devastating effect on South Carolina families and the Plaintiff Schools that serve them.”

It cites the state’s budget proviso, which requires that public charter and private schools be provided the same rights and privileges as all other schools; the EAIAA and the Charter Schools Act, which establish the right of parents to choose public charter schools and the right of public charter school students to participate in athletics; and the broad recognition in South Carolina law that families can choose the best educational options for their children.

S.C. Attorney General Alan Wilson issued an opinion in April that the league’s amendments were likely in violation of state law.

“The rules disproportionately render many charter schools student ineligible to participate in varsity and junior varsity athletics for a full year,” Wilson wrote. “This same reasoning applies more pervasively to students that transfer to private schools as these schools often do not have another school under the same governing body or district. Because private and charter school students are disproportionately rendered ineligible to participate in interscholastic athletics, a court would likely hold the amendments violate Proviso 1.59.

“Taken together, these amendments present a dilemma for students and parents: whether to exercise their right to attend a private or charter school of their choice or to maintain their eligibility to participate in League athletics.”

The S.C. High School League includes 21 public charter schools and four private schools, meaning about one in every eight members of the league will be directly affected by the amendments.

Brashier Middle College Charter High, Greenville Technical Charter High School, Greer Middle College Charter High, Fox Creek High, Palmetto Scholars Academy, Legion Collegiate Academy, Oceanside Collegiate Academy, Gray Collegiate Academy, Bishop England, Christ Church, St. Joseph’s and Southside Christian are all listed as plaintiffs in the suit.

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