Recently, in Makindu v. Illinois High School Student Association, the Second District of the Illinois Appellate Court affirmed a trial court’s grant of a preliminary injunction in favor of an international high school student’s ability to participate in interscholastic sports in the face of an amended IHSA bylaw that would have previously prevented him from playing.  

The student, who came to the United States in 2012 on an F-1 student visa to attend an IHSA member school, sought a determination from IHSA’s executive director regarding his eligibility to participate in IHSA activities. The executive director informed the student that he would be ineligible to play until October 2013 due to current bylaws. Under the bylaws at that time, international students who did not come to the United States through an approved foreign exchange program and did not meet the general residency and transfer requirements applicable to all other students were permitted to participate in interscholastic sports after sitting out for one year. 

In 2013, the IHSA amended bylaw 3.034.3, which addresses the eligibility of international and foreign exchange students to participate in interscholastic sports. Specifically, the bylaw was amended to provide that students who were not participating in an approved student exchange program or living full-time with a custodial parent or legal guardian could not participate in IHSA activities while attending high school. Drafters of the amended bylaw were concerned that the increase in international students who did not come to the United States through an approved exchange program could negatively impact competition and provide an advantage to certain schools. 

Given that the student did not come through an approved exchange program and lived at a residential school, IHSA’s executive director informed the student’s school that he would not be eligible to participate in interscholastic sports. The student appealed this decision to the IHSA board of directors, which in turn, affirmed the decision. The student then filed a motion for a preliminary and a permanent injunction to prevent the IHSA from implementing the amended bylaw, asserting that the amended bylaw violated his right to equal protection. 

In December 2014, the trial court issued an order granting the student’s motion for a preliminary injunction and enjoining the IHSA from enforcing its amended bylaw, thereby maintaining the status quo and allowing the student to play basketball during his senior year. The trial court found that the student had raised a “fair question” that his right to equal protection had been violated and that the IHSA failed to demonstrate that international students were better athletes or that they would necessarily adversely affect competition. On appeal, the court noted that the IHSA’s amended bylaw implicated equal-protection concerns given that it distinguished between foreign students who live with a parent or guardian and those who do not. Moreover, the court found that there was no evidence that demonstrated a correlation between the amended bylaw and its purported objective of promoting fair competition. 

While the appellate court did not rule on the ultimate issue of whether the amended bylaw is constitutional, the court found that the trial court did not abuse its discretion in finding that there was a lack of evidence that the amended bylaw would facilitate its expressed objective of promoting fair competition.

Likely as an outgrowth from this litigation, Michelle Mershon, Principal at Saint Bede Academy in Peru, Illinois, submitted a proposal to amend bylaw 3.034.3. The proposed revised bylaw would allow international students who did not come to the United States through an approved foreign exchange program and did not meet the general residency and transfer requirements to participate in IHSA activities if they are in a program which has been approved by the IHSA Board of Directors. Under the proposal, the Board of Directors would establish the criteria by which it would approve such programs. Pursuant to the IHSA Constitution and the IHSA website, in order for this proposal to be adopted, a majority of the IHSA Legislative Commission must support the proposal. If the proposal receives such support, it will then be submitted to all member schools, who will vote in December by electronic ballot. The proposal will be adopted if approved by a simple majority of votes cast.