The case centers on Zayne Hert, who began attending Colstrip High School in the fall of 2019 and played basketball his freshman year. During the 2020-21 school year, Zayne attended school virtually due to the Covid-19 pandemic, struggled with remote learning, failed several classes, and became academically ineligible to play basketball. His parents, Amber and Kelly Hert, decided to have him repeat his sophomore year rather than attempt to graduate in four years by taking extra credits. Near the end of his fourth year of high school, CHS Principal Robin Nansel informed Zayne he would not be eligible to compete in MHSA activities during his upcoming fifth year under the MHSA's Semester Rule, which limits student participation to eight consecutive semesters after entering ninth grade. The MHSA did not contact Zayne directly.
The Herts appealed to the MHSA Executive Board, which held a Zoom hearing on August 16, 2023, and unanimously voted to deny the waiver request at the close of the hearing without publicly deliberating or explaining its reasoning. The MHSA sent no written notice of the decision to Zayne or his parents, only a letter to Principal Nansel the following day stating that Zayne would be ineligible to practice or participate at any level of competition for his remaining high school career. When Amber Hert emailed Executive Director Brian Michelotti asking for the Board's reasoning, whether the meeting was recorded, whether Zayne had exhausted all avenues to appeal, and other questions, Michelotti did not respond to her first email. His eventual reply to her second email stated only that individual Board members may or may not comment on their decision at the time of the meeting, and provided a copy of the MHSA's Rule 5.3.
The Herts filed suit in the Sixteenth Judicial District Court in Rosebud County. The district court denied a preliminary injunction, concluded that participation in extracurricular activities was not a constitutional right, and held that the MHSA was not required to issue reasoned, detailed opinions on waiver petitions. Zayne graduated in the spring of 2024 without playing another high school basketball game. The district court later granted summary judgment to the MHSA on mootness grounds, and the Herts appealed.
The Montana Supreme Court, in an opinion authored by Justice Ingrid Gustafson and joined by four other justices, reversed. On mootness, the court held that the public interest exception applies because MHSA eligibility disputes are of public importance, are likely to recur, and will guide the MHSA and courts on unsettled constitutional questions. The court noted that challenges to MHSA eligibility rules have been arising for decades and that mechanically applying the mootness doctrine would leave the legal issues perpetually unresolved.
On the merits, the court held that the district court erred on three points it had incorporated from its preliminary injunction order. First, while participation in extracurricular activities is not a fundamental right under the Montana Constitution, it is clearly subject to constitutional protection, and the district court was wrong to reduce it to a mere contractual privilege. Second, students may immediately seek judicial review after the MHSA reaches a final conclusion. Third, meaningful judicial review requires a meaningful record, which the MHSA failed to create. The court held that when the MHSA applies discretionary waiver criteria affecting a student's constitutionally protected interest in extracurricular participation, procedural due process requires at minimum notice of the issues to be decided, a meaningful opportunity to be heard, and a record and written decision sufficient to permit judicial review.
Justice Jim Rice wrote separately to address the MHSA's state actor status. He noted that the MHSA describes itself as the governing body for interscholastic activities in the state of Montana, has 182 member high schools most of which are public entities that fund the MHSA through membership fees, and has an Executive Board largely composed of public school officials that includes a position titled Governor's Office Representative. Citing Brentwood Academy v. Tennessee Secondary School Athletic Association, Rice concluded that the MHSA mirrors the TSSAA in material respects and that the pervasive entwinement between the MHSA and the State of Montana is sufficient to treat the MHSA as a state actor. He also noted that in Valley Christian School v. Montana High School Association, the MHSA itself conceded it meets the criteria of a state actor.
The court reversed the summary judgment order and remanded for entry of declaratory relief consistent with the opinion. It declined to revisit the validity of the Semester Rule or grant relief specific to Zayne Hert, whose eligibility has expired.