D.M. v. Minnesota State High School League

U.S. District Court, District of Minnesota September 27, 2018

Trial Court Opinion

             UNITED STATES DISTRICT COURT                            
                DISTRICT OF MINNESOTA                                


D.M., a minor, by Bao Xiong,               Civ. No. 18-2140 (PAM/SER)     
the mother, legal guardian, and                                           
next friend of D.M; and Z.G.,                                             
a minor, by Joel Greenwald,                                               
the father, legal guardian, and                                           
next friend of Z.G.,                                                      

               Plaintiffs,                                           

v.                                      MEMORANDUM AND ORDER              

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; and Bonnie                                      
Spohn-Schmaltz, in her official capacity                                  
as President of the Board of Directors                                    
for the Minnesota State High School League,                               

               Defendants.                                           


This matter is before the Court on Plaintiffs’ Motion for a Preliminary Injunction.  
For the following reasons, the Motion is denied.                          
BACKGROUND                                                                
Plaintiffs  D.M.  and  Z.G.  challenge  a  Minnesota  State  High  School  League 
(“MSHSL”) rule that dance team is a girls-only sport.  They contend that this rule violates 
both Title IX of the Education Amendments of 1972,

20 U.S.C. § 1681

et seq., and their
rights under the Equal Protection Clause of the United States Constitution. They seek a

preliminary injunction prohibiting the MSHSL from enforcing the girls-only dance team
rule. The injunction would allow them to participate in their schools’ dance team’s
competitive season, which begins in October.
D.M is a junior at Roseville High School. (Compl. (Docket No. 1) ¶ 6.) He joined
his school’s recreational dance team more than a year ago. (Xiong Aff. (Docket No. 14)
¶¶ 6-7.) When he sought to join the school’s competitive dance team, however, he was

told that he could not because of the MSHSL rule that only girls may participate in
competitive dance team events. (Id. ¶ 8.) D.M. is the student manager for the team and
travels with the team to competitions, even though he is not allowed to compete. (Id. ¶ 10;
Compl. ¶ 27.)
Z.G. is a junior at Hopkins High School. (Compl. ¶ 8.) He has taken dance classes

for years, and in those classes dances with members of the high school’s dance team. (Id.
¶¶ 18, 32.) He inquired about joining the team but was told that he could not because of
the rule that only girls are allowed. (Id. ¶ 31.)
Plaintiffs allege that the MSHSL girls-only rule violates their equal protection rights
as well as their rights under Title IX. They seek an injunction “prohibiting Defendants . . .

from enforcing the Minnesota State High School League (MSHSL) rule that prohibits boys
from participating in high school competitive dance team while this case is pending.”
(Mot. (Docket No. 11.) at 1.) The competitive season for dance team begins in October.
DISCUSSION
A preliminary injunction is “an extraordinary remedy that may only be awarded

upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def.
Council, Inc.,

555 U.S. 7, 22

 (2008).  When deciding whether to issue a preliminary 
injunction, courts consider four factors: (1) the threat of irreparable harm to the movant; 
(2) the balance of harm the injunction would have on the movant and the opposing party; 
(3) the probability that movant will succeed on the merits; and (4) the public interest.  
Dataphase Sys., Inc. v. CL Sys., Inc.,

640 F.2d 109, 113

 (8th Cir. 1981).   

A.   Likelihood of Success on the Merits                                  
Although the parties do not address the proper standard for this prong of the 
Dataphase test, there is some question whether Dataphase’s “probability” of success means 
a “fair chance,” or somewhat less than a 50% chance of success, or whether it means a 
“likelihood,” or somewhat more than a 50% chance of success.  See Planned Parenthood 

of Minn., N. Dak., S. Dak. v. Rounds,

530 F3d 724, 730-31

 (8th Cir. 2008) (discussing 
different standards under “probability of success” factor).  But a party seeking to enjoin 
“government  action  based  on  presumptively  reasoned  democratic  processes”  “must 
demonstrate more than just a ‘fair chance’ that it will succeed on the merits.”

Id.

 at 731-
32.  Rather, the party must demonstrate that it is likely to prevail on the merits of its claims.

