Private Problem, Public Debate: Complicated dance between PIAA, legislature has always loomed large

This is Part 2 of a four-part series looking at the public-vs-private schools debate in the PIAA. Part 1 covered the disproportionate share of PIAA titles won by private schools. Part 3 explores the evolving role of charter schools and the Philadelphia Public League in the PIAA. Part 4 delves into the role that transfers and recruiting play in seeking competitive balance, plus we have a web exclusive exploring how competitive balance is tackled across the United States.

The source of so much of the frustration wrought on playing fields across Pennsylvania stems from an astoundingly brief phrase.

It may be little consolation to a coach watching a season end in emphatic fashion that his or her travails stem in part from one sentence written nearly a half-century ago. But like roads to ancient Rome, every conversation about public and private school participation in interscholastic athletics in Pennsylvania leads to seventeen painstakingly assembled words.

“Private schools shall be permitted, if otherwise qualified, to be members of the Pennsylvania Interscholastic Athletic Association,” reads Act 219 of 1972, which earned the signature of Gov. Milton Shapp on Oct. 16. That amendment to the Public School Code forever changed the landscape of high school sports; it remains the blind alley in which every conversation of reform invariably gets marooned.

Though high school sports then were hardly the attention-demanding behemoth of today, the ramifications resonated with the eight representatives who introduced House Bill 2104 to the General Assembly in May 1972.

Simple though it appeared, the bill sponsored by Rep. Samuel Frank, D-132 of Lehigh County, underwent two revisions, the key alteration gaining private schools not just the right to compete for state championships but full inclusion in the PIAA, which from its founding in 1913 had been the exclusive purview of public schools.

That detail is anything but trivial. It imbued private schools with full membership benefits of and required adherence to PIAA bylaws, even in areas where previous methods of operation had deviated. The legislative binding of the schools seems to preclude any hope of one day decoupling them via non-legislative means for separate state tournaments; mustering the political will to even spur the discussion has traditionally been in short supply.

That fact has entailed countless pages of deliberation, leading time and again to boardrooms, courtrooms and back to the floor of the General Assembly in Harrisburg. While possibilities to alleviate tension in the unbalanced playing field argument that was illustrated Monday are myriad, the most prevalent idea account for the differences in the operations of public and private entities. The most extreme envision separate tournaments for public and non-public entities.

READ: Part 1 of 4, Public schools across Pa. feeling squeezed out by ‘non-boundary’ counterparts

If any of those hypothetical plans came to fruition, they’d almost certainly lead back through those same corridors of power.

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The General Assembly’s action in 1972 established precedent to intervene in the PIAA’s affairs, a precursor to vaster intercessions down the road. The PIAA often veered into the General Assembly’s crosshairs through the end of the 20th century, and the late 1990s brought an especially contentious period that drastically reshaped the organization, calling into question its very existence.

“I am optimistic about the future of the PIAA,” Sen. James Rhoades, D-29 of Cambria County, declared in the Capitol Feb. 1, 1999 (page 13 of pdf). “Although the special committee’s factual findings paint a bleak picture of an organization in disarray, our investigation has compelled the PIAA leaders to adopt an attitude that is conducive to change.”

Such changes reverberate to the present. They speak to pronounced antipathy between the legislature and the organization; though PIAA reform has considerably soothed animosity, the specter of legislative intrusion still hovers over the mere hint of any landmark changes.

Rhoades, who died in 2009, had long been vigilant of the PIAA’s operations, chairing committees to investigate the dealings in 1988 and 1992. A bipartisan committee, the product of more than a year of deliberation, was impaneled in 1999 and sought more comprehensive reform. Of primary concern were issues of eligibility and finances, which the government felt the PIAA handled opaquely and arbitrarily. While the PIAA remains an independent and voluntary member organization, its funds funnel from taxpayers through schools. Citing displeasure from constituents and, in the words of panel member and Senate President Pro Tempore Robert Jubelirer, R-30 of Bedford County, “the absolutely dictatorial conduct,” of then PIAA executive director Bradley Cashman, the legislature took aim.

