No. 96-024 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

M.H., J.R., individually and by 

his parents, and next friends, 

M.H. and T.H., 

Plaintiffs and Respondents, 

MONTANA HIGH SCHOOL ASSOCIATION and 

the BOARD OF CONTROL of the Montana 

High School Association, and 

BUTTE HIGH SCHOOL, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable James E. Purcell, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Jock 0. Anderson, David C. Dalthorp; Gough, 

Shanahan, Johnson & Waterman, Helena, Montana 

For Respondents: 

David J. Wing; Hennessey, Joyce and Wing, 

Butte, Montana 

Filed: 

Submitted on Briefs: August 8, 1996 

Decided: December 11, 1996 
Justice Karla M. Gray delivered the Opinion of the Court. 

The Montana High School Association (MHSA) appeals from the 

Findings of Fact, Conclusions of Law and Order of the Second 

Judicial District Court, Silver Bow County, enjoining it from 

enforcing the "age rule" against M.H., Jr. (M.H.). We reverse. 

TThe issue on appeal is whether the District Court abused its 

discretion in granting a preliminary injunction against MHSA. 

Section 504/IDEA 

Resolution of this appeal depends, in large part, on the 

proper interpretation of Section 504 of the Rehabilitation Act of 

1973, 29 U.S.C. § 794(a) (§ 504), and the Individuals with 

Disabilities Education Act, 20 U.S.C. § 1400 through § 1491 (IDEA). 

Because of the importance of these federal statutes in 

understanding this case, we begin with a general overview of § 504 

and IDEA. 

Section 504 was enacted to address discrimination against 

disabled persons. It provides in pertinent part: 

No otherwise qualified individual with a disability in 

the United States . . . shall, solely by reason of her or 

his disability, be excluded from the participation in, be 

denied the benefits of, or be subjected to discrimination 

under any program or activity receiving Federal financial 

assistance. 

29 U.S.C. § 794(a). Section 504 is divided into different 

subsections which address subject matters ranging from education 

and employment to social services. See 34 C.F.R. 5 104. The § 504 

definition of disabled is broad and includes persons who have 

"physical or mental impairment which substantially limits one or 

2 
more major life activities." See 34 C.F.R. § 104.3(j). A student 

who meets all of the criteria of § 504 must be provided an 

OppOrtUnity to par’CiCipate in extracurricular activities, such as 

interscholastic athletic competitions, which is equal to that of 

other students. 34 C.F.R. § 104.37(a) (1) and (c) (1). 

IDEA originally was enacted to address the failure of state 

education systems to recognize and meet the educational needs of 

children with disabilities. 20 U.S.C. § 1400. IDEA is much 

narrower than 5 504 with regard to the types of disabilities which 

are protected. Compare 20 U.S.C. § 1401(a) with 29 U.S.C. § 

706(7)(B) and 34 C.F.R. 5 104.3(j). For example, IDEA lists 

specific disabilities, such as mental retardation, blindness and 

deafness, which qualify a student for IDEA assistance. See 20 

U.S.C. § 1401(a)(l) (i). Thus, all students who are qualified under 

IDEA also fall within the anti-discrimination protections of 5 504; 

however, all § 504 students are not necessarily IDEA-qualified. 

State and local education agencies are required to provide 

children who qualify as disabled under IDEA with free and 

appropriate public education which means, in part, special 

education and related services provided in conformity with an 

individualized education program (IEP) See 20 U.S.C. §§ 1400(c), 

1415; 34 C.F.R. § 300.8(d). An IEP, as that term is used in IDEA, 

is a formal written statement developed for an IDEA-qualified 

disabled student; an IEP must specify the student's educational 

goals, objectives, curriculum and related services and be in effect 

3 
before special education is provided to the child. See 20 U.S.C. 

§ 1401(a) (20); 34 C.F.R. §§ 300.340, 300.342, 300.346. 

"Each public agency must provide special education and related 

services to a child with a disability in accordance with an IEP." 

34 C.F.R. § 300.350. "Related services," as that term is used in 

IDEA, includes recreational activities where such activities are 

required to assist an IDEA-qualified disabled student in 

benefitting from special education. 20 U.S.C. § 1401(17). Thus, 

where an IEP contains a requirement for participation in 

extracurricular activities, for example, interscholastic sports, 

such participation is ~encompassed in the student's guaranteed right 

to free and appropriate public education. See 20 U.S.C. §§ 

1400(c), 1401(17), (18) and (20); 34 C.F.R. §§ 300.1, 300.8, 

300.16, 300.350. 

