No. 96-024
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1996
M.H., J.R., individually and by
his parents, and next friends,
M.H. and T.H.,
Plaintiffs and Respondents,
MONTANAHIGH SCHOOLASSOCIATION and
the BOARD OF CONTROLof the Montana
High School Association, and
BUTTE HIGH SCHOOL,
Defendants and Appellants.
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; Gough,
Shanahan, Johnson & Waterman, Helena, Montana
For Respondents:
David J. Wing; Hennessey, Joyce and Wing,
Butte, Montana
Submitted on Briefs: August 8, 1996
Decided: December 11, 1996
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
The Montana High School Association (MHSA) appeals from the
Findings of Fact, Conclusions of Law and Order of the Second
Judicial District Court, Silver Bow County, enjoining it from
enforcing the "age rule" against M.H., Jr. (M.H.). We reverse.
TThe issue on appeal is whether the District Court abused its
discretion in granting a preliminary injunction against MHSA.
Section 504/IDEA
Resolution of this appeal depends, in large part, on the
proper interpretation of Section 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 794(a) (§ 504), and the Individuals with
Disabilities Education Act, 20 U.S.C. § 1400 through § 1491 (IDEA).
Because of the importance of these federal statutes in
understanding this case, we begin with a general overview of § 504
and IDEA.
Section 504 was enacted to address discrimination against
disabled persons. It provides in pertinent part:
No otherwise qualified individual with a disability in
the United States . . . shall, solely by reason of her or
his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial
assistance.
29 U.S.C. § 794(a). Section 504 is divided into different
subsections which address subject matters ranging from education
and employment to social services. See 34 C.F.R. 5 104. The § 504
definition of disabled is broad and includes persons who have
"physical or mental impairment which substantially limits one or
2
more major life activities." See 34 C.F.R. § 104.3(j). A student
who meets all of the criteria of § 504 must be provided an
OppOrtUnity to par’CiCipate in extracurricular activities, such as
interscholastic athletic competitions, which is equal to that of
other students. 34 C.F.R. § 104.37(a) (1) and (c) (1).
IDEA originally was enacted to address the failure of state
education systems to recognize and meet the educational needs of
children with disabilities. 20 U.S.C. § 1400. IDEA is much
narrower than 5 504 with regard to the types of disabilities which
are protected. Compare 20 U.S.C. § 1401(a) with 29 U.S.C. §
706(7)(B) and 34 C.F.R. 5 104.3(j). For example, IDEA lists
specific disabilities, such as mental retardation, blindness and
deafness, which qualify a student for IDEA assistance. See 20
U.S.C. § 1401(a)(l) (i). Thus, all students who are qualified under
IDEA also fall within the anti-discrimination protections of 5 504;
however, all § 504 students are not necessarily IDEA-qualified.
State and local education agencies are required to provide
children who qualify as disabled under IDEA with free and
appropriate public education which means, in part, special
education and related services provided in conformity with an
individualized education program (IEP) See 20 U.S.C. §§ 1400(c),
1415; 34 C.F.R. § 300.8(d). An IEP, as that term is used in IDEA,
is a formal written statement developed for an IDEA-qualified
disabled student; an IEP must specify the student's educational
goals, objectives, curriculum and related services and be in effect
3
before special education is provided to the child. See 20 U.S.C.
§ 1401(a) (20); 34 C.F.R. §§ 300.340, 300.342, 300.346.
"Each public agency must provide special education and related
services to a child with a disability in accordance with an IEP."
34 C.F.R. § 300.350. "Related services," as that term is used in
IDEA, includes recreational activities where such activities are
required to assist an IDEA-qualified disabled student in
benefitting from special education. 20 U.S.C. § 1401(17). Thus,
where an IEP contains a requirement for participation in
extracurricular activities, for example, interscholastic sports,
such participation is ~encompassed in the student's guaranteed right
to free and appropriate public education. See 20 U.S.C. §§
1400(c), 1401(17), (18) and (20); 34 C.F.R. §§ 300.1, 300.8,
300.16, 300.350.
Facts
MHSA is a nonprofit association incorporated under the laws of
Montana. Membership in MHSA is voluntary and is comprised of
various public and private high schools, including Butte High
School. MHSA has the exclusive authority to supervise, control,
regulate and administer interscholastic activities among member
high schools. To that end, MHSA has enacted by-laws and rules
governing member high schools, including rules addressing
eligibility requirements for participating in interscholastic
athletic competitions. MHSAhas the power to sanction and penalize
a member school which allows an ineligible student to participate
in such competitions.
