No. 03-022
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 41
VALLEY CHRISTIAN SCHOOL, CLINT MOREY,
individually and as parent of JOSHUA C. MOREY,
a minor child; COLBURN T. DAVIS, individually
and as parent of NICOLE DAVIS, a minor child; JULIE
A. VON ESCHEN, individually and as parent of
DANIELLE VON ESCHEN, a minor child; RODNEY
K. HAYNES, individually and as parent of RACHEL
D. HAYNES, a minor child; and TRACI D. FISTER,
Plaintiffs and Appellants,
v.
MONTANA HIGH SCHOOL ASSOCIATION,
a non-profit corporation,
Defendant and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DV-01-813,
Honorable Ed McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
John E. Smith, David C. Avery, and Matthew Thiel (argued), Smith
and Thiel Law Offices, Missoula, Montana
For Respondent:
Jock O. Anderson (argued), Gough, Shanahan, Johnson & Waterman,
Helena, Montana
Heard and Submitted: July 15, 2003
Decided: February 24, 2004
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 The appellants here are comprised of the Valley Christian School in Missoula , certain
high-school students who attend VCS and their parents (collectively referred to as VCS).
VCS sought a preliminary injunction preventing the Montana High School Association
(MHSA) from enforcing its rule that schools must be accredited to be members. The District
Court denied VCS’s motion for a preliminary injunction and subsequent motion to
reconsider. VCS now appeals that decision. We affirm.
FACTS
¶2 VCS is a privately run, religious school, providing an education to students in grades
Kindergarten through twelve. VCS is limited in the pool of teachers it may hire by its own
criteria. VCS’s most important standard is that teachers personally recognize Jesus Christ
as their personal Lord and Savior. VCS’s policy requires teachers to integrate the Bible and
the teaching of Christ into their daily subject matter. VCS hired Doug Dierking (Dierking)
to teach science. Dierking was not certified to teach by the Office of Public Instruction
(referred to as OPI or the State). Finding that he lacked moral fitness for the profession due
to a previous conviction for cruelty to animals, the State declared Dierking was uncertifiable.
Nonetheless, given Dierking’s otherwise excellent credentials and experience teaching at the
college level and his philosophical fit with the school, VCS determined Dierking had been
“called by God” and hired him.
¶3 In order for a school to be accredited by the State, its teachers must be certified. The
State does not require private schools to be accredited, but it will accredit private schools
which apply and meet the criteria. MHSA is a private, voluntary association of public and
2
private schools in Montana. MHSA promulgates rules and standards for interscholastic
activities. Two MHSA bylaws are of import here. First, MHSA membership is conditioned
on state accreditation. Second, an MHSA member school may compete on a one-on-one
basis with a non-MHSA member school, but any tournament or activity involving more than
two schools shall be comprised only of MHSA members. Thus, when VCS hired Dierking,
it not only lost the state accreditation it had maintained for fifteen years, but it also lost its
MHSA membership and the ability to compete in certain interscholastic competitions.
¶4 VCS petitioned for a preliminary injunction preventing MHSA from enforcing its
membership bylaws against VCS, contending that the bylaws impermissibly burdened its free
exercise of religion.
DISCUSSION
¶5 In reviewing an order granting or denying a preliminary injunction we determine
whether the district court committed a manifest abuse of its discretion. Shammel v. Canyon
Resources Corp., 2003 MT 372, ¶ 12, 319 Mont.132, ¶ 12, 82 P.3d 912, ¶ 12. A manifest
abuse of discretion is one that is obvious, evident or unmistakable. Shammel, ¶ 12.
However, where the district court denies injunctive relief based on conclusions of law, no
discretion is involved, and we review the conclusions of the law to determine whether they
are correct. Hagener v. Wallace, 2002 MT 109, ¶ 12, 309 Mont. 473, ¶ 12, 47 P.3d 847, ¶
12.
¶6 VCS claims that it has established a prima facie case sufficient to meet any one of the
three disjunctive criteria of the preliminary injunction statute. Section 27-19-201, MCA.
3
VCS contends MHSA’s bylaws excessively burden its religious freedom; its fundamental
right to determine the upbringing of their children; and its freedom of association. VCS
claims infringement of multiple rights creates a hybrid free exercise claim, and that hybrid
claims merit strict scrutiny analysis as stated in Employment Division, Dep’t. of Human
Resources v. Smith (1990), 494 U.S. 872, 881, 110 S.Ct. 1595, 1601, 108 L.Ed.2d 876, 887.