Facts 

MHSA is a nonprofit association incorporated under the laws of 

Montana. Membership in MHSA is voluntary and is comprised of 

various public and private high schools, including Butte High 

School. MHSA has the exclusive authority to supervise, control, 

regulate and administer interscholastic activities among member 

high schools. To that end, MHSA has enacted by-laws and rules 

governing member high schools, including rules addressing 

eligibility requirements for participating in interscholastic 

athletic competitions. MHSA has the power to sanction and penalize 

a member school which allows an ineligible student to participate 

in such competitions. 

4 

-. 
Two MHSA by-laws are at issue here. The first is a by-law 

commonly referred to as the "age rule." It provides, in pertinent 

part, that "[nlo student is eligible to participate in an 

Association contest [including interscholastic athletic 

competitions] who has become nineteen (19) years old on or before 

midnight, August 31, of a given year." Montana High Sch. Ass'n 

Official Handbook (1995-1996), By-Laws, Article II, Section (8), p. 

19. The second is a by-law entitled "IDEA/SECTION 504 AGE RULE 

APPEALS" (IDEA/§ 504 appeals rule) which provides that a "special 

education" student may appeal an MHSA ineligibility decision made 

under the age rule. Under the IDEA/§ 504 appeals rule, the 

appealing student has the burden of proof with regard to six 

enumerated requirements. See Montana High Sch. Ass'n Official 

Handbook (1995-1996), By-Laws, Article VII, Subsection (B) (4), p. 

31. 

Here, M.H. repeated both kindergarten and the third grade due 

to difficulties in school. In November of 1985, during his second 

year in the third grade, M.H. was referred to special education and 

a Child Study Team (CST) determined that M.H. was "Learning 

Disabled" due to difficulties with reading and spelling. After 

completing his freshman year at Butte High School in 1993, M.H. was 

diagnosed with Attention Deficit Disorder (ADD). 

During his freshman through junior years at Butte High School, 

M.H. competed in both wrestling and football. As a result of 

repeating kindergarten and the third grade, he turned nineteen 

prior to beginning his senior year. In May of 1995, just before 

5 
M.H. turned nineteen years of age, a CST determined that M.H. 

qualified as a § 504 student due to difficulties in English 

resulting from his ADD. M.H. did not qualify as a disabled student 

under IDEA. 

Joseph Masolo (Masolo), a 5 504 coordinator for the Butte 

public schools, made written recommendations regarding M.H. in a 

one-page letter. Specifically, Masolo recommended that M.H. 

continue to participate in wrestling to insure "academic success 

for the 1995-96 school [year]." Masolo later stated that his 

letter was an "IEP" developed pursuant to Montana guidelines for § 

504 students. & Montana Office of Public Instruction, Section 

504 Guidelines for Educators (1995) COP1 guidelines). Masolo 

correctly noted, however, that § 504, unlike IDEA, does not require 

the development of an IEP. He acknowledged that, while OPI 

guidelines recommend development of an "IEP" for 5 504 students, 

such a 5 504 "IEP" can be informal and even verbal. Moreover, 

Masolo recognized--and it is undisputed in this case--that the 

recommendations he developed for M.H. fall far short of the 

requirements for an IEP under IDEA. 

On behalf of M.H., Daniel J. Peters (Peters), the principal of 

Butte High School, petitioned MHSA for waiver of the age rule to 

allow M.H. to participate in wresting and football during the 1995- 

1996 school year. MHSA held a telephone hearing on the petition, 

during which Peters explained that M.H.'s parents requested that 

the age rule be waived due to M.H.'s ADD. MHSA denied the request. 

6 
M.H. appealed MHSA's decision pursuant to the IDEA/§ 504 

appeals rule. MHSA conducted a hearing and received evidence 

according to the procedure provided for such appeals. & Montana 

High Sch. Ass'n Official Handbook (1995-1996), By-Laws, Article 

VII, Subsection (B) (3), p. 30. Thereafter, it denied M.H.'s appeal 

on the basis that M.H. failed to prove, as required by Article VII, 

Subsection (B) (4), that: (1) he would not create a safety risk to 

other players; (2) he would not skew the overall competitiveness of 

the particular activities in which he would participate; and (3) 

his participation would not result in the exclusion of other 

eligible players. 

M.H., individually and by his parents, filed a complaint and 

a motion for a preliminary injunction against MHSA in November of 

1995, based primarily on IDEA. MHSA opposed M.H.'s motion for a 

preliminary injunction. It argued that M.H. had not been 

classified as a disabled student under IDEA, had not received any 

services under IDEA, had no IEP under IDEA and, therefore, was not 

entitled to the rights and protections afforded by IDEA. 

