Indiana High School Athletic Association, Inc., and Hammond Gavit High School v. Nasir Cade, et al.

Both Hammond and Griffith are voluntary members of the IHSAA. On

Saturday, February 7, 2015, the Hammond varsity boys’ basketball team played

the Griffith team at Griffith. A Hammond player fouled a Griffith player

during the game, which caused the Griffith player to slam into the padded wall

behind the basket and fall onto the floor.2 Thereafter, members of both teams

left the bench area and began fighting on the court. Coaches, parents, and fans

entered the court during the altercation. Officials ended the game, and the

schools suspended the students who were involved on the following Monday.

Each student received a five-day out-of-school suspension.

[3] The IHSAA promptly summoned Hammond and Griffith officials to IHSAA

headquarters to review the circumstances of the incident. The meeting agenda

listed four IHSAA rules to be discussed: Rule 3-1, Rule 3-6, Rule 8-1, and Rule

8-4. Rule 3-1 requires “each member School to control its athletic program in

compliance with the rules and regulations of the Association.” Appendix at

282. Rule 3-6 provides in relevant part,

The member School’s responsibility for the conduct of its athletic program includes responsibility for the actions of its staff



1 We heard oral argument in this case on February 16, 2016, at Ivy Tech Community College in Lafayette. We commend counsel for their advocacy and thank Ivy Tech’s faculty, staff, and students for their participation. 2 See Northwest Indiana Times, Brawl ends Hammond-Griffith boys basketball game, YOUTUBE (Feb. 8, 2015), https://www.youtube.com/watch?v=0l4I3QFEtyw (showing the foul and ensuing fight, which lasted less than a minute).



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members, its participants, and any other individual or organization actively engaged in activities promoting the athletic interests of the member School. A member School’s “responsibility” includes the responsibility of instituting full and complete team and crowd control measures at all Contests in which such member School participates, assuring that the participants, staff and boosters of the member School conduct themselves at all times in a proper and sportsmanlike manner . . . .

Id. Rule 8-1 states a student’s conduct “in and out of School, shall be such as

(1) not to reflect discredit upon their School or the Association, or (2) not to

create a disruptive influence on the discipline, good order, moral or educational

environment in the School.” Id. at 296. And finally, Rule 8-4 provides in

relevant part,

a. Any contestant, coach, Contest Administrator or School Administrator who is ejected from a Contest for an unsportsmanlike act the first time during a sport season shall be suspended for the next Contest at that level of competition and all other Contests at any level in the interim, unless an IHSAA sport-specific rule or policy provides a different protocol or penalty for a first ejection. * * * c. Any contestant, coach, Contest Administrator or School Administrator who is ejected from a Contest for an unsportsmanlike act a second time during a sport season shall be suspended for the next two (2) Contests at that level of competition and all other Contests at any level in the interim, unless an IHSAA sport-specific rule or policy provides a different protocol or penalty for a second ejection. d. This penalty shall be in addition to any other penalties assessed.



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Id. at 296-97 (emphasis added). Rule 8-4 is a somewhat recent addition to the

IHSAA rules, adopted as an emergency regulation on June 26, 2014. The

agenda also cited NFHS Basketball Rule 10-4.5,3 which defines a “bench

technical” as a “flagrant foul” occurring when a player “[l]eaves the confines of

the bench during a fight or when a fight may break out.” Appellees’ Joint

Appendix at 2.

[4] IHSAA Commissioner Bobby Cox (“Commissioner”) met with the schools on

February 10 and issued two separate decisions the following day. The

Commissioner’s decisions are substantially the same, concluding both

Hammond and Griffith violated IHSAA Rules 3-6 and 8-1 and NFHS

Basketball Rule 10-4.5. The Commissioner imposed the same penalties with

regard to each school: (1) suspending participation in the state tournament; (2)

cancelling each school’s remaining regular season games; (3) declaring the

February 7 game a double forfeit; (4) requiring each basketball coach to

complete a “Teaching and Modeling Behavior” course; (5) requiring each

varsity boys’ basketball player to complete a “Sportsmanship” course; (6)

strongly encouraging all other boys’ basketball players to complete a

“Sportsmanship” course; and (7) placing both schools on probation for the

entire 2015-16 school year. App. at 223-26. The Commissioner issued these

sanctions pursuant to IHSAA Rule 17-7.1, which provides,



3 NFHS is the National Federation of State High School Associations. About Us, NFHS, https://www.nfhs.org/who-we-are/aboutus (last visited Feb. 1, 2016).