4
-.
Two MHSA by-laws are at issue here. The first is a by-law
commonly referred to as the "age rule." It provides, in pertinent
part, that "[nlo student is eligible to participate in an
Association contest [including interscholastic athletic
competitions] who has become nineteen (19) years old on or before
midnight, August 31, of a given year." Montana High Sch. Ass'n
Official Handbook (1995-1996), By-Laws, Article II, Section (8), p.
19. The second is a by-law entitled "IDEA/SECTION 504 AGE RULE
APPEALS" (IDEA/§ 504 appeals rule) which provides that a "special
education" student may appeal an MHSA ineligibility decision made
under the age rule. Under the IDEA/§ 504 appeals rule, the
appealing student has the burden of proof with regard to six
enumerated requirements. See Montana High Sch. Ass'n Official
Handbook (1995-1996), By-Laws, Article VII, Subsection (B) (4), p.
31.
Here, M.H. repeated both kindergarten and the third grade due
to difficulties in school. In November of 1985, during his second
year in the third grade, M.H. was referred to special education and
a Child Study Team (CST) determined that M.H. was "Learning
Disabled" due to difficulties with reading and spelling. After
completing his freshman year at Butte High School in 1993, M.H. was
diagnosed with Attention Deficit Disorder (ADD).
During his freshman through junior years at Butte High School,
M.H. competed in both wrestling and football. As a result of
repeating kindergarten and the third grade, he turned nineteen
prior to beginning his senior year. In May of 1995, just before
5
M.H. turned nineteen years of age, a CST determined that M.H.
qualified as a § 504 student due to difficulties in English
resulting from his ADD. M.H. did not qualify as a disabled student
under IDEA.
Joseph Masolo (Masolo), a 5 504 coordinator for the Butte
public schools, made written recommendations regarding M.H. in a
one-page letter. Specifically, Masolo recommended that M.H.
continue to participate in wrestling to insure "academic success
for the 1995-96 school [year]." Masolo later stated that his
letter was an "IEP" developed pursuant to Montana guidelines for §
504 students. & Montana Office of Public Instruction, Section
504 Guidelines for Educators (1995) COP1 guidelines). Masolo
correctly noted, however, that § 504, unlike IDEA, does not require
the development of an IEP. He acknowledged that, while OPI
guidelines recommend development of an "IEP" for 5 504 students,
such a 5 504 "IEP" can be informal and even verbal. Moreover,
Masolo recognized--and it is undisputed in this case--that the
recommendations he developed for M.H. fall far short of the
requirements for an IEP under IDEA.
On behalf of M.H., Daniel J. Peters (Peters), the principal of
Butte High School, petitioned MHSA for waiver of the age rule to
allow M.H. to participate in wresting and football during the 1995-
1996 school year. MHSA held a telephone hearing on the petition,
during which Peters explained that M.H.'s parents requested that
the age rule be waived due to M.H.'s ADD. MHSA denied the request.
6
M.H. appealed MHSA's decision pursuant to the IDEA/§ 504
appeals rule. MHSA conducted a hearing and received evidence
according to the procedure provided for such appeals. & Montana
High Sch. Ass'n Official Handbook (1995-1996), By-Laws, Article
VII, Subsection (B) (3), p. 30. Thereafter, it denied M.H.'s appeal
on the basis that M.H. failed to prove, as required by Article VII,
Subsection (B) (4), that: (1) he would not create a safety risk to
other players; (2) he would not skew the overall competitiveness of
the particular activities in which he would participate; and (3)
his participation would not result in the exclusion of other
eligible players.
M.H., individually and by his parents, filed a complaint and
a motion for a preliminary injunction against MHSA in November of
1995, based primarily on IDEA. MHSA opposed M.H.'s motion for a
preliminary injunction. It argued that M.H. had not been
classified as a disabled student under IDEA, had not received any
services under IDEA, had no IEP under IDEA and, therefore, was not
entitled to the rights and protections afforded by IDEA.
The District Court held a hearing on M.H.'s motion for a
preliminary injunction. M.H. indicated at the beginning of the
hearing that he had spoken with MHSA about his intent to amend his
complaint. Although M.H. did not file an amended complaint, he
stated that he would be asserting a claim based on § 504 and
Article VII, Subsection (B) (4) of the MHSA by-laws; he further
indicated that he would be deleting the cause of action based on
IDEA. MHSA stated that it had no objection to such an amendment of
7
the complaint. Accordingly, the record before us contains evidence
and arguments primarily related to § 504.