The District Court held a hearing on M.H.'s motion for a 

preliminary injunction. M.H. indicated at the beginning of the 

hearing that he had spoken with MHSA about his intent to amend his 

complaint. Although M.H. did not file an amended complaint, he 

stated that he would be asserting a claim based on § 504 and 

Article VII, Subsection (B) (4) of the MHSA by-laws; he further 

indicated that he would be deleting the cause of action based on 

IDEA. MHSA stated that it had no objection to such an amendment of 

7 
the complaint. Accordingly, the record before us contains evidence 

and arguments primarily related to § 504. 

The District Court concluded that M.H. had a federally 

protected right to participate in wrestling for the 1995-1996 

school year and that MHSA's denial of M.H.'s application for a 

waiver of the age rule was arbitrary and capricious and denied 

M.H.'s due process rights. Thus, having implicitly concluded that 

~M.H. likely would prevail on his underlying § 504 claim, the court 

further concluded that M.H. would suffer irreparable injury if MHSA 

enforced the age rule during the pendency of this case. 

Accordingly, the court granted M.H.'s motion for a preliminary 

injunction and enjoined MHSA from enforcing the age rule against 

M.H. MHSA appeals. Additional facts are set forth below where 

necessary. 

Discussion 

Did the District Court abuse its discretion in granting 

a preliminary injunction against MHSA? 

Section 27-19-201, MCA, which sets forth when a preliminary 

injunction may be granted, provides in relevant part: 

An injunction order may be granted in the following 

cases: 

(1) when it appears that the applicant is entitled 

to the relief demanded and the relief or any part of the 

relief consists in restraining the commission or 

continuance of the act complained of, either for a 

limited period or perpetually; 

(2) when it appears that the commission or 

continuance of some act during the litigation would 

produce a great or irreparable injury to the applicantL.1 

An applicant for a preliminary injunction must either establish a 

prima facie case on the underlying claim or show that it is at 

8 
least doubtful whether he or she will suffer irreparable injury 

before an adjudication on the merits. Knudson v. McDunn (1995), 

271 Mont. 61, 65, 894 P.Zd 295, 298 (citing Porter v. K & S 

Partnership (1981), 192 Mont. 175, 181, 627 P.2d 836, 839). 

Granting a preliminary injunction is within a district court's 

discretion, and we will not interfere unless a manifest abuse of 

discretion is shown. J.M., Jr. v. Montana High School Ass'n 

(1994), 265 Mont. 230, 235, 875 P.2d 1026, 1030 (citing Frame v. 

Frame, (1987), 227 Mont. 439, 444, 740 P.2d 655, 659). Where, 

however, the granting of such an injunction is based on a 

conclusion of law, no discretion is involved and we review the 

district court's conclusion of law to determine whether the 

interpretation of the law is correct. -I J.M. 875 P.2d at 1030 

(citation omitted). 

A. Applicability of T.H. 

The District Court 'relied on T.H. v. Montana High Sch. Ass'n 

(D. Mont., Sept. 24, 1992), CV-92-150-BLG-JFB, in concluding that 

M.H. had a federally protected right, by virtue of the " IEP" 

prepared by Masolo, to participate in wrestling during the 1995- 

1996 school year. T.H. is distinguishable and, indeed, we 

distinguished T.H. in J.M. prior to the District Court's decision 

in the case presently before us. J.M. is dispositive here with 

regard to whether, absent an IEP pursuant to IDEA, a learning 

disabled student has a federally protected right to participate in 

interscholastic sports. 

9 
J.M. involved a Butte Central High School student who repeated 

the eighth grade due to difficulties in school. As a result, J.M. 

became ineligible to participate in football and wrestling during 

his senior year due to MHSA's maximum participation eligibility 

requirements. ~, J.M. 875 P.2d at 1028. Two MHSA rules were at 

issue: the first provided that a student who has attended a 

secondary school more than eight semesters was ineligible to 

participate in an Association Contest (eight semester rule); the 

second provided that "[nlo student shall be eligible to participate 

in an Association Contest during more than four seasons in any one 

sport" (four seasons rule). J.M. -I 875 P.2d at 1028. 

MHSA determined that J.M. was ineligible to participate in 

wrestling and football for the 1993-1994 school year and J.M. 

appealed. MHSA held an eligibility hearing and subsequently denied 

J.M.'s request to waive the four season rule for the fall semester, 

but approved his request for a waiver of the eight semester rule 

for the spring semester. The basis for MHSA's decision was that 

J.M. already had competed in four seasons of fall sports, such as 

football, but had only competed in three seasons of spring sports. 

-I J.M. 875 P.2d at 1029. 

J.M. sued MHSA, arguing that he had constitutional and 

statutory rights under IDEA to participate in fall semester sports. 