Id. at 732

.  Here, as discussed below, even if MSHSL policies do not rise to the level of a 
government action, the challenged policy is supported by a Minnesota statute, and thus the 
more stringent “likelihood of success” standard applies.                  
1.   Equal Protection                                                
Claims that a governmental entity is discriminating on the basis of sex are evaluated 

under an intermediate-scrutiny standard.  Under this standard, a classification “must be 
substantially related to an important governmental objective.”  Clark v. Jeter,

486 U.S. 456, 461

(1988). The League contends that girls-only sports teams, like the dance teams at issue
here, further the important governmental objective of remedying the past and present
effects of gender underrepresentation in interscholastic athletics in Minnesota.
Although Plaintiffs disavow any constitutional challenge to Minnesota law, there is

a statutory basis for girls-only teams in Minnesota. Specifically, Minnesota law provides
that “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.” Minn. Stat. § 121A.04, subd. 3(a). Of course, the state legislature cannot
authorize public schools to violate the Equal Protection Clause, but this statute is evidence

of the important governmental objective here.
Plaintiffs contend that current participation differentials between boys and girls do
not support the maintenance of girls-only teams. But there is sufficient evidence to support
a determination that girls continue to be underrepresented in athletics in Minnesota’s high
schools. And merely because newer data shows a recent narrowing of the gap does not

mean that the gap has closed or is imminently likely to close. Moreover, the governmental
objective is to give girls more chances to participate, because their “opportunities have
previously been limited.” “Previously” in this context could mean last year or five, ten, or
twenty years ago. Opening up a girls-only team to boys will not increase girls’
participation, and thus it will not further the objective of increasing girls’ athletic
opportunities.

The girls-only dance team rule is substantially related to an important governmental
objective, and Plaintiffs are not likely to succeed on the merits of their Equal Protection
claim.
2. Title IX
Plaintiffs assert that dance team is not a sport but rather is an extracurricular activity,
which is subject to stringent regulations under Title IX. A school may have a single-sex

extracurricular activity only if the single-sex limitation is “substantially related to
achieving” either the objective of “improved educational achievement” through “diverse
educational opportunities” or the objective of “meet[ing] the particular, identified
educational needs of its students.”

34 C.F.R. § 106.34

(b)(1)(i).         
But the MSHSL has established that dance team is a sport, not an extracurricular 

activity.  MSHSL has the authority to decide what is and is not a sport in Minnesota high-
school athletics, and it approved girls’ dance team as an interscholastic sport in 1996.  
(Martens Decl. ¶ 27.)  There is no reason or indeed any authority for questioning this 
decision 22 years later.  Dance teams are usually administered by a high school’s athletic 
department, and participants are chosen based on athletic ability.  (Id. Ex. D.) There are 

rules for dance team competitions, standards for competitors, and the MSHSL hosts a 
competitive state tournament to crown a state champion each year.  Competitive dance 
team bears all of the hallmarks of an interscholastic sport.              
As a sport, dance team is subject to an exception to Title IX’s general rule that “[n]o 
person  shall,  on  the  basis  of  sex,  be  excluded  from  participation  in.  .  .  any 

interscholastic . . . athletics.”

34 C.F.R. § 106.41

(a).  This exception provides that schools 
“may operate or sponsor separate teams for members of each sex where selection for such 
teams is based upon competitive skill or the activity involved is a contact sport.”

Id.

§ 106.41(b). In addition, if a school
operates or sponsors a team in a particular sport for members of one sex but
operates or sponsors no such team for members of the other sex, and athletic
opportunities for members of that sex have previously been limited, members
of the excluded sex must be allowed to try-out for the team offered unless
the sport involved is a contact sport.

