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., Plaintiffs - 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, Defendants - Appellees Missouri State High School Activities Association; Arkansas Activities Association; Nebraska School Activities Association; North Dаkota High School Activities Association; National Federation of State High School Associations, Amici on Behalf of Appellee(s)
No. 18-3077
United States Court of Appeals For the Eighth Circuit
March 6, 2019
Submitted: December 12, 2018; Appeal from United States District Court for the District of Minnesota
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.
In 2018, two boys sued their state‘s high school athletic league and several of its officers for declaratory and injunctive relief under
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
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 cоntrol, the 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 supрort 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
D.M. and Z.G. sued the League in July 2018 for allegedly violating Title IX and their rights to equal protection under the
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 mеrits; 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 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 callеd a “more rigorous standard,” calls on the district court to determine, as a threshold
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 demoсratic 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 аction 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
To the extent the League argues that the heightеned standard applies because it is implementing a state statute,
Consequently, the heightened, likely-to-prevail standard does not apply to the boys’ preliminary injunction motion. We
B.
We now turn to the merits of the boys’ claims, applying the appropriate standard. The boys argue that the League violated their
On the issue of past discrimination, the parties have submitted a сhart 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:
| Year | League Members Enrollment Boys | League Members Enrollment Girls | League Athletes Boys | League Athletes Girls | Under-represented Sex |
|---|---|---|---|---|---|
| 2013-14 | 133,964 (51.3%) | 127,364 (48.7%) | 119,034 (53.2%) | 104,706 (46.8%) | Girls (-1.9%) |
| 2014-15 | 134,879 (51.3%) | 128,128 (48.7%) | 118,899 (52.4%) | 108,084 (47.6%) | Girls (-1.1%) |
| 2015-16 | 136,257 (51.3%) | 129,394 (48.7%) | 121,024 (52.4%) | 110,023 (47.6%) | Girls (-1.1%) |
| 2016-17 | 137,603 (51.4%) | 130,263 (48.6%) | 122,269 (51.1%) | 117,020 (48.9%) | Boys (-0.3%) |
| Average | 135,676 (51.3%) | 128,787 (48.7%) | 120,307 (52.2%) | 109,958 (47.8%) | Girls (-1.0%) |
The same data for 2017-18 shows boys were underrepresented by 0.35%.
The
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 рolicy 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.“).
The parties agree that girls historically have bеen 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, thе 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 justificatiоn. Instead, it merely argues, in broad terms, that restricting the membership
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 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 irrepаrable 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.е., 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
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 injunсtion is granted, the boys may try out for their schools’ 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—namеly, 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.
MELLOY
CIRCUIT JUDGE