D.M. v. MN State High School League , 917 F.3d 994 ( 2019 )


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  •                   United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 18-3077
    ___________________________
    D.M., a minor, by Bao Xiong, the mother, legal guardian, and next friend of D.M.;
    Z.G., a minor, by Joel Greenwald, the father, legal guardian, and next friend of Z.G.
    lllllllllllllllllllllPlaintiffs - Appellants
    v.
    Minnesota State High School League; Bonnie Spohn-Schmaltz, in her official
    capacity as President of the Board of Directors for the Minnesota State High School
    League; Erich Martens, in his official capacity as Executive Director of the
    Minnesota State High School League; Craig Perry, in his official capacity as an
    Associate Director of the Minnesota State High School League; Bob Madison, in his
    official capacity as an Associate Director of the Minnesota State High School League
    lllllllllllllllllllllDefendants - Appellees
    ------------------------------
    Missouri State High School Activities Association; Arkansas Activities Association;
    Nebraska School Activities Association; North Dakota High School Activities
    Association; National Federation of State High School Associations
    lllllllllllllllllllllAmici on Behalf of Appellee(s)
    ____________
    Appeal from United States District Court
    for the District of Minnesota
    ____________
    Submitted: December 12, 2018
    Filed: March 6, 2019
    ____________
    Before LOKEN, MELLOY, and ERICKSON, Circuit Judges.
    ____________
    MELLOY, Circuit Judge.
    In 2018, two boys sued their state’s high school athletic league and several of its
    officers for declaratory and injunctive relief under 
    42 U.S.C. § 1983
    . The boys alleged
    that the league violated their rights under the Equal Protection Clause of the Fourteenth
    Amendment to the U.S. Constitution and under Title IX of the Education Amendments
    of 1972, 
    20 U.S.C. §§ 1681
    –88 (“Title IX”). Specifically, they claimed that the league
    unlawfully discriminated against them on the basis of sex through its rule prohibiting
    boys from participating on high school competitive dance teams. The district court
    denied the boys’ motion for a preliminary injunction, and they appealed. Having
    jurisdiction under 
    28 U.S.C. § 1292
    (a)(1), we reverse and direct the district court to
    enter a preliminary injunction.
    I.
    Appellants D.M. and Z.G. are sixteen-year-old boys who attend high school in
    Maplewood and Minnetonka, Minnesota, respectively. Both are in the eleventh grade.
    Both are passionate about dance and have participated in various dance classes and
    programs. Both want to dance on their schools’ competitive dance teams but, for
    reasons explained below, have been prohibited from doing so.
    Appellee Minnesota State High School League (the “League”) is a non-profit
    corporation that is a voluntary association of high schools. The League exercises
    authority delegated to it by the high schools to control high school extracurricular
    activities and sports throughout the state. To obtain and maintain such control, the
    -2-
    League passes bylaws and rules that set forth the standards member schools use to
    regulate and supervise those activities and sports.
    The League’s Bylaw 412 limits participation on a school’s competitive dance
    team to females. The League claims that the reason for this limitation is that girls’
    “overall athletic opportunities have previously been limited,” whereas boys’ have not.
    To support its claim, the League points to data compiled by Amicus National Federation
    of High School Athletic Associations (“NFHS”). The League also relies on Minnesota
    law, which allows for gender-based, athletic limitations in certain circumstances. See
    Minn. Stat. § 121A.04, subdiv. 3 (“[I]n athletic programs operated by educational
    institutions or public services and designed for participants 12 years old or older or in
    the 7th grade or above, it is not an unfair discriminatory practice to restrict membership
    on an athletic team to participants of one sex whose overall athletic opportunities have
    previously been limited.”). Pursuant to Bylaw 412, neither D.M. nor Z.G. have been
    allowed to participate on their schools’ competitive dance teams.
    D.M. and Z.G. sued the League in July 2018 for allegedly violating Title IX and
    their rights to equal protection under the Fourteenth Amendment. Shortly thereafter, the
    boys moved for a preliminary injunction of Bylaw 412 as it pertains to boys and
    competitive dance teams. The district court denied the motion. Despite finding that the
    boys suffered irreparable harm and that “the balance of harms may favor” them, the
    district court concluded that the injunction was not warranted because the boys were not
    likely to prevail on the merits. The district court also concluded that the public interest,
    as reflected in Minnesota Statute section 121A.04, favored denying the injunction. The
    court explained that “[t]he girls-only dance team rule is substantially related to an
    important governmental objective”—namely, “increasing girls’ athletic opportunities.”
