Case 4:00-cv-04113-LLP Document 1 Filed 06/09/00 Page 1 of 4 PageID #: 1

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

FILED
JUN 09 ZOOO

0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0
STEVEN PEDERSEN and CHERYL PEDERSEN, as Guardians Ad Litem for MARA PEDERSEN, a minor, and SUZIE TOLZIN, as Guardian Ad Litem for MICAH TOLZIN and ELIZABETH TOLZIN, mmors,

COMPLAINT

Plaintiffs,

vs.
SOUTH DAKOTA HIGH SCHOOL ACTIVITIES ASSOCIATION,

Defendant.

0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0

Plaintiffs, for their cause of action against defendant, state and allege as follows: PARTIES, JURISDICTION AND VENUE
1. The minor plaintiffs and their guardians ad litem are all residents of the State of South Dakota.
2. Defendant is a voluntary, non-profit association organized to direct and coordinate the interscholastic activities of South Dakota's high schools.
3. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 4. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b).

Case 4:00-cv-04113-LLP Document 1 Filed 06/09/00 Page 2 of 4 PageID #: 2
-2 FACTUAL ALLEGATIONS 5. This fall, Mara Pedersen will be a senior at Lincoln High School in Sioux Falls, South Dakota. She is a member of her school's varsity girls volleyball team. 6. This fall, Micah Tolzin will be a senior at Washington High School in Sioux Falls, South Dakota. She is a member of her school's varsity girls volleyball team. 7. This fall, Elizabeth Tolzin will be a freshman at Washington High School in Sioux Falls, South Dakota. She desires to play high school volleyball. 8. Pursuant to SDCL § 13-36-4, South Dakota's high schools have delegated to defendant the control, supervision and regulation of all high school interscholastic activities. 9. Defendant requires South Dakota's high schools to play girls volleyball during the winter. Girls high school volleyball is played during the traditional fall season in 46 of the 50 states. 10. All of South Dakota's boys high school athletic teams play their schedules during the traditional seasons for their sports. 11. As a result of playing their schedule during the non-traditional winter season, South Dakota's girls high school volleyball players are being denied opportunities provided to South Dakota's boys high school athletes. Among other things, playing in the non-traditional winter season prevents South Dakota's girls high school volleyball players from effectively competing for college athletic scholarships.

Case 4:00-cv-04113-LLP Document 1 Filed 06/09/00 Page 3 of 4 PageID #: 3
-3-
12. On or abuut JUlie G, 2000, defendant considered switching South Dakota's girls high school volleyball season to a traditional fall schedule, but decided to continue playing girls volleyball during the winter season.
13. Defendant is funded, in part, by member high schools which receive federal financial assistance.
COUNT I
VIOLATION OF TITLE IX OF THE EDUCATION AMENDMENTS OF 1972 14. Plaintiffs hereby incorporate each and every allegation made in paragraphs 1 through 13 herein. 15. Defendant's scheduling of girls high school volleyball during the nontraditional winter season violates Title IX of the Education Amendments of 1972, codified at 20 U.S.C. § 1681, et seq., because plaintiffs are being discriminated against on the basis of sex.
COUNT II EQUAL PROTECTION 16. Plaintiffs hereby incorporate each and every allegation made in paragraphs I through 15 herein. 17. Defendant's scheduling of girls high school volleyball during the nontraditional winter season is unconstitutional as being contrary to the equal protection

Case 4:00-cv-04113-LLP Document 1 Filed 06/09/00 Page 4 of 4 PageID #: 4
- 4clause of the Fourteenth Amendment to the United States Constitution, in violation of
42 U.S.C. § 1983.
WHEREFORE, plaintiffs pray for the following relief:
1. That a permanent injunction be issued requiring defendant to immediately
schedule girls high school volleyball during the traditional fall season to comply with
Title IX of the Education Amendments of 1972 and the Fourteenth Amendment to the
United States Constitution;
2. That plaintiffs recover their attorneys' fees and expenses from defendant
under 42 U.S.C. § 1988; and
3. That the Court grant plaintiffs such other and further relief as is just and
proper.
Dated this 9th day of June, 2000.
WOODS, FULLS; SHULTZ & SMITH P.c.
Byl/7!1~!;~'~// ', ~.
Wj]]iam P. leT Rick Entwistle 300 South Phillips Avenue, Suite 300 Post Office Box 5027 Sioux Falls, South Dakota 57117-5027 Telephone (605) 336-3890 Fax (605) 339-3357 Attorneys for Plaintiffs

 
 - - Case 4:00-cv-04113-LLP Document 26 Filed 11/07/00 Page 1 of 5 PageID #: 68 FII.ED

IN THE UNlTED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA SOUTHERl\[ DIVISION

NOV -72000

STEVEN PEDERSEN and CHERYL

)

PEDERSEN, as Guardians Ad Litem for )

MARA PEDERSEN, a minor, and

)

SUZIE TOLZIN, as Guardian Ad Litem )

for MICAH TOLZIN and ELIZABETH )

TOLZIN, minors,

)

)

Plaintiffs,

)

)

UNlTED STATES OF AMERICA,

)

Plaintiff-Intervenor

)

)

v.

)

)

SOUTH DAKOTA HIGH SCHOOL)

ACTIVITIES ASSOCIATION,

)

)

Defendant.

)

)

------------- --------------- - -----------)

CIV 00-4113 COMPLAINT-IN-INTERVENTION

The United States of America ("United States"), Plaintiff-Intervenor, alleges as follows: 1. This action is brought on behalf of the United States to enforce the Fourteenth Amendment to the Constitution of the United States and Title IX of the Education Amendments ofl972, 20 U.S.C. § 1681 et~, which prohibits recipients of federal financial assistance from discriminating on the basis of sex in education programs and activities. 2. This court has jurisdiction under 28 U.S.C. § 1345 and 42 U.S.c. § 2000h-2. 3. Defendant South Dakota High School Activities Association (hereinafter "SDHSAA" or "the Association") is a voluntary, non-profit association whose membership is composed of approximately 194 South Dakota public and private secondary schools and whose headquarters is located in Pierre, South Dakota. The Association governs interscholastic athletics and activities

- - Case 4:00-cv-04113-LLP Document 26 Filed 11/07/00 Page 2 of 5 PageID #: 69
in and among member schools, and has controlling authority over sanctioning, operating, providing, and regulating interscholastic athletics and activities in and among its member schools. The Association has approximately 169 members who are public schools that receive federal financial assistance.
4. Pedersen et al. v. South Dakota High Sch. Activities Ass'n, CIV 00-4113, was filed on June 9, 2000. The plaintiffs allege that the defendant SDHSAA violated the Equal Protection Clause of the Fourteenth Amendment and Title IX ofthe Education Amendments of 1972,20 U.S.C. § 1681, et§ffi,., by discriminating on the basis of sex.
5. The minor plaintiffs and their gnardians ad litem are all citizens of South Dakota. The minor plaintiffs all participate or aspire to participate in high school volleyball in Sioux Falls, South Dakota. The plaintiffs seek a pennanent injunction requiring defendant SDHSAA to immediately schedule girls' high school volleyball during the traditional fall season in order to comply with the Fourteenth Amendment to the Constitution of the United States and Title IX of the Education Amendments of 1972.
6. Defendant SDHSAA is subject to the Equal Protection Clause of the FOUlieenth Amendment to the Constitution of the United States, and to Title IX, including the Title IX Implementing Regulations and Policy Interpretation.
7. Defendant has, continues to, and will continue to discriminate against female students on the basis of gender by failing to provide equal opportunity in the area of interscholastic athletics in violation ofthe Fourteenth Amendment to the Constitution of the United States, and Title IX and the Title IX Implementing Regulations and Policy Interpretation.
-2-

