Ward v. Interscholastic League of Honolulu (ILH) et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
ZAVIOR WARD,
Plaintiff,
vs.
INTERSCHOLASTIC LEAGUE OF
HONOLULU (ILH), et al.,
Defendants.
Civil No. 25-00415 MWJS-WRP
ORDER DENYING DEFENDANT
INTERSCHOLASTIC LEAGUE OF
HONOLULU’S MOTION FOR
JUDGMENT ON THE PLEADINGS
INTRODUCTION
Defendant Interscholastic League of Honolulu (ILH) moves for judgment on the
pleadings of Plaintiff Zavior Ward’s complaint, which alleges that ILH violated his
constitutional right to procedural due process when it barred him from participating in
his senior year of interscholastic athletics. For the reasons that follow, the court
DENIES the motion.
BACKGROUND
As the parties are familiar with the factual allegations and procedural history, the
court will not recount them here except as necessary to give context to its ruling.
Plaintiff Zavior Ward filed this lawsuit in September 2025. His due process
challenge centers on ILH’s decision to deem him ineligible to participate in his senior
year of high school water polo, as well as ILH’s denial of his request for an exemption
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from the eligibility rules without explanation, notice, or an opportunity to be heard.
Ward’s complaint also alleges that Defendant Hawaii Baptist Academy (HBA) violated
Hawai‘i state law by negligently misrepresenting that Ward would be able to play high
school sports during his senior year, and seeks to equitably estop HBA from barring his
participation in interscholastic athletics. See Dkt. No. 1.
Ward moved for a temporary restraining order (TRO) and preliminary injunction
in the hopes of salvaging his senior water polo season. Dkt. Nos. 5, 6. The court
ultimately denied the TRO request on the basis that Ward “had not made a strong
showing going to the merits of whether ILH’s conduct in denying him an exemption
from its eligibility rule amounted to ‘state action’” as required to establish a likelihood
of success on his procedural due process claim. See Ward v. Interscholastic League of
Honolulu, Civ. No. 25-00415, 2025 WL 2855146, at *10 (D. Haw. Oct. 8, 2025).
Ward withdrew his motion for a preliminary injunction following this denial.
Dkt. Nos. 55, 59. But he indicated that he intended to submit a new exemption request
to ILH for a winter or spring sport such as volleyball or swimming and, depending on
the outcome of ILH’s eligibility decision and any exemption request, amend his
complaint to reflect new developments. See Dkt. Nos. 52, 54. Ward has since taken
those steps: He represents that a new exemption request was submitted to ILH on
January 2, 2026, and denied on January 5 without a hearing. See Dkt. No. 64, at
PageID.604.
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In advance of those latest developments, ILH moved for judgment on the
pleadings on December 23, 2025. Dkt. No. 60. Ward opposed the motion, Dkt. No. 64,
and ILH replied, Dkt. No. 65. HBA moved to join ILH’s motion on January 20, 2026.
Dkt. No. 62, which neither other party opposed. ILH then requested that its motion be
determined without a hearing, Dkt. No. 66, which Ward opposed, Dkt. No. 67. The
court agrees with ILH that the motion for judgment on the pleadings is suitable for
disposition without a hearing, as authorized by Local Rule 7.1(c).
DISCUSSION
The Federal Rules of Civil Procedures allow a party to move for judgment on the
pleadings “[a]fter the pleadings are closed but within such time as not to delay the
trial.” Fed. R. Civ. P. 12(c). A motion for judgment on the pleadings “is subject to the
same standard as a [R]ule 12(b)(6) motion to dismiss.” Machado v. Int’l Ass’n of Heat &
Frost Insulators & Asbestos Workers, 454 F. Supp. 2d 1056, 1061 (D. Haw. 2006) (cleaned
up). In considering a Rule 12(c) motion, the court takes all allegations of material fact in
the pleadings as true and construes them in the light most favorable to the plaintiff.