The District Court concluded that M.H. had a federally
protected right to participate in wrestling for the 1995-1996
school year and that MHSA's denial of M.H.'s application for a
waiver of the age rule was arbitrary and capricious and denied
M.H.'s due process rights. Thus, having implicitly concluded that
~M.H. likely would prevail on his underlying § 504 claim, the court
further concluded that M.H. would suffer irreparable injury if MHSA
enforced the age rule during the pendency of this case.
Accordingly, the court granted M.H.'s motion for a preliminary
injunction and enjoined MHSA from enforcing the age rule against
M.H. MHSA appeals. Additional facts are set forth below where
necessary.
Discussion
Did the District Court abuse its discretion in granting
a preliminary injunction against MHSA?
Section 27-19-201, MCA, which sets forth when a preliminary
injunction may be granted, provides in relevant part:
An injunction order may be granted in the following
cases:
(1) when it appears that the applicant is entitled
to the relief demanded and the relief or any part of the
relief consists in restraining the commission or
continuance of the act complained of, either for a
limited period or perpetually;
(2) when it appears that the commission or
continuance of some act during the litigation would
produce a great or irreparable injury to the applicantL.1
An applicant for a preliminary injunction must either establish a
prima facie case on the underlying claim or show that it is at
8
least doubtful whether he or she will suffer irreparable injury
before an adjudication on the merits. Knudson v. McDunn (1995),
271 Mont. 61, 65, 894 P.Zd 295, 298 (citing Porter v. K & S
Partnership (1981), 192 Mont. 175, 181, 627 P.2d 836, 839).
Granting a preliminary injunction is within a district court's
discretion, and we will not interfere unless a manifest abuse of
discretion is shown. J.M., Jr. v. Montana High School Ass'n
(1994), 265 Mont. 230, 235, 875 P.2d 1026, 1030 (citing Frame v.
Frame, (1987), 227 Mont. 439, 444, 740 P.2d 655, 659). Where,
however, the granting of such an injunction is based on a
conclusion of law, no discretion is involved and we review the
district court's conclusion of law to determine whether the
interpretation of the law is correct. J.M.
-I 875 P.2d at 1030
(citation omitted).
A. Applicability of T.H.
The District Court 'relied on T.H. v. Montana High Sch. Ass'n
(D. Mont., Sept. 24, 1992), CV-92-150-BLG-JFB, in concluding that
M.H. had a federally protected right, by virtue of the " IEP"
prepared by Masolo, to participate in wrestling during the 1995-
1996 school year. T.H. is distinguishable and, indeed, we
distinguished T.H. in J.M. prior to the District Court's decision
in the case presently before us. J.M. is dispositive here with
regard to whether, absent an IEP pursuant to IDEA, a learning
disabled student has a federally protected right to participate in
interscholastic sports.
9
J.M. involved a Butte Central High School student who repeated
the eighth grade due to difficulties in school. As a result, J.M.
became ineligible to participate in football and wrestling during
his senior year due to MHSA's maximum participation eligibility
requirements. ~,
J.M. 875 P.2d at 1028. Two MHSA rules were at
issue: the first provided that a student who has attended a
secondary school more than eight semesters was ineligible to
participate in an Association Contest (eight semester rule); the
second provided that "[nlo student shall be eligible to participate
in an Association Contest during more than four seasons in any one
sport" (four seasons rule). J.M.
-I 875 P.2d at 1028.
MHSA determined that J.M. was ineligible to participate in
wrestling and football for the 1993-1994 school year and J.M.
appealed. MHSA held an eligibility hearing and subsequently denied
J.M.'s request to waive the four season rule for the fall semester,
but approved his request for a waiver of the eight semester rule
for the spring semester. The basis for MHSA's decision was that
J.M. already had competed in four seasons of fall sports, such as
football, but had only competed in three seasons of spring sports.
J.M.
-I 875 P.2d at 1029.
J.M. sued MHSA, arguing that he had constitutional and
statutory rights under IDEA to participate in fall semester sports.