- - Case 4:00-cv-04113-LLP Document 26 Filed 11/07/00 Page 3 of 5 PageID #: 70
8, The unlawful discrimination engaged in by defendant includes, but is not limited to, requiring several sports played by female students to be played in non-traditional seasons which has limited the opportunities and benefits received by female athletes,
9, On or about June 6, 2000, defendant SDHSAA considered switching South Dakota's girls' high school volleyball season to the fall and the girls' high school basketball to the winter, but subsequently decided against allowing the girls to play in the traditional seasons.
10, Unless enjoined by this court, defendant SDHSAA will continue to violate the Fourteenth Amendment and Title IX and its Implementing Regulations and Policy Interpretation,
11, The Assistant Attorney General for the Civil Rights Division of the United States Department of Justice, by delegation from the Attorney General of the United States, has certified that the above-captioned case is of general public importance, See attachment hereto.
WHEREFORE, Plaintiff-Intervenor United States prays that this Court grant the following relief:
1. Declare that defendant has denied plaintiffs the equal protection of the laws in violation of the Fourteenth Amendment;
2, Declare that defendant has unlawfully discriminated on the basis of gender by failing to provide equal opportunities to female students in interscholastic athletics, and in doing so failed to provide plaintiffs equal athletic oppOliunity in violation of Title IX of the Education Amendments of 1972, 20 U.S ,C. § 1681, et seq.;
3. Issue a permanent injunction requiring defendant, its officers, agents, employees, successors, assigns, and all persons in active concert or participation with the Association to immediately schedule girls' high school volleyball during the traditional fall season and girls' basketball during the traditional winter season;
-3-

- - Case 4:00-cv-04113-LLP Document 26 Filed 11/07/00 Page 4 of 5 PageID #: 71
4. Order defendant to formulate, adopt, and fully and timely implement an effective plan to remedy fully its discriminatory policies and practices, and to comply fully with the requirements offederallaw, including the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States, Title IX, and the Title IX Implementing Regulations and Policy Interpretation; and
5. Grant such other additional relief as the Court deems just and proper, including the costs and disbursements of this action.
Respectfully Submitted,

TED L. McBRIDE United States Attorney
BONNIE ULRICH Chief - Civil Division United States Attorney's Office 230 Phillips Ave., Suite 600 Sioux Falls, SD 57104 (605) 330-4400

By:
ssistant Attorney General
1ie-A/:sb
HELEN L. NORTON Deputy Assistant Attorney General
~Z' Rt.AM{A.R~~-~ ARAH A. DUNNE Attorneys U.S. Department ofJustice Civil Rights Division Educational Opportunities Section 601 D Street, N.W., Suite 4300 Washington, D.C. 20530 (202) 514·6406
-4-

- - Case 4:00-cv-04113-LLP Document 26 Filed 11/07/00 Page 5 of 5 PageID #: 72 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

STEVEN PEDERSEN and CHERYL )

PEDERSEN, as Guardians Ad Litem for )

MARA PEDERSEN, a minor, and

)

SUZIE TOLZIN, as Guardian Ad Litem)

for MICAH TOLZIN and ELIZABETH )

TOLZIN, minors,

)

)

Plaintiffs,

)

)

UNITED STATES OF AMERICA,

)

Plaintiff-Intervenor

)

)

v.

)

)

SOUTH DAKOTA HIGH SCHOOL )

ACTIVITIES ASSOCIATION,

)

)

Defendant.

)

)

------------- --------------- - -----------)

CIV 00-4113

CERTIFICATION OF PUBLIC IMPORTANCE

Pursuant to delegation from the United States Attorney General, see 28 C.F.R. § .50(a),

I, Bill Lann Lee, Assistant Attorney General, Civil Rights Division, United States Department of

Justice, hereby certify, in accordance with Section 902 of the Civil Rights Act of 1964, as

amended, 42 U.S.C. §2000h-2, that the above-captioned matter is of general public importance

and that, accordingly, intervention by the United States as plaintiff is warranted.

A sistant Attorney General Ci il Rights Division

 
 Case 4:00-cv-04113-LLP Document 30 Filed 11/15/00 Page 1 of 6 PageID #: 81

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

NOV 1, 2000

0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0
STEVEN PEDERSEN and CHERYL PEDERSEN, as Guardians Ad Litem for MARA PEDERSEN, a minor, and SUZIE TOLZIN, as Guardian Ad Litem for MICAH TOLZIN and ELIZABETH TOLZIN, mmors,

CIV.00-4113

("\q...,,,.).~l,L,,,,,. ' ':::lE1UC

AMENDED COMPLAINT

Plaintiffs,

vs.

UNITED STATES OF AMERICA,

Plaintiff-Intervenor,

vs.

SOUTH DAKOTA HIGH SCHOOL ACTIVITIES ASSOCIATION,

Defendant.

0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0

Plaintiffs, for their cause of action against defendant, state and allege as follows:

PARTIES, JURISDICTION AND VENUE 1. The minor plaintiffs and their guardians ad litem are all residents of the State of South Dakota.

2. Defendant is a voluntary, non-profit association organized to direct and coordinate the interscholastic activities of South Dakota's high schools.

Case 4:00-cv-04113-LLP Document 30 Filed 11/15/00 Page 2 of 6 PageID #: 82
-2 -
3. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 4. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b).
FACTUAL ALLEGATIONS 5. This fall, Mara Pedersen will be a senior at Lincoln High School in Sioux Falls, South Dakota. She is a member of her school's varsity girls volleyball team. 6. This fall, Micah Tolzin will be a senior at Washington High School in Sioux Falls, South Dakota. She is a member of her school's varsity girls volleyball team. 7. This fall, Elizabeth Tolzin will be a freshman at Washington High School in Sioux Falls, South Dakota. She desires to play high school volleyball. 8. Pursuant to SDCL § 13-36-4, South Dakota's high schools have delegated to defendant the control, supervision and regulation of all high school interscholastic activities. 9. Defendant requires South Dakota's high schools to play girls volleyball during the winter. Girls high school volleyball is played during the traditional fall season in 46 of the 50 states. 10. All of South Dakota's boys high school athletic teams play their schedules during the traditional seasons for their sports. 11. As a result of playing their schedule during the non-traditional winter season, South Dakota's girls high school volleyball players are being denied opportunities provided to South Dakota's boys high school athletes. Among other

Case 4:00-cv-04113-LLP Document 30 Filed 11/15/00 Page 3 of 6 PageID #: 83
-3-
things, playing in the non-traditional winter season prevents South Dakota's girls high school volleyball players from effectively competing for college athletic scholarships.
12. On or about June 6, 2000, defendant considered switching South Dakota's girls high school volleyball season to a traditional fall schedule, but decided to continue playing girls volleyball during the winter season.
13. Defendant is funded, in part, by member high schools which receive federal financial assistance.
COUNT I VIOLATION OF TITLE IX OF THE EDUCATION AMENDMENTS OF 1972 14. Plaintiffs hereby incorporate each and every allegation made in paragraphs 1 through 13 herein. 15. Defendant's scheduling of girls high school volleyball during the nontraditional winter season violates Title IX of the Education Amendments of 1972, codified at 20 U.S.C. § 1681, et seq., because plaintiffs are being discriminated against on the basis of sex.
COUNT II VIOLATION OF EQUAL PROTECTION CLAUSE OF FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION 16. Plaintiffs hereby incorporate each and every allegation made in paragraphs 1 through 15 herein.