Kruse v. Hawai‘i, 857 F. Supp. 741, 749 (D. Haw. 1994). Dismissal is not warranted
unless “the moving party clearly establishes on the face of the pleadings that no
material issue of fact remains to be resolved and that it is entitled to judgment as a
matter of law.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th
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Cir.1990); see also Kruse, 857 F. Supp. at 749 (“[D]ismissal on the pleadings is proper only
if the moving party is clearly entitled to prevail.”).
In this case, ILH contends that is entitled to judgment as a matter of law because
Ward’s due process claims rest on his supposedly erroneous conclusion that he “has a
‘recognized and substantial interest in participating in interscholastic athletics.’” Dkt.
No. 60-1, at PageID.584 (quoting Dkt. No. 1, at PageID.11). And ILH asserts that this
court, the Ninth Circuit, and the Hawai‘i Intermediate Court of Appeals—along with
“the majority [of] our nation’s courts”—have in the past held that no such
constitutionally protected interest exists. Id. at PageID.584-55.
It is true that if Ward does not possess a property right in participation in
interscholastic athletics, then ILH could not have violated his due process rights by
denying his eligibility exemption request. That is because “[a] procedural due process
claim has two distinct elements: (1) a deprivation of a constitutionally protected liberty
or property interest and (2) a denial of adequate procedural protections.” Fed. Home
Loan Mortg. Corp. v. SFR Invs. Pool 1, LLC, 893 F.3d 1136, 1147 (9th Cir. 2018) (cleaned
up). The failure to allege a “constitutionally protected . . . property interest” would be
fatal to Ward’s complaint. 1 To resolve ILH’s motion for judgment on the pleadings,
1 	The other essential element of a procedural due process claim is, of course, the
requirement to establish state action, see Reed v. Goertz, 598 U.S. 230, 236 (2023), but ILH
has not raised this issue in its motion.
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then, the court must resolve whether the United States (or Hawai‘i2 ) Constitution
recognizes a property interest in participation in interscholastic athletics.
As the United States Supreme Court has explained, property interests “are not
created by the Constitution,” but are “created and . . . defined by existing rules or
understandings that stem from an independent source such as state law.” Bd. of Regents
v. Roth, 408 U.S. 564, 577 (1972). And “[k]ey to a property interest determination is
whether the person alleging a due process violation has an entitlement to the benefit at
issue, conferred through statute, regulation, contract, or established practice.”
Armstrong v. Reynolds, 22 F.4th 1058, 1067 (9th Cir. 2022); see also Brescia v. N. Shore
Ohana, 115 Haw. 477, 500-01, 168 P.3d 929, 952-53 (Haw. 2007) (“A property interest
protected by the [federal or state] due process clause stems from an independent source
such as state law—rules or understandings that secure certain benefits and that support
claims of entitlement to those benefits.” (cleaned up)). Whether Ward’s complaint
asserts a constitutionally protected property interest therefore turns on whether
statutes, regulations, contracts, or established practice support the existence of the
claimed property right.
2 	“The analysis of due process claims under the Hawai‘i Constitution is
substantially similar to the analysis of due process claims under the United States
Constitution.” Flint v. Cnty. of Kaua‘i, 521 F. Supp. 3d 978, 993 n.8 (D. Haw. 2021)
(citation omitted). And when, as here, “neither party attempts to differentiate their
arguments under the United States and Hawai‘i Constitutions,” the court will
“analyze[] the state and federal due process claims together.” Id.
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In contending there is no such right as a matter of law, ILH relies on a handful of
cases, decided no more recently than a quarter century ago, that it says overwhelmingly
support the legal conclusion that Ward lacks a protectable interest in participation in
interscholastic athletics. The caselaw is the right place to start the analysis. In
considering a “question as to the existence or extent of a property right,” courts “must
apply a relevant decision by the state’s highest court.” Vandevere v. Lloyd, 644 F.3d 957,
966 (9th Cir. 2011). But the caselaw does not support ILH’s position as strongly as it
appears to believe. Much of ILH’s briefing focuses on the decisions of courts outside
Hawai‘i, which “are of limited value . . . because they rely on other states’ laws” or
“treat the property-interest question as if it were solely a question of federal
constitutional law.” J.K. ex rel. Kaplan v. Minneapolis Pub. Schs., 849 F. Supp. 2d 865, 875
(D. Minn. 2011); see, e.g., Dkt. No. 65, at PageID.620 (discussing Rutledge v. Ariz. Bd. of
Regents, 660 F.2d 1345 (9th Cir. 1981), abrogated by Haygood v. Younger, 769 F.2d 1350 (9th
Cir. 1985) (en banc)).
