No. 96-024 IN THESUPREME

COURTOFTHESTATEOFMONTANA 1996

M.H., J.R., individually andby his parents, andnext friends, M.H. andT.H.,

Plaintiffs andRespondents,

MONTANAHIGHSCHOOLASSOCIATIONand the BOARDOFCONTROLof the Montana High School Association, and BUTTEHIGHSCHOOL,

Defendants andAppellants.

APPEALFROM: District Court of the SecondJudicial District,

In andfor the County of Silver Bow, TheHonorable JamesE. Purcell, Judge presiding.

COUNSELOFRECORD:

For Appellants: Jock 0. Anderson, David C. Dalthorp; Gough, Shanahan, Johnson &Waterman, Helena, Montana For Respondents: David J. Wing; Hennessey, Joyce andWing, Butte, Montana

Filed: Submitted onBriefs: August 8, 1996 Decided: December 11, 1996Justice 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.). Wereverse. TTheissue onappeal is whether the District Court abused its discretion in granting apreliminary injunction against MHSA. Section 504/IDEA Resolution of this appeal depends, in large part, on the proper interpretation of Section 504of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (§ 504), and the Individuals with Disabilities Education Act, 20U.S.C. §1400through §1491 (IDEA). Because of the importance of these federal statutes in understanding this case, webegin with ageneral overview of §504 and IDEA. Section 504 was enacted to address discrimination against disabled persons. It provides in pertinent part: Nootherwise qualified individual with adisability in the United States

. . .shall, solely byreason of her or his disability, beexcluded from the participation in, be denied the benefits of, orbesubjected to discrimination under anyprogram oractivity receiving Federal financial assistance. 29 U.S.C. § 794(a). Section 504 is divided into different subsections which address subject matters ranging from education andemployment to social services. See34C.F.R. 5104. The§504 definition of disabled is broad and includes persons who have "physical or mental impairment which substantially limits one or

2more major life activities." See34C.F.R. §104.3(j). Astudent

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. 34C.F.R. §104.37(a) (1) and (c)(1). IDEAoriginally was enacted to address the failure of state education systems to recognize andmeet the educational needs of children with disabilities. 20 U.S.C. § 1400. IDEA is much

narrower than 5504with 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 asmental retardation, blindness and deafness, which qualify a student for IDEA assistance. See 20 U.S.C. §1401(a)(l) (i). Thus, all students whoare qualified under IDEAalso fall within the anti-discrimination protections of 5504; however, all §504students 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) See20U.S.C. §§1400(c), 1415; 34C.F.R. §300.8(d). AnIEP, asthat term is used in IDEA, is a formal written statement developed for an IDEA-qualified disabled student; an IEPmust specify the student's educational goals, objectives, curriculum andrelated services andbein effect

3before special education is provided to the child. See20U.S.C.

§1401(a) (20); 34C.F.R. §§300.340, 300.342, 300.346. "Eachpublic agencymustprovide special education andrelated services to achild with adisability in accordance with anIEP." 34C.F.R. §300.350. "Related services," asthat 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. 20U.S.C. §1401(17). Thus, where an IEP contains a requirement for participation in extracurricular activities, for example, interscholastic sports, suchparticipation is~encompassedin 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 MHSAis anonprofit association incorporated under the laws of Montana. Membership in MHSAis voluntary and is comprised of various public and private high schools, including Butte High School. MHSAhas the exclusive authority to supervise, control, regulate and administer interscholastic activities amongmember high schools. To that end, MHSAhas enacted by-laws and rules governing member high schools, including rules addressing eligibility requirements for participating in interscholastic athletic competitions. MHSAhasthe power to sanction andpenalize

amemberschool which allows an ineligible student to participate in such competitions.

4

-.TwoMHSAby-laws are at issue here. The first is aby-law

commonly referred to asthe "age rule." It provides, in pertinent part, that "[nlo student is eligible to participate in an Association contest [including interscholastic athletic competitions] whohas becomenineteen (19) years old onor before midnight, August 31, of agiven year." Montana High Sch. Ass'n Official Handbook (1995-1996), By-Laws, Article II, Section (8), p. 19. The second is aby-law entitled "IDEA/SECTION 504 AGERULE APPEALS"(IDEA/§ 504appeals rule) which provides that a "special education" student mayappeal anMHSAineligibility 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 andthe third grade due to difficulties in school. In November of 1985, during his second year in the third grade, M.H. wasreferred 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 Mayof 1995, just before

