H.R. v. Minnesota State High School League, The et al

Filing 20

ORDER denying 2 Motion for Preliminary Injunction (Written Opinion). Signed by Senior Judge David S. Doty on 1/14/2013. (PJM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 13-16(DSD/JJK)
H.R., a minor child, by and
through his Parents and
Natural Guardians S.R. and
C.R.,
Plaintiffs,
ORDER

v.
The Minnesota State High School
League and Craig Perry,
Defendants.

Matthew Berner, Esq. and Droel PLLC, 7900 Xerxes Avenue
South, Suite 1930, Bloomington, MN 55431, counsel for
plaintiffs.
Kevin M. Beck, Esq. and Kelly & Lemmons, PA, 7300 Hudson
Boulevard, Suite 200, St. Paul, MN 55128, counsel for
defendants.

This

matter

is

before

the

court

upon

the

motion for

preliminary injunction by H.R., by and through his parents, S.R.
and C.R. (collectively, plaintiffs).

Based on a review of the

file, record and proceedings herein, and for the following reasons,
the court denies the motion for preliminary injunction.

BACKGROUND
This civil-rights dispute arises from the determination by
defendants Minnesota State High School League (MSHSL) and MSHSL
Associate Director Craig Perry (collectively, defendants) that H.R.
is ineligible to compete in varsity interscholastic athletics

during the 2012-2013 school year. H.R. is a tenth-grade student at
Holy Family Catholic High School (HFCHS) in Victoria, Minnesota.
Ver. Compl. ¶ 6.
Minnesota.

H.R. resides with his parents in Hutchinson,

Id.

During grades six through eight, H.R. attended Hutchinson
Middle School (HMS).

Id. ¶ 7.

While at HMS, H.R. alleges that he

was assaulted, threatened and harassed by his classmates.
a

result,

H.R.

moved

to

his

grandparents’

home

in

Id.

As

Woodbury,

Minnesota and attended ninth grade at Woodbury High School (WHS).
Id. ¶ 10. H.R. did not participate in interscholastic athletics at
WHS.

Id.
Due

to

his

grandmother’s

poor

health,

H.R.

returned

to

Hutchinson to live with his parents after his ninth-grade year.
Id. ¶ 12.

In fall 2012, instead of attending Hutchinson High

School with his former classmates, H.R. enrolled at HFCHS.
¶ 13.

Id.

H.R. joined the hockey team at HFCHS and earned a spot on

the varsity roster.

Id. ¶ 14.

Pursuant to MSHSL Bylaw 111.00, a transfer student may not
participate in varsity athletics for one calendar year after
transferring

unless

the

student

meets

one

of

the

criteria:
A. 9th Grade Option: the student is enrolling
in the 9th grade for the first time.
B. Family Residence Change: the student
transfers from one public school district
attendance area to another public school
2

following

district attendance area at any time during
the calendar year in which there is a change
of residence and occupancy in Minnesota by the
student’s parents ....
C. Court Ordered Residence Change for Child
Protection: The student’s residence is changed
pursuant to a child protection order[,]
placement in a foster home, or a juvenile
court disposition order.
D. Divorced Parents: A student of divorced
parents who have joint physical custody of the
student, as indicated in the divorce decree,
who moves from one custodial parent to the
other custodial parent ....
E. Move From Out of State: If a student’s
parents move to Minnesota from a state or
country outside of Minnesota and if the
student moves at the same time the parent
establishes residence in a Minnesota public
school district attendance area ....
Droel Aff. Ex. A, at 23-24.

HFCHS determined that H.R. did not

meet any of these criteria and ruled him ineligible for varsity
competition for the 2012-2013 school year.

Ver. Compl. ¶ 15; id.

Ex. A.
Thereafter, on November 28, 2012, plaintiffs applied for leave
from the MSHSL to appeal HFCHS’s eligibility determination.
Compl. ¶ 16.

Ver.

Bylaw 300.3A provides a non-exhaustive list of

circumstances that warrant a waiver of the transfer rule:
1)

Documented internal Board of Education
policies
regarding
the
movement
of
students within the school district.

2)

Adoption,
parent.

abandonment,

3

or

death

of a

3)

A documented negative change in the
economic status of the student’s parents
which requires the student to return to
the
public
school
located
in
the
attendance area where the student’s
parents reside.

4)

Intolerable conditions at the Sending
School1 as affirmed in writing by the
Sending School.
When situations arise
that the student or parents believe have
created an intolerable condition, the
acts complained of must first be reported
to the appropriate administrators at the
school so they have the opportunity to
investigate and take any action they deem
necessary to resolve the problem .... In
general,
allegations
alone
are
not
sufficient.
There
must
be
some
reasonable and believable substantiation
presented to indicate an incident or
incidents actually occurred.
As well,
the perpetrators must be identified.