The district court issued a temporary restraining order against
MHSA and, as a result, J.M. was permitted to participate in
football during the pendency of his case. Thereafter, MHSA moved
to dissolve the restraining order and an evidentiary hearing was
10
held. The district court preliminarily enjoined MHSA from
enforcing its four seasons rule against J.M. and from imposing
sanctions against Butte Central. Its order was based on IDEA and
T.H. J.M.
-, 875 P.2d at 1029.
We discussed T.H. at length in J.M. See -I
J.M. 875 P.2d at
1030-32. T.H. involved a nineteen year old high school student who
had an IEP pursuant to IDEA and who became ineligible to
participate in interscholastic sports due to MHSA's age rule.
J.M.
-I 875 P.2d at1030-31. T.H.'s IEP expressly required continued
participation in interscholastic sports as a motivational tool.
J.M.
-I 875 P.2d at 1031. T.H. sued in federal district court to
enforce his rights under IDEA.
The federal district court recognized that, ordinarily,
students do not have a constitutional right to participate in
interscholastic sports; rather, it is a privilege which may be
withdrawn. J.M., 875 P.2d at 1031. It determined, however, that
an IDEA-qualified student's guaranteed right to a free and
appropriate public education and related services includes
participation in interscholastic sports where such participation is
included as a component of the student's IEP. J.M.
-, 875 P.2d at
1031. On that basis, the court concluded that T.H.'s privilege to
participate in interscholastic sports had been transformed into a
federally protected right by virtue of his IEP under IDEA and,
further, that MHSA denied T.H. due process of law in failing to
conduct an appropriate inquiry before depriving T.H. of that right.
J.M.
-I 875 P.2d at 1031. Accordingly, the court preliminarily
11
enjoined MHSA from enforcing its age rule against T.H. until an
appropriate inquiry could be conducted. J.M., 875 P.2d at 1031.
MHSA enacted the IDEA/§ 504 appeals rule and the hearing standards
therein in response to T.H. See J.M., 875 P.2d at 1031.
We distinguished T.H. from the situation before us in J.M.
Unlike T.H.
-I the student in J.M.
had a specialized educational program, [but] he was not
participating in a formal, written IEP established under
the statutory and administrative mechanism mandated by
IDEA and its implementing regulations.
J.M.
-I 875 P.2d at 1032. Thus, the dispositive elements on which
the T.H. court based its conclusion that a federally protected
right existed--namely, that the student had a formal, written IEP
under IDEA which required his participation in interscholastic
sports--were not present in J.M. J.M. , 875 P.2d at 1033. We held,
therefore, that the district court improperly elevated J.M.'s
privilege of participating in interscholastic sports to a federally
protected right under IDEA. J.M.
-, 875 P.2d at 1033.
T.H.'s federally protected right to participate in
interscholastic sports derived solely from the express requirements
of his IDEA IEP. J.M. and the present case share the same
dispositive fact which distinguish them from T.H.: in each case,
the student did not have an IEP developed pursuant to IDEA which
required his participation in interscholastic sports.
Consequently, J.M. controls and renders erroneous the elevation of
a privilege into a federally protected right, pursuant to an IDEA
IEP, in this case. As was the case in -I
J.M. the District Court's
reliance on T.H. under these facts was misplaced.
12
B. Section 504
The District Court recognized that a "distinguishing feature"
of this case, when compared to T.H., is that M.H.'s "IEP" was
pursuant to § 504 while T.H.'s was pursuant to IDEA. Based on its
review of the OPI § 504 guidelines and a federal regulation,
however, the court concluded that "this is a distinction without a
difference." We disagree.
The OPI guidelines provide guidance and set forth
recommendations for educators in dealing with § 504 students. The
appendix to the OPI guidelines includes the text of 34 C.F.R. §
104.33 (b), which defines what constitutes an "appropriate
education" under 5 504 and provides, in relevant part:
(1) For the purpose of this subpart, the provision of an
appropriate education is the provision of regular or
special education and related aids and services that (i)
are designed to meet individual educational needs of
handicapped persons as adequately as the needs of
nonhandicapped persons are met.
(2) Implementation of an [IEPI developed in accordance
with [IDEA] is one means of meeting the standard
established in paragraph (b) (1) (i) of this section.
As is clear from its express language, 34 C.F.R. § 104.33(b) (2)
does not require the development of an IEP for § 504 students.
Moreover, neither the foregoing regulation nor the OPI guidelines
renders a student's rights under § 504 and IDEA equivalent.