¶7 VCS alleges that its free exercise of religion is being infringed in violation of the
United States and Montana Constitutions. U.S. Const. amend. I.; Art. II, Sec. 5, Mont.
Const. A facially neutral regulation impermissibly infringes on the constitutional
requirement of government neutrality if it unduly burdens the free exercise of religion.
Wisconsin v. Yoder (1972), 406 U.S. 205, 220, 92 S.Ct. 1526, 1536, 32 L.Ed.2d 15, 28. The
United States Supreme Court has established the following test for determining whether there
is a burden on the free exercise of religion:
Where the state conditions receipt of an important benefit upon conduct
proscribed by a religious faith, or where it denies such a benefit because of
conduct mandated by religious belief, thereby putting substantial pressure on
an adherent to modify his behavior and to violate his beliefs, a burden upon
religion exists.
Thomas v. Review Bd. of Indiana Employment Sec. Division (1981), 450 U.S. 707, 717-18,
101 S.Ct. 1425, 1432, 67 L.Ed.2d 624, 634. For purposes of this appeal, MHSA concedes
that, although it is a private association, it meets the criteria of a “state actor.”
¶8 The first part of the Thompson analysis is to determine whether an important benefit
is at issue. We have previously recognized the important interest high school students have
in extracurricular activities. In Bartmess, we applied a middle tier analysis to determine the
4
rights of a public school student to participate in his school’s extracurricular activities. St.
ex rel. Bartmess v. Sch. Dist. No. 1 (1986), 223 Mont. 269, 275, 726 P.2d 801, 804. In
Kaptein, we recognized a student in a private school had a constitutionally-recognized
interest in participating in a public school’s extracurricular activities, but we upheld as
reasonable the public school’s policy of only providing those activities to its students.
Kaptein v. Conrad Sch. Dist. (1997), 281 Mont. 152, 931 P.2d 1311. In light of our
decisions recognizing the rights of high school students to participate in extracurricular
activities, membership and participation in the MHSA is an important benefit.
¶9 Thus, our analysis of VCS’s claimed burden focuses on “conduct proscribed by a
religious faith” and conduct “mandated by religious belief.” Thomas, 450 U.S. at 718, 101
S.Ct. at 1432, 67 L.Ed.2d at 634. VCS’s claim is premised on a false dilemma of its own
creation. It claims that MHSA’s accreditation bylaw requires it to choose between: (1) hiring
Dierking and continuing to provide a Christian education; and (2) participating in MHSA.
While the MHSA membership rule very well may put substantial pressure on a private school
to hire only certified teachers, this does not violate any religious belief. Nothing before this
Court indicates that VCS’s internal standard of hiring teachers of faith precludes it from
hiring certified teachers. OPI does not refuse certification to those candidates who are
religious. OPI simply refuses to grant certification to candidates with low moral character
as evidenced by their criminal record. The record establishes that VCS is able to hire
certified or certifiable teachers whose religious beliefs are compatible with VCS. For fifteen
years, prior to hiring Dierking, VCS hired certified teachers who presumably met its religious
5
requirements, and for that same fifteen-year period it qualified for state accreditation and
membership in the MHSA. The situation presented does not satisfy the Thomas definition
of a “burden” on religion. As is evidenced by VCS’s fifteen years of compliance, the
requirement that teachers be certified is not “proscribed by religious faith.” Furthermore, the
hiring of noncertified teachers (such as Dierking) is not “mandated by religious belief.”
¶10 Our decision here is easily distinguishable from Wisconsin v. Yoder, upon which VCS
relies. In Yoder, the United States Supreme Court struck down a Wisconsin statute which
burdened the Amish by requiring that all children attend school until the age of sixteen. A
central concept to the Amish faith is a fundamental belief that salvation requires life in a
church community separate and apart from the world and worldly influence. Yoder, 406 U.S.
at 210, 92 S.Ct. at 1530, 32 L.Ed.2d at 22. The Amish religion emphasizes a harmony with
nature and the soil, a life of goodness, community welfare, and physical labor. Thus, the
Amish allowed their children to attend public school only until the eighth grade, but refused
high school because it would impermissibly expose their children to the worldly influence
of science, competitiveness and socialization. Yoder, 406 U.S. at 211, 92 S.Ct. at 1531, 32
L.Ed.2d at 22. The United States Supreme Court noted that the Amish showing of a burden
upon their religion was one that probably few other religious groups or sects could make.