5)

Enrollment
in
an
Advance
Placement
program, an International Baccalaureate
program or similar advanced academic
program not offered at the school the
student attends.

6)

Administrative error in addressing a
student’s initial eligibility.

7)

Completion of a licensed program for
treatment of alcohol or substance abuse,
mental
illness
or
emotional
disturbance[,]
provided
all
other
eligibility rules are followed.

8)

Other conditions not covered above but
which may be agreed to by both the
Sending and Receiving Schools.

1

“Sending School” is defined as “[t]he school last attended
by the student.” Droel Aff. Ex. B, at 49. In the present action,
WHS is the sending school.
4

Droel Aff. Ex. B, at 47-48.

The MSHSL determined that H.R. did not

meet any of the circumstances warranting a waiver, and denied his
request on December 7, 2012.

Id. ¶ 17.

Plaintiffs then requested a “Fair Hearing at the League Level”
to review the eligibility decision.

Id. ¶ 18.

A hearing was held

on December 19, 2012, before an Independent Hearing Officer,
retired Judge Michael T. DeCourcy, Sr.

Id. ¶ 20.

Judge DeCourcy

determined that no exception to the transfer rule applied and
recommended

that

the

MSHSL

affirm

ineligible for varsity competition.

its

decision

that

H.R.

is

Id. Ex. H.

On January 2, 2013, plaintiffs filed suit, alleging due
process and equal protection violations under 42 U.S.C. § 1983 and
a claim under Minnesota Statutes § 128C.03.

On that same day,

plaintiffs moved for a preliminary injunction.2

The court heard

oral argument on January 11, 2013, and all parties appeared through
counsel.

DISCUSSION
A preliminary injunction is an extraordinary remedy, and the
movant bears the burden of establishing its propriety.
Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003).
considers

four

factors

in

determining

2

whether

a

At oral argument, plaintiffs clarified that
injunctive relief only on their due process claim.
5

Watkins
The court

preliminary

they

seek

injunction

should

issue:

(1)

the

likelihood

of

the

movant’s

ultimate success on the merits, (2) the threat of irreparable harm
to the movant in the absence of relief, (3) the balance between the
harm alleged and the harm that the relief may cause the non-moving
party and (4) the public interest.

Dataphase Sys., Inc. v. C.L.

Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc).

The

movant bears the burden of proof concerning each factor. See Gelco
v. Coniston Partners, 811 F.2d 414, 418 (8th Cir. 1987).
factor is determinative.

No single

See Dataphase, 640 F.2d at 112-14.

Instead, the court considers the particular circumstances of each
case, remembering that the primary question is whether the “balance
of equities so favors the movant that justice requires the court to
intervene

to

determined.”
I.

preserve

the

status

quo

until

the

merits

are

Id. at 113.

Likelihood of Success on the Merits
The court first considers the “most significant” Dataphase

factor: likelihood that the movant will prevail on the merits. S&M
Constructors, Inc. v. Foley Co., 959 F.2d 97, 98 (8th Cir. 1992).
Under the Fourteenth Amendment, no state actor3 may “deprive
any person of life, liberty, or property, without due process of
law.”

U.S. Const. amend. XIV, § 1.

Plaintiffs argue that H.R.

possesses a property interest in interscholastic varsity athletics,

3

The MSHSL acts under color of state law when enforcing its
eligibility rules. See Brenden v. Indep. Sch. Dist. 742, 477 F.2d
1292, 1295 (8th Cir. 1973).
6

and that he was deprived of this right without due process.4
Specifically, plaintiffs claim that (1) they did not receive the
MSHSL eligibility brochure prior to H.R. transferring to HFCHS, (2)
the Bylaws are unconstitutionally vague and (3) H.R.’s substantive
due process rights were infringed by an arbitrary and capricious
appeal process.
A.

Receipt of Eligibility Brochure

Plaintiffs argue that they did not have notice of the MSHSL
transfer policy.

“An essential principle of due process is that a

deprivation of ... property be preceded by notice and opportunity
for hearing appropriate to the nature of the case.”

Cleveland Bd.

of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (citation and
internal quotation marks omitted).

Specifically, plaintiffs argue

that H.R. did not receive a copy of the MSHSL eligibility brochure
prior to transferring to HFCHS.