Indeed, they are incapable of doing so because the differences
between a student's rights under § 504 and a student's rights under
IDEA are statutory. We conclude, therefore, that the OPI
guidelines and federal regulation relied on by the District Court
do not support its determination that the differences between
13
M.H.'s one-page letter "IEP" under § 504 and T.H.'s IDEA IEP is "a
distinction without a difference."
Moreover, recent cases from the United States Circuit Courts
of Appeals clarify that § 504 is an anti-discrimination statute
which does not confer any special rights on disabled persons beyond
the right to be free from discrimination based solely on
disability. Pottgen v. Missouri State High Sch. Activities Ass'n
(8th Cir. 1994), 40 F.3d 926, involved a Missouri high school
student who had repeated two grades in elementary school due to a
learning disability and turned nineteen before beginning his senior
year of high school. Like MHSA, the Missouri State High School
Activities Association (MSHSAA) has an age rule which prohibits a
student who turns nineteen prior to a certain date from
participating in interscholastic sports. As a result, Pottgen was
ineligible to play baseball during his senior year of high school.
Pottqen, 40 F.3d at 927-28.
Pottgen petitioned the MSHSAAfor a "hardship" waiver since he
was held back in school due to learning disabilities. MSHSAA
denied his petition and Pottgen sued in federal court based, in
part, on § 504. Pottqen, 40 F.3d at 928. The district court
granted a preliminary injunction enjoining MSHSAA from enforcing
its age rule. Pottgen, 40 F.3d at 928.
In addressing MSHSAA's appeal, the Eighth Circuit recognized
that § 504 prohibits discrimination against an "otherwise qualified
individual" on the basis of his or her disability and set forth a
two-part test for determining whether a student is an "otherwise
14
qualified individual." A court must determine both whether the
individual meets all of the essential eligibility requirements and
whether reasonable modifications exist. Pottqen, 40 F.3d at 929.
The Eighth Circuit concluded that MSHSAAhad demonstrated that
the age rule is an essential eligibility requirement because
[a]n age limit helps reduce the competitive advantage
flowing to teams using older athletes; protects younger
athletes from harm; discourages student athletes from
delaying their education to gain athletic maturity; and
prevents over-zealous coaches from engaging in repeated
red-shirting to gain a competitive advantage. These
purposes are of immense importance in any interscholastic
sports program.
Pottsen, 40 F.3d at 929. However, even though Pottgen could not
meet this essential eligibility requirement, he would still be an
"otherwise qualified individual" for § 504 anti-discrimination
purposes if reasonable accommodations would enable him to meet the
age limit. Pottqen, 40 F.3d at 929 (citations omitted).
The Eighth Circuit noted that, since Pottgen already had
exceeded MSHSAA's age limit, the only possible accommodation would
be to waive the age rule. It rejected Pottgen's contention that a
waiver would be a reasonable accommodation, however, concluding
that the waiver of an essential eligibility standard would
constitute a fundamental alteration in the nature of the baseball
program and that accommodations which require such a fundamental
alteration are not reasonable. Pottqen, 40 F.3d at 930. Observing
that "[slection 504 was designed only to extend protection to those
potentially able to meet the essential eligibility requirements of
a program or activity," the Eighth Circuit held that Pottgen was
15
not an "otherwise qualified individual." Pottqen, 40 F.3d at 930
(citation omitted).
In Sandison v. Michigan High Sch. Athletic Ass'n (6th Cir.
1995), 64 F.3d 1026, the Sixth Circuit followed the Pottqen
analysis of § 504's "otherwise qualified individual" language in a
similar age rule case. See Sandison, 64 F.3d at 1034-35. Sandison
involved two Michigan high school students who were held back in
school due to learning disabilities and became nineteen prior to
beginning their senior year in high school. Under the Michigan
High School Athletic Association (MHSAA) age rule, students who
become nineteen prior to a certain date are prohibited from
participating in interscholastic sports. Sandison, 64 F.3d at
1028.
The students sued MHSAAin federal district court, based on §
504, and the court held that the students were "otherwise
qualified" and discriminated against based on their disabilities.
The federal district court preliminarily enjoined MHSAA from
enforcing its age rule against the students. Sandison, 64 F.3d at
1029.
The Sixth Circuit relied on Pottqen and concluded, on the
record before it, that the age rule is a necessary requirement of
interscholastic sports programs and that waiver of the rule
fundamentally alters such programs. Sandison, 64 F.3d at 1035.