Yoder, 406 U.S. at 235-36, 92 S.Ct. at 1543, 32 L.Ed.2d at 37. Thus, a facially neutral law,
applied in a non-discriminatory fashion, and enacted for the general welfare of the citizenry
had to yield to the practices of the Amish, because it was incompatible with their religion.
6
¶11 In contrast to the situation in Yoder, VCS has not shown that its religious beliefs are
incompatible with teacher certification. Rather than attempting to preserve a unique religious
culture and a right to live apart from the predations and vices of modern society, VCS seeks
to fully integrate itself, and allow VCS students to exemplify their Christian ideals in
competition with the students of other schools. VCS strives to be of the world, but not
bound to its rules.
¶12 The United States Supreme Court has held that the free exercise clause does not imply
that incidental effects of government programs which may make it more difficult to practice
certain religions, but which have no tendency to coerce individuals into acting contrary to
their religious beliefs, require government to bring forward a compelling justification for its
otherwise lawful actions. “The crucial word in the constitutional text is ‘prohibit’: ‘For the
Free Exercise Clause is written in terms of what the government cannot do to the individual,
not in terms of what the individual can exact from the government.’” Lyng v. Northwest
Indian Cemetery Protective Ass’n. (1988), 485 U.S. 439, 450-51, 108 S.Ct. 1319, 1326, 99
L.Ed.2d 534, 548 (quoting Sherbert v. Verner (1963), 374 U.S. 398, 412, 83 S.Ct. 1790,
1798, 10 L.Ed.2d 965, 975 (Douglas, J., concurring)).
¶13 Even if one assumes arguendo that the MHSA bylaw requiring accreditation of
member schools limits VCS’s pool of potential teacher candidates and thereby makes it more
difficult for VCS to offer a Christian education, the bylaw does not have a tendency to
coerce individuals into acting contrary to their religious beliefs. We find no constitutional
7
basis for VCS’s contention that MHSA should have to yield to VCS’s wish to employ a
teacher who, although devoted to VCS’s religious principles, is not certified by OPI.
¶14 Finally, we note that VCS’s “hybrid claim” argument is premised on an assumption
that the MHSA bylaws infringe on the free exercise of religion and the exercise of another
constitutionally protected right, such as freedom of association. Here, VCS has failed to
clear the first hurdle. It has not shown any burden upon the free exercise of religion. Thus,
we need not address the hybrid claim.
¶15 The order of the District Court denying the preliminary injunction is affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ PATRICIA O. COTTER
/S/ JIM REGNIER
/S/ JOHN WARNER
/S/ JIM RICE
8
Justice James C. Nelson dissents.
¶16 I dissent from the majority’s failure to consider Valley Christian’s hybrid free exercise
claim and the majority’s consequent failure to reverse the District Court’s denial of a
preliminary injunction.
¶17 Section 27-19-201, MCA, specifies when an order for an injunction may be granted:
(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
applicant;
(3) when it appears during the litigation that the adverse party is doing
or threatens or is about to do or is procuring or suffering to be done some act
in violation of the applicant’s rights, respecting the subject of the action, and
tending to render the judgment ineffectual;
(4) when it appears that the adverse party, during the pendency of the
action, threatens or is about to remove or to dispose of the adverse party’s
property with intent to defraud the applicant, an injunction order may be
granted to restrain the removal or disposition;
(5) when it appears that the applicant has applied for an order under the
provisions of 40-4-121 or an order of protection under Title 40, chapter 15.
[Emphasis added.]
We have previously stated that the subsections of this statute are disjunctive, consequently,
findings that satisfy one subsection are sufficient for an injunction to issue. Sweet Grass
Farms v. Board of County Com’rs, 2000 MT 147, ¶ 27, 300 Mont. 66, ¶ 27, 2 P.3d 825, ¶
27 (citing Stark v. Borner (1987), 226 Mont. 356, 359, 735 P.2d 314, 317).