And to the extent ILH appropriately focuses on Hawai‘i state law, it does not
fare much better. Neither party cites any decision of the Hawai‘i Supreme Court
considering the question presented by Ward’s complaint, and this court has located
none. The only Hawai‘i state law authority ILH invokes is a forty-year-old decision of
the Hawai‘i Intermediate Court of Appeals, Makanui v. Dep’t of Educ., 6 Haw. App. 397,
721 P.2d 165 (Haw. Ct. App. 1986). The most recent decision of this court applying
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Hawai‘i law on this subject, meanwhile, is James P. v. Lemahieu, 84 F. Supp. 2d 1113 (D.
Haw. 2000), but it merely relied on Makanui for its conclusion. See James P., 84 F. Supp.
2d at 1119.
ILH is not wrong to rely on the Makanui decision. In situations where “the
highest state court has not directly addressed an issue,” a court should “look to the
decisions of the intermediate state courts of appeal.” Miller v. Fairchild Indus., Inc., 797
F.2d 727, 735 (9th Cir. 1986). But whereas the decision of a state’s highest court is
controlling on state law, a decision of an intermediate state appellate court is merely “a
datum for ascertaining state law” and should not be followed if “other persuasive data
[suggests] that the highest court of the state would decide otherwise.” T-Mobile USA
Inc. v. Selective Ins. Co. of Am., 908 F.3d 581, 586 (9th Cir. 2018) (cleaned up).
This is where ILH’s argument runs into trouble, for Ward argues that in the four
decades since Makanui was decided, there has been a seismic shift in the way American
society views student athletes—a shift which he claims the law can and should
recognize. As he puts it, “[m]odern rules, expectations, and economic realities have
transformed” interscholastic athletics from a mere “extracurricular activity” into a
protectable interest. Dkt. No. 64, at PageID.605-06. His argument, in other words, is
that under present factual circumstances, the Hawai‘i Supreme Court would reach a
different legal conclusion from the one the Intermediate Court of Appeals reached forty
years ago.
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The court cannot rule out Ward’s argument as a matter of law and without any
consideration of the evidence he might marshal at a later stage in this case. After all, it
is far from clear that interscholastic athletics are the same today as they were forty years
ago. High school sports are evolving at an astonishing pace; the student-athlete of the
1980s (or even of the 2010s) would hardly recognize the interscholastic athletics of
today. Since the United States Supreme Court decided National Collegiate Athletic
Association v. Alston, 594 U.S. 69 (2021), which held that the NCAA could not legally
prohibit college athletes from receiving compensation, the state of collegiate athletics
has shifted dramatically. Almost overnight, the NCAA rules changed, allowing star
players—who previously would have forfeited their eligibility by receiving even the
most nominal benefits in connection with their athletic prowess—to leverage their
name, image, and likeness (NIL) rights in multimillion dollar deals. See Josh Lens,
Collegiate Athletes’ Name, Image, and Likeness as a Constitutionally Protected Interest, 78
SMU L. Rev. 41, 46-57 (2025). And there are indications that the law may be evolving in
response. See, e.g., Shannon v. Bd. of Trs. of the Univ. of Ill., 2024 WL 218103, at *9-11 (C.D.
Ill. Jan. 19, 2024) (finding that a college athlete’s claim of a property interest in his
participation in a sport had “some likelihood of success on the merits” based in part on
its relationship “to the development of his career as well as his current and future
economic opportunities”).