The court observed that a "significant peculiarity" exists in
attempting to characterize waiver of the age rule as a "reasonable
16
accommodation" of a student's learning disabilities. andison, 64
F.3d at 1035.
Ordinarily, an accommodation of an individual's
disability operates so that the disability is overcome
and the disability no longer prevents the individual from
participating. In this case, although playing high
school sports undoubtedly helped the [students] progress
through high school, the waiver of the age restriction is
not directed at helping them overcome learning
disabilities; the waiver merely removes the age ceiling
as an obstacle.
Sandison, 64 F.3d at 1035.
The Sixth Circuit also considered the "solely by reason of .
disability" language of 5 504 in the context of MHSAA's age
rule. Sandison, 64 F.3d at 1031-33. It noted that the age rule
did not preclude the students from participating in interscholastic
sports until they turned nineteen and, therefore, the rule was
neutral with respect to disability. Sandison, 64 F.3d at 1032.
Accordingly, the Sixth Circuit concluded that the age rule does not
exclude students "solely by reason of" their disabilities; rather,
it excludes students "'solely by reason of' age, not disability."
Sandison, 64 F.3d at 1035.
Both Pottcren and Sandison involved appeals from preliminary
injunctions enjoining enforcement of age eligibility requirements
for interscholastic sports. In both cases, the Circuit Courts of
Appeals held that the preliminary injunctions were improperly
granted because the students had virtually no likelihood of success
on the merits of their § 504 claims. See Pottqen, 40 F.3d at 930-
31; Sandison, 64 F.3d at 1035.
15
In the present case, the District Court implicitly concluded
that M.H. likely would prevail on his underlying 5 504 claim. The
court then specifically granted the preliminary injunction on the
basis that M.H. would suffer irreparable injury if it did not
enjoin MHSA from enforcing its age rule.
The two statutory bases for granting a preliminary injunction
at issue here--namely, the "likelihood of success on merits" basis
and the "irreparable injury I' basis as set forth in 55 27-19-201(l)
and (2), MCA, respectively--are not unrelated. "Injury" is defined
as "[a]ny wrong or damage done to another, either in his person,
rights, reputation, or property." BLACK's LAW DICTIONARY, 924 (1968).
Thus, the irreparable injury basis for granting preliminary
injunctions is based on an implicit determination that the
applicant is likely to succeed on his or her underlying claim and,
as a result, would suffer a "wrong or damage done to . his
person, rights, reputation, or property" if some act were committed
or allowed to continue during the litigation.
Similarly, we previously have indicated that a likelihood of
success on the merits is not always sufficient, in and of itself,
to warrant injunctive relief. See Porter, 627 P.2d at 840. There
must also be a showing that, absent a preliminary injunction, the
applicant would suffer harm which could not be adequately remedied
after a trial on the merits and, therefore, a preliminary
injunction is necessary to maintain the status quo and minimize
harm to the parties. See Porter, 627 P.2d at 839-40. In other
words, the applicant also must make a showing of irreparable harm.
18
In the present case, the District Court's conclusion that M.H.
would suffer irreparable injury presupposes that enforcement of
MHSA's age rule would constitute a wrong or damage to M.H.'s right
to participate in interscholastic sports. As is clear from J.M.
and our discussion above, however, participation in interscholastic
sports is a privilege, not a right, except in extremely limited
circumstances not present here. & J.M.
-I 875 P.2d at 1031-32.
Thus, the District Court's implicit conclusion that M.H. would
likely succeed on the merits of his ~underlying § 504 claim was
erroneous.
We previously have indicated that an applicant for a
preliminary injunction need not make a case that would entitle him
or her to relief at a trial on the merits; an applicant must prove
only a probable right and a probable danger that such right will be
denied absent injunctive relief. See Porter, 627 P.2d at 840;
Boyer v. Karagacin (1978), 178 Mont. 26, 33, 582 P.2d 1173, 1177.
Indeed, we consistently have held that district courts cannot issue
preliminary injunctions absent the applicant establishing a prima
facie case on the underlying claim or, based on the showing made,
that it is at least doubtful whether or not the applicant will
suffer irreparable injury before adjudication of his or her rights.
See, e.q., Porter, 627 P.2d at 839; Bayer, 582 P.2d at 1177-78.