“We are not here today because of a single event,” Sen. Robert Robbins, R-50 of Butler County, said in 1998 (page 10 of pdf). “We are here today because of years of activities that have gone on and need to be looked into. We truly have to find out, as we look at the interscholastic sports system in Pennsylvania, what truly is best for our student athletes and go forward from here.”

Jubelirer trumpeted the committee’s labors — seven public hearings, 57 witnesses, 8,338 pages of documentation — that were distilled into 13 recommendations in the form of Act 91 of 2000, the Pennsylvania Interscholastic Athletics Accountability Act. The most far-reaching created the Athletic Oversight Council (PAOC), a bicameral panel charged with keeping the PIAA on the straight and narrow via annual meetings devoted to major issues.

“For the first time in its history, the PIAA will be accountable for the way it runs interscholastic athletics in Pennsylvania,” Rhoades trumpeted. “This is a major victory for the rights of the Commonwealth’s student athletes and their parents.”

Most of the 13 original stipulations were implemented quickly, forming the backbone of the modern PIAA — open board meetings, competitive bidding, unfettered media access, a more inclusive board representing diverse constituencies, etc.

But Act 91, which gave the PIAA two years to comply, included this proviso: A year after the reform deadline (three years from bill passage), the Council could by majority vote “submit a proposal for the selection of a new entity to oversee the operation of interscholastic athletics in this Commonwealth.” Effectively, the Oversight Council has the authority to end the PIAA.

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Fast forward a decade and every major change the PIAA has debated appears in the minutes of the PAOC. As it relates to questions of competitive balance, the PAOC’s stance is that any significant shift in classifications would have to, at the least, be heavily vetted by the legislature; any grand restructuring, such as separate tournaments for public and private championships, would likely involve much more than cursory input.

“For us to have separate playoffs,” PIAA executive director Dr. Robert Lombardi told PA Prep Live last week, “it would take the legislature.”

Other issues have borne the hallmarks of that input. When District 7 proposed sweeping changes to transfer language in the bylaws in 2006, alternatives were proffered to the PAOC. The integration of the Philadelphia Catholic League for the 2008-09 season was discussed for years by the council.

The legislature has also acted independently of the PAOC to mediate PIAA procedures. State Rep. Curtis G. Sonney, R-4 of Erie County, sponsored House Bill 1938 in 2011, proposing that “no nonpublic school or private school that offers scholarships or tuition assistance to students … may participate in interscholastic athletic playoffs or championships between public schools,” essentially partitioning public and private into Division I and II. That bill died in committee.

Separate from legislative meddling, the PIAA has endeavored to tackle allegations of competitive imbalance at somewhat regular intervals, but few have reached their intended finish lines. Private-school dominance was addressed briefly in the early 1990s and again in 2001 (with football spearheading the conversation). Explorations performed in 2003, at the behest of Cashman, and 2007, on a motion put forth by the District 1 Executive Committee (pdf), failed to produce a feasible conclusion. A six-classification scheme similar to the one enacted for the 2016-17 academic year was defeated in 2009. A 2011 sketch put forth by ELCO Athletic Director (now District 3 vice chairman) Doug Bohannon, which proposed grouping the top quartile of public schools by enrollment with the top quartile of private schools by enrollment together in a classification and so on, gained little traction.

These two strands — legislative input and the debate over competitive balance — converged in 2012 with the PAOC’s most salient intervention when the PIAA tried to alter definitions of schools. In May 2011, the PIAA Board of Directors put forth an amendment (pdf) to its constitution’s glossary to add to the lexicon the terms “boundary” and “non-boundary”. A “boundary” school would be any one in which “at least 75 percent of students enrolled therein reside within the geographic boundary of the public school district.” A “non-boundary” school would essentially be anything else. That differed sharply from the existing definition of a “private school” as simply “a nonpublic school;” the new demarcation lumped certain charter schools with private schools in accordance with their method of recruitment rather than public schools, which reflects their manner of funding.

