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Date: 03-07-2019

Case Style:

D.M. v. Minnesota State High School League

Case Number: 18-3077

Judge: Melloy

Court: United States Court of Appeals for the Eighth Circuit on appeal from the District of Minnesota (Hennepin County)

Plaintiff's Attorney: Anastasia P. Boden, Erick G Kaardal, Timothy R Snowball, Joshua P. Thompson, Caleb Randall Trotter

Defendant's Attorney: Kevin M Beck, Patrick John Kelly and Joseph A Kelly


In 2018, two boys sued their state’s high school athletic league and several of itsofficers for declaratory and injunctive relief under 42 U.S.C. § 1983. The boys allegedthat the league violated their rights under the Equal Protection Clause of the FourteenthAmendment to the U.S. Constitution and under Title IX of the Education Amendmentsof 1972, 20 U.S.C. §§ 1681–88 (“Title IX”). Specifically, they claimed that the leagueunlawfully discriminated against them on the basis of sex through its rule prohibitingboys from participating on high school competitive dance teams. The district courtdenied the boys’ motion for a preliminary injunction, and they appealed. Havingjurisdiction under 28 U.S.C. § 1292(a)(1), we reverse and direct the district court toenter a preliminary injunction.
Appellants D.M. and Z.G. are sixteen-year-old boys who attend high school inMaplewood and Minnetonka, Minnesota, respectively. Both are in the eleventh grade. Both are passionate about dance and have participated in various dance classes andprograms. Both want to dance on their schools’ competitive dance teams but, forreasons explained below, have been prohibited from doing so.
Appellee Minnesota State High School League (the “League”) is a non-profitcorporation that is a voluntary association of high schools. The League exercisesauthority delegated to it by the high schools to control high school extracurricularactivities and sports throughout the state. To obtain and maintain such control, the
League passes bylaws and rules that set forth the standards member schools use toregulate and supervise those activities and sports.
The League’s Bylaw 412 limits participation on a school’s competitive danceteam to females. The League claims that the reason for this limitation is that girls’“overall athletic opportunities have previously been limited,” whereas boys’ have not. To support its claim, the League points to data compiled by Amicus National Federationof High School Athletic Associations (“NFHS”). The League also relies on Minnesotalaw, which allows for gender-based, athletic limitations in certain circumstances. SeeMinn. Stat. § 121A.04, subdiv. 3 (“[I]n athletic programs operated by educationalinstitutions or public services and designed for participants 12 years old or older or inthe 7th grade or above, it is not an unfair discriminatory practice to restrict membershipon an athletic team to participants of one sex whose overall athletic opportunities havepreviously been limited.”). Pursuant to Bylaw 412, neither D.M. nor Z.G. have beenallowed to participate on their schools’ competitive dance teams.
D.M. and Z.G. sued the League in July 2018 for allegedly violating Title IX andtheir rights to equal protection under the Fourteenth Amendment. Shortly thereafter, theboys moved for a preliminary injunction of Bylaw 412 as it pertains to boys andcompetitive dance teams. The district court denied the motion. Despite finding that theboys suffered irreparable harm and that “the balance of harms may favor” them, thedistrict court concluded that the injunction was not warranted because the boys were notlikely to prevail on the merits. The district court also concluded that the public interest,as reflected in Minnesota Statute section 121A.04, favored denying the injunction. Thecourt explained that “[t]he girls-only dance team rule is substantially related to animportant governmental objective”—namely, “increasing girls’ athletic opportunities.” Moreover, the court said that Title IX permits the League to create girls-only athleticteams such as dance teams. The boys timely filed a notice of appeal.
We review “the denial of a preliminary injunction for abuse of discretion.”Gresham v. Swanson, 866 F.3d 853, 854 (8th Cir. 2017). A district court abuses itsdiscretion when it “rests its conclusion on clearly erroneous factual findings orerroneous legal conclusions.” Jones v. Kelley, 854 F.3d 1009, 1013 (8th Cir. 2017) (percuriam). “We will not disturb a district court’s discretionary decision if such decisionremains within the range of choice available to the district court, accounts for allrelevant factors, does not rely on any irrelevant factors, and does not constitute a clearerror of judgment.” Richland/Wilkin Joint Powers Auth. v. U.S. Army Corps of Eng’rs,826 F.3d 1030, 1035 (8th Cir. 2016) (quoting PCTV Gold, Inc. v. SpeedNet, LLC, 508F.3d 1137, 1142 (8th Cir. 2007)). We review a district court’s legal conclusions denovo. Barrett v. Claycomb, 705 F.3d 315, 320 (8th Cir. 2013).
When determining whether to issue a preliminary injunction, the district courtconsiders: “(1) the threat of irreparable harm to the movant; (2) the state of balancebetween this harm and the injury that granting the injunction will inflict on other partieslitigant; (3) the probability that [the] movant will succeed on the merits; and (4) thepublic interest.” Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir.1981) (en banc). Generally, no one of these factors is determinative. Id. at 113.However, “the absence of a likelihood of success on the merits strongly suggests thatpreliminary injunctive relief should be denied.” Barrett, 705 F.3d at 320 (quoting CDIEnergy Servs., Inc. v. West River Pumps, Inc., 567 F.3d 398, 402 (8th Cir. 2009)). Consequently, we will begin our review with an analysis of that factor.
