J.M. v. Montana High School Ass'n

No. 93-463

IN THE SUPREME COURT OF THE STATE OF MONTANA

:.?I., JR. individually an3 by
his parents, an3 next friends,
J.M. and S . X . ,

APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable James E. Purcell, Judge presiding.

COUNSEL OF RECORD:
For Appellants:
Jock 0. Anderson, David C. Dalthorp, Gougn,
Shanzhan, Johnson & Katerman, Helena, Montana
For Respccdents:
lavid J . Klng, Butte, Montana

Submitted on Briefs: ??arch 13, 1394
3ecided: Way 5, 1994
 This is an appeal from the Second judicial District Court,
Silver Bow County, granting a preliminary injunction against the
defendants, the Montana High School Association (XMA), the Board
of Control of HHSA, and Butte Central High School (Butte Central),
enjoining them from enforcing NHSA's maximum participation
eligibility rules against the plaintiff. MHSA and the Board of
Control appealed, asking this Court to dissolve the injunction. We
reverse, remand and dissolve the injunction.
ISSUES
This appeal involves two issues which relate to whether the
District Court erred in applying the statutory rights and renedies
of the Individuals with Disabilities Education Act, 20 U.S.C. 5
1400 et. seq., (IDEA), to enjoin MHSA from enforcing its
eligibility rules against the plaintiff, J.M., Jr. The two issues
are as follows:
1. Whether rights arising under IDEA afford protections to
stud en:^ who m y be learning disabled but uho do not have a written

Individualized Education Program (IEP), and are not otherwise
participating in a special education prograin prescribed under IDEA.
2. lihether the principles enunciated in T.H. v. Montana High
School Ass'n. (D. Mont., Sept. 24, 1992), CV-92-150-BLG-JFB, apply
to students who have exhausted their allotted eligibility under

MHSA's rules.

BACKGROUND
This case involves an eighteen year old Butte Central st~.ident

2
 : h claims learnin2 disabilities, and who ran afoul of 143S.4'~
ic
maximum parr-icipation eligibility requirements. Lnder those rules,
he was ineligible to play football or to wrestle during his senior
year of high school. MHSA is a non-profit association
incorporated under the laws of Kontana. Merr.bership in MHSA is
xroluncary, and is comprised of public and private high schools in
Kontana, including 3utte Central. MHSA has the exclusive authority
and responsibility for supervising and controlling all phases of
interscholastic programs among its member schools. MHSA prohibits
member schools from allowing any student to participate in
interscholastic athletics if that student is ineligible to
participate under MHSA rules and bylaws, and it has the power to
sanction and penallze member schools which allow ineligible
students to participate.
The two MESA rules at issue in this case are called "maximum
participation rules," in that they delineate the maximum semesters
or seasons of eligibility for student participants in
interscholastic contests.
The first rule prohibits students from parricipating in any
MHSA regulated activity for more than eight semesters. The "eight
senester" rule provides:
No student shall be eligible to participate in an
Association Contest who has been in attendance in any
secondary school more than eight (8) semesters. An
attendance of tln'enty (20) days during a semester shall
canstitute one senester's attendance under this section.
. . .
Fo-.tana High School 3-ss'n. Cfficial Handbook (i993-1991), By-La;;s,
.Z.rticle 11, Section (9), p . 19.
 The s e c a d rule, or "four season" rule, provides:

No student shall be eligible to participate in an
Association Contest during more than four seasons in any
one sport. . . .

Nontana High School Ass'n. Official Handbook (1993-1994), By-Laws,
Article 11, Section (ll), p. 20.
Inasmuch as students gain physical and mental naturity each
season that they participate in sports and thereby gain the
advantage of size, strength, and speed over younger students, MHSA

established these maximum participation rules t3 promote safety,
interscholastic competition, the opportunity to compete, and to
insure that students do not delay graduation for athletic purposes.
The student involved in this case, J.M., Jr., had participated
in four seasons of football prior to the 1993 fall season. J.N.,