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For violation of a rule or disregard of a decision or directive made under these rules, some or all of the following action may be taken. a. The student may be declared ineligible to participate in interschool athletics for a period not to exceed Three hundred Sixty-five (365) days. b. A coach may be prohibited from directing an athletic team which participates in interschool athletics. c. A member School may be: (1.) prohibited from certain interschool athletic participation; or (2.) warned; or (3.) fined, including the forfeiting of revenues generated from the Association; or (4.) suspended or placed on Probation for a period not to exceed Three-hundred Sixty-five (365) days by the Association. d. The Association may take any appropriate disciplinary or remedial measures or impose, or direct the imposition of, appropriate sanctions or penalties.

Id. at 329 (emphasis added).

[5] Griffith and Hammond, on February 13 and 14, respectively, requested an

appeal to the IHSAA Review Committee (“Review Committee”). Pursuant to

IHSAA Rule 17-4.1, “Any affected party may appeal a decision of the

Commissioner or his designee to the Review Committee for a review and

hearing.” Id. at 327 (emphasis added). Griffith’s Appeal Statement indicated

“Griffith High School & the individual members of its boys basketball team”

were appealing the Commissioner’s decision. Appellees’ App. at 110.

Likewise, Hammond’s Appeal Statement identified “Hammond High School”



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and “all members of the Hammond High School Basketball Teams” as

“affected parties” appealing the decision. Id. at 27.

[6] On February 19, the IHSAA objected to the students’ participation in the

Review Committee appeal. The IHSAA argued the students lacked standing to

appeal the Commissioner’s decision because only the schools were found to

have violated IHSAA rules. The Review Committee, through its Hearing

Officer, found the students were not entitled to participate in the proceedings

(because they were not “affected parties”) and struck all of the filings made by

individual students.

[7] The Review Committee conducted separate hearings on the Hammond and

Griffith appeals on February 20. Both Hammond and Griffith argued the

season-ending suspensions were excessive, overreaching, and unprecedented

during the Commissioner’s tenure, citing the penalties imposed for other

instances of fighting in the past several years. Each school requested the

Review Committee allow its basketball teams to finish the regular season on

probation and participate in the state tournament.

[8] During both hearings, the Commissioner was asked about an incident between

Fort Wayne South Side High School and Indianapolis Arsenal Tech High

School in 2013, which involved students fighting, a student tackling a coach,

and assistant coaches fighting on the field during a high school football game.

In that case, the Commissioner placed the schools on probation, suspended the

head coaches and the students for one game, and suspended the coaches who



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were fighting for the remainder of the season. Both schools were allowed to

finish the regular season and participate in the football state tournament. The

Commissioner admitted the Hammond-Griffith incident was “similar” to the

Fort Wayne-Arsenal Tech incident, but the Commissioner would not

characterize the penalties imposed as being consistent or inconsistent with one

another. Id. at 289-91. “It’s a different incident. It’s a different time. And it’s

a different penalty,” the Commissioner maintained. Id. at 291.

[9] The Review Committee upheld the Commissioner’s Hammond and Griffith

decisions. The Review Committee found the Commissioner assessed the

penalties for several reasons: (1) the schools’ “catastrophic failure . . . to adhere

to the tenets of proper sportsmanship;” (2) the “dangerous and unacceptable

environment” created by the incident; and (3) “the ever-increasing demand

upon the IHSAA to eradicate egregious and violent acts in education-based

athletic settings.” App. at 230, 242-43. The Review Committee also found the

IHSAA had imposed “[s]evere penalties” in the past:

8. In 1963 Muncie Central High School was suspended from the IHSAA because of hazing of a student on a bus and an all-out brawl in a sectional game, in 1967 Fort Wayne North Side High School was suspended from the IHSAA for amateurism violations, in 1967 Ossian High School was suspended from the IHSAA because of fans fighting on the floor, in 1972 Gary West Side High School was suspended from the IHSAA for a year because of a riot-like condition in the arena and parking lot at the end of the state championship game at IU in Bloomington, Indiana, in 1992, the year following its runner-up finish at the state basketball tournament, Brebeuf High School was suspended from the IHSAA basketball tournament series for recruiting and



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undue influence and in 2006 Scecina High School was suspended from the IHSAA basketball tournament series for recruiting and undue influence violations.