There are two standards a district court may apply when assessing a movant’sprobability of success on the merits. The first, which applies in most instances, directsthe district court to ask whether the party requesting a preliminary injunction has a “fairchance of prevailing.” Planned Parenthood Minnesota, North Dakota, South Dakota v.Rounds, 530 F.3d 724, 732 (8th Cir. 2008) (en banc). This fair-chance standard does
not require the party seeking relief to “show ‘a greater than fifty per cent likelihood thathe will prevail on the merits.’” Id. at 731 (citation omitted). The second, which we havecalled a “more rigorous standard,” calls on the district court to determine, as a thresholdmatter, whether the movant is “likely to prevail” on his or her claims. Id. at 733. Thelikely-to-prevail standard applies when “a preliminary injunction is sought to enjoin theimplementation of a duly enacted state statute.” Id. at 732. The district court appliedthe heightened, likely-to-prevail standard because “the challenged policy is supportedby a Minnesota statute.” The parties dispute whether that was error.
As noted above, the test for determining which standard applies is whether the“preliminary injunction is sought to enjoin the implementation of a duly enacted statestatute.” Id. We apply a heightened standard in such instances because the duly enactedstate statute constitutes “government action based on presumptively reasoneddemocratic processes,” and such action is “entitled to a higher degree of deference andshould not be enjoined lightly.” Id. at 732 (quoting Able v. United States, 44 F.3d 128,131 (2d Cir. 1995)). The likely-to-prevail test may also be appropriate when a movantseeks to preliminarily enjoin other forms of government action such as “administrativeactions by federal, state or local government agencies.” Id. at 732 n.6. However, inthose cases, the suggested course of action is to first “evaluate whether ‘the full play ofthe democratic process[]’ was involved” in the actions and “then determine whichstandard would be more appropriate.” Richland/Wilkin, 826 F.3d at 1040 (quotingRounds, 530 F.3d at 732 n.6).
Here, Bylaw 412 can, under Eighth Circuit precedent, rightly be consideredgovernment action. See Brenden v. Indep. Sch. Dist. 742, 477 F.2d 1292, 1295 (8th Cir.1973) (determining that the League “act[ed] under color of state law” for purposes of42 U.S.C. § 1983 in promulgating rules governing high school athletics). However, thebylaw was not based on the “presumptively reasoned democratic processes” that Roundscontemplated. Rounds, 530 F.3d at 732. Indeed, the creation of the bylaw did notinvolve “the full play of the democratic process.” Id. at 732 n.6; see also
Richland/Wilkin, 826 F.3d at 1040. There was no lengthy public debate involving boththe legislative and executive branches before the formulation of the bylaw and itssubsequent enactment. Cf. Able, 44 F.3d at 131–32 (imposing a heightened likelihood-of-success standard upon a motion to enjoin federal legislation and regulation because“Congress and the President [had] engaged in lengthy public debate before formulating”them).1 And the bylaws are created by League-member schools throughout the state, notby democratically elected officials who must answer to their constituents or face thepossibility of not being reelected.
To the extent the League argues that the heightened standard applies because itis implementing a state statute, Minnesota Statute section 121A.04, we reject theargument. Section 121A.04 does not direct the League to do anything; rather, the statutepermits the League to discriminate on the basis of sex in limited circumstances—whenathletic opportunities for a sex have previously been limited. The League must stillshow the continuing lack of opportunity and how the challenged policy addresses thatinequity. Nothing in this action calls into question the validity of the underlying statute.
Consequently, the heightened, likely-to-prevail standard does not apply to theboys’ preliminary injunction motion. We ask, instead, whether the boys have a fairchance of prevailing.
We now turn to the merits of the boys’ claims, applying the appropriate standard. The boys argue that the League violated their Fourteenth Amendment equal protectionrights when it banned them from participating on their high schools’ competitive danceteams because they are male. The League contends that it is justified in precluding the
1Able served as an important guide for us when we adopted our heightened,
likely-to-prevail test in Rounds. See Rounds, 530 F.3d at 731–33; see also id. at 732 n.6.
Able’s treatment of when government action represents “the full play of the democratic
processes” is, therefore, significant.
boys from the dance teams because doing so constitutes means that are “substantiallyrelated to the important governmental interest of redressing past discrimination andproviding equal opportunities for women.”
On the issue of past discrimination, the parties have submitted a chart that shows,for Minnesota in a given year, the relative percentages of boys and girls enrolled inLeague-member schools statewide. It then shows the relative percentages of boys andgirls among those students participating in interscholastic sports. The underrepresentedsex column shows the difference between the percentage of students enrolled and thepercentage of students participating in interscholastic sports for whichever gender isunderrepresented that year. The chart is reproduced here as follows:
League-Member School Enrollments and Athletes by Gender
The same data for 2017–18 shows boys were underrepresented by 0.35%.
The Fourteenth Amendment provides that “[n]o State shall . . . deny to any personwithin its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. In the context of gender-based discrimination, the U.S. Supreme Court has interpretedthat clause to mean that unless a government actor can meet the “demanding” burdenof showing an “exceedingly persuasive” justification for treating males differently fromfemales, the differential treatment is unconstitutional. United States v. Virginia, 518U.S. 515, 533 (1996); see also Duckworth v. St. Louis Metro. Police Dep’t, 491 F.3d401, 406 (8th Cir. 2007). To successfully justify a classification based on gender, theactor “must show ‘at least that the [challenged] classification serves “importantgovernmental objectives and that the discriminatory means employed” are “substantiallyrelated to the achievement of those objectives.”’” Virginia, 518 U.S. at 533 (alterationin original) (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)).
The Court has explained that “gender-based classification[s] favoring one sex”that are designed to remedy past discrimination can be justified “[i]n limitedcircumstances.” Miss. Univ., 458 U.S. at 728. Such circumstances exist when theclassification “intentionally and directly assists members of the sex that isdisproportionately burdened.” Id. However, a government actor may “evoke acompensatory purpose to justify an otherwise discriminatory classification only ifmembers of the gender benefited by the classification actually suffer a disadvantagerelated to the classification.” Id. (emphasis added). In other words, for a governmentactor to classify individuals based on gender for the purpose of remedying a prior lackof opportunities, the individuals must continue to lack opportunities or the classificationis not constitutionally justified. See id. at 729 (declaring a public university’s women-only policy to be unconstitutional because the university had “made no showing . . . thatwomen [were] currently . . . deprived of” opportunities to obtain nursing training orpositions of leadership); id. at 730 (“[A]lthough the State recited a ‘benign,compensatory purpose,’ it failed to establish that the alleged objective is the actualpurpose underlying the discriminatory classification.”).
The parties agree that girls historically have been underrepresented in Minnesotahigh school athletics. However, over the past five years, the representation of girls inMinnesota athletics has been almost directly proportional to the number of girls enrolledat Minnesota schools. In fact, in both the 2016–17 and 2017–18 school years, theparties’ means of determining representation show that boys have been slightlyunderrepresented in high school athletics. Thus, the League has not shown that theunderlying problem it initially sought to remedy by creating all-girl teams—the overallunderrepresentation of girls in high school athletics—continues to exist, at least inMinnesota.2 Without this underlying problem to remedy, the League cannot prohibitboys from participating on girls’ teams unless it has some other “exceedinglypersuasive” justification for doing so. Virginia, 518 U.S. at 533.
The League does not offer any such justification. Instead, it merely argues, inbroad terms, that restricting the membership of athletic teams to one sex “advances theimportant government interest of promoting safety, increasing competition, redressingpast discrimination, and providing more athletic opportunities for female athletes.” TheLeague also cites a Rhode Island Supreme Court case, Kleczek v. R.I. Interscholastic
2The U.S. Department of Education’s Office of Civil Rights, the League, and the
NFHS all repeatedly stress that girls are underrepresented in high school athletics
nationwide. To support their claims, they point to data that show “[o]ver the last four
years 1,218,125 (15.6%) more boys participated nationwide in interscholastic sports, on
average, than girls.” The problem with the data they cite, however, is that the data do
not show the total, nationwide number of students enrolled in schools that offer
interscholastic athletic programs. Nor do the data break down how many of those
students are boys and how many are girls. Without that information, it is impossible to
appreciate the extent to which either gender is over- or underrepresented in
interscholastic athletics at the national level. There may be more boys than girls
participating in interscholastic sports because there are simply more boys than girls
enrolled. Moreover, the alleged fact that girls are underrepresented in sports nationwide
does not address the question of whether girls are underrepresented in Minnesota so as
to justify a bylaw that prohibits boys from joining high school competitive dance teams
in that state.