The district court issued a temporary restraining order against 

MHSA and, as a result, J.M. was permitted to participate in 

football during the pendency of his case. Thereafter, MHSA moved 

to dissolve the restraining order and an evidentiary hearing was 

10 
held. The district court preliminarily enjoined MHSA from 

enforcing its four seasons rule against J.M. and from imposing 

sanctions against Butte Central. Its order was based on IDEA and 

T.H. -, J.M. 875 P.2d at 1029. 

We discussed T.H. at length in J.M. See -I J.M. 875 P.2d at 

1030-32. T.H. involved a nineteen year old high school student who 

had an IEP pursuant to IDEA and who became ineligible to 

participate in interscholastic sports due to MHSA's age rule. 

J.M. -I 875 P.2d at1030-31. T.H.'s IEP expressly required continued 

participation in interscholastic sports as a motivational tool. 

J.M. -I 875 P.2d at 1031. T.H. sued in federal district court to 

enforce his rights under IDEA. 

The federal district court recognized that, ordinarily, 

students do not have a constitutional right to participate in 

interscholastic sports; rather, it is a privilege which may be 

withdrawn. J.M., 875 P.2d at 1031. It determined, however, that 

an IDEA-qualified student's guaranteed right to a free and 

appropriate public education and related services includes 

participation in interscholastic sports where such participation is 

included as a component of the student's IEP. -, J.M. 875 P.2d at 

1031. On that basis, the court concluded that T.H.'s privilege to 

participate in interscholastic sports had been transformed into a 

federally protected right by virtue of his IEP under IDEA and, 

further, that MHSA denied T.H. due process of law in failing to 

conduct an appropriate inquiry before depriving T.H. of that right. 

-I J.M. 875 P.2d at 1031. Accordingly, the court preliminarily 

11 
enjoined MHSA from enforcing its age rule against T.H. until an 

appropriate inquiry could be conducted. J.M., 875 P.2d at 1031. 

MHSA enacted the IDEA/§ 504 appeals rule and the hearing standards 

therein in response to T.H. See J.M., 875 P.2d at 1031. 

We distinguished T.H. from the situation before us in J.M. 

Unlike T.H. the student in J.M. -I 

had a specialized educational program, [but] he was not 

participating in a formal, written IEP established under 

the statutory and administrative mechanism mandated by 

IDEA and its implementing regulations. 

-I J.M. 875 P.2d at 1032. Thus, the dispositive elements on which 

the T.H. court based its conclusion that a federally protected 

right existed--namely, that the student had a formal, written IEP 

under IDEA which required his participation in interscholastic 

sports--were not present in J.M. J.M. , 875 P.2d at 1033. We held, 

therefore, that the district court improperly elevated J.M.'s 

privilege of participating in interscholastic sports to a federally 

protected right under IDEA. -, J.M. 875 P.2d at 1033. 

T.H.'s federally protected right to participate in 

interscholastic sports derived solely from the express requirements 

of his IDEA IEP. J.M. and the present case share the same 

dispositive fact which distinguish them from T.H.: in each case, 

the student did not have an IEP developed pursuant to IDEA which 

required his participation in interscholastic sports. 

Consequently, J.M. controls and renders erroneous the elevation of 

a privilege into a federally protected right, pursuant to an IDEA 

IEP, in this case. As was the case in -I J.M. the District Court's 

reliance on T.H. under these facts was misplaced. 

12 
B. Section 504 

The District Court recognized that a "distinguishing feature" 

of this case, when compared to T.H., is that M.H.'s "IEP" was 

pursuant to § 504 while T.H.'s was pursuant to IDEA. Based on its 

review of the OPI § 504 guidelines and a federal regulation, 

however, the court concluded that "this is a distinction without a 

difference." We disagree. 

The OPI guidelines provide guidance and set forth 

recommendations for educators in dealing with § 504 students. The 

appendix to the OPI guidelines includes the text of 34 C.F.R. § 

104.33 (b), which defines what constitutes an "appropriate 

education" under 5 504 and provides, in relevant part: 

(1) For the purpose of this subpart, the provision of an 

appropriate education is the provision of regular or 

special education and related aids and services that (i) 

are designed to meet individual educational needs of 

handicapped persons as adequately as the needs of 

nonhandicapped persons are met. 

(2) Implementation of an [IEPI developed in accordance 

with [IDEA] is one means of meeting the standard 

established in paragraph (b) (1) (i) of this section. 

As is clear from its express language, 34 C.F.R. § 104.33(b) (2) 

does not require the development of an IEP for § 504 students. 

Moreover, neither the foregoing regulation nor the OPI guidelines 

renders a student's rights under § 504 and IDEA equivalent. 