Jr.'s high school football career began in 1989, when he played

freshman football at Helena High School. In late October of 1989,
J.X., Jr. and his family moved to Missoula. Because of educational
d i ~ ~ :
,,,culties, J.M., Jr. finished the remainder of the 1989-90

school year in the eighth grade. In the summer of 1990, J.M., Jr.

moved vith his family to Butte. He enrolled as a freshman in Butte
Central, a grivate school, and played football for Butte Central

for the 1990, 1991, 1992, seasons, thereby playing four seasons of
football. Because J . . , Jr. had already participated in fcsr

seascns of football, he was ineligible to play football in the fall
of 1993 at the connencexent of his senior year, by reason of the
MSSA four seasons rule. J.M., Jr. also wrestled for3;tte Central,

co~~eting
during the spring semesters of 1991, 1992 and it apFears,
 althongh not completely clear froa the record, spring semester of
1993. Secause of the eight semester rule, J.X., Jr. would have

been ineligible to compete in spring semester wrestling durinq
school year 1993-94.
In January 1993, in anticipation of J.M., Jr.'s porentiai
ineligibility, his parents requested a formal ruling from MHSA

regarding their son's eligibility to play football and to wrestle,
for the 1993-94 sctool year. In February 1993, MHSA, through its
executive director, Dan Freund, ruled that because the fall
sexester of 1993 would be J.M., Jr.'s fifth season of fall sports,
and the spring semester would be his ninth semester of school,
J . . Jr. would be ineligible to participate in any interscholastic
activities for the 1993-94 school year. J.., Jr.'s parents

appealed this decision to MHSA's Board of Control, the governing
body responsible for the interpretation and enforcement of MHSP
rules

Subsequent co an eligibility hearing held in mid-April, 1993,

the Eoard of Control denied J.M., Jr.'s request to waive the four

seascn rule for the fall senester of the 1993-94 school year, but
apprcved the request for a waiver of the eight sexester rule for
the spring semester. The Board of Control based its decision on

the fact that J.M., Jr. had already competed in four seasons of
fall spcrts, but had only corrpeted in three seasons of sprlng

Sports.

Tl-e follo.ding chart illustrates J.M., Jr.'s participation in
h g h schoci athletics and the expiration of his eligibility under
EKA's four season and eight semester rules.

1989-1990 (9tin/8th grade)
1990-1991 (9th grade)
1991-1992 (10th grade)
1992-1993 (11th grade)

Total Semesters/Seasons of 4
eligibility before
1993-1994 school year
J . Y . , Jr. was nat found to be ineligible for any other reason,

i.e., because of age limitations, or academic performance. He was

denied eligibility solely because his eligibility had expired under

the four season rule.
On September 3 , 1993, J.M., Jr.'s parents filed a complaint in
District Court alleging, primarily, that he had constitutional
rig3ts and statutory rights under IDEA which allowed hin to
participate in fall semester sports. On this same date, J.M.,

Jr.'s parents moved for, and were granted, a temporary restraining

order, restraining KHSA and the Board of Control from enforcing its

rules against J.M., Jr., thereby pernitting him to participate in
fifth season football during the pendency of the order.
'
he defendants moved to dissolve the temporary restraining

order, and an evidentiary hearing was held on September 9 , 1993.
After considering the parties' testimony and other evidence, the

District C o ~ r tfiled on September 20, 1993, its Amended Findings of
Fact, ~onclusiocsof Law and Order dated Septenber 10, 1993, xhich

~reiiminarilyen3oined !WSA from enforcing its four seasons rule
against ?,M., jr. and from imposing sanctions against W t t e
Central, pending a further good faith, meaningful hearing by X X A
icto the propriety of waiving the rule. The District Court also

crdered H3SA to reconsider its action as it affects J.E., Jr., in
wrestling, so as not to deny him permission to begin practice for

h-restling tluring the fall semester. The complaint also raised
other claims not at issue here.
The District Court based its order on the protections afforded
ky IDEA, and the holding set forth in T.H. v. Montana High Scho-l

Ass'n. (D. Mont., Sept. 24, 1992), CV-92-150-BLG-JFB. Defendants
appeal from the District Court's order and request that the
preliminary injunction be dissolved.