    Moreover, the court said that Title IX permits the League to create girls-only athletic
    teams such as dance teams. The boys timely filed a notice of appeal.
    -3-
    II.
    We review “the denial of a preliminary injunction for abuse of discretion.”
    Gresham v. Swanson, 
    866 F.3d 853
    , 854 (8th Cir. 2017). A district court abuses its
    discretion when it “rests its conclusion on clearly erroneous factual findings or
    erroneous legal conclusions.” Jones v. Kelley, 
    854 F.3d 1009
    , 1013 (8th Cir. 2017) (per
    curiam). “We will not disturb a district court’s discretionary decision if such decision
    remains within the range of choice available to the district court, accounts for all
    relevant factors, does not rely on any irrelevant factors, and does not constitute a clear
    error of judgment.” Richland/Wilkin Joint Powers Auth. v. U.S. Army Corps of Eng’rs,
    
    826 F.3d 1030
    , 1035 (8th Cir. 2016) (quoting PCTV Gold, Inc. v. SpeedNet, LLC, 
    508 F.3d 1137
    , 1142 (8th Cir. 2007)). We review a district court’s legal conclusions de
    novo. Barrett v. Claycomb, 
    705 F.3d 315
    , 320 (8th Cir. 2013).
    When determining whether to issue a preliminary injunction, the district court
    considers: “(1) the threat of irreparable harm to the movant; (2) the state of balance
    between this harm and the injury that granting the injunction will inflict on other parties
    litigant; (3) the probability that [the] movant will succeed on the merits; and (4) the
    public interest.” Dataphase Sys., Inc. v. C L Sys., Inc., 
    640 F.2d 109
    , 114 (8th Cir.
    1981) (en banc). Generally, no one of these factors is determinative. 
    Id. at 113
    .
    However, “the absence of a likelihood of success on the merits strongly suggests that
    preliminary injunctive relief should be denied.” Barrett, 705 F.3d at 320 (quoting CDI
    Energy Servs., Inc. v. West River Pumps, Inc., 
    567 F.3d 398
    , 402 (8th Cir. 2009)).
    Consequently, we will begin our review with an analysis of that factor.
    A.
    There are two standards a district court may apply when assessing a movant’s
    probability of success on the merits. The first, which applies in most instances, directs
    the district court to ask whether the party requesting a preliminary injunction has a “fair
    chance of prevailing.” Planned Parenthood Minnesota, North Dakota, South Dakota v.
    Rounds, 
    530 F.3d 724
    , 732 (8th Cir. 2008) (en banc). This fair-chance standard does
    -4-
    not require the party seeking relief to “show ‘a greater than fifty per cent likelihood that
    he will prevail on the merits.’” 
    Id. at 731
     (citation omitted). The second, which we have
    called a “more rigorous standard,” calls on the district court to determine, as a threshold
    matter, whether the movant is “likely to prevail” on his or her claims. 
    Id. at 733
    . The
    likely-to-prevail standard applies when “a preliminary injunction is sought to enjoin the
    implementation of a duly enacted state statute.” 
    Id. at 732
    . The district court applied
    the heightened, likely-to-prevail standard because “the challenged policy is supported
    by a Minnesota statute.” The parties dispute whether that was error.
    As noted above, the test for determining which standard applies is whether the
    “preliminary injunction is sought to enjoin the implementation of a duly enacted state
    statute.” 
    Id.
     We apply a heightened standard in such instances because the duly enacted
    state statute constitutes “government action based on presumptively reasoned
    democratic processes,” and such action is “entitled to a higher degree of deference and
    should not be enjoined lightly.” 
    Id. at 732
     (quoting Able v. United States, 
    44 F.3d 128
    ,
    131 (2d Cir. 1995)). The likely-to-prevail test may also be appropriate when a movant
    seeks to preliminarily enjoin other forms of government action such as “administrative
    actions by federal, state or local government agencies.” 
    Id.
     at 732 n.6. However, in
    those cases, the suggested course of action is to first “evaluate whether ‘the full play of
    the democratic process[]’ was involved” in the actions and “then determine which
    standard would be more appropriate.” Richland/Wilkin, 826 F.3d at 1040 (quoting
    Rounds, 
    530 F.3d at
    732 n.6).
    Here, Bylaw 412 can, under Eighth Circuit precedent, rightly be considered
    government action. See Brenden v. Indep. Sch. Dist. 742, 
    477 F.2d 1292
    , 1295 (8th Cir.