¶18 In conducting a hearing on a motion for a preliminary injunction, it is not the province
of a district court to determine matters that may arise during a trial on the merits. Knudson
v. McDunn (1995), 271 Mont. 61, 65, 894 P.2d 295, 298 (citing Porter v. K & S Partnership
9
(1981), 192 Mont. 175, 183, 627 P.2d 836, 840). Rather, the court should balance the
equities and minimize the damage that could befall the moving party if the status quo is not
preserved pending the resolution of the underlying action. Porter, 192 Mont. at 182, 627
P.2d at 840. The relevant inquiry then is whether the moving party has made out a prima
facie case under any of the disjunctive subsections contained in § 27-19-201, MCA, or
shown “that it is at least doubtful whether or not he will suffer irreparable injury before his
rights can be fully litigated.” Sweet Grass, ¶ 28.
¶19 In my opinion, Valley Christian did indeed make out a prima facie case under each
of the first three subsections of § 27-19-201, MCA,--more than sufficient for a preliminary
injunction to issue. By ignoring the relevant inquiry under § 27-19-201, MCA, and by
instead prematurely reaching the ultimate issues raised in Valley Christian’s complaint, the
District Court committed reversible error.
¶20 In reaching its decision, the District Court relied on Windsor Park Baptist Church,
Inc. v. Arkansas Activities Ass’n (8th Cir. 1981), 658 F.2d 618, wherein the Eighth Circuit
Court of Appeals determined that the rule conditioning participation in interscholastic
activities on state accreditation was a “reasonable regulation” of education and that no
violation of the Free Exercise Clause had been made out. The District Court erred in
applying the “reasonable regulation” standard in the instant case as Windsor Park was
decided almost ten years before the United States Supreme Court’s articulation of the hybrid
claims doctrine in Employment Division v. Smith (1990), 494 U.S. 872, 110 S.Ct. 1595, 108
L.Ed.2d 876.
10
¶21 MHSA’s membership bylaw is a neutral law of general applicability. It is neither
intended to exclude religious schools from membership in MHSA, nor is it intended to
exclude any particular religious constituency from membership in MHSA. While it is
constitutionally permissible for a neutral law of general applicability to incidentally infringe
upon religious freedom so long as the law has a rational basis, a neutral law of general
applicability must withstand strict scrutiny if the law burdens religious freedom in
conjunction with another fundamental right. Smith, 494 U.S. at 880-82, 110 S.Ct. at 1601-
02.
¶22 The majority cites Thomas v. Review Bd. of Indiana Employment Sec. Div. (1981),
450 U.S. 707, 717-18, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624, wherein the United States
Supreme Court held that
[w]here the state conditions receipt of an important benefit upon conduct
proscribed by a religious faith, or where it denies such a benefit because of
conduct mandated by religious belief, thereby putting substantial pressure on
an adherent to modify his behavior and violate his beliefs, a burden upon
religion exists. While the compulsion may be indirect, the infringement upon
free exercise is nonetheless substantial.
Contrary to the majority’s conclusion that no burden on religion exists in the case sub judice,
I would conclude that by forcing Valley Christian parents to choose between their children’s
attendance at Valley Christian and their children’s meaningful participation in extracurricular
activities, the MHSA membership bylaw does burden religious freedom. Similarly, by
forcing Valley Christian to choose between belonging to MHSA and hiring a teacher who
can implement the school’s Christian educational mission, the bylaw again burdens religious
freedom.
11
¶23 Along with this burden on the free exercise of religion, Valley Christian has asserted
another constitutional right.
When some other constitutional right is combined with a free exercise
claim in a so-called “hybrid claim,” the state must demonstrate more than
merely a reasonable relation to a valid, secular state purpose to sustain the
validity of the regulation over First Amendment concerns. Where either
parental interests or free speech are asserted in conjunction with a free
exercise claim, something more than a mere “reasonable relation to some
purpose within the competency of the State is required to sustain the validity
of the State’s requirement under the First Amendment.”
Alabama & Coushatta Tribes v. Trustees of Big Sandy Indep. Sch. Dist. (E.D. Tex. 1993),
817 F.Supp. 1319, 1332 (citing Wisconsin v. Yoder (1972), 406 U.S. 205, 233, 92 S.Ct. 1526,
1542, 32 L.Ed.2d 15; Smith, 494 U.S. at 881, 110 S.Ct. at 1601). Valley Christian has
advanced just such a “hybrid” claim in that MHSA’s membership bylaw burdens Valley
Christian parents’ free exercise of religion in conjunction with the right of Valley Christian
parents to direct the upbringing of their children.