STANDARD OF REVIEW
Granting a preliminary injunction is within a trial court's

discretion, 2nd we will not interfere unless manifest abuse is
shown. Frane v. Frame (1967), 227 Mont. 439, 444, 710 P.2d 655,
659. However, no discretion is involved when the court arrives at

a conclusion of law, and we review the district court's conclusions

of law to determine whether the district court's interpretation of
the lab 1s correct. Steer, Inc. v. Departnent of Revenue (1990),

245 Yr:
o,. 470, T 4 , 8 0 3 P.2d 601, 603. In the instanr case, be
conclude that the District Court's interpretation of the law h-as

erroneoss and that, accordingly, the preliminary injunction xas

improperly granted.

DISCUSSION
The District Court found thar. J.M. , Jr. had rights under IDEA.
p,:S A l,
..-.. i guarantees that. all child.ren with disabilities have
available to them a free appropriate public education and related
services to meet their u n i q ~ eneeds. 20 U.S.C. 5 1400(c).

IDEA provides federal funding for states which provide
students with disabilities, special education services according to
the Act. 20 U.S.C. 55 l400(b) (9), 1412, 1413. The Act is

implenented through both the "State education agency" and through
"local education agencies," the public school system. 20 U. S. C. 5 5
:431(a) ( 7 ) & ( 8 ) , 1412(6), 34 C.F.R. 5 300.2 (b) (1992). The State
and local education agencies are required to guarantee procedural

safeguards for handicapped children, in providing a free and
ap2ropriate public education. 20 U.S.C. 5 1415(a). Central avong
the safeguards is the development of a written IEP for each child.

20 U.S.C. 5 1401(a)(20), 34 C.F.R. 5 300.130(a), W.G. v. Board of

Trustees of Target Range School D. (9th Cir. 1992), 960 F.2d 1479,
13.
'3

The IEP is a formal, written statement wnich delineates the

dlsabled srudent's unlque educational goals, objectives,

c~rricului-,and related services. 20 U.S.C. g 1401(a)(20), 34
C.F.R. 5 300.335 (1992).
IDZA and the Code of Federal Regulations specify the mechanism

by :~;hich a persan is deternined to be learning-disabled and by
i.,:hich he or she qualifies for education-related benefits under

IDEA. In surmary, that process includes: (1) the identification af

the stcdent potentially in need of special education services; (2)
the appointment of a Child Study Team (CST) which determines
 e t h e r the student qualifies for such services, 34 C.F.R. 95
300.531, .532, .540 (1992); (3) the addition of the parents of the

student to the CST, assuming the student is initially found to be

qualified by the CST, 34 C.F.X. 300.345 (1992); (4) the

determination of the student's special needs and services which are

necessary t o provide the student with an appropriate education, 34

C.F.R. 5 5 300.341 -.345 (1992); and, (5) the incorporation of the

student's special needs and necessary services into a formalized,
xritten IEP which controls the student's curriculum, 34 C.F.R. $ 5
300.341, .346 (1992).

I~pcrtantly,IDEA's regulations require that a student receive
special education related benefits only pursuant to an IEP. 34

C.F.R. $ 5 300.340, .342(5) (1)(1992). Under the federal regulations
implenenting IDEA, "[aln individualized education program nust: (1)
Be in effect before special education and related services are

prov2de.j. to a child." 34 C.F.R. 5 300.?42(b) (1)(1992). The
requirexent of a written IEP, insures that those students truly in

need of special education receive services designed to meet their
individual needs. 20 U.S.C. 5 5 1401(a)(20), 1412(2)(c), 34 C.F.R.

303.340 - .349 (1992). It is clear, that a formal, written IE?

developed pursuant to the Act is a critical component of IDEA. In

fact, the Act requires that an IEP be in effect, before special

education services are provided to a child. 34 C.F.R. 9 5 303.340,

.342 (1992).