Indeed, they are incapable of doing so because the differences 

between a student's rights under § 504 and a student's rights under 

IDEA are statutory. We conclude, therefore, that the OPI 

guidelines and federal regulation relied on by the District Court 

do not support its determination that the differences between 

13 
M.H.'s one-page letter "IEP" under § 504 and T.H.'s IDEA IEP is "a 

distinction without a difference." 

Moreover, recent cases from the United States Circuit Courts 

of Appeals clarify that § 504 is an anti-discrimination statute 

which does not confer any special rights on disabled persons beyond 

the right to be free from discrimination based solely on 

disability. Pottgen v. Missouri State High Sch. Activities Ass'n 

(8th Cir. 1994), 40 F.3d 926, involved a Missouri high school 

student who had repeated two grades in elementary school due to a 

learning disability and turned nineteen before beginning his senior 

year of high school. Like MHSA, the Missouri State High School 

Activities Association (MSHSAA) has an age rule which prohibits a 

student who turns nineteen prior to a certain date from 

participating in interscholastic sports. As a result, Pottgen was 

ineligible to play baseball during his senior year of high school. 

Pottqen, 40 F.3d at 927-28. 

Pottgen petitioned the MSHSAA for a "hardship" waiver since he 

was held back in school due to learning disabilities. MSHSAA 

denied his petition and Pottgen sued in federal court based, in 

part, on § 504. Pottqen, 40 F.3d at 928. The district court 

granted a preliminary injunction enjoining MSHSAA from enforcing 

its age rule. Pottgen, 40 F.3d at 928. 

In addressing MSHSAA's appeal, the Eighth Circuit recognized 

that § 504 prohibits discrimination against an "otherwise qualified 

individual" on the basis of his or her disability and set forth a 

two-part test for determining whether a student is an "otherwise 

14 
qualified individual." A court must determine both whether the 

individual meets all of the essential eligibility requirements and 

whether reasonable modifications exist. Pottqen, 40 F.3d at 929. 

The Eighth Circuit concluded that MSHSAA had demonstrated that 

the age rule is an essential eligibility requirement because 

[a]n age limit helps reduce the competitive advantage 

flowing to teams using older athletes; protects younger 

athletes from harm; discourages student athletes from 

delaying their education to gain athletic maturity; and 

prevents over-zealous coaches from engaging in repeated 

red-shirting to gain a competitive advantage. These 

purposes are of immense importance in any interscholastic 

sports program. 

Pottsen, 40 F.3d at 929. However, even though Pottgen could not 

meet this essential eligibility requirement, he would still be an 

"otherwise qualified individual" for § 504 anti-discrimination 

purposes if reasonable accommodations would enable him to meet the 

age limit. Pottqen, 40 F.3d at 929 (citations omitted). 

The Eighth Circuit noted that, since Pottgen already had 

exceeded MSHSAA's age limit, the only possible accommodation would 

be to waive the age rule. It rejected Pottgen's contention that a 

waiver would be a reasonable accommodation, however, concluding 

that the waiver of an essential eligibility standard would 

constitute a fundamental alteration in the nature of the baseball 

program and that accommodations which require such a fundamental 

alteration are not reasonable. Pottqen, 40 F.3d at 930. Observing 

that "[slection 504 was designed only to extend protection to those 

potentially able to meet the essential eligibility requirements of 

a program or activity," the Eighth Circuit held that Pottgen was 

15 
not an "otherwise qualified individual." Pottqen, 40 F.3d at 930 

(citation omitted). 

In Sandison v. Michigan High Sch. Athletic Ass'n (6th Cir. 

1995), 64 F.3d 1026, the Sixth Circuit followed the Pottqen 

analysis of § 504's "otherwise qualified individual" language in a 

similar age rule case. See Sandison, 64 F.3d at 1034-35. Sandison 

involved two Michigan high school students who were held back in 

school due to learning disabilities and became nineteen prior to 

beginning their senior year in high school. Under the Michigan 

High School Athletic Association (MHSAA) age rule, students who 

become nineteen prior to a certain date are prohibited from 

participating in interscholastic sports. Sandison, 64 F.3d at 

1028. 

The students sued MHSAA in federal district court, based on § 

504, and the court held that the students were "otherwise 

qualified" and discriminated against based on their disabilities. 

The federal district court preliminarily enjoined MHSAA from 

enforcing its age rule against the students. Sandison, 64 F.3d at 

1029. 

The Sixth Circuit relied on Pottqen and concluded, on the 

record before it, that the age rule is a necessary requirement of 

interscholastic sports programs and that waiver of the rule 

fundamentally alters such programs. Sandison, 64 F.3d at 1035. 