League, Inc., 612 A.2d 734 (R.I. 1992) (per curiam), in which the court held thatpromoting safety and preserving interscholastic athletic competition for boys and girlsare important government interests. Id. at 739. Kleczek, however, in addition to beingnon-binding, is distinguishable from this case. Kleczek involved a ban on boysparticipating on girls-only field hockey teams. Id. at 735. The court, understandably,had concerns about participants’ safety if boys were allowed on the teams. Id. at 739. Here, the League does not explain how allowing boys to dance on their schools’competitive dance3 teams would be unsafe or how it would deprive girls of opportunitiesto compete. Moreover, Kleczek was decided under the Rhode Island constitution, notthe U.S. Constitution. Id. at 736. We find the League’s asserted other justifications forprohibiting boys from participating on high school competitive dance teamsunpersuasive.
Because the League has not asserted an “exceedingly persuasive” justification forkeeping boys from participating on high school competitive dance teams, we hold thatthe boys had more than a fair chance of prevailing on the merits of their case.4 Thedistrict court erred in concluding otherwise.
Because we conclude that the boys have a fair chance of prevailing on the meritsof their equal protection claim, we need not address their probability of success on theirTitle IX claim. See Richland/Wilkin, 826 F.3d at 1040 (“The plaintiff ‘need only
3In many sports, single-sex teams can be justified if boys enjoy a competitive
advantage over girls due to their weight and height. The League has not presented any
evidence (and does not seem to seriously argue) that boys enjoy any competitive
advantage over girls in dance.
4Given the lack of justification for the policy, we have no doubt that the boys
could even satisfy the heightened, likely-to-prevail standard if it were applicable.
establish a likelihood of succeeding on the merits of any one of [its] claims.’” (alterationin original) (citation omitted)). We turn now to the other Dataphase factors.
The district court concluded that the boys “sufficiently demonstrated irreparableharm.” We agree. Students who are denied the opportunity to join their schools’ sportsteams because of their sex may suffer irreparable harm. See Bednar v. Neb. Sch.Activities Ass’n, 531 F.2d 922, 923 (8th Cir. 1976) (per curiam). That is especially truehere. Both boys are juniors in high school. They love to dance and want to do socompetitively as part of a school team. The League’s ban has prohibited them fromdoing so this year. They cannot get that season back. Without injunctive relief or finalresolution of their suit, they will be prevented from competing next year as well. Thesesorts of injuries, i.e., deprivations of temporally isolated opportunities, are exactly whatpreliminary injunctions are intended to relieve.
Furthermore, we hold that the district court erred in concluding that the publicinterest favored denying the injunction. The district court reasoned that “[t]he publicinterest is evidenced in the Minnesota statute allowing girls-only teams that do notviolate Title IX or the Equal Protection Clause.” That statement, while true enough,overlooks the fair probability that the League’s bylaw violates the Constitution. “[T]hepublic is served by the preservation of constitutional rights.” Phelps-Roper v. Nixon,545 F.3d 685, 694 (8th Cir. 2008), overruled on other grounds by Phelps-Roper v. Cityof Manchester, 697 F.3d 678, 692 (8th Cir. 2012) (en banc); see also Awad v. Ziriax,670 F.3d 1111, 1132 (10th Cir. 2012) (“[I]t is always in the public interest to preventthe violation of a party’s constitutional rights.” (quoting G & V Lounge, Inc. v. Mich.Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994))). As such, the publicinterest Dataphase factor favors the boys.
Finally, we hold that the balance of harms tips in favor of granting an injunction. The district court alluded that such may be the case in its memorandum and order, andfor good reason. If the injunction is granted, the boys may try out for their schools’
competitive dance teams. The negative public consequences of such an allowance, ifany, will be slight.5 See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)(“In exercising their sound discretion, courts of equity should pay particular regard forthe public consequences in employing the extraordinary remedy of injunction.” (quotingWeinberger v. Romero–Barcelo, 456 U.S. 305, 312 (1982))). On the other hand, if theinjunction is denied, the boys will continue to suffer irreparable harm—namely, theywill be prevented from trying out for and participating on their schools’ competitivedance teams in probable violation of their constitutional rights. The balance of harmsis decidedly in the boys’ favor.
5The League argues that “[g]ranting an injunction would fundamentally alter the
requirements for MSHSL-sponsored activities and would disregard the unambiguous
language of Minn. Stat. § 121A.04.” The League worries that were the preliminary
injunction to be granted and the boys “subsequently determined ineligible after a trial
on the merits,” their teams would be required to forfeit “all contests in which [the boys]
participated.” We do not share the League’s concerns. If the injunction is granted, the
boys are “eligible” for all intents and purposes. Therefore, we are not convinced that
their teams would have to forfeit contests under the League’s rules. Moreover, the
League’s inability to show an “exceedingly persuasive” justification for its
discriminatory rule at this stage of the litigation makes a scenario wherein the boys lose
at trial highly unlikely.

Outcome: In sum, all of the Dataphase factors favor granting D.M.’s and Z.G.’s motion fora preliminary injunction. We therefore reverse the judgment of the district court and remand for the district court to issue a preliminary injunction in favor of the boys.

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