Kithier remains ineligible to play basketball for Clarkston after court ruling

By: Joshua Gordon | Macomb Township Chronicle | Published January 12, 2018

DETROIT — Michigan State University basketball commit Thomas Kithier won’t play his high school senior season at Clarkston High School after a federal judge ruled Jan. 11 that he will remain ineligible during the duration of his lawsuit against the Michigan High School Athletic Association and Chippewa Valley Schools.

The MHSAA had ruled in December that Kithier was ineligible to play basketball for Clarkston for 180 days after he transferred before his senior year from Dakota High School in Macomb Township for what officials said were athletically-driven reasons. The MHSAA’s Executive Committee upheld that ruling during an appeal by Clarkston Schools on Jan. 10.

At a preliminary injunction hearing Jan. 11 at the U.S. District Court for the Eastern District of Michigan in Detroit, Judge Marianne Battani said during her ruling that Kithier did not have a constitutional right to play high school sports or participate in any extracurricular activities, citing precedent set in other court cases.

According to MHSAA rules, a student can not transfer for athletically-motivated reasons, such as seeking to play with a teammate or coach with whom they participated with in nonschool competition within the previous year.

Attorney Scott Eldridge, representing the MHSAA, said during the hearing that the way the MHSAA saw it, Kithier was moving to Clarkston to play with another MSU commit and future teammate Foster Loyer, whom he played basketball with over the summer.

After Battani’s ruling, Eldridge said he felt for Kithier not being able to play, but the MHSAA has rules it has to enforce.

Eldridge had argued during the hearing that the MHSAA is a voluntary association and member schools do not have to join. Battani agreed, and because of that, she said, the members vote on the rules, and MHSAA officials are able to interpret the rules as they see fit.

While the ruling was on the preliminary injunction only, and Kithier could be ruled eligible at the end of the lawsuit, it is expected to take upward of a year to play out in court.

“Every state athletic association has rules and they are enforced, and often, they end up in court,” Eldridge said. “This is not terribly new to the MHSAA.”

Kithier, 18, filed the lawsuit against the MHSAA and Chippewa Valley Schools in late December, seeking the court to allow him to begin playing for Clarkston on Jan. 15, which one of his lawyers, Steven Fishman, said is typical for transfer students.

The lawsuit states that his parents made the move to “escape the negative and inadequate academic and social environment at Dakota.” According to the lawsuit, Kithier’s parents decided to start looking to move Kithier to another district after his sophomore year.

The lawsuit cites that Dakota did not offer certain courses Kithier was seeking, such as media production, which Kithier is interested in studying in college. During the hearing, Fishman said Kithier had enrolled in a math analysis and media production class at Clarkston, both of which were not offered at Dakota.

After the family made the decision to move Kithier to Clarkston, Kithier’s mother spoke with Dakota Athletic Director Michael Fusco in August, and Fusco said Dakota officials would not sign the transfer form. In September, Dakota officials filed a complaint with the MHSAA about Kithier’s move being athletically motivated.

In the complaint, Dakota officials alleged that Clarkston basketball coach Dan Fife, Michigan State assistant coach Dane Fife, MSU basketball coach Tom Izzo and others influenced Kithier’s transfer. Eldridge said the MHSAA did not find any evidence of that.

During the hearing, Kithier’s other lawyer, Vernon Johnson, said Kithier was leasing an apartment in Clarkston, and his family had listed their home for sale to join him. Johnson argued that Kithier’s move was for academics, and even if Dakota and MHSAA officials thought it was for athletic reasons, there was no evidence of that, and it was all based on assumptions.

Johnson said Kithier’s parents had looked into prep academies in Indiana and Florida, as well as Utica High School and Grosse Pointe North High School, before deciding on Clarkston — further proof, he said, that the transfer was for academics.

After the judge’s decision, Johnson said the lawsuit will continue, as they hope to make lasting changes for other student-athletes in Michigan. The MHSAA has filed a motion to dismiss, but Battani said Kithier’s team has not had an opportunity to respond.

“We are obviously disappointed for the big fella,” Johnson said. “This was clearly personal. (Kithier’s) a tough guy, a big-time scholar-athlete, but his season is done.”

During her ruling, Battani said there could have been harm to the Clarkston basketball program if she had allowed Kithier to play and then he was later ruled ineligible, as the team would have had to forfeit any games Kithier played in. Fishman said that should have been a decision  Clarkston officials had to work out.

Fishman said he was disappointed for Kithier that he wouldn’t get to enjoy his senior season of playing basketball and that it is time for a change so student-athletes like him don’t get punished by the MHSAA.

“The villain of this piece is the MHSAA,” he said. “A lot of the case law that was cited is very old, and the MHSAA was doing this just to prove they could do it.”

As the lawsuit continues, others named in the lawsuit include Fusco, Chippewa Valley Schools Superintendent Ron Roberts, Dakota Principal Paul Sibley, MHSAA Associate Director Thomas Rashid and MHSAA Executive Director John Roberts.

Call Staff Writer Joshua Gordon at (586) 498-1043.