Id. at 230-31, 243. As to more recent penalties imposed, the Review Committee

found,

9. During the 4+ years that Commissioner Cox has been Commissioner, the IHSAA has had a series of unsporting behavior acts, including several instances of IHSAA member schools being involved in altercations in athletic contests.

10. After an altercation occurred in a football game held on October 3, 2013, between Fort Wayne South Side High School and Indianapolis Arsenal Tech High School, where the players, coaches, and fans from both schools left the team bench areas and the stands, entered onto the field and engaged in a physical altercation between players, coaches, and fans, the IHSAA board of directors directed Commissioner Cox and staff to commit to and form a sportsmanship task force made up of a wide range of people, coaches, administrators and board members.

* * * 12. [T]he sportsmanship task force was created because of the South Side/Tech incident, because of the several other incidents where there were altercations (and where the penalties assigned were probation and some type of suspensions), and because those penalties which were assessed were not working. The sportsmanship task force sent a loud and clear . . . message to the IHSAA Commissioner, to the IHSAA staff and to the IHSAA board that penalties for these types of behaviors (game altercations) had to be dealt with in a much more severe manner and that these types of behaviors had to stop.

Id. at 231-32, 243-44 (emphasis in original) (footnotes omitted).



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[10] Although the Commissioner did not consider the information in making his

decisions, the Review Committee also noted the schools’ records of unsporting

conduct reports.4 The Review Committee found Griffith had twenty-six

unsporting conduct reports filed in the 2013-14 school year; that Griffith

already had twenty-nine reports filed in 2014-15 school year, seven of which

were filed on the basketball team; and that Griffith, out of all the IHSAA

member schools, had the most reports filed during the 2014-15 school year. It

found Hammond had twenty-seven unsporting conduct reports filed in the

2013-14 school year; that Hammond already had twenty-one reports filed in the

2014-15 school year; and that Hammond had the second most reports filed during

the 2014-15 school year. The Review Committee considered the unsporting

conduct reports a “significant factor” in reviewing the penalties assessed by the

Commissioner. Id. at 233, 245.

[11] The Review Committee agreed Hammond and Griffith violated IHSAA Rules

3-6 and 8-1, as well as NFHS Basketball Rule 10-4.5 during the February 7

game. The Review Committee further concluded the Commissioner had

“absolute discretion” to assess one of more of the penalties provided by IHSAA

Rule 17-7.1 and that all of the penalties assessed were permitted by Rule 17-7.1.

Id. at 235-37, 247-49. As to the schools’ argument that the penalties were

excessive and unprecedented, the Review Committee concluded the penalties



4 Officials file unsporting conduct reports “where there is an ejectment or an unsportsmanlike event.” App. at 232, 245.



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were consistent with (1) “the penalties historically (going back to the 1960’s,

1970’s, 1980’s and 1990’s) assessed against schools for unsporting conduct and

for other rule violations,” and (2) “the penalties demanded by the

sportsmanship task force and by the IHSAA board.” Id. at 237, 249-50. In light

of the video of the incident and each school’s record of unsporting conduct

reports, the Review Committee further noted it did not believe the penalties

were too harsh.

[12] The Review Committee issued its decisions on February 25. Two days later,

Griffith, Hammond, and individual players from both teams filed a complaint

seeking judicial review of the decisions and a preliminary injunction. The

regular season had concluded by that point, and sectionals began on March 3.

The complaint alleged the Commissioner’s decisions were “not a fair and

logical interpretation or application of the IHSAA’s own rules” and that the

Review Committee’s decisions upholding the penalties were arbitrary and

capricious, illegal, overreaching, excessive, and offensive to basic notions of

fairness. Id. at 42.

[13] The trial court scheduled a hearing on the request for an injunction for March 2

and ordered the IHSAA to redraw the sectional round of the state tournament

to include Hammond and Griffith. At the hearing on the injunction, each

school admitted seven exhibits: (1) the IHSAA’s Statement of the Case, which

included the exhibits admitted at the Review Committee hearing; (2) a

transcript of the Review Committee hearing; (3) the objection, response, and

ruling regarding the students’ participation in the Review Committee hearing;



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(4) the school’s proposed findings and conclusions submitted to the Review

Committee; (5) the IHSAA’s proposed findings and conclusions submitted to

the Review Committee; (6) the Review Committee’s written decision; and (7) a

list of YouTube videos showing recent incidents of fighting between IHSAA

member school teams. In addition, each school offered witness testimony.