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

qualified as a § 504 student due to difficulties in English resulting from his ADD. M.H. did not qualify asadisabled student under IDEA. Joseph Masolo (Masolo), a 5504 coordinator for the Butte public schools, madewritten 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 wasan"IEP" developed pursuant to Montana guidelines for § 504students. & Montana Office of Public Instruction, Section 504 Guidelines for Educators (1995) COP1guidelines). Masolo correctly noted, however, that §504, unlike IDEA, doesnot require the development of an IEP. He acknowledged that, while OPI guidelines recommend development of an "IEP" for 5504 students, such a 5504 "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 anIEPunder IDEA. Onbehalf of M.H., Daniel J. Peters (Peters), the principal of Butte High School, petitioned MHSAfor waiver of the age rule to allow M.H. to participate in wresting andfootball during the 1995- 1996school year. MHSAheld atelephone hearing onthe petition, during which Peters explained that M.H.'s parents requested that the agerule bewaived dueto M.H.'s ADD. MHSAdenied the request.

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

appeals rule. MHSAconducted a hearing and received evidence according to the procedure provided for suchappeals. & 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

onthe basis that M.H. failed to prove, asrequired byArticle VII, Subsection (B)(4), that: (1) hewould not create asafety risk to other players; (2) hewould not skewthe overall competitiveness of the particular activities in which hewould participate; and (3) his participation would not result in the exclusion of other eligible players. M.H., individually andbyhis parents, filed acomplaint and

amotion for apreliminary injunction against MHSAin November of 1995, based primarily on IDEA. MHSAopposed M.H.'s motion for a preliminary injunction. It argued that M.H. had not been classified as adisabled student under IDEA, hadnot received any services under IDEA, hadno IEPunder IDEAand, therefore, wasnot entitled to the rights andprotections 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 hehadspoken with MHSAabout his intent to amendhis complaint. Although M.H. did not file anamendedcomplaint, he stated that he would be asserting a claim based on § 504 and Article VII, Subsection (B)(4) of the MHSAby-laws; he further indicated that hewould bedeleting the cause of action based on IDEA. MHSAstated that it hadnoobjection to suchanamendmentof

7the complaint. Accordingly, the record before uscontains evidence

andarguments 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 dueprocess rights. Thus, having implicitly concluded that ~M.H.likely would prevail onhis underlying §504claim, 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 MHSAfrom enforcing the age rule against M.H. MHSAappeals. Additional facts are set forth below where necessary. Discussion Did the District Court abuse its discretion in granting apreliminary injunction against MHSA? Section 27-19-201, MCA,which sets forth whenapreliminary injunction maybegranted, provides in relevant part: An injunction order may be granted in the following cases:(1) whenit appears that the applicant is entitled to the relief demandedandthe relief or anypart 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 agreat or irreparable injury to the applicantL.1 Anapplicant for apreliminary injunction must either establish a prima facie case on the underlying claim or show that it is at

8least doubtful whether he or she will suffer irreparable injury

before anadjudication onthe merits. Knudson v. McDunn (1995), 271 Mont. 61, 65, 894 P.Zd 295, 298 (citing Porter v. K & S Partnership (1981), 192Mont. 175, 181, 627P.2d 836, 839). Granting apreliminary injunction is within adistrict court's discretion, andwewill not interfere unless amanifest abuse of discretion is shown. J.M., Jr. v. Montana High School Ass'n (1994), 265Mont. 230, 235, 875 P.2d 1026, 1030 (citing Framev. 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. J.M. -I 875 P.2d at 1030 (citation omitted). A. Applicability of T.H. TheDistrict Court 'relied onT.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 hasafederally protected right to participate in interscholastic sports.

9J.M. involved aButte Central High School student whorepeated

the eighth grade dueto difficulties in school. Asaresult, J.M. becameineligible to participate in football andwrestling during his senior year due to MHSA'smaximumparticipation eligibility requirements. ~,

J.M. 875 P.2d at 1028. TwoMHSArules were at issue: the first provided that a student who has attended a secondary school more than eight semesters was ineligible to participate in anAssociation Contest (eight semester rule); the secondprovided that "[nlo student shall beeligible toparticipate in anAssociation Contest during more than four seasons in anyone sport" (four seasons rule). J.M. -I 875P.2d at 1028. MHSAdetermined that J.M. was ineligible to participate in wrestling and football for the 1993-1994 school year and J.M. appealed. MHSAheld aneligibility hearing andsubsequently denied J.M.'s request to waive the four season rule for the fall semester, but approved his request for awaiver of the eight semester rule for the spring semester. Thebasis for MHSA'sdecision was that J.M. already hadcompeted in four seasons of fall sports, such as football, but hadonly competed in three seasons of spring sports. J.M. -I 875P.2d at 1029. J.M. sued MHSA, arguing that he had constitutional and statutory rights under IDEAto participate in fall semester sports. The district court issued a temporary restraining order against MHSAand, as a result, J.M. was permitted to participate in football during the pendency of his case. Thereafter, MHSAmoved to dissolve the restraining order andanevidentiary hearing was