Id.
In November 2017, Plaintiffs’ lawyers filed a complaint against the MSHSL with
the Department of Justice’s Office of Civil Rights (“OCR”) on behalf of a different
individual, asserting that the restriction on boys’ participation in dance team violated Title
IX. (Martens Decl. Ex. A.) OCR disagreed, finding that Minnesota’s history of girls’
underrepresentation in interscholastic athletics provided sufficient basis for a girls-only
team. (Martens Decl. Ex. C.) OCR also noted Minnesota law’s justification for girls-only
teams quoted 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.” Minn. Stat. § 121A.04, subd. 3(a).
After finding that athletic opportunities for girls in Minnesota are more limited than
for boys, OCR ultimately determined that Title IX allowed the League to maintain dance
teams as girls only, because “Title IX . . . allow[s the League] to restrict teams to one
gender so long as overall athletic opportunities for that gender have been limited.”
(Martens Decl. Ex. C. at 8.) OCR thus dismissed the complaint.

Plaintiffs contend that, even if dance team is a sport, it is not “based upon
competitive skill” and thus Title IX’s exception does not apply. As an example, Plaintiffs
point to baseball and softball, which require skills that differ based on sex.
The Court has determined that dance team is a sport, with extensive rules that speak
to the competitive skill of the teams. And dance team participants are chosen based on
athletic ability. (Martens Decl. Ex. D.) But even if the “competitive skill” exception in

Title IX does not apply, Plaintiffs have not demonstrated that they are likely to succeed on
the merits of their Title IX claims. The natural corollary of the last line of the exception—
providing that, when athletic opportunities for one sex have been limited, individuals of
that sex must be allowed to try out for opposite-sex, non-contact sports—is that schools
are allowed to maintain single-sex sports for the underrepresented sex. This is precisely

what Minnesota law provides and what the MSHSL has done. Title IX does not prohibit
girls-only athletic teams such as dance teams.
B. Irreparable Harm
Plaintiffs’ next friends’ affidavits have set forth the harm they are suffering from
not being allowed to be on their respective school’s dance team. (Docket Nos. 14, 15.)

And precedent indicates, albeit usually in the context of elimination or other differential
treatment of women’s teams, that the deprivation of an opportunity to play one’s chosen
sport constitutes irreparable harm. E.g., Portz v. St. Cloud State Univ.,

196 F. Supp. 3d 963, 972

 (D. Minn. 2016) (Tunheim, C.J.); McCormick ex rel. McCormick v. Sch. Dist. of 
Mamaroneck,

370 F.3d 275

, 302 n.25 (2d Cir. 2004).                        

The League contends that Plaintiffs will not be harmed because the status quo will 
remain in place, and Plaintiffs can participate in a different sport or any other non-sport 
extracurricular activity they choose.  But as noted, the weight of authority holds that those 
in  Plaintiffs’  position  are  suffering  irreparable  harm.    Plaintiffs  have  sufficiently 
demonstrated irreparable harm here.                                       
C.   Public Interest and Balance of Equities                              

The public interest is evidenced in the Minnesota statute allowing girls-only teams 
that do not violate Title IX or the Equal Protection Clause.  Having found that the girls-
only dance-team rule does not violate either the statute or the Constitution, the public 
interest therefore lies in denying the injunction.                        
The harm to the MSHSL if the injunction issues is extensive, if not irreparable.  An 

injunction would undoubtedly throw the imminent dance-team season into disarray.  And 
the MSHSL is caught in a difficult situation, where to acquiesce to Plaintiffs’ demands 
could result in the MSHSL falling out of compliance with its obligations under Title IX.  
These harms warrant serious consideration.                                
But  even  where  the  balance  of  hardships  “tips  decidedly  toward  plaintiff”  a 

preliminary injunction should issue only if the plaintiff “has raised questions so serious and 
difficult as to call for more deliberate investigation.”  Dataphase,

640 F.2d at 113

.  Here, 
although the balance of harms may favor Plaintiffs, they have not raised serious questions 
as to the merits of their claims, nor does the public interest support the injunction they seek.  
A preliminary injunction is therefore properly denied.                    

CONCLUSION                                                                
Accordingly,  IT  IS  HEREBY  ORDERED  that  Plaintiffs’  Motion  for  a 
Preliminary Injunction (Docket No. 11) is DENIED.                         
LET JUDGMENT BE ENTERED ACCORDINGLY.                                      
Dated:  September 27, 2018                                                
                                   s/ Paul A. Magnuson               
                                   Paul A. Magnuson                  
                                   United States District Court Judge