Griffith called its principal, varsity basketball coach, and two Griffith basketball

players; Hammond called its varsity basketball coach and one Hammond

basketball player. Much of the testimony concerned the impact of the

suspensions on college recruitment.

[14] At the conclusion of the hearing, the trial court made oral findings and

conclusions5 and entered a preliminary injunction prohibiting the IHSAA from

enforcing its suspension of Hammond and Griffith. The trial court concluded

the penalties imposed constituted “disparate treatment” and suggested the

IHSAA was not following its own rules:

[I]t appears to me that what was going on here is the IHSAA was rightly concerned about outbreaks of violence and other unsportsmanlike conduct at various sporting events in the state . . . . [I]n response to this outbreak of . . . violence at schools and the unsportsmanlike conduct between some participants, they formed the Sportsmanship Task Force, with a view towards cracking down on this. And as a result of that effort, Rule 8-4 was promulgated by the IHSAA, which put everybody on notice



5 The trial court made oral findings and conclusions because sectionals began the following day. See Nunn Law Office v. Rosenthal, 905 N.E.2d 513, 517 (Ind. Ct. App. 2009) (holding oral findings and conclusions are permissible “so long as they are thoroughly detailed in the record”).



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that if you’re involved in any unsportsmanlike act during a sporting event and you’re ejected, then you lose eligibility for one game, and if you’re ejected again [in] the same season, you lose eligibility for two games. . . . But they didn’t follow that here. Rather, they suspended both Hammond and Griffith . . . f[or] the remainder of the season and, also, any post-tournament play. Which, with respect to [Hammond], was four games. . . . And with regard to Griffith, it was six. So, what happened here, is that you have one school that got four times the penalty set forth in Rule 8-4 and you had another school with six times the penalty. And I feel that that’s . . . disparate treatment. It was arbitrary and capricious and abuse of discretion and has to be set aside.

Transcript at 307-09.

[15] In granting the preliminary injunction, the trial court found the plaintiffs

demonstrated they would suffer irreparable harm if they could not participate in

the state tournament because players from both teams were being courted by

college recruiters. The trial court concluded this threatened injury outweighed

any potential harm to the IHSAA because the IHSAA would suffer no harm as

a result of the injunction. As for a likelihood of success on the merits, the trial

court concluded, “The Plaintiffs . . . set forth substantial evidence that supports

their assertion that the decisions of the IHSAA w[ere] not based upon evidence

presented, w[ere] illegal[,] arbitrary and capricious, excessive, and contrary to

law.” Id. at 310.

[16] In the weeks to follow, the schools participated in the state tournament.

Hammond was eliminated in the sectional round, while Griffith advanced to



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the state championship. In the interim, the IHSAA instituted this interlocutory

appeal.

Discussion and Decision

I. Standards of Review

A. School Challenges

[17] As to its member schools, the IHSAA is a voluntary membership association.

Ind. High Sch. Athletic Ass’n v. Carlberg, 694 N.E.2d 222, 230 (Ind. 1997). In

Indiana, courts exercise limited interference with the rules and internal affairs of

voluntary membership associations:

A voluntary association may, without direction or interference by the courts, for its government, adopt a constitution, by-laws, rules and regulations which will control as to all questions of discipline, or internal policy and management, and its right to interpret and administer the same is as sacred as the right to make them.

Ind. High Sch. Athletic Ass’n v. Reyes, 694 N.E.2d 249, 256 (Ind. 1997) (quoting

State ex rel. Givens v. Super. Ct. of Marion Cnty., 233 Ind. 235, 238, 117 N.E.2d

553, 555 (1954)). The rules of voluntary associations are viewed as a contract

between the association and its members and among the members themselves.

Id. Absent fraud, illegality, or abuse of civil or property rights having their

origin elsewhere, Indiana courts do not interfere with the internal affairs of a

voluntary association, nor second guess an association’s interpretation or

application of its rules. Id.



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B. Student Challenges

[18] The IHSAA is held to a stricter standard of scrutiny for student challenges.