Here, the District Court concluded that M.H. would suffer
irreparable injury based on its erroneous conclusion that M.H. had
a federally protected right to participate in interscholastic
sports. We hold that the District Court erred in concluding that
19
M.H. would suffer irreparable injury and, therefore, that the court
manifestly abused its discretion in granting a preliminary
injunction against enforcement of MHSA's age rule. We reverse,
dissolve the injunction and remand for such further proceedings as
may be appropriate, consistent with this opinion.
We concur:
Justices
20
Justice Terry N. Trieweiler dissenting.
I dissent from the majority opinion.
I agree with the District Court's conclusion that whether
M.H.'s independent education program was implemented pursuant to
§ 504 of the Rehabilitation Act of 1973, or the Individuals With
Disabilities Education Act is a distinction without a difference.
Although not necessary to the implementation of § 504
services, an independent education program is one alternative
method of complying with the requirements of 5 504 of the
Rehabilitation Act. The following federal regulations illustrate
the significance of an independent education program (IEP) in the
context of 5 504.
34 C.F.R. 5 104.1 provides that:
The purpose of this part is to effectuate section
504 of the Rehabilitation Act of 1973, which is designed
to eliminate discrimination on the basis of handicap in
any program or activity receiving Federal financial
assistance.
34 C.F.R. 5 104.33(a) provides that:
A recipient that operates a public elementary or
secondary education program shall provide a free
appropriate public education to each qualified
handicapped person who is in the recipient's
jurisdiction, regardless of the nature or severity of the
person's handicap.
34 C.F.R. 5 104.33(b) gives the following explanation of what
is included in an "appropriate public education":
(1) For the purpose of this subpart, the provision
of an appropriate education is the provision of regular
or special education and related aids and services that
(i) are designed to meet individual educational needs of
handicapped persons as adequately as the needs of
nonhandicapped persons are met and (ii) are based upon
21
adherence to procedures that satisfy the requirements of
§§ 104.34, 104.35, and 104.36.
Although an individualized education program is not necessary
to satisfy the 5 504 requirement for "appropriate public
education," it is one acceptable method of complying with that
requirement. 34 C.F.R. 5 104.33(b) (2) provides:
Implementation of an individualized education
program developed in accordance with the Education of the
Handicapped Act is one means of meeting the standard
established in paragraph (b) (1) (i) of this section.
In other words, when an individualized education program is
developed for § 504 students to satisfy the requirement that an
appropriate public education is being provided by designing
services necessary to meet an individuals educational needs, that
IEP is developed to satisfy the secondary education program's
federal obligation to that student. Therefore, an IEP developed
pursuant to these regulations is no less a federally-protected
right than an IEP developed pursuant to 20 U.S.C. 5 1401(18) of the
IDEA. Logically, when participation in interscholastic sports is
included as a component of an IEP developed for § 504 students, it
is also a federally-protected right.
The Montana High School Association (MHSA) was a party to T.H.
v.MontanaHighSchoolAssociation (D. Mont. Sept. 24, 1992), CV 92-150-BLG-
JFB. It did not appeal from the Federal District Court's adverse
decision in that case, and is therefore collaterally estopped from
denying its applicability based on subsequent decisions by federal
courts of appeal in other circuits.
22
In the relevant part of the TH decision, Federal District
Court Judge Battin held that:
20 U.S.C. 5 1400(c) guarantees T.H. the right to a free
and appropriate public education, "provided in conformity
with [an] individualized education program II
20 U.S.C. 5 1401(18); 34 C.F.R. § 300.4: . 'When
participation in interscholastic sports is included as a
component of an IEP as a "related service," see 20 U.S.C.
5 1401(l), (171, the "privilege" of competing in
interscholastic sports is transformed into a federally
protected right.
8. Because T.H. has a federally protected right,
and not a mere privilege, to participate
interscholastic sports, due process required that t?$
MHSA conduct meaningful, individualized inquiry into
T.H.'s request for a waiver from the age rule. . . By
failing to conduct a case-specific factual inquiry into
T.H.'s request for a waiver, and by denying a waiver
without a sufficient evidentiary basis for that decision,
the MHSA has made a mockery of the waiver provisions.
. . .
10. In this context, due process requires that the
MHSA conduct an individualized inquiry to determine
whether any of the four stated concerns underlying the
age rule are implicated and violated by T.H.'s
participation in interscholastic sports, before it may
deny waiver of that rule. The mere fact that T.H. is
over the stated age limit justifies initial application
of the rule, but does not justify a refusal to waive the
rule, where a federally protected right to participate is
concerned.
11.