Though tabled at its introduction in May, the proposal was altered slightly and passed by overwhelming margins on first and second readings in July and October. A third and final reading was twice deferred, in part to permit a meeting of the PAOC that allowed stakeholders, such as the Pennsylvania Catholic Conference and other private school envoys, to lodge objections in January 2012 (page 43 of pdf), calling the idea “an intentional effort by a majority faction (public school districts) to accord disparate and discriminatory treatment to a sub-class of student-athletes”. The primary argument was that such language served as a preamble to partitioning schools into separate tournaments.

At a final vote in March, the boundary measure failed unanimously.

The reason, Cashman revealed in an interview with the Reading Eagle upon his retirement later that year and confirmed to PA Prep Live recently, was the specter of legislative involvement. Specifically, the PIAA faced proposed legislation effectively banning schools in the Commonwealth from participating in any organization that would hold separate championships on the basis of public/private status.

“That plan went through two readings, but by the time it got to the third reading, that’s when the board decided to back off because of legislation that was being threatened, and actually being introduced into the Senate, to make sure we didn’t discriminate against private school(s),” Cashman told The Eagle. “So the whole plan basically died because of that legislation. Once the board decided not to adopt those definitions of boundary vs. non-boundary schools, then legislation was pulled from the table.”

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The boundary saga posits a pertinent deterrent to future queries. For instance, Bob Tonkin, a long-time administrator from District 9 who designed and championed the six-class football scheme, told PA Prep Live in December that the intimation of separating public and private was a non-starter. Any inkling of altering the fundamental schematic devolves into concerns of litigation and externalities the PIAA would rather not face, even before confronting the existential threat Act 91 empowers.

“If you talk to the legislature today, they won’t want to touch the issue with a 10-foot pole,” then PIAA board president Wally Blucas told the Meadville Tribune in 2007, a sentiment that rings true a decade later.

But fear over legislative involvement isn’t so cut and dry to some. Ken Jacobsen is a professor at Temple University’s Beasley School of Law, specializing in sports and entertainment law. At a remove from the bureaucratic goings on of PIAA administration, Jacobsen’s expert view doesn’t see Act 219 necessitating the paralyzing inevitability of legislative intervention.

“If you repeat something long enough and frequently enough, then people start believing that,” Jacobsen said. “And I’m not saying that they’re not well-intentioned and they don’t harbor those views. As a matter of legislation … I do not believe from my reading that there’s a legislative impediment to the PIAA holding those state tournaments separated from boundary and non-boundaries.”

Jacobsen takes an optimistic view of the powers Act 219 endows. The PIAA has dominion over how it structures tournaments involving its members. While nonpublic constituents would decry separate tournaments as inequitable, Jacobsen sees the public schools’ boundary constraints as similarly discriminatory in the current system. The blessing of the legislature would provide the PIAA a bulwark against the inevitable flood of litigation. But from the legal view, once the noise and emotions obfuscating the facts are dispelled, Jacobsen poses the PIAA’s question as two-fold: What are its nondiscrimination requirements, and what is its mandate in administering athletics in Pennsylvania? His answer is clear.

“I do not believe from my reading that there’s a legislative impediment to the PIAA holding those state tournaments separated by boundary and non-boundary schools,” he said.

Any major change would ruffle feathers, entailing question of where political will lies, either in backing or impeding PIAA action, and what tolerance all sides possess for legal skirmishes. But in the meantime, the shadow of the General Assembly looming over the PIAA politicizes high school sports, turning it into what Jacobsen regards as a “ping-pong ball” subject to the political whims of a diverse body.

The myriad quandaries contributing to this political morass seem to heavily favor maintenance of the status quo.

