A Falmouth man plans to continue a legal battle to secure his son’s eligibility to play varsity baseball at Deering High School despite a ruling by a federal judge Wednesday that denied a preliminary injunction to force the school to comply with his wishes.

Howard Yee filed a lawsuit last week on behalf of his son, Princehoward Barbecue Yee, claiming Deering Principal Gregg Palmer had denied the 15-year-old sophomore due process by ruling he was not eligible to compete for a varsity spot.

“This is really about him being wronged by Gregg Palmer, and this is what it’s all about, and that’s why this case will be moving forward. We knew that getting (an injunction) was hard to get approved,” Howard Yee said in an hour-long interview Wednesday afternoon.

Princehoward, who goes by Barbecue, his legal middle name, lives in Falmouth and was approved to enroll as a full-time student at Deering on Jan. 25.

Palmer was named as a defendant in the lawsuit, along with Portland Superintendent Xavier Botana, who signed off on Barbecue’s academic transfer before the question of his eligibility to play sports was addressed.

In a ruling from the bench issued after less than an hour of oral arguments, U.S. District Court Chief Judge Nancy Torresen denied the motion for a preliminary injunction and ruled that the Yees were not likely to successfully prove they were denied procedural due-process rights under the U.S. Constitution.

Howard Yee said he understands Torresen’s rationale for denying the injunction, but remains adamant that his son, who had been home-schooled for much of his life, was at Deering primarily because it was a better academic and social fit than Falmouth, where he had enrolled briefly as a freshman.

Non-resident transfer students are allowed to play varsity athletics if the student, parent(s) and the principals at both the sending and receiving schools certify to the Maine Principals’ Association that the transfer is not “primarily for athletic purposes.” Howard Yee contends Palmer’s decision, especially because he waited until three days before the start of preseason, was “payback” for Yee’s refusal to enroll Barbecue full-time at Falmouth High the previous year when Palmer was the principal at Falmouth.

“At Deering he was doing much, much better. For the first time at a regular school he was being motivated and having success. All of this stuff that it’s baseball only is a flat-out lie,” Yee said.

NO CASE LAW SUPPORTS PLAINTIFF

Attorney Michael Waxman represented the Yees at Wednesday’s hearing, but Howard Yee said attorney John Branson will be “taking charge” of any future legal action. Yee indicated he wants to have the opportunity to depose Palmer and Deering Athletic Director Melanie Craig.

Palmer did not respond to an email request to respond to Yee’s claims Wednesday night. Craig said in an email that she would have “no comment at this time.”

Melissa Hewey, the attorney for Palmer and Botana in the federal lawsuit, did not respond to email or voice messages left at her office.

In the hearing Wednesday morning, Waxman argued that the family was not sufficiently informed about the difference between approving an academic transfer, which is made by both districts’ superintendents, and the athletic eligibility process.

But Waxman cited no case law in support of his arguments because there is no precedent that aligns with the facts of his case – a point Torresen noted during arguments. Instead, Waxman tried to use Maine state laws for how courts should determine parental rights in child custody cases, and the state statute governing student academic transfers, to support his assertions.

Torresen didn’t buy the argument.

 

Video: The Yees’ attorney Michael Waxman argues that the family was not sufficiently informed about the process to determine eligibility to play varsity sports. 

“At least you’re pointing me to a Maine law,” Torresen said to Waxman during arguments. “But you’re taking me too far. I just don’t see it. I don’t see it at all.”

Torresen noted that numerous decisions by other courts from around the country have found that there is a constitutional property right to attend public school, but that right does not extend to participation in extracurricular activities, including sports.

“(The Yees) have not established, in my view, any interests, constitutionally protected interests, to play varsity baseball,” Torresen said during her decision. “They introduce a new and completely unrecognized property right.”

TRANSFER FOR SCHOOL, OR PLAY BASEBALL?

Torresen also made it clear she believed, based on evidence, that the Yees were given ample notice that academic enrollment and varsity athletic eligibility were two different issues.

“That they did not understand does not mean they were not given notice,” she said.

Both Palmer and Hewey declined to comment after Torresen denied the injunction.

A promising baseball player, Barbecue Yee had played on the Deering varsity team as a freshman while taking two classes at the school. At that time, the Yees claimed Barbecue was living at a Portland home that his father owned. After four games as Deering’s starting catcher, Barbecue was removed from the team by his father.

“I pulled him out of varsity last year to focus on his academics,” Howard Yee told the Press Herald. “If it was only about baseball, would I have ever pulled him out of baseball after only four games?”

Barbecue returned to being home-schooled at the start of the 2017-18 school year before returning to Deering.

In an affidavit, Palmer asserted several reasons why he believed Yee enrolled at Deering primarily to play baseball, including: Howard Yee had often referred to Deering with disdain; Palmer was informed that Barbecue intended to attend a different school as a junior; Barbecue himself said the same to Palmer; and Barbecue told Craig he was at Deering “to play baseball.”

“I determined that I could not, in good faith, certify to the MPA that (Barbecue’s) transfer was not primarily for athletic purposes,” Palmer stated in the school’s court filing.

“For him to make a statement that Howard, the father, has a disdain for Deering, this is a total lie,” Howard Yee said.

Barbecue is allowed to play junior varsity baseball at Deering because MPA eligibility rules apply only to varsity athletics.

WEIGHING THE COSTS OF LEGAL BATTLE

Howard Yee said his son will continue to attend Deering. Whether he plays on the junior varsity is unclear at this time.

Barbecue and his father declined to comment immediately after the hearing, which they attended with Howard Yee’s youngest son, Bao Bao. All three were dressed in matching red, white and black pullovers emblazoned with “USA” across the chest.

In the interview late Wednesday afternoon, Yee said he recognized that putting his son in a legal spotlight comes with a cost. The case has drawn national attention, much of which Howard Yee believes has been unfavorable to him and his family.

“There is cost; the financial cost, emotional cost, stress. But I think the cost is even bigger to not fight for it,” Yee said. “Because Barbecue wants it. The family is all behind this cause, and the fact is he was wronged by an adult. Because he obviously goes to Deering for school.”

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