¶24 The right to direct the upbringing of one’s children is a fundamental right that is
grounded in the Due Process Clause. As the United States Supreme Court has explained:
The Due Process Clause guarantees more than fair process, and the
“liberty” it protects includes more than the absence of physical restraint . . . .
The Clause also provides heightened protection against government interfer-
ence with certain fundamental rights and liberty interests . . . . In a long line
of cases, we have held that, in addition to the specific freedoms protected by
the Bill of Rights, the “liberty” specially protected by the Due Process Clause
includes the right[ ] . . . to direct the education and upbringing of one’s
children . . . .
Washington v. Glucksberg (1997), 521 U.S. 702, 720, 117 S.Ct. 2258, 2267, 138 L.Ed.2d
772 (citing Meyer v. Nebraska (1923), 262 U.S 390, 43 S.Ct. 625, 67 L.Ed. 1042; Pierce v.
12
Society of Sisters (1925), 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070). Thus, the Supreme
Court’s recognition of the right to direct the education and upbringing of one’s children as
a liberty specially protected by the Due Process Clause reflects that Court’s conclusion that
such a right is “‘deeply rooted in this Nation’s history and tradition,’ . . . and ‘implicit in the
concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if [it] were
sacrificed. . . .’” Hicks v. Halifax County Bd. of Educ. (E.D. N.C. 1999), 93 F.Supp.2d 649,
658 (quoting Glucksberg, 521 U.S. at 721, 117 S.Ct. at 2268).
Indeed, as the Supreme Court explained in 1944, “[i]t is cardinal with us that
the custody, care and nurture of the child reside first in the parents, whose
primary function and freedom include preparation for obligations the state can
neither supply nor hinder.”
Hicks, 93 F.Supp. at 658 (quoting Prince v. Massachusetts (1944), 321 U.S. 158, 166, 64
S.Ct. 438, 442, 88 L.Ed. 645).
¶25 The Hicks court further concluded that the conjunction of the two constitutional
interests of free exercise and the parental right to direct the religious upbringing of one’s
children, in and of itself, merited heightened scrutiny.
In other words, where a parent’s free exercise right may not be sufficient to
justify an exemption from a neutral, generally applicable law, that right, when
combined with the constitutional right of the individual, as a parent, to direct
her child’s upbringing may be sufficient. Whether or not the second
constitutional interest is independently viable is not at issue. It is the mere
presence of the interest, as a genuine claim, supported by evidence in the
record, that triggers the heightened scrutiny of the free exercise claim.
Hicks, 93 F.Supp. at 662.
13
¶26 In analyzing this doctrine, the Supreme Court of Indiana noted that while the United
States Supreme Court has not again addressed the hybrid claim issue since Smith (other than
a brief observation by Justice Kennedy), the issue has
received considerable attention in other federal and state courts. Although
arguably not uniformly construed and applied, the hybrid claim exception has
been acknowledged in all the federal circuits. State courts addressing the issue
have also acknowledged the legitimacy of hybrid claims.
City Chapel Evangelical Free Inc. v. City of South Bend (Ind. 2001), 744 N.E.2d 443, 452-
53 and n.11, 12 (collecting cases).
¶27 While other courts may have adopted more stringent predicates for a hybrid rights
claim, the Ninth Circuit Court of Appeals determined that
[a]lthough the [United States Supreme] Court “has been somewhat less than
precise with regard to the nature of hybrid rights,” we recently held that, to
assert a hybrid-rights claim, “a free exercise plaintiff must make out a
‘colorable claim’ that a companion right has been violated–that is, a ‘fair
probability’ or a ‘likelihood,’ but not a certitude, of success on the merits.”
Miller v. Reed (9th Cir. 1999), 176 F.3d 1202, 1207 (quoting Thomas v. Anchorage Equal
Rights Comm’n (9th Cir. 1999), 165 F.3d 692, 703, 707). I would conclude that Valley
Christian has presented a colorable claim in this case.
¶28 Under § 27-19-201(1), MCA, a preliminary injunction may be granted “when it
appears that the applicant is entitled to the relief demanded.” Here, Valley Christian appears
entitled to relief because, contrary to the District Court’s determination that a “reasonable
regulation” standard is all that is necessary when analyzing the bylaw, the bylaw infringes
on Valley Christian parents’ free exercise of religion in conjunction with the right of Valley
14
Christian parents to direct the upbringing of their children, thus requiring a strict scrutiny
analysis.