Case 4:00-cv-04113-LLP Document 30 Filed 11/15/00 Page 4 of 6 PageID #: 84
- 417. Defendant's scheduling of girls high school volleyball during the nontraditional winter season is unconstitutional as being contrary to the equal protection clause of the Fourteenth Amendment to the United States Constitution, in violation of 42 U.S.C. § 1983.
COUNT III VIOLATION OF EQUAL PROTECTION CLAUSE OF
SOUTH DAKOTA CONSTITUTION 18. Plaintiffs hereby incorporate each and every allegation made in paragraphs 1 through 17 herein. 19. Defendant's scheduling of girls high school volleyball during the nontraditional winter season is unconstitutional as being contrary to the equal protection clause of the Constitution of South Dakota (Article VI, § 18). WHEREFORE, plaintiffs pray for the following relief: 1. That a permanent injunction be issued requiring defendant to immediately schedule girls high school volleyball during the traditional fall season to comply with Title IX of the Education Amendments of 1972, the Fourteenth Amendment to the United States Constitution, and Article VI, § 18 of the Constitution of South Dakota; 2. That plaintiffs recover their attorneys' fees and expenses from defendant under 42 U.S.C. § 1988; and 3. That the Court grant plaintiffs such other and further relief as is just and proper. Dated this 14th day of November, 2000.

Case 4:00-cv-04113-LLP Document 30 Filed 11/15/00 Page 5 of 6 PageID #: 85
-5-
WOODS, FULLER, SHULTZ & SMITH P.C.
BY!dz fdJ~ William P. Fuller Rick Entwistle 300 South Phillips Avenue, Suite 300 Post Office Box 5027 Sioux Falls, South Dakota 57117-5027 Telephone (605) 336-3890 Fax (605) 339-3357 Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
I hereby certify that on the 14th day of November, 2000, I sent to:
John L. Brown Riter, Mayer, Hofer, Wattier & Brown, LLP Post Office Box 280 Pierre, South Dakota 57501-0280
Ted L. McBride United States Attorney 201 Federal Building 515 9th Street Rapid City, South Dakota 57701
Bonnie Ulrich United States Attorney's Office 230 South Phillips Avenue, Suite 600 Sioux Falls, South Dakota 57104
Franz R. Marshall Sarah A. Dunne U. S. Department of Justice Civil Rights Division Educational Opportunities Section 601 D Street, NW., Suite 4300 Washington, D.C. 20530

Case 4:00-cv-04113-LLP Document 30 Filed 11/15/00 Page 6 of 6 PageID #: 86
-6by United States first class mail, postage prepaid, a true and correct copy of the foregoing Amended Complaint.
One of the Attorneys or PlamtIffs

 
 Case 4:00-cv-04113-LLP Document 36 Filed 12/05/00 Page 1 of 5 PageID #: 113

FILED

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

DEC - 52000

0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0
STEVEN PEDERSEN and CHERYL PEDERSEN, as Guardians Ad Litem for MARA PEDERSEN, a minor, and SUZIE TOLZIN, as Guardian Ad Litem for MICAH TOLZIN and ELIZABETH TOLZIN, mmors,
Plaintiffs,

CIV. 00-4113 STIPULATION

and UNITED STATES OF AMERICA,

Plaintiff-Intervenor,

vs.
SOUTH DAKOTA HIGH SCHOOL ACTIVITIES ASSOCIATION,

Defendant.

0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0-0
It is agreed by and between the above-captioned parties, through their undersigned

counsel, as follows: 1. Beginning with the 2002-2003 school year, and continuing thereafter,
defendant shall schedule girls high school volleyball during the traditional fall season. 2. Beginning with the 2002-2003 school year, and continuing thereafter,
defendant shall schedule girls high school basketball during the traditional winter season.

Case 4:00-cv-04113-LLP Document 36 Filed 12/05/00 Page 2 of 5 PageID #: 114
-23. Defendant shall reimburse plaintiffs for their reasonable attorneys' fees and expenses. 4. Defendant shall submit to the Court and parties within one hundred eighty (180) days from the date of the Consent Order a detailed plan setting forth how defendant will implement the transition and new scheduling of the girls high school volleyball and basketball seasons. Thereafter, upon the approval and implementation of the remedial plan, defendant shall submit a report to the Court and parties annually for two consecutive years specifically describing how defendant has completely and successfully implemented the approved plan. The date of filing and the specific format of the report shall be developed by the parties simultaneously with the approval of the plan.
Dated this 'lib day of December, 2000.
WOODS, FULLER, SHULTZ & SMITH P.C.
BY~ William P. Fuller Rick Entwistle Post Office Box 5027 Sioux Falls, South Dakota 57117-5027 Telephone (605) 336-3890 Fax (605) 339-3357 Attorneys for Plaintiffs

Case 4:00-cv-04113-LLP Document 36 Filed 12/05/00 Page 3 of 5 PageID #: 115

-3-

Ted L. McBride United States Attorney

Bill Lann Lee Assistant Attorney General
1/e;()4=
Helen L. Norton Deputy Assistant Attorney General

Bonnie Ulrich Chief - Civil Division United States Attorney's Office 230 Phillips Ave., Suite 600 Sioux Falls, SD 57104 Telephone (605) 330-4400

Franz R. Marshall Sarah A. Dunne U.S. Department ofJustice Civil Rights Division Educational Opportunities Section 601 D Street, N.W., Suite 4300 Washington, D.C. 20530 Telephone (202) 514-6406 Fax (202) 514-8337 Attorneys for Plaintiff-Intervenor
RITER, MAYER, HOFER, WATIIER & BROWN',7~P / .~
,/
nL. Brown Post Office Box 280 Pierre, South Dakota 57501-0280 Telephone (605) 224-5825 Fax (605) 224-7102 Attorneys for Defendant

Case 4:00-cv-04113-LLP Document 36 Filed 12/05/00 Page 4 of 5 PageID #: 116
-4-
CONSENT ORDER Based upon the foregoing Stipulation, and for other good cause; it is hereby ORDERED that beginning with the 2002-2003 school year, and continuing thereafter, defendant shall schedule girls high school volleyball during the traditional fall season; and it is further hereby ORDERED that beginning with the 2002-2003 school year, and continuing thereafter, defendant shall schedule girls high school basketball during the traditional winter season; and it is further hereby ORDERED that defendant shall reimburse plaintiffs for their reasonable attorneys' fees and expenses; and it is further hereby ORDERED that defendant shall submit to the Court and parties within one hundred eighty (180) days from the date of this Order a detailed plan setting forth how defendant will implement the transition and new scheduling of the girls high school volleyball and basketball seasons; and it is further hereby ORDERED that upon the approval and implementation of the remedial plan, defendant shall submit a report to the Court and parties annually for two consecutive years specifically describing how defendant has completely and successfully

Case 4:00-cv-04113-LLP Document 36 Filed 12/05/00 Page 5 of 5 PageID #: 117

-5 implemented the approved plan. The date of filing and the specific format of the report shall be developed by the paJties simultaneously with the approval of the plan; and it is further hereby

ORDERED that this Court will retain jurisdiction of this cause for purposes of

compliance with this Order ami entry or such further orders or Illodit'ication as may be necessary or appropriate to efrectuate the agreement as stated herein. Upon compliance with the terms of this Order or at any time following the rinal report, anyone or, or all of, the parties may move this Court, on due notice to the other parties anu the Court, t(lI'the

dissolution of this Order and this Order will be dissolved upon showing by defendant, South

Dakota High School Activities Association, that it has substantially complied with the terms ami objectives of this Consent Oruer.

1t

5' Dated this

~ay or December, 2000,

BY THE COURT:

ATTEST:

JOSEPH HAAS. CLERK

FlY:,JhtVu n tir1J/4c0{)

(SEAL)

DEPUTY

awrence L. Piersol Chief Judge

 
 Case 4:00-cv-04113-LLP Document 37 Filed 05/11/01 Page 1 of 2 PageID #: 118

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

,",'
" Top

~r\

:. ~. _'. 1 , • - •

M!1Y 11 2001

STEVEN PEDERSEN and CHERYL

)

PEDERSEN, as Guardians Ad Litem for )

MARA PEDERSEN, a minor, and

)

SUZIE TOLZIN, as Guardian Ad Litem

)

For MICAH TOLZIN and ELIZABETH

)

TOLZIN, minors,

)

)

Plaintiffs,

)

)

UNITED STATES OF AMERICA,

)

Plaintiff-I ntervenor

)

)

vs.

