Whitaker v. Kenosha Unified School District No 1 Board of Education et al

Filing 46

ORDER signed by Judge Pamela Pepper on 10/3/2016 DENYING 44 Rule 7(h) Motion to Stay Preliminary Injunction (Dkt. No. 33) Pending Appeal. (cc: all counsel) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ASHTON WHITAKER,
By his mother and next friend,
Melissa Whitaker,

Case No. 16-cv-943-pp

Plaintiff,
v.
KENOSHA UNIFIED SCHOOL DISTRICT NO. 1
BOARD OF EDUCATION and
SUE SAVAGLIO-JARVIS,
Defendants.
______________________________________________________________________________
ORDER DENYING DEFENDANTS’ CIVIL L.R. 7(h) EXPEDITED, NONDISPOSITIVE MOTION TO STAY PRELIMINARY INJUNCTION (DKT. NO. 33)
PENDING APPEAL (DKT. NO. 44)
______________________________________________________________________________
The plaintiff filed his complaint on July 19, 2016, Dkt. No. 1, and less
than a month later, filed a motion for preliminary injunction, Dkt. No. 10. A
day after the plaintiff filed the motion for preliminary injunction, the
defendants filed a motion to dismiss the complaint. Dkt. No. 15. A few days
later, they filed a brief in opposition to the motion for preliminary injunction.
Dkt. No. 17.
On September 6, 2016, the court heard oral argument on the motion to
dismiss. Dkt. No. 26. On September 19, 2016, the court issued an oral ruling
denying the defendants’ motion to dismiss. Dkt. No. 28. The court scheduled a
hearing on the motion for preliminary injunction for the following day,
September 20, 2016. Id. at 9.
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On September 20, 2016, the parties presented their oral arguments on
the motion for preliminary injunction. Dkt. No. 31. In considering the question
of whether the plaintiffs had a likelihood of success on the merits, the court
relied in good part on its decision from the previous day denying the motion to
dismiss.1 At the conclusion of the hearing, the court granted in part2 the
plaintiff’s motion for a preliminary injunction, and enjoined the defendants
from prohibiting the plaintiff from using the boys’ restrooms at his high school;
from taking punitive action against the plaintiff for using the boys’ restrooms;
and from taking any action to monitor his restroom usage. Dkt. No. 31 at 1.
Counsel for the defendants asked the court to stay the injunction until October
There is a bit of a procedural morass surrounding that decision. Counsel for
the defendants informed the court at the end of the hearing that he would be
submitting a proposed order, denying his motion to dismiss but containing the
necessary findings for certification of an interlocutory appeal. He did not make
any argument in support of that proposal; the court did not elicit any, nor did
it ask for the plaintiff’s position. The court entered the order, with the
interlocutory appeal certification language, on September 21. Dkt. No. 29. The
next day, the plaintiff filed a motion asking the court to reconsider including
the interlocutory appeal certification language. Dkt. No. 30. On September 23,
2016, before the court ruled on that motion, the defendants filed a notice of
appeal with the Seventh Circuit, appealing both the order denying the motion
to dismiss and the order granting the preliminary injunction (an order the
court had issued on September 22, 2016, Dkt. No. 33). Dkt. No. 34. On
September 25, 2016, the court issued an order granting the plaintiff’s motion
to reconsider, Dkt. No. 36, and entered an amended order denying the motion
to dismiss but removing the interlocutory appeal certification language, Dkt.
No. 35. The next day, the Seventh Circuit ordered the plaintiff to respond to the
defendants’ request for interlocutory appeal by October 11, 2016.
2 The plaintiff’s complaint requests other relief: it asks the court to prohibit the
defendants from referring to the plaintiff by his birth name, and from using
female pronouns to identify him; to require the school to allow him to room
with other boys on school trips; to prohibit the school from requiring the
plaintiff to wear identifying markers, such as a colored wristband; and other
relief. The court did not grant injunctive relief on those requests—some were
not ripe, and others speculated actions that had not yet occurred.
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1, 2016, to allow the defendants time to appeal. Id. The court declined. Id. at 2.