In its decision, thc District Court relied on T.H. v. Montana
Xiqh School Ass'n. (D. Mont., Sept. 24, 1992), CV-92-150-BLG-JF3.
 In that case, a 19 year old learning disabled high school student

became ineligible to play sports during his senior year because of
?1HSAfs "age rule," codified at ~ r t i c l e11, 5 8 of the MHSA By-Laws.
That rule prohibits any student who becomes 19 years of age on or
before midnight of August 31, of a given year, from participating

in any interscholastic sports contest.
T.H. applied for a waiver of the age rule based upon his
special needs as a learning disabled student. T H (D. Mont.,
..
Sept. 24, 1992), CV-92-150-BLG-JFB at 5. MHSA denied the waiver,
and the student sought a preliminary injunction in Federal District
Court. T.H. (D. Mont., Sept. 24, 1992), CV-92-150-3LG-JFB at 1, 6.
The Federal District Court granted the preliminary injunction,
holding that the student had a federally protected right under

IDEA, as his IEP reauired that he participate in interscholastic
sports as a motivational tool. (D. Mont., Sept. 24, l992),
CV-32-150-BLG-JFR at 9. The Federal District Court in T.H., found

that the guarantee to a free and appropriate public education and

related services for handicapped children, extends to

interscholastic sports when such participation is included as a
conponent 3f their IEP. T.H. (D. Mont., Sept. 24, 1992), CV-92-
150-EX-JFB at 9.

As the Federal Court observed in T a ,generally
.. speaking, a
student has no constitutional right to participate in

interscholastic sports, it is a privilege which may be withdrawn by
the school or by a voluntary association whose rules the school has
agreed to follcw. T.H. (D. Mont., Sept. 24, 1992), CV-92-150-EL2';-
3FB at 9. (Citations omitted.)

Furthermore, limitations on maximum eligibility for
participation have been generally upheld. Smith v. Crim (Ga.
1957), 240 S.E.2d 884; Mitchell v. Louisiana High School Athletic
'.ssln. (5th Cir. 1970), 430 F.2d 1155; California Interscholastic

federation"^. Jones (Cal. App. 1988), 243 Cal. Rptr. 271; Alabama
High School Athletic Ass'n. v. Medders (Ala. 1984), 456 S.2d 284:
Furtaugh v . Nyquist (N.Y. Sup. 1974), 358 N.Y.S.2d 595; David v.
Louisiana High School Athletic Ass'n. (La. App. 1971), 244 S.2d
292; Burtt v. Nassau County Athletic Ass'n. (N.Y. Sup. 1979), 421
N.Y. S.2d 172. In State ex rel. Bartmess v. Board of Trustees of
School Dist. No. 1 (1986), 223 Mont. 269, 726 P.2d 801, we
determined that academic eligibility standards as a condition of
participation in extracurricular activities were lawful.
However, once interscholastic sports are offered, they acquire
the protection from an unconstitutional deprivation. Bartmess, 726

P.2d at 804-605. In T.H. the Federal District Court concluded that

"[":hen participation in interscholastic sports is included as a

component of an IEP as a 'related service', see 20 U.S.C. 9 1401
(l), (17), the 'privilege' of competing in interscholastic sports

is transformed into a federally protected right." T H (D. Icont.,
..
Sect. 24, 1992), CV-92-150-ELG-JFB at 9.

The Federal District Court also ruled that "due process

requires that the KHSA conduct an individualized inquiry to

determine whether any of the four stated concerns underlying the
age rule are implicated 2nd violated by [the learning disabled
 student's] participation in interscholastic sports, before it may
deny a waiver of that rule." T.H. (D. Mont., Sept. 24, 1992), CV-