)

)

SOUTH DAKOTA HIGH SCHOOL

)

ACTIVITIES ASSOCIATION

)

)

Defendant.

)

CIV 00-4113
SUBMISSION OF PLAN IMPLEMENTING SEASON
TRANSITION

COMES NOW the Defendant, South Dakota High School Activities Association,

pursuant to the Order of the Court dated December 5, 2000, and submits its plan detailing the

implementation of the transition and new scheduling of the Girls' High School Volleyball and

Basketball seasons. The proposed plan entitled South Dakota High School Activities

Association Plan to Change Girls' Basketball and Volleyball Seasons Effective the 2002-2003

School Year is attached to and incorporated in this document. Also attached, by way of

reference, is a State Event Master Rotation Dates and Sites document for all state activities

conducted by the South Dakota High School Activities Association.

WHEREFORE Defendant respectfully requests the Court enter its Order adopting this

proposed plan.

III DATED this

day of May, 2001, Pierre, South Dakota.

ohn L. Brown A member of said firm 319 S. Coteau - P.O. Box 280 Pierre, SD 57501-0280 605-224-5825 Attorneys for Defendant

Case 4:00-cv-04113-LLP Document 37 Filed 05/11/01 Page 2 of 2 PageID #: 119
CERTIFICATE OF SERVICE
I, John L. Brown, certify that a true and correct copy of the Submission of Plan Implementing Season Transition and Order was sent to the following by United States Postal Service on the 10th day of May, 2001:
Mr. William P. Fuller Mr. Rick Entwistle Woods, Fuller, Shultz & Smith P.C. P.O. Box 5027 Sioux Falls, South Dakota 57117-5027
Michelle Tapken United States Attorney Bonnie Ulrich Assistant United States Attorney 230 South Phillips Avenue, Suite 600 Sioux Falls, SD 57104
Sarah A. Dunne U.S. Department of Justice Civil Rights Division Educational Opportunities Section 601 D Street, N.W., Suite 4300 Washington, D.C. 20530

 
 Case 4:00-cv-04113-LLP Document 46 Filed 08/30/01 Page 1 of 2 PageID #: 139

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISIOI\

.-'~'\,,,:,,",...<... -.i...-~
*** ****** ** *** ***** **:1: ** *** *** ** *** ***** ** **** ***** **;{: **** *:{: ~~ >!< 'l~ ****
*

STEVE~ PEDERSEN and CHERYL

*

CIV 00-4113

PFDERSEk as Guardians ad Litem for *

MARA PEDERSEN, a minoc and

*

SUZIE TOLZIN, as Guardian ad Litem *
for MICAH rOLZIN and ELIZABETH *

TOLZIN,

*

*

Plaintiffs,

*

*

and

*

*

UNITED STATES OF AMERICA,

"

Plaintift~ Intervenor,

*

*

vs,

*

*

ORDER

SOUTI I DAKOTA HIGH SCHOOL

"

ACTIVITIES ASSOCIATION,

*

*

Defendant

*

*
******************************************************************************

The parties have submitted a Stipulation which states that the parties have resolved their

differences regarding the plan by which the South Dakota High School Activities Association will

implement the transition to and the new scheduling ofthe girls high school volley ball and basketball

seasons and asks that the Court approve the plan, The Court has reviewed the plan and linds it is

ll1ir, reasonable, and adequate, United States v, Metropolitan SL Louis Sewer DisL 952 F,2d 1040,

1044 (8th Cir, 1992), Accordingly,

IT IS ORDERED that the plan entitled South Dakota High School Activities Association Season Transition Plan, and all relevant attachments incorporated therein, is approved, subject to

Case 4:00-cv-04113-LLP Document 46 Filed 08/30/01 Page 2 of 2 PageID #: 140

further orders and modifications as provided for in this Court's Consent Order dated December 5,

2000.

~y Dated this _

of August 2001.

BY THE COURT:
Q~c,,~~~~clw-.--

ChicfJudge ATTEST: JOSEPH HAAS, CLERK
B~. .J.d)m~h/4j /X):J:tllt4p ~ I , DEPUTY

2

 
 FILED Case 4:00-cv-04113-LLP Document 52 Filed 06/29/05 Page 1 of 1 PageID #: 565

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

STEVEN PEDERSEN and CHERYL PEDERSEN, as Guardians Ad Litem for MARA PEDERSEN, a minor, and SUZIE TOLZIN, as Guardian Ad Litem for MICAH TOLZIN and ELIZABETH TOLZIN, minors,
Plaintiffs,
and
UNITED STATES OF AMERICA,
Plaintiff-Intervenor,
vs.
SOUTH DAKOTA HIGH SCHOOL ACTIVITIES ASSOCIATION,
Defendant.

) )
) ) ) )
) Civ. No. 00-4113
) )
) ) ) )
) ORDER OF ) DISSOLUTION OF ) CONSENT ORDER
) ) ) )

Upon the Stipulation of the parties, all records and

documents on file herein and good cause appearing therefore, it

is hereby

ORDERED that the Consent Order dated December 5, 2000

shall be, and the same is hereby, dissolved.

E ~ DATED this

day of

,2005.

ATTEST:

\\)(){!W(IJw~»-CC ))~ ~
(\Judge

C
Deputy

 
 Case: 4:00-cv-04113-LLP As of: 02/18/2014 12:57 PM CST 1 of 5
U.S. District Court District of South Dakota (Southern Division) CIVIL DOCKET FOR CASE #: 4:00−cv−04113−LLP

CLOSED

Pedersen, et al v. SD High School Assigned to: U. S. District Judge Lawrence L. Piersol Demand: $0 Cause: 28:1343 Violation of Civil Rights
Plaintiff

Date Filed: 06/09/2000 Date Terminated: 12/05/2000 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question

Steven Pedersen as Guardian Ad Litem for Mara Pederson, a minor Minor Mara Pedersen

represented by Frederick M. Entwistle Woods, Fuller, Shultz &Smith, PC PO Box 5027 Sioux Falls, SD 57117−5027 336−3890 Fax: 339−3357 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William P. Fuller Fuller &Williamson 7521 S. Louise Ave. Sioux Falls, SD 57108 333−0003 Fax: 333−0007 Email: bfuller@fullerandwilliamson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Cheryl Pedersen as Guardian Ad Litem for Mara Pedersen, a minor Minor Mara Pedersen

represented by Frederick M. Entwistle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William P. Fuller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Suzie Tolzin as Guardian Ad Litem for Micah Tolzin and Elizabeth Tolzin, minors Minor Micah Tolzin Minor Elizabeth Tolzin

represented by Frederick M. Entwistle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William P. Fuller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
South Dakota High School Activities Association

represented by John L. Brown Riter, Mayer, Hofer, Wattier &Brown PO Box 280 Pierre, SD 57501

Case: 4:00-cv-04113-LLP As of: 02/18/2014 12:57 PM CST 2 of 5

224−5825 Fax: 224−7102 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff United States of America

represented by Bill Lann Lee U.S. Department of Justice Educational Opportunities Section 601 D St., NW Suite 4300 Washington, DC 20530 (202) 514−6406 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bonnie P. Ulrich U.S. Attorney's Office PO Box 5073 Sioux Falls, SD 57117−5073 330−4400 Fax: 330−4410 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Franz R. Marshall U.S. Department of Justice Educational Opportunities Section 601 D St., NW Suite 4300 Washington, DC 20530 (202) 514−6406 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Helen L. Norton U.S. Department of Justice Educational Opportunities Section 601 D St., NW Suite 4300 Washington, DC 20530 (202) 514−6406 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah A. Dunne U.S. Department of Justice Educational Opportunities Section 601 D St., NW Suite 4300 Washington, DC 20530 (202) 514−6406 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ted L. McBride U.S. Attorney's Office (Rapid City, SD) Rapid City Office 515 Ninth St. Room 201 Rapid City, SD 57701 (605) 342−7822 Fax: (605) 342−1108 Email: Ted.McBride@usdoj.gov