Carlberg, 694 N.E.2d at 230 (distinguishing student challenges from school

challenges because students do not voluntarily subject themselves to IHSAA

rules and have “no voice in its rules or leadership”). As a matter of state

common law, we review IHSAA decisions applicable to particular students in a

manner analogous to judicial review of administrative agency decisions:

The courts therefore do not review IHSAA decisions de novo and do not substitute their judgment for the association’s. Instead, courts apply an arbitrary and capricious standard to review IHSAA decisions. They analyze the record as a whole to determine whether substantial evidence supports the IHSAA’s findings. They generally do not engage in their own fact-finding . . . .

An IHSAA determination is arbitrary and capricious only where it is willful and unreasonable, without consideration and in disregard of the facts or circumstances in the case, or without some basis which would lead a reasonable and honest person to the same conclusion. Where IHSAA findings of fact are supported by substantial evidence, we will not find them to be arbitrary and capricious. Evidence meets this standard when it is more than a scintilla; that is, reasonable minds might accept it as adequate to support the conclusion. It need not reach the level of preponderance.

Ind. High Sch. Athletic Ass’n v. Watson, 938 N.E.2d 672, 680-81 (Ind. 2010)

(citations and internal quotation marks omitted). Accordingly, a trial court

reviewing an IHSAA decision may not reweigh evidence or assess witness

credibility. Ind. High Sch. Athletic Ass’n v. Reyes, 659 N.E.2d 158, 164 (Ind. Ct.



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App. 1995), summarily aff’d, 694 N.E.2d 249, 253 (Ind. 1997). With respect to

the factual determinations made by the IHSAA, a trial court must limit its

review to the record of the proceedings before the IHSAA. Id.6

II. Mootness

[19] The trial court granted a preliminary injunction that prohibited the IHSAA

from enforcing its suspension of Hammond and Griffith from the 2015 boys’

basketball state tournament. The injunction was issued on March 2, 2015, and

the IHSAA filed its notice of appeal on March 9, 2015. The state tournament

concluded on March 28, 2015, but neither party addresses whether the

completion of the tournament renders this appeal moot. We have explained the

mootness doctrine as follows:

An issue becomes moot when it is no longer live and the parties lack a legally cognizable interest in the outcome or when no effective relief can be rendered to the parties. When the principal questions in issue have ceased to be matters of real controversy between the parties, the errors assigned become moot questions and the court will not retain jurisdiction to decide them. An actual controversy must exist at all stages of the appellate review, and if a case becomes moot at any stage, then the case is remanded with instructions to dismiss.



6 A trial court may receive new evidence only if the evidence (1) pertains to a claim alleging the IHSAA failed to follows its own rules, or (2) could not have been presented, was not known, or could not reasonably have been discovered prior to the proceedings. Reyes, 659 N.E.2d at 164.



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Ind. High Sch. Athletic Ass’n v. Durham, 748 N.E.2d 404, 410-11 (Ind. Ct. App.

2001) (citations omitted).

[20] We conclude Hammond and Griffith have a continuing interest in this case

because IHSAA Rule 17-6 (known as the “Restitution Rule”) permits the

IHSAA to require schools forfeit team records, victories, awards, or funds

received from participation in a tournament if

a student is ineligible according to the Association rules but is permitted to participate in interschool competition contrary to Association rules but in accordance with . . . terms of a court restraining order or injunction against . . . the Association and the . . . injunction is subsequently voluntarily vacated, stayed, reversed or it is finally determined by the courts that . . . the injunctive relief is not or was not justified or correct . . . .

App. at 329. Because Griffith advanced to the state championship, this court

retains jurisdiction to decide whether the trial court erred in granting the

preliminary injunction as to the schools. Cf. Jordan v. Ind. High Sch. Athletic

Ass’n, 16 F.3d 785, 788 (7th Cir. 1994) (stating the fact that IHSAA may require

a member school to forfeit team victories or awards is insufficient to confer

jurisdiction where the school is not a party to the appeal).