The defendants also asked the court to require the plaintiff to post a bond; the
court took that request under advisement. Id.
On September 22, 2016, the court issued its written order granting in
part the motion for preliminary injunction. Dkt. No. 33. In particular, the court
weighed the balance of harms, and concluded that the harms suffered by the
plaintiff if the court did not grant the injunctive relief outweighed any potential
harms suffered by the defendant if the court were to impose the injunction. Id.
at 13-15. The court also found that the issuance of the injunction would not
negatively impact the public interest. Id. at 15. Finally, the court declined to
require the plaintiff to post a bond. Id. at 15-17.
The defendants again have asked the court to stay the preliminary
injunction. Dkt. No. 44. The defendants point out that they have appealed the
court’s decision to the Seventh Circuit (both appealed as of right regarding the
order granting the motion for preliminary injunction, and sought interlocutory
appeal regarding the court’s denial of the motion to dismiss the complaint). Id.
at 2. They argue, as they did in their motion to dismiss, that the Seventh
Circuit’s decision on Ulane v. Eastern Airlines, Inc., 742 F.2d 1081) (7th
Circuit) mandates a ruling in their favor on the Title IX issue (despite conceding
that the court has not decided the precise issue in question in this case). Id. at
1-2. They argue that they will suffer irreparable harm from the injunction,
because the injunction “threatens the constitutionally protected privacy
interest of the approximately 22,000 students in the school district.” Id. at 2-3.
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They argue that the plaintiff will not be harmed by staying the injunction,
because a stay would maintain the status quo and would not worsen the
plaintiff’s health. Id. at 3. Finally, they argue that the public interest would be
served by a stay of the injunction, because it will prevent the school district’s
students and parents from being “subjected to an injunction that perpetuates a
policy that the federal government is unable to enforce,” citing State of Texas v.
United States, Case No. 16-cv-54, 2016 WL 4426495 (N.D. Tex., August 21,
2016).3
As the defendants state in their motion, the factors a movant must
satisfy to obtain a stay pending appeal are similar to the factors a movant must
satisfy to obtain injunction relief. Hinrichs v. Bosma, 440 F.3d 393, 396 (7th
Cir. 2006) (citing Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). The moving
party must demonstrate that “1) it has a reasonable likelihood of success on
the merits; 2) no adequate remedy at law exists; 3) it will suffer irreparable
harm if it is denied; 4) the irreparable harm the party will suffer without relief
is greater than the harm the opposing party will suffer if the stay is granted;
and 5) the stay will be in the public interest.” Id. (citing Kiel v. City of Kenosha,
236 F.3d 814, 815-16 (7th Cir. 2000)).

The defendants’ statement that Texas district court’s injunction prohibits the
federal government from enforcing its policies at all is overbroad. The Texas
court’s order prohibits the federal government from enforcing certain
Department of Education policies (relevant to this case) against the plaintiffs in
that case “until the Court rules on the merits of this claim, or until further
direction from the Fifth Circuit Court of Appeals.” Texas v. United States, 2016
WL 4426495 at 17.
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Every argument which the defendants raise in their motion for stay
pending appeal was raised in their objection to the motion for preliminary
injunction, and the parties argued every one of those issues at the September
20, 2016 hearing. The court found in favor of the plaintiff, and against the
defendants, on each factor. The defendants give no explanation for why the
court should find in their favor now, when eight days prior to their filing this
motion to stay, the court found against them on exactly the same issues they
raise here.
The court DENIES the defendants’ motion Civil L.R. 7(h) Expedited, NonDispositive Motion to Stay Preliminary Injunction. Dkt. No. 44.
Dated in Milwaukee, Wisconsin this 3rd day of October, 2016.

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