As a result of the decision in m, MHSA's Board of Control
established a rule codifying rhe hearing process for addressing the
concerns underlying the age rule. The rule provides that the
student requesting the hearing prove that:
(1) the student does not create a safety risk to other
players, and
(2) the student does not skew the overall
competitiveness of the particular activity(ies) for
which the student will participate, and
(3) the student's participation will not result in the
exclusion of other eligible players, and
(4) the student meets all other criteria necessary for
participation in MHSA activities, and
(5) the student has an IEP in compliance with OPI
requirement standards, and
(6) the petition for a hearing must be initiated
sufficiently in advance of the affected school year
to allow the KHSA a reasonable opportunity to make
an inforned decision ....
Montana High School Ass'n. Official Handbook (1993-1994), By-Laws,
Article VII, Section (?), p. 30-31.
In the instant case, relying on T H ,
. . the District Court found
that, although J.M., Jr. did not have a foraalized IEP, there was
evidence indicating that there was an unwritten IEP in effect for
4 , Jr. at Butte Central which had been formulated by his
teachers, principal, counselcr, private doctor and parents.
Therefore, the District Court concluded that J.M., Jr. had rights
under IDEA. The District Court granted the preli2inary injunction
alloving J.H., Jr., to participate in a fifth season of football
and, since the XHSA hearing process developed pursuant to T H had
..
nor been available to J.M., Jr., the District Court also directed
KHSA to hold an individualized inquiry into the propriety of
waiving the maximum participation rules with respect to J.M., Jr.
At the outset, we note that T H involved
., a maximum
participation rule based on age, unlike this case, where the
maximum participation rules are based on the nunher of seasons
played or number of semesters attended. However, since the basic
rationale for maximum participation rules and the legal principles
discussed are the same, we conclude that distinction is not
material for purposes of this opinion.
Furthermore, whether J.M., Jr., is learning disabled and,
therefore, eligible for special education benefits and services
under IDEA, and if so, whether Butte Central, the Butte Public
School District or the State, (the latter two entities not being
parties to this litigation), are required to provide those special
education benefits and services to him, is not before us and, we do
not address those issues here.
Respondents argue that J.M., Jr. was entitled to have special
education and related services provided to him at public expense
pursuant to the provisions of IDEA, 20 U.S.C. § 1413(a) (4)(B)(i).
They also claim that i they had sought
f involvement of the local
education agency, a written IEP would have been developed.
Assuving, arguendo, that thelr conclusions are correct, it remains
tnat J . . Jr.'s parents did not seek the involvement of the
appropriate State or local education agencies; that the statutory
and administrative mechanism for identifying J.M., Jr., as
learning-disable2 and qualifying him for IDEA benefits an3 services
was not implemented; and that a formal, written IEP requiring his
participation in interscholastic sports was not adopted to govern
J.M., r .s curriculum. Although J.M., Jr., had a specialized
educational progrart, he was not participating in a formal, written
ZEP established under the statutory and administrative mechanism
mandated by IDEA and its impleneLting regulations.
That point is dispositive for purposes of the issues addressed
in this opinion. The Federal District Court's grant of the
preliminary injunction in T H and its requirement for a further
..
individualized inquiry was premised on the fact that the disabled
student in that case had been placed in a formal, written IEP
tailored to meet his particular needs, in accordance with IDEA.
T.WL (D. Mont., Sept. 24, 1992), CV-92-150-BLG-JFB at 4. One
important and integral component of that IEP was a requirement that
he participate in interscholastic sports. T H (D. Mont., Sept.
..
24, 1992), CV-92-150-BLG-JFB at 4. The coxbination of those two
factors led the Federal District Court to conclude the "privilege"
of competing in interscholastic sports was transformed into a
federally protected right which could not be abrogated, absenc a
case-specific factual inquiry into T.H.'s waiver request and denial
cn a sufficient evidentiary basis. T H (D. Mont., Sept. 24,
..
1992), CV-92-150-BLG-JFB at 9-10.
That the Federal District Court xas duly mindful of the
potentially serious ramifications of its decision and the necessity
for carefully following the mechanism for adopting and ccnsidering
the components zf the fcrmal IEE is evident in the Court's
decision:
As an aside, and as a final matter, the Court would
strongly encourage the Fairview High School, and other
schools developing IEPs under the IDEA, to exercise
prudence when including as a component of an IEP any
activity for which a student is ineligible because of the
KHSA age rule or any other factor beyond the control of
the school. By doing so, the school is potentially
naking a promise it simply cannot keep, and is setting
students like T.H. up for disappointment and failure when
and if valid restricrions on eligibility are ultimately
enforced.

T H (D. Mont., Sept.
.. 24, 1992), CV-92-150-BLG-JFB at 13.