Case: 4:00-cv-04113-LLP As of: 02/18/2014 12:57 PM CST 3 of 5
TERMINATED: 09/03/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/09/2000 06/09/2000 06/09/2000 06/09/2000
06/09/2000
06/14/2000 06/14/2000 06/14/2000 06/14/2000 06/22/2000
06/22/2000
07/05/2000 07/07/2000 08/07/2000 10/05/2000
10/16/2000 10/17/2000 10/17/2000 10/17/2000 10/27/2000

# Docket Text
1 COMPLAINT: 2 summons(es) issued handed to plaintiff's counsel (SKM) (Entered: 06/12/2000)
FILING FEE PAID: on 6/9/00 in the amount of $ 150.00, receipt # 25202. (SKM) (Entered: 06/12/2000)
2 CIVIL COVER SHEET (SKM) (Entered: 06/12/2000)
3 MOTION (Petition) for appointment of guardians ad litem for Mara Pederson, a minor, to institute action by plaintiff Steven Pedersen, plaintiff Cheryl Pedersen (SKM) (Entered: 06/12/2000)
4 MOTION (Petition) for appointment of guardian ad litem for Micah Tolzin and Elizabeth Tolzin to institute action by plaintiff Suzie Tolzin (SKM) (Entered: 06/12/2000)
5 ACCEPTANCE/ACKNOWLEDGEMENT OF SERVICE by defendant SD High School on 6/12/00 (JMM) (Entered: 06/15/2000)
6 SUMMONS (DEFENDANT(S) SERVED) (JMM) (Entered: 06/15/2000)
7 ORDER of Recusal by Richard H. Battey (cc:all counsel) (JMM) (Entered: 06/15/2000)
8 ORDER by Lawrence L. Piersol Case reassigned to Lawrence L. Piersol (cc:all counsel) (JMM) (Entered: 06/15/2000)
9 ORDER by Lawrence L. Piersol granting motion for appointment of guardians ad litem for Mara Pederson, a minor, to institute action [3−1] (cc:all counsel) (SKM) Modified on 06/23/2000 (Entered: 06/23/2000)
10 ORDER by Lawrence L. Piersol granting motion for appointment of guardian ad litem for Micah Tolzin and Elizabeth Tolzin to institute action [4−1] (cc:all counsel) (SKM) Modified on 06/23/2000 (Entered: 06/23/2000)
11 ANSWER by defendant SD High School to complaint [1−1] (JMM) (Entered: 07/05/2000)
12 ORDER For Form 35 Report and Scheduling Information by Lawrence L. Piersol (cc: all counsel) (FE) (Entered: 07/10/2000)
13 Form 35 Report Of Parties Planning Meeting re [12−1] (SKM) (Entered: 08/08/2000)
14 RULE 16 SCHEDULING ORDER Lawrence L. Piersol ; court trial set for 9:00 1/3/01 ;mtn filing ddl set for 11/3/00 ; Discovery ddl set for 11/15/00 (cc: all counsel) (FE) (Entered: 10/05/2000)
15 STIPULATION and ORDER to allow plaintiffs to file amended complaint by parties (SKM) Modified on 11/14/2000 (Entered: 10/17/2000)
16 RULE 26 Disclosures of Experts by plaintiff Steven Pedersen, plaintiff Cheryl Pedersen, plaintiff Suzie Tolzin (SLL) (Entered: 10/17/2000)
17 MOTION to intervene by intervenor plaintiff USA (DLS) (Entered: 10/19/2000)
18 MEMORANDUM by intervenor plaintiff USA in support of motion to intervene [17−1] (DLS) (Entered: 10/19/2000)
19 CONSENT to Intervention by plaintiff Steven Pedersen, plaintiff Cheryl Pedersen, plaintiff Suzie Tolzin (JMM) (Entered: 10/27/2000)

Case: 4:00-cv-04113-LLP As of: 02/18/2014 12:57 PM CST 4 of 5

11/03/2000 11/03/2000 11/06/2000 11/06/2000
11/06/2000 11/07/2000 11/07/2000 11/13/2000 11/13/2000 11/14/2000
11/14/2000
11/15/2000 11/15/2000 11/15/2000 11/15/2000 11/17/2000 11/17/2000 12/05/2000 05/11/2001 05/24/2001
05/24/2001
06/19/2001

20 MOTION to continue trial date by defendant SD High School (SKM) (Entered: 11/03/2000)
21 OBJECTION by defendant SD High School to intervention by the USA (SKM) (Entered: 11/03/2000)
22 MOTION to dismiss , or in alternative for summary judgment by defendant SD High School (SLL) (Entered: 11/06/2000)
23 MEMORANDUM/BRIEF by defendant SD High School in support of motion to dismiss [22−1], of motion for summary judgment [22−2] (SLL) (Entered: 11/06/2000)
24 CERTIFICATE OF SERVICE by defendant SD High School (SLL) (Entered: 11/06/2000)
25 ORDER by Lawrence L. Piersol granting motion to intervene [17−1] (cc:all counsel) (SLL) (Entered: 11/07/2000)
26 INTERVENOR'S COMPLAINT by intervenor plaintiff USA (SLL) (Entered: 11/07/2000)
27 RESPONSE by intervenor plaintiff USA to motion to continue trial date [20−1] (SKM) (Entered: 11/13/2000)
27 MOTION to amend Rule 16 scheduling order by intervenor plaintiff USA (SKM) (Entered: 11/13/2000)
28 MINUTES RE: Telephone Conference before the Hon. Lawrence L. Piersol, US Chief Judge, Sioux Falls, SD. Discussion re: changing Court Trial date; Court will issue Order; Total In Court Time 25 minutes (FE) (Entered: 11/15/2000)
29 AMENDED RULE 16 SCHEDULING ORDER by Lawrence L. Piersol granting motion to continue trial date [20−1] granting motion to amend Rule 16 scheduling order [27−1] ;Court trial set for 9:00 1/16/01 motion filing ddl satisfied ; discovery ddl set for (cc:all counsel) (FE) (Entered: 11/15/2000)
30 AMENDED COMPLAINT by plaintiff Steven Pedersen, plaintiff Cheryl Pedersen, plaintiff Suzie Tolzin (SKM) (Entered: 11/15/2000)
31 AFFIDAVIT of Marlyn Goldhammer in support of continuance (SKM) (Entered: 11/15/2000)
32 AFFIDAVIT of Marlyn Goldhammer opposing United States intervention (SKM) (Entered: 11/15/2000)
33 AFFIDAVIT of Marlyn Goldhammer supporting motion for dismissal (SKM) (Entered: 11/15/2000)
34 ANSWER TO AMENDED COMPLAINT by defendant SD High School to [30−1] (FE) (Entered: 11/17/2000)
35 ANSWER by defendant SD High School to Complaint−In−Intervention of the USA [26−1] (FE) (Entered: 11/17/2000)
36 STIPULATION and CONSENT ORDER re. girls high school volleyball by Lawrence L. Piersol : (cc: all counsel) (SLL) (Entered: 12/06/2000)
37 SUBMISSION OF PLAN Implementing Season Transition by defendant SD High School (JMM) (Entered: 05/14/2001)
38 MOTION for time to respond to defendant's proposed plan by intervenor plaintiff USA, plaintiff Suzie Tolzin, plaintiff Cheryl Pedersen, plaintiff Steven Pedersen (SKM) (Entered: 05/25/2001)
39 ORDER by Lawrence L. Piersol granting motion for time to respond to defendant's proposed plan [38−1]; plaintiff−parties shall file a response by 6/20/01 (cc:all counsel) (SKM) (Entered: 05/25/2001)
40 MOTION for enlargement of time by intervenor plaintiff USA, plaintiff Suzie Tolzin, plaintiff Cheryl Pedersen, plaintiff Steven Pedersen (SLL) (Entered:

Case: 4:00-cv-04113-LLP As of: 02/18/2014 12:57 PM CST 5 of 5

06/20/2001 06/21/2001 06/27/2001 08/08/2001 08/30/2001 08/30/2001
04/24/2002 08/28/2003 08/27/2004 09/01/2004 09/03/2004 06/28/2005 06/29/2005

06/20/2001)
41 RESPONSE by intervenor plaintiff USA to defendant's Submission of Plan Implementing Season Transition [37−1] (DJP) (Entered: 06/21/2001)
42 ORDER by Judge Lawrence L. Piersol granting motion for enlargement of time [40−1]; plaintiff−parties shall have until June 27, 2001, to file a response to defendant's proposed transition plan (cc:all counsel) (DJP) (Entered: 06/22/2001)
43 RESPONSE by plaintiff−parties' to defendant's proposed transition plan [37−1] (SLL) Modified on 06/28/2001 (Entered: 06/27/2001)
44 ORDER by Judge Lawrence L. Piersol; oral argument set for 8/17/01 1:30; counsel may appear personally or by telephone (cc:all counsel) (SKM) (Entered: 08/08/2001)
45 JOINT MOTION/STIPULATION for order/approval of transition plan by intervenor plaintiff USA, defendant SD High School, plaintiff Suzie Tolzin, plaintiff Cheryl Pedersen, plaintiff Steven Pedersen (FE) (Entered: 08/31/2001)
46 ORDER by Judge Lawrence L. Piersol granting motion for order/approval of transition plan [45−1]; Transition Plan and all relevant attachments incorporated is approved subject to further orders and modifications as provided for in Court's Consent Order of 12/5/00 (cc:all counsel) (FE) (Entered: 08/31/2001)
47 ORDER AND RECEIPT for File by Judge Lawrence L. Piersol that Brett Lovrien may check out original file (DJP) (Entered: 04/30/2002)
48 TRANSMITTAL of Transition Plan Report, with attachment (attachment is in a binder in expando) (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10) (DJP) (Entered: 08/29/2003)
49 TRANSMITTAL OF TRANSITION PLAN REPORT (Attachments (Participation Survey Report 2003−2004) : # 1 # 2 # 3 # 4) (DJP) (Entered: 08/27/2004)
50 Letter from John Brown w/attached Page 144 of Participation Survey (Takini School figures) (JMM, ) (Entered: 09/01/2004)
Remark − Pursuant to telephone conversation with Ted McBride's office, he is no longer with USA and should be terminated from this case. Attorney McBride terminated as of 9/3/04 (DJP) (Entered: 09/03/2004)
51 STIPULATION for Dismissal of Consent Order by Steven Pedersen, Cheryl Pedersen, Suzie Tolzin, South Dakota High School Activities Association, United States of America. (SKM) (Entered: 06/28/2005)
52 ORDER directing dissolution of consent order 36 dated December 5, 2000, re Stipulation 51 filed by United States of America,, Steven Pedersen,, Cheryl Pedersen,, Suzie Tolzin,, South Dakota High School Activities Association, Signed by Judge Lawrence L. Piersol on 6/29/05. (SLL, ) (Entered: 06/30/2005)

 
 FILED

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA

JUl 2.1 2002

SOUTHERN DIVISION

*****************************************************************************

* DAVID W. HOFFMAN, as guardian ad litem for * JENNA HOFFMAN and JEANA HOFFMAN, *

CIV 02-4127

HOLLY NEMEC,as guardian ad litem for

*

CHELSEE NEMEC, DENNIS KUHLMAN, as *

guardian ad litem for MATEYA RAE

*

KUHLMAN, MERRI STAPP, as guardian

*

ad litem for JORDAN STAPP, BARBARA

*

HARTLEY, as guardian ad litem for JENNA *

HARTLEY, JULAYNE THORESON,

*

as guardian ad litem for MELISSA THORESON, *

KELLY SULLIVAN, as guardian ad litem for *

BREINN SULLIVAN, PAUL MUTH,

*

MEMORANDUM OPINION AND ORDER

as guardian ad litem for LINDSEY MUTH and *

DONNA MILLER, as guardian ad litem for

*

KELLY RAE MILLER,

*

*

Plaintiffs,

*

*

vs.

*

*

SOUTH DAKOTA HIGH SCHOOL

*

ACTIVITIES ASSOCIATION, STEVE

*

BERSETH, WILLIAM O'DEA, JAMES

*

HEINITZ, TIM CREAL, TERRY STULKEN, *

RONDA RINEHART, and CRAIG NOWOTNY, *

*

Defendants

*

*

and

*

*

UNITED STATES OF AMERICA,

*

STEVEN PEDERSEN and CHERYL

*

PEDERSEN, as Guardians ad Litem for

*

MARA PEDERSEN, a minor, and

*

SUZIE TOLZIN, as Guardian ad Litem

*

for MICAH TOLZIN and ELIZABETH

*

TOLZIN,

*

Defendants-Intervenors

*

* ******************************************************************************

I

Pending before the Court is the Plaintiffs' Motion for Preliminary Injunction. (Doc. 12.) For the following reasons, the Motion will be denied.
BACKGROUND
On June 9, 2000, Steven Pedersen and Cheryl Pedersen, as guardians ad litem for Mara Pedersen, and Suzie Tolzin, as guardian ad litem for Micah Tolzin and Elizabeth Tolzin, filed a lawsuit seeking an order requiring the South Dakota High School Activities Association ("SDHSAA") to switch the girls' volleyball and basketball seasons. See Pedersen and United States v. South Dakota High School Activities Association, Civil Action No. 00-4113. Fortyeight states schedule high school girls' basketball during the winter and volleyball during the fall, and so does NCAA.l The Pedersen plaintiffs alleged that scheduling girls' volleyball in the winter and girls' basketball in the fall discriminated against South Dakota girls in violation of the Fourteenth Amendment of the United States Constitution and Title IX of the Education Amendments of 1972 ("Title IX"). Id. The Plaintiffs contended that requiring female student athletes and not male student athletes to play in non-traditional seasons causes harm by, among other things, preventing high school girls volleyball players from effectively competing for college athletic scholarships. This Court allowed the United States to intervene in the Pedersen case on November 7,2000.
The parties successfully mediated the Pedersen case and a Stipulation was submitted to the Court in which the SDHSAA agreed to schedule girls volleyball and basketball during their traditional seasons, starting with the 2002-03 school year. On December 5, 2000, this Court approved the Stipulation and issued a Consent Order enforcing the parties' agreement. The SDHSAA submitted a transition plan to the Court which was approved on August 30, 2001. The SDHSAA and its member schools began implementing the plan to switch seasons. This included
IOnly Michigan still requires girls to play basketball and volleyball during the non-traditional fall and winter seasons, respectively, but a district court recently held this practice to be in violation of the Fourteenth Amendment to the United States Constitution and Title IX. Communities for Equity v. Michigan High School Athletic Assn., 178 F.Supp.2d 805 (W.D.Mich. 2001), appeal docketed, No. 02-1127 (6th Cir.Jan.30, 2002).
2