[21] As for the students, we conclude they no longer have a legally cognizable

interest in the outcome of this case. Although the Restitution Rule also permits

the IHSAA to require students forfeit individual records or awards, app. at 329,

there is no evidence in the record showing any of the players achieved

individual records or received individual awards for their participation in the



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state tournament, see Jordan, 16 F.3d at 788 (holding a lawsuit arising from a

preliminary injunction entered in favor of an individual student-athlete had

ceased to be a case or controversy because “there appears no action the IHSAA

could now take which would have any adverse effect of substantial significance

on [the student]”). The students already participated in the state tournament,

and nothing short of time travel can change that fact. To the extent the

IHSAA’s decision applied to particular students such that we would apply an

arbitrary and capricious standard of review, the issue is moot because

“absolutely no change in the status quo” would result from any decision

rendered. Bell v. State, 1 N.E.3d 190, 192 (Ind. Ct. App. 2013) (citation

omitted).7

III. Preliminary Injunction

[22] To obtain a preliminary injunction, the moving party must demonstrate by a

preponderance of the evidence: (1) a reasonable likelihood of success on the

merits; (2) the remedies at law are inadequate, thus causing irreparable harm

pending resolution of the substantive action; (3) the threatened injury to the

moving party outweighs the potential harm to the nonmoving party from the

granting of an injunction; and (4) the public interest would not be disserved by



7 Because we conclude the students no longer have a legally cognizable interest in the outcome of this case, we do not address the IHSAA’s arguments regarding standing or the real party in interest rule.



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granting the requested injunction. State v. Econ. Freedom Fund, 959 N.E.2d 794,

803 (Ind. 2011), cert. denied, 133 S. Ct. 218 (2012).

[23] The IHSAA contends the trial court erred in concluding the schools

demonstrated a reasonable likelihood of success on the merits. We agree. Our

supreme court has determined the IHSAA is treated as a voluntary association

with respect to challenges brought by member schools. Carlberg, 694 N.E.2d at

228. Absent fraud, illegality, or abuse of civil or property rights having their

origin elsewhere, we do not interfere with the internal affairs of a voluntary

association, nor do we second guess an association’s interpretation or

application of its rules. Reyes, 694 N.E.2d at 256. 8 Here, the sanctions imposed

did not violate IHSAA rules, and nothing in the rules requires the IHSAA to

impose consistent punishments for similar violations. See id. (stating voluntary

associations may adopt rules “which will control as to all questions of

discipline”).9 There was no evidence suggesting the suspensions constituted



8 Given the standard of review applicable to school challenges, we would note students appear to be without a remedy in the event the IHSAA suspends an entire school from participation. Even if such students could prevail under an arbitrary and capricious standard of review, they would not be permitted to play on their own team and obviously could not play for another school’s team without violating IHSAA’s eligibility and transfer rules. See App. at 342-51. 9 See App. at 296-97, 329 (IHSAA Rule 17.7-1(c), providing a member school may be prohibited from certain interschool athletic participation or suspended for a period not to exceed 365 days; IHSAA Rule 17.7-3, providing a member school may be suspended without previous warning or probation; IHSAA Rule 8-4, providing the one-game suspension penalty applicable to students for first time contest ejections shall be in addition to any other penalties assessed; and IHSAA Rule 17.7-1(d), providing the IHSAA may impose any appropriate sanctions, penalties, or disciplinary measures).



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fraud, illegality, or an infringement of rights as to the schools, yet the trial court

concluded the schools demonstrated a likelihood of success on the merits.

[24] The trial court also failed to distinguish between the schools and the students

and seemed to apply an arbitrary and capricious standard of review to both

challenges. Even assuming an arbitrary and capricious standard of review

should apply to school challenges, the trial court exceeded the scope of such

review by engaging in its own fact-finding. Instead of analyzing the record to

determine whether substantial evidence supported the Review Committee’s

decision, see Watson, 938 N.E.2d at 680, the trial court concluded the plaintiffs

“set forth substantial evidence” to support their position, tr. at 310. The trial

court applied the incorrect standard of review to the schools’ challenge,

improperly substituted its own judgment for the IHSAA’s, and erred by

concluding the schools demonstrated a reasonable likelihood of success on the

merits. In short, the trial court erred when it granted the schools’ request for a

preliminary injunction.

Conclusion

Because the students no longer have a legally cognizable interest in the outcome

of this case, we remand with instructions to dismiss the students’ claims as

moot. As for the schools’ claims, the trial court erred by granting a preliminary

injunction because the schools did not demonstrate a reasonable likelihood of

success on the merits. We therefore reverse as to the schools and remand for

proceedings consistent with this opinion.