First, the MHSA must conduct a hearing and determine
whether T.H.'s participation in interscholastic sports
actually creates a safety risk to other players. .
Next, the MHSA must determine whether T.H.'s
participation would skew the overall competitiveness of
the particular interscholastic sports events. .
Likewise, the MHSA must specifically determine
whether Plaintiff's participation would result in the
exclusion of other eligible players, and other facts
relevant to intra-team competition.
23
T.H., CV 92-150-BLG-JFB, slip op. at 9-12 (footnote omitted)
It is clear from the District Court's findings of fact in this
case that MHSA did not conduct the kind of hearing, nor make the
kind of findings which would enable M.H., his family, or the
District Court to understand the impact of his participation on the
safety of other students, whether his participation would skew
competitiveness in his events, or the effect of his participation
on other athletes. Absolutely no findings were made in this regard
by the MHSA. Instead, it simply shifted the burden to M.H. to
prove that these consequences would not occur, and concluded he had
not done so. More is required to dispense with the rights provided
by federal law.
The MHSA has not contended on appeal that the District Court's
findings of fact were clearly erroneous. Therefore, based on the
law which is applicable to this case, the following findings by the
District Court are dispositive:
7. . . . It was determined by the Child Study Team
that M. H. Jr. should receive Section 504 services,
because of the discrepancy between the ability of M. H.
Jr. to perform well in math and his actual achievements
in math. It was further determined that M. H. Jr.'s
"I.E.P. will be written by Mr. Masolo (504)". An I.E.P.
is an Individualized Education Program and Section 504
refers to Section 504 of the Federal Rehabilitation Act
of 1973, 29 U.S.C. Section 794.
.
9. . The Child Study Team determined that
"[M.H.] does much better in his school work when he is
involved in wrestling. The Child Study Team strongly
recommended that [M.H.] participate in wrestling for the
1995-96 school year." Accordingly, Mr. Masolo, acting
pursuant to the directions of the Child Study Team, set
24
forth the following accommodation in writing for M. H.
Jr.:
ACCOMMODATION
1. The 504 coordinator will monitor
[M.H.] in his math class on a
monthly basis.
2. [M.H.] should be involved in
wrestling to insure even great
academic success for the 1995-96
school [year].
10. The above special education program has been in
place for M. H. Jr. since he began his senior year at
Butte High School for the 1995-96 school year. .
. .
23. The record before this Court does not convince
it that the MHSA conducted such an individualized,
factual inquiry. The only official form that was adopted
by the MHSA seeking facts related to the above three
concerns was a form that was to be used when an appeal of
the age rule was requested. This form was Plaintiffs'
Exhibit 2B and it asks only for limited general
information. No other directions are given to the
student seeking the waiver or the student's
representative as to the information that should be
provided to the MHSA.
24. The minutes of the first meeting that was held
with regard to the appeal (Pi's Exh. 6) set forth no
facts relating to the three concerns underlying the age
rule, other than reciting that a poll of the schools
against whom M. H. Jr. might be competing in football and
in wrestling revealed that seven schools opposed his
participation in football and seven schools were in favor
of it. With regard to wrestling, twenty-two schools did
not object to him participating in wrestling, and eleven
schools did object.
25. The minutes of the second hearing where the
request for the waiver from the age rule was discussed
(see Defendants' Exhibit A) are even briefer, stating
only that the motion was denied after much discussion.
There is nothing before the Court that would indicate
what, if any, pertinent facts were discussed.
26. The letter from Dan L. Freund (Pi's Exh. 9)
stating that the appeal was denied also sets forth no
facts upon which the board's decision could be based.
27. In view of the extremely sparse documentary
record relating to the deliberations of the MHSA, the
Court finds that the testimony of Leo Wohler and Dan
Freund was not credible.
The majority opinion constructs a substantive difference,
where none exists, between those rights created by the Individuals
with Disabilities Education Act and the Federal Rehabilitation Act
of 1973. In the process, the majority arbitrarily denies
procedural safeguards to one class of handicapped students, while
implicitly recognizing the need for procedural safeguards for a
different class of handicapped students. Whether analyzed in terms
of the law, or common sense, that distinction is indefensible.
The District Court's decision was comprehensive, well
reasoned, and fully supported by the record in this case. I would
affirm the District Court's judgment, and for the reasons given,
dissent from the majority opinion.
us *ce
/”
Chief Justice J. A. Turna
in the foregoing dissent