creating new schedules for extra-curricular activities and arranging for adequate facilities, coaches and officials.
On May 28, 2002, the Plaintiffs ("Hoffman plaintiffs") commenced this case in state court. Defendants filed a Notice of Removal to this Court on June 6, 2002. The Hoffman plaintiffs seek injunctive relief and monetary damages. They allege that the actions of the SDHSAA in switching the girls basketball and volleyball seasons effective for the 2002-2003 school year has violated their Fourteenth Amendment rights under the United States Constitution, 42 U.S.C. § 1983 and Title IX of the Education Amendments of 1972,20 U.S.C. § 1681(a) and the rules and regulations promulgated thereunder. In addition, the Hoffman plaintiffs allege various state law violations based on the same acts of the Defendants. The Hoffman plaintiffs filed the Motion for Preliminary Injunction on June 26, 2002.
The Pedersen plaintiffs and the United States filed motions to intervene on June 26 and
July 2,2002, respectively. The motions to intervene were granted by Order issued July 22, nunc pro tunc as of July 16, 2002. A hearing was held on the Motion for Preliminary Injunction July
17, 18 and 19, 2002. All parties participated in the three day hearing.
DISCUSSION This case is not about whether it would be a better idea to delay for some years the beginning of the switch of seasons in girls' high school basketball and volleyball to the traditional seasons observed by the rest of the country. Instead, the question is whether there is a legal basis which requires that the switch of seasons be delayed. This is a determination of the request for a preliminary injunction. The request for a permanent injunction is not being determined at this time.
In considering preliminary injunctions, the Eighth Circuit in Dataphase Systems, Inc., v. C L Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1991) (en bane), observed: "At base, the question is whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined." Thus the function of a preliminary injunction is to preserve the status quo pending a determination of the action on the merits. "The
3

status quo is the last uncontested status which preceded the pending controversy." Tanner Motor Livery, Ltd., v. Avis, Inc., 316 F.2d 804, 809 (9th Cir. 1963)(citation omitted). Where the relief requested, rather than preserving the status quo, completely changes it, the movant has a higher burden ofproof. See,~, Phillip v. Fairfield Univ., 118 F.3d 131,133 (2d Cir. 1997). Thus, "where an injunction is mandatory-that is, where its terms would alter, rather than preserve, the status quo by commanding some positive act-the moving party must meet a higher standard than in the ordinary case by showing 'clearly' that he or she is entitled to relief or that 'extreme or very serious damage' will result from a denial of the injunction." Id. When a mandatory preliminary injunction is requested, the district court should deny such relief "unless the facts and law clearly favor the moving party." Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir. 1979) (quoting Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976)). This heightened burden also applies "where the issuance ofthe injunction would provide the movant with substantially all the relief he or she seeks and where the relief could not then be undone, even if the non-moving party later prevails at trial." Phillip v. Fairfield Univ., 118 F.3d at 133. See also Sanborn Mfg. v. Campbell Hausfeld/Scott Fetzer Co., 997 F.2d 484, 486 (8th Cir. 1993) (burden on the movant "is a heavy one where, as here, granting the preliminary injunction will give [the movant] substantially the relief it would obtain after a trial on the merits."). Preventing this year's implementation of the season switch would provide much, but not all, of the relief requested by the Plaintiffs..
In the present case, the switching of the girls' basketball and volleyball seasons was determined in December 2000 to be in effect in the fall of2002. As a result, the activities schedules ofthe 196 South Dakota member schools2 were adjusted accordingly. Hearing testimony established this involved the adjustment of athletic events and practices, as well as rescheduling of many other extra-curricular activities and practices. As a result, with practices and events to begin in less than four weeks, the status quo now is the seasons as switched and the schedules the schools have in place for the academic year which has already started. The fact that the Hoffman plaintiffs are attempting to now change the status quo means that they now have a higher burden of proof to meet.
2Por the 2001-2002 school year, SDHSAA had 196 member schools. 4

Plaintiffs delayed a long time in bringing this lawsuit. This is especially so since the time of implementation ofthe season switch was known since December of2000. As early as December 18, 2000, Plaintiffs were considering a lawsuit. David Hoffman's name appears on a news release dated December 18, 2000, indicating that a meeting would be held to "discuss the potential lawsuit against the South Dakota High School Activities Association by the South Dakota Gymnastics parents and others." (Defendant's Exhibit A.) Plaintiffs counseled with four different lawyers and also sought legislative relief. The fifth law firm consulted brought his lawsuit. Some of the delay is understandable. It could be that in some instances the Plaintiffs did not like the advice they were getting from the lawyers they contacted. In any event, despite the delay, these issues should be decided on the merits, and dismissal ofPlaintiffs requested preliminary injunction will not be denied on the basis of laches.
Whether a preliminary injunction should be granted involves consideration of: (1) the threat ofirreparable harm to the Plaintiffs; (2) the state ofthe balance between this harm and the injury that granting the injunction will inflict on other parties; (3) the probability that the Plaintiffs will succeed on the merits; and (4) whether it is in the public interest. Dataphase, 640 F.2d at 113.
1. Threat of Irreparable Harm to the Plaintiffs Hearing testimony indicated that some of the Plaintiffs may have to choose between
participating in basketball and gymnastics because some schools will not allow a student to participate simultaneously in two sports. Liz Woodruff, a student at Chamberlain High School, and the head gymnastics coach for Chamberlain, Sherrie Kippling, said that the school prohibits students from participating in two sports during the same season. The activities director for Brandon Valley High School, Randy Marso, testified that the school board prohibits students from participating in two sports during the same season. Other schools, particularly smaller enrollment schools, not only do not prohibit such dual participation, but will accommodate such a desire. For example, Brian Field, a former athletic director, teacher and coach at Freeman High School (100 to 120 students attend the school), said that school will accommodate students who participate in two sports at once. In other schools, even though the school does not prohibit dual participation, some of the coaches discourage it. For example, Mateya Kuhlman, who will be a sophomore at Wagner High School, testified that she quit basketball in May because her coach asked her to choose between basketball
5

and gymnastics. The gymnastics coach at Wagner High School, Rebecca Breen, testified that some of the gymnasts on her team spoke with the basketball coach and the basketball coach did not think it would work to play both sports at the same time, so the students made a choice. In yet other schools, such as Mitchell High School, the students are not prohibited from dual participation. As an example, Jeana and Jenna Hoffman are not precluded from participating in gymnastics and basketball. They have however concluded that they should only do one or the other and they will choose basketball.
It is true that if the seasons were not switched, girls would not be faced with either having to make a choice or continuing to participate in both sports at the same time when before they had separate seasons for each sport. In either situation, it would from the participants point of view, be desirable to continue the schedules as they used to be. Desirability does not mean irreparable harm. Regarding the meaning of "irreparable harm," the Tenth Circuit aptly stated:
The concept of irreparable harm, unfortunately, 'does not readily lend itself to definition.' Wisconsin Gas Co. v. Federal Energy Regulatory Comm'n, 758 F.2d 669,674 (D.C.Cir.1985). Case law has provided some guidance, however, noting for example that the injury 'must be both certain and great,' id.; and that it must not be 'merely serious or substantial.' A.G. Smith Corp. v. FTC, 530 F.2d 515, 525 (3d Cir.1976). Cases have also noted that irreparable harm is often suffered when 'the injury can[not] be adequately atoned for in money,' id.; or when 'the district court cannot remedy [the injury] following a final determination on the merits.' American Hosp. Ass'n v. Harris, 625 F.2d 1328, 1331 (l980).
Prairie Band ofPotawatomi Indians v. Pierce, 253 F.3d 1234, 1250 (lOth Cir.2001). Plaintiffs have not shown that they will suffer a serious or substantial injury, and the parties agree that an action for damages is available to the Plaintiffs. Allowing the SDHSAA to go ahead with the season switch will cause the Plaintiffs to suffer some restriction of choice, but not irreparable harm.
2. Balancing of Harms The second area of inquiry is the state of balance between the alleged harm to the Plaintiffs
and the injury that granting the injunction will inflict upon other parties it effects. The defendant SDHSAA is composed of 196 high schools in the State of South Dakota, so the harm to those 196 entities, including their students, will be considered. The schedules are in place for athletics as well
6