The court observed that a "significant peculiarity" exists in 

attempting to characterize waiver of the age rule as a "reasonable 

16 
accommodation" of a student's learning disabilities. andison, 64 

F.3d at 1035. 

Ordinarily, an accommodation of an individual's 

disability operates so that the disability is overcome 

and the disability no longer prevents the individual from 

participating. In this case, although playing high 

school sports undoubtedly helped the [students] progress 

through high school, the waiver of the age restriction is 

not directed at helping them overcome learning 

disabilities; the waiver merely removes the age ceiling 

as an obstacle. 

Sandison, 64 F.3d at 1035. 

The Sixth Circuit also considered the "solely by reason of . 

disability" language of 5 504 in the context of MHSAA's age 

rule. Sandison, 64 F.3d at 1031-33. It noted that the age rule 

did not preclude the students from participating in interscholastic 

sports until they turned nineteen and, therefore, the rule was 

neutral with respect to disability. Sandison, 64 F.3d at 1032. 

Accordingly, the Sixth Circuit concluded that the age rule does not 

exclude students "solely by reason of" their disabilities; rather, 

it excludes students "'solely by reason of' age, not disability." 

Sandison, 64 F.3d at 1035. 

Both Pottcren and Sandison involved appeals from preliminary 

injunctions enjoining enforcement of age eligibility requirements 

for interscholastic sports. In both cases, the Circuit Courts of 

Appeals held that the preliminary injunctions were improperly 

granted because the students had virtually no likelihood of success 

on the merits of their § 504 claims. See Pottqen, 40 F.3d at 930- 

31; Sandison, 64 F.3d at 1035. 

15 
In the present case, the District Court implicitly concluded 

that M.H. likely would prevail on his underlying 5 504 claim. The 

court then specifically granted the preliminary injunction on the 

basis that M.H. would suffer irreparable injury if it did not 

enjoin MHSA from enforcing its age rule. 

The two statutory bases for granting a preliminary injunction 

at issue here--namely, the "likelihood of success on merits" basis 

and the "irreparable injury I' basis as set forth in 55 27-19-201(l) 

and (2), MCA, respectively--are not unrelated. "Injury" is defined 

as "[a]ny wrong or damage done to another, either in his person, 

rights, reputation, or property." BLACK's LAW DICTIONARY, 924 (1968). 

Thus, the irreparable injury basis for granting preliminary 

injunctions is based on an implicit determination that the 

applicant is likely to succeed on his or her underlying claim and, 

as a result, would suffer a "wrong or damage done to . his 

person, rights, reputation, or property" if some act were committed 

or allowed to continue during the litigation. 

Similarly, we previously have indicated that a likelihood of 

success on the merits is not always sufficient, in and of itself, 

to warrant injunctive relief. See Porter, 627 P.2d at 840. There 

must also be a showing that, absent a preliminary injunction, the 

applicant would suffer harm which could not be adequately remedied 

after a trial on the merits and, therefore, a preliminary 

injunction is necessary to maintain the status quo and minimize 

harm to the parties. See Porter, 627 P.2d at 839-40. In other 

words, the applicant also must make a showing of irreparable harm. 

18 
In the present case, the District Court's conclusion that M.H. 

would suffer irreparable injury presupposes that enforcement of 

MHSA's age rule would constitute a wrong or damage to M.H.'s right 

to participate in interscholastic sports. As is clear from J.M. 

and our discussion above, however, participation in interscholastic 

sports is a privilege, not a right, except in extremely limited 

circumstances not present here. & J.M. -I 875 P.2d at 1031-32. 

Thus, the District Court's implicit conclusion that M.H. would 

likely succeed on the merits of his ~underlying § 504 claim was 

erroneous. 

We previously have indicated that an applicant for a 

preliminary injunction need not make a case that would entitle him 

or her to relief at a trial on the merits; an applicant must prove 

only a probable right and a probable danger that such right will be 

denied absent injunctive relief. See Porter, 627 P.2d at 840; 

Boyer v. Karagacin (1978), 178 Mont. 26, 33, 582 P.2d 1173, 1177. 

Indeed, we consistently have held that district courts cannot issue 

preliminary injunctions absent the applicant establishing a prima 

facie case on the underlying claim or, based on the showing made, 

that it is at least doubtful whether or not the applicant will 

suffer irreparable injury before adjudication of his or her rights. 

See, e.q., Porter, 627 P.2d at 839; Bayer, 582 P.2d at 1177-78. 