    1973) (determining that the League “act[ed] under color of state law” for purposes of
    
    42 U.S.C. § 1983
     in promulgating rules governing high school athletics). However, the
    bylaw was not based on the “presumptively reasoned democratic processes” that Rounds
    contemplated. Rounds, 
    530 F.3d at 732
    . Indeed, the creation of the bylaw did not
    involve “the full play of the democratic process.” 
    Id.
     at 732 n.6; see also
    -5-
    Richland/Wilkin, 826 F.3d at 1040. There was no lengthy public debate involving both
    the legislative and executive branches before the formulation of the bylaw and its
    subsequent enactment. Cf. Able, 44 F.3d at 131–32 (imposing a heightened likelihood-
    of-success standard upon a motion to enjoin federal legislation and regulation because
    “Congress and the President [had] engaged in lengthy public debate before formulating”
    them).1 And the bylaws are created by League-member schools throughout the state, not
    by democratically elected officials who must answer to their constituents or face the
    possibility of not being reelected.
    To the extent the League argues that the heightened standard applies because it
    is implementing a state statute, Minnesota Statute section 121A.04, we reject the
    argument. Section 121A.04 does not direct the League to do anything; rather, the statute
    permits the League to discriminate on the basis of sex in limited circumstances—when
    athletic opportunities for a sex have previously been limited. The League must still
    show the continuing lack of opportunity and how the challenged policy addresses that
    inequity. Nothing in this action calls into question the validity of the underlying statute.
    Consequently, the heightened, likely-to-prevail standard does not apply to the
    boys’ preliminary injunction motion. We ask, instead, whether the boys have a fair
    chance of prevailing.
    B.
    We now turn to the merits of the boys’ claims, applying the appropriate standard.
    The boys argue that the League violated their Fourteenth Amendment equal protection
    rights when it banned them from participating on their high schools’ competitive dance
    teams because they are male. The League contends that it is justified in precluding the
    1
    Able served as an important guide for us when we adopted our heightened,
    likely-to-prevail test in Rounds. See Rounds, 
    530 F.3d at
    731–33; see also 
    id.
     at 732 n.6.
    Able’s treatment of when government action represents “the full play of the democratic
    processes” is, therefore, significant.
    -6-
    boys from the dance teams because doing so constitutes means that are “substantially
    related to the important governmental interest of redressing past discrimination and
    providing equal opportunities for women.”
    On the issue of past discrimination, the parties have submitted a chart that shows,
    for Minnesota in a given year, the relative percentages of boys and girls enrolled in
    League-member schools statewide. It then shows the relative percentages of boys and
    girls among those students participating in interscholastic sports. The underrepresented
    sex column shows the difference between the percentage of students enrolled and the
    percentage of students participating in interscholastic sports for whichever gender is
    underrepresented that year. The chart is reproduced here as follows:
    League-Member School Enrollments and Athletes by Gender
    League          League
    League      League          Under-
    Members         Members
    Year                                          Athletes    Athletes      represented
    Enrollment      Enrollment
    Boys        Girls            Sex
    Boys            Girls
    133,964         127,364          119,034     104,706           Girls
    2013–14
    (51.3%)         (48.7%)          (53.2%)     (46.8%)         (-1.9%)
    134,879         128,128          118,899     108,084           Girls
    2014–15
    (51.3%)         (48.7%)          (52.4%)     (47.6%)         (-1.1%)
    136,257         129,394          121,024     110,023           Girls
    2015–16
    (51.3%)         (48.7%)          (52.4%)     (47.6%)         (-1.1%)
    137,603         130,263          122,269     117,020           Boys
    2016–17
    (51.4%)         (48.6%)          (51.1%)     (48.9%)         (-0.3%)
    135,676         128,787          120,307     109,958           Girls
    Average
    (51.3%)         (48.7%)          (52.2%)     (47.8%)         (-1.0%)
    The same data for 2017–18 shows boys were underrepresented by 0.35%.
    -7-
    The Fourteenth Amendment provides that “[n]o State shall . . . deny to any person
    within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
    In the context of gender-based discrimination, the U.S. Supreme Court has interpreted
    that clause to mean that unless a government actor can meet the “demanding” burden
    of showing an “exceedingly persuasive” justification for treating males differently from
    females, the differential treatment is unconstitutional. United States v. Virginia, 
    518 U.S. 515
    , 533 (1996); see also Duckworth v. St. Louis Metro. Police Dep’t, 
    491 F.3d 401
    , 406 (8th Cir. 2007). To successfully justify a classification based on gender, the
    actor “must show ‘at least that the [challenged] classification serves “important
    governmental objectives and that the discriminatory means employed” are “substantially
    related to the achievement of those objectives.”’” Virginia, 
    518 U.S. at 533
     (alteration
    in original) (quoting Miss. Univ. for Women v. Hogan, 
    458 U.S. 718
    , 724 (1982)).