as for other extra-curricular activities and they are interrelated because of common participants as well as dates and facilities. The facilities are also contracted for other uses. Coaches are under contract and in some instances could not be switched back. Referees are under contract and everyone has planned accordingly. Finally, the female athletes are anticipating a volleyball season, not a basketball season, this fall. It is not impossible for all of this, with a great deal of effort, to be changed. The result would have some rough spots, but it could be done before volleyball practice begins on August 19,2002. The rough spots would mean loss of optimal student opportunity for the activities. The balance ofthe equities is strongly in favor ofthe Defendants, which includes the 196 high schools and their students.
3. The Likelihood of Success on the Merits Plaintiffs do not claim that switching the seasons to be in line with the rest of the country
violates their rights, and they are not opposed to a season switch in two to four years. Rather, Plaintiffs claim that switching the seasons now rather than waiting two to four years forces the Plaintiff girls to make a choice that boys do not have to make, thus it discriminates against girls in violation oftheir statutory and constitutional rights. According to Plaintiffs, no boys will be forced to give up a high school sport of their choice in the middle or toward the end of their high school career after they have invested significant time and energy into that sport.
Based on the preliminary record, the Court is dubious that a constitutional claim of denial of either equal protection or due process is presented. To state a claim based on the Fourteenth Amendment, Plaintiffs must show that the Defendants treat Plaintiffs differently from boys. See United States v. Virginia, 518 U.S. 515, 532-33, 116 S. Ct. 2264, 135 L.Ed.2d 735 (1996). Once a plaintiff has demonstrated a gender classification, the burden shifts to the defendant to provide an "exceedingly persuasive" justification for the sex-based classification. Id., 518 U.S. at 533. The defendants must show that the classification "serves' important governmental objectives and that the discriminatory means employed' are 'substantially related to the achievement ofthose objectives.'" Td. (citation omitted). First of all, the evidence showed that the SDHSAA does not have a rule or regulation prohibiting students from participating in two sports in the same season. In addition, Mateya Kuhlman testified that she chose gymnastics and quit basketball based on representations made by the basketball coach about the difficulty of playing both sports, not because of a school
7

policy disallowing her participation in both sports. Likewise, Jeana and Jenna Hoffman are not precluded by school policy from participating in gymnastics and basketball, although they may choose not to do so. No evidence was presented at the preliminary hearing regarding the other named Plaintiffs, and the Court is not aware that any of the named Plaintiffs are precluded by their schools from playing both sports. Without such evidence, the Court cannot conclude that the named plaintiffs are forced to choose between sports. On the basis ofthe current record, the Plaintiffs could continue to engage in both gymnastics and basketball.
Although the Plaintiffs may participate in both sports, their manner of participation would differ significantly from that ofboy athletes. In order to maintain participation in the sports in which these girls have invested countless hours of hard work, they would need to compete in two sports during the winter season. Although boys are in some instances precluded from participating in two sports in one season, boys are not faced with an additional burden ofhaving to compete in two sports during a single season in order participate in the sports in which they are already invested. The girls would most likely be faced with long days involving two practice sessions plus, of course, school. They would likely have to choose which competitions they would attend in each of their respective sports in order to accommodate their dual participation thereby missing competitive opportunities in both sports. Boys would not be not be forced to struggle with these issues. Therefore, even assuming the Plaintiffs can participate in both sports, the Plaintiffs are still treated differently than the boys.
The Defendants argue that this discrepancy in treatment does not constitute an equal protection violation. As stated earlier, a showing of differential treatment standing alone does not establish a violation the equal protection clause. See Virginia, 518 U.S. at 532-33. Ifthe Defendants can provide an "exceedingly persuasive" justification for the distinction, then the classification can withstand an equal protection challenge. Id. Here the justification for the season switch is to remedy a constitutional wrong that has been occurring against South Dakota high school female athletes for years. The placement ofbasketball and volleyball in non-traditional seasons has been found in other cases to constitute a violation of both the equal protection clause and Title IX. See,~, Communities for Eguity, 178 F.Supp.2d 805, 817-828 (W.D. Mich. 2001) (findings of fact concerning harms to Michigan girls who play basketball and volleyball in disadvantageous seasons);
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Ries v. Montana High School Ass'n., Case No. 9904008792, slip op. (Mont. Dept. of Labor and Industry, Aug. 11, 2000) (administrative ruling detailing harms to girls as a result of defendant scheduling girls' basketball and volleyball during disadvantageous seasons). The Plaintiffs offered no argument distinguishing or impugning the validity these cases. Remedying an unconstitutional scheduling system would be an obligation of the SDHSAA. Failure to remedy such a situation would, and has, subjected the association to suit. Making the necessary changes to bring the schedule in compliance with constitutional requirements and the attendant circumstances thereto provide an "exceedingly persuasive" justification for the short-term disparate impact that unfortunately must be shouldered by the Plaintiffs.
The Court is also doubtful that Plaintiffs have stated a Title IX claim. Alleged Title IX violations in the area of athletics are often divided into effective accommodation claims and equal treatment claims. The SDHSAA changed the girls' volleyball and basketball seasons to equalize opportunities and to more effectively accommodate the interests offemale athletes. Title IX requires that such steps be taken when inequalities exist between the sexes. Plaintiffs still have an opportunity to participate in a sport in each of the three seasons, an opportunity which is on par with that presented to the boys. If abolishing a sport does not violate Title IX, see Chalenor v. Univ. of North Dakota, 291 F.3d 1042 (8th Cir. 2002)(elimination of wrestling program did not violate Title IX), switching the seasons of a sport to comply with Title IX cannot be a violation of Title IX.
Probability for success does not require Plaintiffs to show they have a 50% chance ofwinning on the merits, nor does it require a mathematical certainty. In Dataphase, the Court expressly rejected equating the "probability of success" element with a requirement that the moving party "prove a mathematical probability of success at trial." Dataphase, 640 F.2d at 113. In this case, the Plaintiffs' probability of succeeding on the merits is low.
4. The Public Interest The public has an interest in having all of its youth develop their full potentials through the
education process. The implementation ofthe switch ofseason does somewhat hamper that process for those girls who wish to compete in both high school basketball and gymnastics. The number of girls so situated was not established during the three days of testimony. It was established that in
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the school year 2001-2002 there were 318 girls participating in gymnastics and 3,466 girls participating in basketball. (Plaintiffs' Exhibit 1.) No figure for how many gymnasts also want to play basketball can be deduced from those statistics. In addition, we do not know how many ofthose who want to participate in both sports will still be able to do so. Finally, this is not a class action, so those unknown numbers cannot be considered in any event.
By comparison, there were 3,972 girls participating in volleyball in the 2001-2002 school year, together with the 3,466 in basketball. By having the seasons at non-traditional dates, each of the girls participating in volleyball and basketball in 2002-2003 will suffer some detriment if the seasons are not switched, as constitutional and Title IX violations have been found under similar circumstances. See, e.g., Communities for Equity, supra, 178 F.Supp.2d at 828 (W.D. Mich. 2001); Ries, Case No. 9904008792, supra.
The testimony established the values acquired or developed from participation in sports, with scholarships considered by the coaches and other educators to be a nice secondary bonus for the few more gifted athletes. Considering the benefits of participation with the season switch, female athletes will still be able to participate in a competitive high school sport in each ofthe three seasons. If in one of those seasons they can and do play both gymnastics and basketball, that is their choice in those schools which allow such a choice. In those schools which do not allow dual participation, and the record does not establish how many there are, then the athlete will have to choose, but they will still get their first choice.
It is also in the public interest that all girls in volleyball and basketball now be allowed, as was agreed in the Pedersen case, to participate in the traditional season, just as the boys have since organized sports began. On balance, the delay requested by the Plaintiffs, even though understandably desirable for the gymnasts, is an inadequate basis for changing the status quo of volleyball in the fall and basketball in the winter. This is especially so where this transition is to correct a clear inequity in girls athletics. After examining each of the four Dataphase factors,
IT IS ORDERED that the Motion for Preliminary Injunction is DENIED.
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13> Dated this

~
-day of July, 2002.

BY THE COURT()
c.:r~
awrence L. Piersol Chief Judge

ATTEST: JOSEPH HAAS, CLERK
Y.b~~~

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