Here, the District Court concluded that M.H. would suffer 

irreparable injury based on its erroneous conclusion that M.H. had 

a federally protected right to participate in interscholastic 

sports. We hold that the District Court erred in concluding that 

19 
M.H. would suffer irreparable injury and, therefore, that the court 

manifestly abused its discretion in granting a preliminary 

injunction against enforcement of MHSA's age rule. We reverse, 

dissolve the injunction and remand for such further proceedings as 

may be appropriate, consistent with this opinion. 

We concur: 

Justices 

20 
Justice Terry N. Trieweiler dissenting. 

I dissent from the majority opinion. 

I agree with the District Court's conclusion that whether 

M.H.'s independent education program was implemented pursuant to 

§ 504 of the Rehabilitation Act of 1973, or the Individuals With 

Disabilities Education Act is a distinction without a difference. 

Although not necessary to the implementation of § 504 

services, an independent education program is one alternative 

method of complying with the requirements of 5 504 of the 

Rehabilitation Act. The following 

the significance of an independent 

context of 5 504. 

federal regulations illustrate 

education program (IEP) in the 

34 C.F.R. 5 104.1 provides that: 

The purpose of this part is to effectuate section 

504 of the Rehabilitation Act of 1973, which is designed 

to eliminate discrimination on the basis of handicap in 

any program or activity receiving Federal financial 

assistance. 

34 C.F.R. 5 104.33(a) provides that: 

A recipient that operates a public elementary or 

secondary education program shall provide a free 

appropriate public education to each qualified 

handicapped person who is in the recipient's 

jurisdiction, regardless of the nature or severity of the 

person's handicap. 

34 C.F.R. 5 104.33(b) gives the following explanation of what 

is included in an "appropriate public education": 

(1) For the purpose of this subpart, the provision 

of an appropriate education is the provision of regular 

or special education and related aids and services that 

(i) are designed to meet individual educational needs of 

handicapped persons as adequately as the needs of 

nonhandicapped persons are met and (ii) are based upon 

21 
adherence to procedures that satisfy the requirements of 

§§ 104.34, 104.35, and 104.36. 

Although an individualized education program is not necessary 

to satisfy the 5 504 requirement for "appropriate public 

education," it is one acceptable method of complying with that 

requirement. 34 C.F.R. 5 104.33(b) (2) provides: 

Implementation of an individualized education 

program developed in accordance with the Education of the 

Handicapped Act is one means of meeting the standard 

established in paragraph (b) (1) (i) of this section. 

In other words, when an individualized education program is 

developed for § 504 students to satisfy the requirement that an 

appropriate public education is being provided by designing 

services necessary to meet an individuals educational needs, that 

IEP is developed to satisfy the secondary education program's 

federal obligation to that student. Therefore, an IEP developed 

pursuant to these regulations is no less a federally-protected 

right than an IEP developed pursuant to 20 U.S.C. 5 1401(18) of the 

IDEA. Logically, when participation in interscholastic sports is 

included as a component of an IEP developed for § 504 students, it 

is also a federally-protected right. 

The Montana High School Association (MHSA) was a party to T.H. 

v.MontanaHighSchoolAssociation (D. Mont. Sept. 24, 1992), CV 92-150-BLGJFB. It did not appeal from the Federal District Court's adverse 

decision in that case, and is therefore collaterally estopped from 

denying its applicability based on subsequent decisions by federal 

courts of appeal in other circuits. 

22 
In the relevant part of the TH decision, Federal District 

Court Judge Battin held that: 

20 U.S.C. 5 1400(c) guarantees T.H. the right to a free 

and appropriate public education, "provided in conformity 

with [an] individualized education program II 

20 U.S.C. 5 1401(18); 34 C.F.R. § 300.4: . 'When 

participation in interscholastic sports is included as a 

component of an IEP as a "related service," see 20 U.S.C. 

5 1401(l), (171, the "privilege" of competing in 

interscholastic sports is transformed into a federally 

protected right. 

8. Because T.H. has a federally protected right, 

and not a mere privilege, to participate 

interscholastic sports, due process required that t?$ 

MHSA conduct meaningful, individualized inquiry into 

T.H.'s request for a waiver from the age rule. . . By 

failing to conduct a case-specific factual inquiry into 

T.H.'s request for a waiver, and by denying a waiver 

without a sufficient evidentiary basis for that decision, 

the MHSA has made a mockery of the waiver provisions. 

. . . 

10. In this context, due process requires that the 

MHSA conduct an individualized inquiry to determine 

whether any of the four stated concerns underlying the 

age rule are implicated and violated by T.H.'s 

participation in interscholastic sports, before it may 

deny waiver of that rule. The mere fact that T.H. is 

over the stated age limit justifies initial application 

of the rule, but does not justify a refusal to waive the 

rule, where a federally protected right to participate is 

concerned. 

11. 