MSHSL Bylaw 303.00(1) provides

that “[s]chool officials are required to provide a copy of the
‘Eligibility Information Brochure’ to each student interested in

4

It is unclear whether interscholastic athletic eligibility
is a constitutionally-protected property interest.
Compare
Peterson v. Indep. Sch. Dist. No. 811, 999 F. Supp. 665, 674 (D.
Minn. 1998) (“[N]o property or liberty interest exists in a
student’s participation in extracurricular activities.”), with
Kaplan ex rel. J.K. v. Minneapolis Pub. Sch. Dist., 849 F. Supp. 2d
865, 877 (D. Minn. 2011) (“J.K. has a strong argument that, under
Minnesota law, his property interest in an education extends to
participation in interscholastic sports.”). The court, however,
need not answer this question because plaintiffs cannot show that
they are likely to succeed on the merits of their due process
claim.
7

participating in League-sponsored programs.”
52.

Droel Aff. Ex. B, at

Students must sign and acknowledge receipt of this brochure

“[p]rior

to

athletics.

practice

or

participation”

in

interscholastic

Id.

The Bylaws, however, only require that schools provide the
brochure to “interested” students.

H.R. did not participate in

athletics during his ninth-grade year and was not required to sign
the acknowledgment form while attending WHS. See Ver. Compl. ¶ 10.
Moreover, the eligibility requirements were readily available to
H.R. prior to his transfer.

WHS distributed a student handbook to

H.R. that directed interested students to contact WHS athletic
director Jason Gonnion “[f]or more information about the MSHSL
rules and student eligibility requirements.”
at 9.

Gonnion Aff. Ex. A,

Further, the eligibility requirements are published online

and available at the MSHSL office.

Perry Aff. ¶ 5.

Because the

MSHSL was not required to distribute the eligibility brochure and
H.R.

had

access

to

the

eligibility

requirements

before

his

transfer, allegations of a due process violation based on a lack of
personal notice are unlikely to succeed on the merits.
B.

Vagueness

Plaintiffs next argue that the Bylaws are unconstitutionally
vague and did not provide clear notice that H.R. would be deemed
ineligible.

See M.J.D. ex rel. W.D. v. Minn. State High Sch.

League, No. 12-2892, 2012 WL 5985514, at *6 (D. Minn. Nov. 29,

8

2012) (“[T]he existence of different reasonable readings [of a
Bylaw] suggests that Plaintiffs did not have fair notice that W.D.
would be ineligible before he decided to transfer.”); Giblin v.
Minn. State High Sch. League, No. 4-81-767, 1982 WL 963044, at *3
(D. Minn. Jan. 15, 1982) (“The transfer and residence rule did not
provide clear notice to plaintiffs that it should be interpreted to
apply to their transfers.”).

Specifically, plaintiffs argue that

(1) the list of waiver circumstances in Bylaw 300.3A is nonexhaustive and (2) the Bylaws allow the MSHSL to reinstate a
transfer student for “other conditions not covered above,” without
defining “other conditions.”

These provisions, however, allow the

MSHSL to address unique eligibility situations and such discretion
does not create a constitutional violation.

See Burrows v. Ohio

High Sch. Athletic Ass’n, 712 F. Supp. 620, 628 (S.D. Ohio 1988)
(“The same degree of precision is not required of an athletic bylaw
that would be required of a criminal statute.”); cf. Bethel Sch.
Dist. No. 403 v. Fraser, 478 U.S. 675, 686 (1986) (“Given the
school’s need to be able to impose disciplinary sanctions for a
wide range of unanticipated conduct disruptive of the educational
process, the school disciplinary rules need not be as detailed as
a

criminal

code

which

imposes

criminal

sanctions.”

(citation

omitted)).
Moreover, plaintiffs’ comparisons to W.D. and Giblin, where
as-applied challenges to the transfer provision were sustained, are

9

unavailing.

Those cases involved transfer students who sought

reinstatement based on a reasonable alternative interpretation of
a specific Bylaw provision.

See W.D., 2012 WL 5985514, at *6

(reinstating athlete under exception for students enrolled in
Advanced

Placement

(reinstating

course);

athlete

Giblin,

after

1982

determining

WL

963044,

that

at

*3

plaintiff’s

interpretation of transfer rule was reasonable).
By

contrast,

in

the

present

action, H.R.

relies

on

the

“including, but not limited to” and “other conditions not covered
above” language in Bylaw 300.3A to argue that H.R. should be
reinstated.

Unlike the plaintiffs in W.D. and Giblin, however,

H.R. could not have had a reasonable expectation of eligibility
based on these discretionary, catch-all provisions.