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Since its formation, State Rep. Gene DiGirolamo, R-18 of Bensalem, has chaired the Athletic Oversight Committee. He regiments his stance by the PIAA statutes: It sets forth rules to which all members are beholden; Violations would incur sanction according to prescribed guidelines.

The tacit implication is that for a private school to win a state title, it has been deemed to have followed the rules. And to DiGirolamo, the impression of impropriety is just a smokescreen, albeit a vitriolic one.

“If there is a transfer or recruiting for athletic purposes, bring it to us,” DiGirolamo told PA Prep Live. “We want to know about it, and we’d be glad to act on it.”

Lombardi sees it much the same way. Any schools participating in the PIAA playoffs have inexorably adhered to prohibitions on athletic scholarships and overt recruiting, otherwise they wouldn’t have gotten there.

“People need to stop the rumors and innuendo and bring that forward with credible evidence,” Lombardi said. “We have the ability to hold hearings and hold people’s hands to the fire. There’s no credible evidence, just barroom talk, and we seem to be operating at a disadvantage that there seems to be, ‘oh so and so is here so they much be cheating.’”

The perception of impropriety, though, is harder to allay. Even DiGirolamo’s vice-chairman on the PAOC, State Sen. Robert Tomlinson, R-6 of Bucks County, isn’t so sure of certain schools’ scruples.

“In my opinion, these schools are still recruiting,” Tomlinson told a PAOC hearing in 2015 (page 24 of pdf). “There are schools out there recruiting, I guess it is maybe hard to prove.”

Rep. DiGirolamo’s view is in part shaped by personal experience. A graduate of Bishop Egan, he empathizes with parents who choose private education, paying a second school bill on top of the one underwritten by their taxes. DiGirolamo was a vocal proponent of the Catholic League integrating to the PIAA more than a decade ago, and he sees recruitment — in the permissible, non-sports sense — as imperative to the survival of Catholic schools.

In an athletic context, Catholic schools have parameters within which they operate, including conditions of licit recruitment and declared feeder schools. While magnified for schools that must attract new students to keep the doors open, recruiting is hardly the sole domain of private schools: Cases of public schools poaching athletes from other districts are common, if not as attention-grabbing. Financial aid meted out by private schools is governed by Pennsylvania law and, in accordance with PIAA rules, must be based on financial need or academic merit, with principals overseeing compliance. Scholarships explicitly for athletic reasons are verboten, and DiGirolamo is satisfied by the information he’s received that the practice isn’t occurring.

“I have not been able to find a shred of evidence that they are doing that,” he said. “If people are paying their tuition or offering athletes scholarships, I wish they would bring that to the committee.”

With the Catholic League in particular, Cashman and Lombardi, as his associate executive director leading up to the league’s assimilation a decade ago, made exhaustive overtures to highlight ways in which schools’ previously unchecked activities differed from PIAA mandates. Of the many fault lines, athletic scholarships constituted the most visible infringement, but that is, according to administrators, a discontinued practice.

The problem that remains is in part a lagging stigma, tinged by jealousy and other emotions, that may not faithfully reflect the truth oversight bodies have empirically uncovered.

“I’ve heard the rumors out there, and the ones that would disturb me the most is if people are attending private schools and somehow getting tuition reimbursed or subsidized for athletic purposes,” DiGirolamo said. “If that is happening, that would raise all kinds of red flags. If that is going on, then I would say something has to do be done.

“But I don’t have any proof, nor do I think anybody has any proof that that’s going on.”

Top Photo: Rep. Gene DiGirolamo, R-Bucks, speaks to reporters during a Capitol news conference to float a middle-of-the-road proposal to end a two-week-old budget stalemate on Thursday, July 16, 2015 in Harrisburg, Pa. (AP Photo/Marc Levy)

In Wednesday’s paper, the growth of charter school’s carves a niche between the traditional public and private spheres. How does the PIAA rise to the challenge of accommodating them? For an early look at part 3, visit PaPrepLive.com Tuesday night.