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These effects have quickly trickled down to the high school level. Agents and
advertisers, seeking to get in on the ground floor (and to avoid a bidding war), have
turned their attention to high school athletes. State laws are rapidly changing to reflect
this new reality. By one count, 44 states and the District of Columbia now permit NIL
deals at the high school level, with two of the six holdout states considering a change to
their policies. Braly Keller, High School NIL: State-by-State Regulations for Name, Image
and Likeness Rights, OPENDORSE (Nov. 26, 2025), https://biz.opendorse.com/blog/nil-high-
school/. A recent article in Esquire magazine recounted the story of a high school
quarterback who had recently been offered a $1.2 million NIL deal by a trading card
company. Abigail Covington, The New Varsity, Inc., ESQUIRE , Sept. 2025, at 102. Another
seventeen-year-old top recruit had bought a luxury Italian SUV worth a quarter of a
million dollars with the proceeds from his endorsement deal. Id.
It is safe to say that no high school athlete was pulling up to practice in a
Lamborghini legitimately purchased with the lawful fruits of athletic labor in 1986
when Makanui was decided, in 2000 when this court decided James P., or in 2008, when
the definitive law review article on this issue observed that virtually every court in the
nation had denied the existence a protected property interest to participate in high
school sports.3 Dkt. No. 60-1, at PageID.585 (discussing Matthew J. Mitten & Timothy
3 	It is also true that most of the cases Ward cites in support of his constitutional
argument are equally (if not more) outdated than those cited by ILH. See Dkt. No. 64, at
PageID.610-13 (discussing Duffley v. N.H. Interscholastic Athletic Ass’n, Inc., 446 A.2d 462
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Davis, Athlete Eligibility Requirements & Legal Protections of Sports Participation
Opportunities, 8 Va. Sports & Ent. L. J. 71, 136 (2008)). And while Hawai‘i appears to be
one of the few states that has not yet authorized high school athletes to secure NIL deals
or otherwise secure these economic benefits for themselves, it is fair to argue that even
in Hawai‘i, the significance of high school sports—and societal understandings and
established practices surrounding it—have dramatically changed in the face of the
massive sums of money that are available if high school success translates into success
at the collegiate level. Once upon a time, success in high school sports might have
served as a possible route toward securing a college scholarship; any other economic
benefit, even a small one, would endanger their eligibility to play. See, e.g., Mitch
Albom, Fab Five: Basketball, Trash Talk, the American Dream (1993). Today, in addition to
the possibility of a scholarship (itself of possibly greater significance than before, given
dramatically increasing tuition costs), that same high school success could result in a
high school or college NIL deal that might secure an athlete more money in four years
than many Americans make in a full career of work. Depriving a high schooler of that
(N.H. 1982), and Boyd v. Bd. of Dirs., 612 F. Supp. 86 (E.D. Ark. 1985)). But that simply
provides another reason why further factual development is necessary before this case
can be decided. See, e.g., Dkt. No. 64, at PageID.613 (arguing that HHSAA and the
Hawai‘i Department of Education “have made similar representations on their
websites” as the sorts of representations made by the NHIAA that the court relied upon
in Duffley).
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opportunity today is simply not the same as it would have been to deprive them of the
opportunity forty—or even eighteen—years ago.
Ward observes as much in his response, pointing out that “[t]he cases cited in the
motion are outdated, and do not consider the recent evolution of interscholastic
athletics.” Dkt. No. 64, at PageID.605. And because property interests must be
determined in light of “rules or understandings that secure certain benefits,” Brescia, 115
Haw. at 501, 168 P.3d at 953 (quoting Roth, 408 U.S. at 577), a sea change in the factual
landscape can make a big difference in the court’s analysis of whether the asserted right
is entitled to recognition.
Take, for example, the United States Supreme Court’s decision in Goss v. Lopez,
419 U.S. 565 (1975). In that case, Ohio high school student Dwight Lopez filed suit after
he was suspended from school without a hearing. When his case reached the Supreme
Court, the Court held that Lopez possessed a property interest in his education, and
therefore his constitutional rights had been violated when he was suspended without
due process. Central to the Court’s holding was the fact that Ohio, although not
constitutionally obliged to extend Lopez an education, had nonetheless established
public high schools and made attendance compulsory. See id. at 573-74.
But imagine a scenario in which Goss had been brought in a different factual
context. Keep all of the facts the same except for two changes: this time Lopez attends
high school at the English High School in Boston, Massachusetts, and the year is 1821.