    The Court has explained that “gender-based classification[s] favoring one sex”
    that are designed to remedy past discrimination can be justified “[i]n limited
    circumstances.” Miss. Univ., 
    458 U.S. at 728
    . Such circumstances exist when the
    classification “intentionally and directly assists members of the sex that is
    disproportionately burdened.” 
    Id.
     However, a government actor may “evoke a
    compensatory purpose to justify an otherwise discriminatory classification only if
    members of the gender benefited by the classification actually suffer a disadvantage
    related to the classification.” 
    Id.
     (emphasis added). In other words, for a government
    actor to classify individuals based on gender for the purpose of remedying a prior lack
    of opportunities, the individuals must continue to lack opportunities or the classification
    is not constitutionally justified. See 
    id. at 729
     (declaring a public university’s women-
    only policy to be unconstitutional because the university had “made no showing . . . that
    women [were] currently . . . deprived of” opportunities to obtain nursing training or
    positions of leadership); 
    id. at 730
     (“[A]lthough the State recited a ‘benign,
    compensatory purpose,’ it failed to establish that the alleged objective is the actual
    purpose underlying the discriminatory classification.”).
    -8-
    The parties agree that girls historically have been underrepresented in Minnesota
    high school athletics. However, over the past five years, the representation of girls in
    Minnesota athletics has been almost directly proportional to the number of girls enrolled
    at Minnesota schools. In fact, in both the 2016–17 and 2017–18 school years, the
    parties’ means of determining representation show that boys have been slightly
    underrepresented in high school athletics. Thus, the League has not shown that the
    underlying problem it initially sought to remedy by creating all-girl teams—the overall
    underrepresentation of girls in high school athletics—continues to exist, at least in
    Minnesota.2 Without this underlying problem to remedy, the League cannot prohibit
    boys from participating on girls’ teams unless it has some other “exceedingly
    persuasive” justification for doing so. Virginia, 
    518 U.S. at 533
    .
    The League does not offer any such justification. Instead, it merely argues, in
    broad terms, that restricting the membership of athletic teams to one sex “advances the
    important government interest of promoting safety, increasing competition, redressing
    past discrimination, and providing more athletic opportunities for female athletes.” The
    League also cites a Rhode Island Supreme Court case, Kleczek v. R.I. Interscholastic
    2
    The U.S. Department of Education’s Office of Civil Rights, the League, and the
    NFHS all repeatedly stress that girls are underrepresented in high school athletics
    nationwide. To support their claims, they point to data that show “[o]ver the last four
    years 1,218,125 (15.6%) more boys participated nationwide in interscholastic sports, on
    average, than girls.” The problem with the data they cite, however, is that the data do
    not show the total, nationwide number of students enrolled in schools that offer
    interscholastic athletic programs. Nor do the data break down how many of those
    students are boys and how many are girls. Without that information, it is impossible to
    appreciate the extent to which either gender is over- or underrepresented in
    interscholastic athletics at the national level. There may be more boys than girls
    participating in interscholastic sports because there are simply more boys than girls
    enrolled. Moreover, the alleged fact that girls are underrepresented in sports nationwide
    does not address the question of whether girls are underrepresented in Minnesota so as
    to justify a bylaw that prohibits boys from joining high school competitive dance teams
    in that state.
    -9-
    League, Inc., 
    612 A.2d 734
     (R.I. 1992) (per curiam), in which the court held that
    promoting safety and preserving interscholastic athletic competition for boys and girls
    are important government interests. 
    Id. at 739
    . Kleczek, however, in addition to being
    non-binding, is distinguishable from this case. Kleczek involved a ban on boys
    participating on girls-only field hockey teams. 
    Id. at 735
    . The court, understandably,
    had concerns about participants’ safety if boys were allowed on the teams. 
    Id. at 739
    .
    Here, the League does not explain how allowing boys to dance on their schools’
    competitive dance3 teams would be unsafe or how it would deprive girls of opportunities
    to compete. Moreover, Kleczek was decided under the Rhode Island constitution, not
    the U.S. Constitution. 
    Id. at 736
    . We find the League’s asserted other justifications for
    prohibiting boys from participating on high school competitive dance teams
    unpersuasive.
    Because the League has not asserted an “exceedingly persuasive” justification for
    keeping boys from participating on high school competitive dance teams, we hold that
    the boys had more than a fair chance of prevailing on the merits of their case.4 The
    district court erred in concluding otherwise.
    C.