As a result,

plaintiffs have not demonstrated a likelihood of success based on
the allegations of vagueness within the Bylaws.
C.

Substantive Due Process

Finally, plaintiffs argue that the decision finding H.R.
ineligible
capricious.

for

interscholastic

athletics

was

arbitrary

and

“[A] substantive due process violation takes place

when governmental power is exercised arbitrarily and oppressively.”
Singleton v. Cecil, 176 F.3d 419, 431 (8th Cir. 1999) (en banc)
(Arnold, J., dissenting) (citation omitted). “Whether government
action is

arbitrary

or

capricious

within

the

meaning

of

the

Constitution turns on whether it was so egregious and irrational

10

that the action exceeds standards of inadvertence and mere errors
of law.”

Condor Corp. v. City of St. Paul, 912 F.2d 215, 220 (8th

Cir. 1990) (citations and internal quotation marks omitted).

“The

theory of substantive due process is properly reserved for truly
egregious and extraordinary cases.” Myers v. Scott Cnty., 868 F.2d
1017, 1017 (8th Cir. 1989).
This is not such a case.

While plaintiffs may disagree with

the appeal decision, it was not irrational.

The MSHSL and the

independent hearing officer both considered- and ultimately denied
- H.R.’s argument that an exception to the transfer rule applied.
See Ver. Compl. Exs. C, H.

Further, plaintiffs do not allege that

the MSHSL acted with malice or intent to harm H.R.

See Richmond v.

Fowlkes, 228 F.3d 854, 859 (8th Cir. 2000) (“To succeed on [a
substantive

due

process]

claim,

[plaintiff]

must

demonstrate

arbitrary and capricious conduct ... by showing that there was no
rational basis for the ... decision or that dismissal was motivated
by bad faith or ill will.”).

As a result, plaintiffs cannot

demonstrate a likelihood of success on their claim alleging a
substantive due process violation.
In sum, plaintiffs have not shown a likelihood of success on
any facet of their due process claim.

Therefore, this Dataphase

factor weighs against injunctive relief.

11

II.

Irreparable Harm
To establish irreparable harm, “a party must show that the

harm is certain and great and of such imminence that there is a
clear and present need for equitable relief.”
F.C.C.,

109

F.3d

418,

425

(8th

Cir.

Iowa Utils. Bd. v.

1996)

(per

curiam).

“Irreparable harm occurs when a party has no adequate remedy at
law, typically because its injuries cannot be fully compensated
through an award of damages.”

Gen. Motors Corp. v. Harry Brown’s,

LLC, 563 F.3d 312, 319 (8th Cir. 2009).
Plaintiffs have demonstrated the possibility of irreparable
harm.

“While not as grave as many matters that pass before this

Court,

the

harm

of

losing

a

year

of

varsity

eligibility

is

difficult to quantify and would constitute irreparable harm.”
W.D., 2012 WL 5985514, at *6 (citation omitted); see Giblin, 1982
WL 963044, at *2 (“If plaintiffs were ultimately found to be
entitled to permanent injunctive relief after a trial on the
merits, that relief would be meaningless if the athletic seasons
were over.”).

Therefore, this Dataphase factor weighs in favor of

injunctive relief.
III.

Balance of Harms
Under this factor, “a court should flexibly weigh the case’s

particular circumstances to determine whether ... justice requires
the court to intervene to preserve the status quo.”

United Indus.

Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir. 1998) (citation

12

and internal quotation marks omitted).

As already explained,

plaintiffs have demonstrated the possibility of irreparable harm.
This harm is balanced by defendants’ interests in the uniform
application of eligibility rules and the need to enforce the
Bylaws.

In balancing the harms, the court also notes that H.R. is

still eligible to practice with the team and participate in juniorvarsity competition.

Therefore, the court concludes that the

balance of harms does not strongly favor either party, and that
this Dataphase factor is neutral.
IV.

Public Interest
Finally, plaintiffs argue that the public interest weighs in

favor of protecting the deprivation of constitutional rights.
However, as already explained, plaintiffs have not established a
substantial

likelihood

constitutional claim.

of

success

on

the

merits

of

their

Moreover, the public is served by the

uniform and predictable application of the MSHSL’s eligibility
requirements Therefore, this Dataphase factor weighs against entry
of injunctive relief.

Accordingly, based upon a balancing of the

Dataphase factors, a preliminary injunction is not warranted.

13

CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that
plaintiffs’ motion for preliminary injunction [ECF No. 2] is
denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:

January 14, 2013
s/David S. Doty
David S. Doty, Judge
United States District Court

14