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At that time, Boston English was the first and only public high school in America. See
Paula Ebben, English High School, the oldest public high school in America, celebrates 200
years in Boston, CBS News (Sept. 30, 2022). If Lopez had pressed a property interest in
his public education on those facts, the Court would have considered his claim much
more skeptically, and understandably so. Yet if the same claim had been brought some
thirty years later in 1850—by which point, every state in America had established a
public school system, see Murray N. Rothbard, Education: Free & Compulsory 41 (1999)—
the Court would have been faced with a dramatically different factual backdrop. Still,
no state would enact a compulsory education law until the following year. Michael S.
Katz, A History of Compulsory Education Laws 17 (1976). So while it is difficult to say
whether the Court would have recognized a protected property interest in this
hypothetical, its legal analysis would have reflected the factual and legal developments
in American society occurring during the intervening years.
What is clear is that by 1975, public education had undergone such an evolution
as to enable the United States Supreme Court to announce a heretofore unrecognized—
and at one point, perhaps unimaginable—constitutionally protected property interest.
It is also clear that one cannot readily pinpoint at what point the factual landscape had
sufficiently shifted such that the law had no choice but to follow suit. Perhaps the Goss
decision could not have been reached a day earlier than January 22, 1975. Or perhaps
its holding was ripe as early as 1890, when just over half the states in the Union had
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passed compulsory education laws, or 1918, by which point every state had enacted
such legislation. Katz, Compulsory Education Laws 18.
In Ward’s case, there is no Goss to light our way. And it is difficult to tell exactly
where in the evolution of the law Ward’s complaint stands at this juncture. But the
factual changes underway across American society strongly suggest that in the absence
of any modern case analyzing and applying Hawai‘i law in this context, resolving this
important constitutional question in a motion for judgment on the pleadings—as a
matter of law and without any consideration of evidence—would be premature. Justice
Felix Frankfurter once advised that in considering the application of established legal
rules to the “totally new problems” created by a changing factual landscape, courts
should take care not to “embarrass the future.” Nw. Airlines, Inc. v. Minn., 322 U.S. 292,
300 (1944); see also TikTok Inc. v. Garland, 604 U.S. 56, 62 (2025) (per curiam) (quoting Nw.
Airlines, 322 U.S. at 300)). The same is true here. The litigants in this case must be given
a meaningful opportunity to submit evidence and fully argue whether the Hawai‘i
Supreme Court would reach a different conclusion than the one reached by the
Intermediate Court of Appeals forty years ago in Makanui, or whether any other
independent source—statute, regulation, contract, or established practice—would
support a finding that Ward possesses the property interest he claims. And the court
must then resolve the legal issue with sensitivity to the evidentiary record the parties
develop.
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For these reasons, the court cannot agree that ILH is entitled to judgment on the
pleadings. Whether state law and regulations, contracts, and established practice reflect
that participation in interscholastic athletics is the kind of property interest protected by
the Constitution is a material issue that the parties have not fully briefed, and that
discovery will be needed to resolve. Cf. Whitaker v. Bd. of Higher Educ., 461 F. Supp. 99,
105 (E.D.N.Y. 1978) (denying a Rule 12(b)(6) motion “because plaintiff should be given
an opportunity to prove that under state law . . . he had [the] property interest” claimed
under the Due Process Clause”); Cardio-Med. Assocs., Ltd. v. Crozer-Chester Med. Ctr., 536
F. Supp. 1065, 1086 & n.24 (E.D. Pa. 1982) (declining to grant a motion for judgment on
the pleadings when the property interest issue had not been “brief[ed] . . . in some
detail”).
CONCLUSION
ILH’s motion for judgment on the pleadings is DENIED. And given the denial of
ILH’s motion, HBA’s motion to join it is DENIED as moot.
IT IS SO ORDERED.
DATED: March 6, 2026, at Honolulu, Hawai‘i.
Civil No. 25-00415 MWJS-WRP, Zavior Ward v. Interscholastic League of Honolulu, et al.;
ORDER DENYING DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS
/s/ Micah W.J. Smith
Micah W.J. Smith
United States District Judge
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