¶29 Strict scrutiny requires that the membership bylaw be invalidated unless it is justified
by a compelling state interest and employs the least restrictive means of furthering that
interest. See, e.g., Armstrong v. State, 1999 MT 261, ¶ 34, 296 Mont. 361, ¶ 34, 989 P.2d
364, ¶ 34. Moreover, strict scrutiny places the burden on MHSA to demonstrate the
constitutionality of the bylaw. Armstrong, ¶ 41. This burden will be difficult for MHSA to
overcome as not even the Board of Education has the authority to require accreditation or
teacher certification of private schools. Indeed, Montana law does not impose any
requirements that private schools be publicly or privately accredited or that their teachers be
publicly or privately certified. MHSA has imposed requirements upon Valley Christian that
the Board of Education has no power to impose. In effect, the District Court has granted
MHSA authority that the Legislature has not seen fit to grant to either the Board of Education
or MHSA. If there were a compelling state interest in requiring private schools to be
accredited by the State and to employ only State certified teachers, that interest would
presumably be reflected in the law. Ultimately, MHSA’s membership bylaw is simply a
convenient mechanism that allows MHSA to assume that its member schools have all met
the same level of educational quality.
¶30 In addition to requiring a compelling state interest, strict scrutiny requires that a state
actor use the least restrictive means to accomplish its objective. Here, MHSA’s director
conceded that it would not burden MHSA to accept an alternative form of accreditation.
15
Thus, even if the bylaw was justified by a compelling state interest, and even if the bylaw
was effective in furthering that interest--neither of which has been demonstrated--the bylaw
does not further the purportedly compelling interest in the least restrictive manner. See
Alabama, 817 F. Supp. at 1330.
¶31 Furthermore, the bylaw is meaningless in the context of MHSA’s operations. MHSA
has no authority, legal or otherwise, to assure the educational quality of their member
schools--that is the job of the Montana Board of Education and the Office of Public
Instruction. There is no evidence in the record that Valley Christian students are not as well,
if not better, educated than the students of the public school members of MHSA, the non-
certified teacher notwithstanding. Moreover, there is no state requirement that private
schools such as Valley Christian be accredited. MHSA is thus, in its capacity as a state
actor, imposing upon Valley Christian a requirement that even the State does not impose--
accreditation. Furthermore, MHSA’s enforcement of this accreditation requirement
frustrates Valley Christian parents in the religious upbringing of their children and in their
choice of educational institutions in a way that the State of Montana itself does not. The
parents have two choices, hire a certified teacher or forego a non-certified teacher that
instructs within the tenets of their religious views. The fact that they could hire a teacher that
met both criteria for 15 years does not affect the analysis. Until they were no longer eligible
to join MHSA, Valley Christian did not have a justiciable controversy.
16
¶32 Because there is a substantial likelihood of success on the merits of Valley Christian’s
hybrid free exercise claim, Valley Christian is entitled to a preliminary injunction under §
27-19-201(1), MCA.
¶33 Furthermore, under § 27-19-201(2), MCA, Valley Christian needed only to present
a prima facie case that enforcement of the bylaw pending litigation would cause them
irreparable harm. Valley Christian presented ample evidence that enforcement of the bylaw
would cause Valley Christian students to lose valuable opportunities to enhance their
collegiate opportunities. Even if such enhanced collegiate opportunities are never a
certainty, participation in formal interscholastic competition is itself a type of important
experience that most high school students never repeat after graduation. Such lost
opportunities cannot be restored, thus the harm is irreparable.
¶34 Finally, under § 27-19-201(3), MCA, Valley Christian needed only to present a prima
facie case that enforcement of the bylaw pending litigation would infringe upon the rights
at issue in a manner that cannot be effectively remedied by a favorable resolution of the case.
The Ninth Circuit Court of Appeals has asserted that the infringement of a First Amendment
freedom, even for a minimal period of time, cannot be effectively restored. Foti v. City of
Menlo Park (9th Cir. 1998), 146 F.3d 629, 643.
¶35 Consequently, I would reverse and remand to the District Court with instructions to
issue injunctive relief pursuant to § 27-19-201, MCA, and I dissent from our failure to do so.
/S/ JAMES C. NELSON
17