With American patriotism at a fever pitch, judges at a recent Ohio State district diving tournament belly flopped in the deep end for disqualifying a diver over a flag design swimsuit that, according to them, broke Ohio High School Athletic Association (OHSAA) rules.

As the sole representative from her high school dive team to attend the district diving competition, Teresa Deak was permitted to select her swimsuit. The design of her suit, purchased off the rack at a local store, was a collage of flags from around the world, most prominent of which was the American flag. The subject swimsuit was the topic of discussion during warm-ups, but no action was taken until approximately one and a half hours into the competition when, during its second phase (which Ms. Deak scored high enough to qualify for), the judges informed her that she was disqualified for her swimsuit.

At that time, no additional information was given, other than that the swimsuit failed to conform to an OHSAA rule. The rule in question states, in part, that "[i]t is recommended that all swimmers on a team wear suits of identical coloring and pattern . . . . Competitors shall not be permitted to compete in attire (suits and caps) which includes advertising or a name other than the name of the competitor, school or mascot except a national flag no more than 2" x 3" in size."

Ms. Deak’s diving coach requested an immediate appeal of the decision. OHSAA was contacted and the decision was upheld.

In an artfully crafted lawsuit filed in the Court of Common Pleas in Cuyahoga County, Ohio, Ms. Deak’s attorney argued that OHSAA’s disqualification violated her rights guaranteed under the First Amendment to the U.S. Constitution and under the Constitution of the State of Ohio. In his Memorandum in support of the lawsuit, Attorney John Huettner noted that "Plaintiff’s constitutional right to display the flag may well be violated by unreasonable restrictions on its display. . . . While the United States Supreme Court has upheld reasonable ‘time, place, or manner’ restrictions on speech, it has done so only if the restrictions are ‘justified without reference to the content of the regulated speech.’ . . . Here, plaintiff is trying to honor her country by wearing a swimsuit that included the flag as part of its coloring or pattern, in much the same way as our Olympic team has since at least 1972. It is doubtful that the OHSAA rule would survive constitutional scrutiny even were it properly applied, since under the rule the limitation on display of the flag to a 2 by 3 inch patch is made solely with reference to the content of the regulated speech, i.e., display of the flag."

OHSAA maintained that the suit does not conform to the rule in three ways. First, it displays flags of other nations. Second, it displays two full American flags, whereas the rule permits only one. Third, the suit displayed an American flag larger than two by three inches, as stated in the rule. Attorney Steve Craig, representing OHSAA, noted that the uniform rules are meant to avoid commercialization.

Cuyahoga County Common Pleas Court Judge Thomas J. Pokorny, recognizing the potential irreparable harm to Ms. Deak if she was precluded from the state meet, granted her motion and ruled that OHSAA was restrained from eliminating plaintiff from participation.

Ms. Deak performed at the meet, which was held in late February, and placed 13^th. Her decision to stand up and fight for the First Amendment makes her Number One in our book.

Another court hearing, on the previously filed preliminary injunction motion, is scheduled for this week. It is unclear whether the lawsuit will continue. When contacted, Mr. Craig stated that OHSAA plans "no further action;" he thinks the ruling "sets no precedent." We think that OHSAA might want to revisit its rules or rethink its motto — "Organization Helping Student Athletes Achieve."