    Because we conclude that the boys have a fair chance of prevailing on the merits
    of their equal protection claim, we need not address their probability of success on their
    Title IX claim. See Richland/Wilkin, 826 F.3d at 1040 (“The plaintiff ‘need only
    3
    In many sports, single-sex teams can be justified if boys enjoy a competitive
    advantage over girls due to their weight and height. The League has not presented any
    evidence (and does not seem to seriously argue) that boys enjoy any competitive
    advantage over girls in dance.
    4
    Given the lack of justification for the policy, we have no doubt that the boys
    could even satisfy the heightened, likely-to-prevail standard if it were applicable.
    -10-
    establish a likelihood of succeeding on the merits of any one of [its] claims.’” (alteration
    in original) (citation omitted)). We turn now to the other Dataphase factors.
    The district court concluded that the boys “sufficiently demonstrated irreparable
    harm.” We agree. Students who are denied the opportunity to join their schools’ sports
    teams because of their sex may suffer irreparable harm. See Bednar v. Neb. Sch.
    Activities Ass’n, 
    531 F.2d 922
    , 923 (8th Cir. 1976) (per curiam). That is especially true
    here. Both boys are juniors in high school. They love to dance and want to do so
    competitively as part of a school team. The League’s ban has prohibited them from
    doing so this year. They cannot get that season back. Without injunctive relief or final
    resolution of their suit, they will be prevented from competing next year as well. These
    sorts of injuries, i.e., deprivations of temporally isolated opportunities, are exactly what
    preliminary injunctions are intended to relieve.
    Furthermore, we hold that the district court erred in concluding that the public
    interest favored denying the injunction. The district court reasoned that “[t]he public
    interest is evidenced in the Minnesota statute allowing girls-only teams that do not
    violate Title IX or the Equal Protection Clause.” That statement, while true enough,
    overlooks the fair probability that the League’s bylaw violates the Constitution. “[T]he
    public is served by the preservation of constitutional rights.” Phelps-Roper v. Nixon,
    
    545 F.3d 685
    , 694 (8th Cir. 2008), overruled on other grounds by Phelps-Roper v. City
    of Manchester, 
    697 F.3d 678
    , 692 (8th Cir. 2012) (en banc); see also Awad v. Ziriax,
    
    670 F.3d 1111
    , 1132 (10th Cir. 2012) (“[I]t is always in the public interest to prevent
    the violation of a party’s constitutional rights.” (quoting G & V Lounge, Inc. v. Mich.
    Liquor Control Comm’n, 
    23 F.3d 1071
    , 1079 (6th Cir. 1994))). As such, the public
    interest Dataphase factor favors the boys.
    Finally, we hold that the balance of harms tips in favor of granting an injunction.
    The district court alluded that such may be the case in its memorandum and order, and
    for good reason. If the injunction is granted, the boys may try out for their schools’
    -11-
    competitive dance teams. The negative public consequences of such an allowance, if
    any, will be slight.5 See Winter v. Nat. Res. Def. Council, Inc., 
    555 U.S. 7
    , 24 (2008)
    (“In exercising their sound discretion, courts of equity should pay particular regard for
    the public consequences in employing the extraordinary remedy of injunction.” (quoting
    Weinberger v. Romero–Barcelo, 
    456 U.S. 305
    , 312 (1982))). On the other hand, if the
    injunction is denied, the boys will continue to suffer irreparable harm—namely, they
    will be prevented from trying out for and participating on their schools’ competitive
    dance teams in probable violation of their constitutional rights. The balance of harms
    is decidedly in the boys’ favor.
    III.
    In sum, all of the Dataphase factors favor granting D.M.’s and Z.G.’s motion for
    a preliminary injunction. We therefore reverse the judgment of the district court and
    remand for the district court to issue a preliminary injunction in favor of the boys.
    ______________________________
    5
    The League argues that “[g]ranting an injunction would fundamentally alter the
    requirements for MSHSL-sponsored activities and would disregard the unambiguous
    language of Minn. Stat. § 121A.04.” The League worries that were the preliminary
    injunction to be granted and the boys “subsequently determined ineligible after a trial
    on the merits,” their teams would be required to forfeit “all contests in which [the boys]
    participated.” We do not share the League’s concerns. If the injunction is granted, the
    boys are “eligible” for all intents and purposes. Therefore, we are not convinced that
    their teams would have to forfeit contests under the League’s rules. Moreover, the
    League’s inability to show an “exceedingly persuasive” justification for its
    discriminatory rule at this stage of the litigation makes a scenario wherein the boys lose
    at trial highly unlikely.
    -12-