First, the MHSA must conduct a hearing and determine 

whether T.H.'s participation in interscholastic sports 

actually creates a safety risk to other players. . 

Next, the MHSA must determine whether T.H.'s 

participation would skew the overall competitiveness of 

the particular interscholastic sports events. . 

Likewise, the MHSA must specifically determine 

whether Plaintiff's participation would result in the 

exclusion of other eligible players, and other facts 

relevant to intra-team competition. 

23 
T.H., CV 92-150-BLG-JFB, slip op. at 9-12 (footnote omitted) 

It is clear from the District Court's findings of fact in this 

case that MHSA did not conduct the kind of hearing, nor make the 

kind of findings which would enable M.H., his family, or the 

District Court to understand the impact of his participation on the 

safety of other students, whether his participation would skew 

competitiveness in his events, or the effect of his participation 

on other athletes. Absolutely no findings were made in this regard 

by the MHSA. Instead, it simply shifted the burden to M.H. to 

prove that these consequences would not occur, and concluded he had 

not done so. More is required to dispense with the rights provided 

by federal law. 

The MHSA has not contended on appeal that the District Court's 

findings of fact were clearly erroneous. Therefore, based on the 

law which is applicable to this case, the following findings by the 

District Court are dispositive: 

7. . . . It was determined by the Child Study Team 

that M. H. Jr. should receive Section 504 services, 

because of the discrepancy between the ability of M. H. 

Jr. to perform well in math and his actual achievements 

in math. It was further determined that M. H. Jr.'s 

"I.E.P. will be written by Mr. Masolo (504)". An I.E.P. 

is an Individualized Education Program and Section 504 

refers to Section 504 of the Federal Rehabilitation Act 

of 1973, 29 U.S.C. Section 794. 

. 

9. . The Child Study Team determined that 

"[M.H.] does much better in his school work when he is 

involved in wrestling. The Child Study Team strongly 

recommended that [M.H.] participate in wrestling for the 

1995-96 school year." Accordingly, Mr. Masolo, acting 

pursuant to the directions of the Child Study Team, set 

24 
forth the following accommodation in writing for M. H. 

Jr.: 

ACCOMMODATION 

1. The 504 coordinator will monitor 

[M.H.] in his math class on a 

monthly basis. 

2. [M.H.] should be involved in 

wrestling to insure even great 

academic success for the 1995-96 

school [year]. 

10. The above special education program has been in 

place for M. H. Jr. since he began his senior year at 

Butte High School for the 1995-96 school year. . 

. . 

23. The record before this Court does not convince 

it that the MHSA conducted such an individualized, 

factual inquiry. The only official form that was adopted 

by the MHSA seeking facts related to the above three 

concerns was a form that was to be used when an appeal of 

the age rule was requested. This form was Plaintiffs' 

Exhibit 2B and it asks only for limited general 

information. No other directions are given to the 

student seeking the waiver or the student's 

representative as to the information that should be 

provided to the MHSA. 

24. The minutes of the first meeting that was held 

with regard to the appeal (Pi's Exh. 6) set forth no 

facts relating to the three concerns underlying the age 

rule, other than reciting that a poll of the schools 

against whom M. H. Jr. might be competing in football and 

in wrestling revealed that seven schools opposed his 

participation in football and seven schools were in favor 

of it. With regard to wrestling, twenty-two schools did 

not object to him participating in wrestling, and eleven 

schools did object. 

25. The minutes of the second hearing where the 

request for the waiver from the age rule was discussed 

(see Defendants' Exhibit A) are even briefer, stating 

only that the motion was denied after much discussion. 

There is nothing before the Court that would indicate 

what, if any, pertinent facts were discussed. 
26. The letter from Dan L. Freund (Pi's Exh. 9) 

stating that the appeal was denied also sets forth no 

facts upon which the board's decision could be based. 

27. In view of the extremely sparse documentary 

record relating to the deliberations of the MHSA, the 

Court finds that the testimony of Leo Wohler and Dan 

Freund was not credible. 

The majority opinion constructs a substantive difference, 

where none exists, between those rights created by the Individuals 

with Disabilities Education Act and the Federal Rehabilitation Act 

of 1973. In the process, the majority arbitrarily denies 

procedural safeguards to one class of handicapped students, while 

implicitly recognizing the need for procedural safeguards for a 

different class of handicapped students. Whether analyzed in terms 

of the law, or common sense, that distinction is indefensible. 

The District Court's decision was comprehensive, well 

reasoned, and fully supported by the record in this case. I would 

affirm the District Court's judgment, and for the reasons given, 

dissent from the majority opinion. 

/” 

us *ce 

Chief Justice J. A. Turna 

in the foregoing dissent