We conclude that the District Court's reliance on m,in the
instant case was error. The student in =, had a written IEP
developed according to the requirements of IDEA that required his
participation in interscholastic sports as an integral component,
h-hereasJ.M., Jr. did not. It was improper for the District Court
to elevate J.M., Jr.'s privilege of participating in
interscholastic sports to the level of a federally protected right

under IDEA and to afford him the individualized inquiry referenced
in Tn,
. . and codified in Article VII, Section (4) of MHSA Official

Handbook's 3y-laws, when J.M., Jr. had not followed the statutorily

and adninistratively mandated mechanism for identifying and

qualifying him under IDEA and for developing his f o r ~ a l , r i t t e ~
w

IFF, assuming that he did qualify.

Moreover, whether his formal, written IEP would have mandated
J.M., Jr's, participation in interscholastic sports as an integral

component of the prograr,, thereby elevating his privilege to
participate to the status of a federally ~rctected right cith
concomitant individualize:! hearing rights, is simply academic

unless an3 until J.K., Jr. first qualifies for ICEA benefits and
services and until a formal IEP incorporating that requirement is,
i? fact, adopted. Here, J.M., Jr. seeks to avail himself of rights
under a particular statutory scheme even before he has complied
with the requirements of those very laws which, arguably, might
bring those rights into existence. J.M., Jr., has put the cart

before the horse.
Furthermore, NHSA is not a State or local education agency as
defined under IDEA. T H (D. Mont.,
.. Sept. 24, 1992), CV-92-150-BLG-
JFB at 12-13. MHSA has no obligation under IDEA to identify or
evaluate J.M., Jr.'s special education needs. Therefore, we are
reluctant to impose upon MHSA the obligation to conduct an
inZividualized hearing, with the potential for further litigation
if the hearing decision is not to the liking of the respondents,
absent J.M. , Jr. 's request for waiver being prenised on a federally

prctected right to participate in interscholastic sports contests

under a formal, written IEP developed in accordance with IDEA
~andates. Accordingly, we hold that it was improper for the

District Court to grant the preliminary injunction and to require
E I S A to conduct an individualized inquiry into the propriety of

waiving its ~ a x i m u m partici2ation rules when J.X., Jr. had not

first established a federally protected right to participate in

interscholastic sports in contravention of those rules.

The disseEt contends that the issues presented on appeal are
m ~ c tbecause the Diszrict Court's restraining order was only in
 effect during the fall semester of the 1993-1994 school i7ear, and
it is now April, 1994. We disagree and conclude that although the
time has lapse3 on the Districc Court's preliminary injunction, the
mootness doctrine does not bar our review. Aside from the fact

that J.M., Jr., did not argue that we should not rule on the merits
of this appeal because of mootness, we also note that given the
amount of tine inherent in the litigation process, and given our
reluctance to entertain original proceedings and special writs
except under extracrdinary circumstances, it would be nearly

impossible for any case such as this to ever reach this Court, via
the usual litigation/appeal process, within the tine during which
the injuaction was in effect.
To mechanically apply the doctrine of mootness under such
circurstances would effectively deny the remedy of appeal. Where
MHSA will, undoubtedly, be faced with future challenges to its

maximum participation rules on issues and facts such as those

presented here, it has a right to a final decision of this Court on

the merits of its appeal.

For the foregoing reasons, we reverse the District Court's
order dated Septe~ber 10, 1393 and dissolve the preli~inary
. ,
1n3unction. To the extent that other issues rerain to be resolved
under respondent's conplaint, we

l e Concsr:
i

17
Justice William E. Hunt, Sr., did not participate in this action.
Justice Terry N. Trieweiler dissenting.
I dissent from the majority opinion.
The District Court's preliminary injunction pertained only to
athletic activities during the fall semester of the 1993-94
academic year. As I review the majority's proposed opinion, it is
April 18, 1994.
The District Court's restraining order is no longer in effect.
The issues raised on appeal are moot. The majority's opinion is
merely advisory and has no direct bearing on the respective
interests of the parties who are before the Court. Therefore, I
would dismiss the appeal and not reach the merits in this case.
For these reasons, I dissent from the majority's decision to
issue an opinion which has no effect on the rights of either party
in this case.