10held. The district court preliminarily enjoined MHSA from

enforcing its four seasons rule against J.M. and from imposing sanctions against Butte Central. Its order wasbased on IDEAand T.H. -,

J.M. 875P.2d at 1029. Wediscussed T.H. at length in J.M. SeeJ.M. -I 875 P.2d at 1030-32. T.H. involved anineteen 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 875P.2d at1030-31. T.H.'s IEPexpressly required continued participation in interscholastic sports as amotivational 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 maybe withdrawn. J.M., 875P.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 suchparticipation is included asacomponent of the student's IEP. -, J.M. 875 P.2d at 1031. Onthat basis, the court concluded that T.H.'s privilege to participate in interscholastic sports hadbeen transformed into a federally protected right by virtue of his IEP under IDEA and, further, that MHSAdenied T.H. dueprocess of law in failing to conduct anappropriate inquiry before depriving T.H. of that right. J.M. -I 875 P.2d at 1031. Accordingly, the court preliminarily

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

appropriate inquiry could be conducted. J.M., 875 P.2d at 1031. MHSAenacted the IDEA/§ 504appeals rule andthe hearing standards therein in response to T.H. J.M., See 875P.2d at 1031. Wedistinguished T.H. from the situation before us in J.M. Unlike T.H. the student in J.M. -I had aspecialized educational program, [but] hewasnot participating in aformal, written IEPestablished under the statutory and administrative mechanism mandated by IDEAand its implementing regulations. J.M. 875 P.2d at 1032. -I Thus, the dispositive elements onwhich the T.H. court based its conclusion that a federally protected right existed--namely, that the student hadaformal, written IEP under IDEA which required his participation in interscholastic sports--were not present in J.M. , J.M. 875P.2d at 1033. Weheld, therefore, that the district court improperly elevated J.M.'s privilege of participating in interscholastic sports to afederally protected right under IDEA. -, J.M. 875P.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 IEPdeveloped pursuant to IDEAwhich required his participation in interscholastic sports. Consequently, J.M. controls andrenders erroneous the elevation of

aprivilege into afederally protected right, pursuant to an IDEA IEP, in this case. Aswasthe case in J.M. the District Court's -I reliance onT.H. under these facts wasmisplaced. 12B. Section 504

TheDistrict Court recognized that a"distinguishing feature" of this case, when compared to T.H., is that M.H.'s "IEP" was pursuant to §504while T.H.'s waspursuant to IDEA. Basedonits review of the OPI § 504 guidelines and a federal regulation, however, the court concluded that "this is adistinction without a difference." Wedisagree. The OPI guidelines provide guidance and set forth recommendations for educators in dealing with §504students. The appendix to the OPIguidelines includes the text of 34 C.F.R. § 104.33 (b), which defines what constitutes an "appropriate education" under 5504andprovides, in relevant part: (1) For the purpose of this subpart, the provision of an appropriate education is the provision of regular or special education andrelated aids andservices 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 OPIguidelines renders a student's rights under § 504 and IDEA equivalent. Indeed, they are incapable of doing so because the differences between astudent's rights under §504andastudent's rights under IDEA are statutory. We conclude, therefore, that the OPI guidelines andfederal regulation relied onby the District Court do not support its determination that the differences between

13M.H.'s one-page letter "IEP" under §504andT.H.'s IDEAIEP is "a

distinction without adifference." Moreover, recent cases from the United States Circuit Courts of Appeals clarify that §504 is an anti-discrimination statute which doesnot confer anyspecial rights ondisabled 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 whohad repeated two grades in elementary school dueto a learning disability andturned nineteen before beginning his senior year of high school. Like MHSA,the Missouri State High School Activities Association (MSHSAA)has anagerule which prohibits a student who turns nineteen prior to a certain date from participating in interscholastic sports. Asaresult, Pottgen was ineligible to play baseball during his senior year of high school. Pottqen, 40F.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 apreliminary injunction enjoining MSHSAAfrom enforcing its age rule. Pottgen, 40F.3d at 928. In addressing MSHSAA'sappeal, the Eighth Circuit recognized that §504prohibits discrimination against an"otherwise qualified individual" onthe basis of his or her disability andset forth a two-part test for determining whether astudent is an "otherwise

14qualified individual." Acourt must determine both whether the

individual meets all of the essential eligibility requirements and whether reasonable modifications exist. Pottqen, 40F.3d at 929. TheEighth Circuit concluded that MSHSAA haddemonstrated that the age rule is anessential 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 immenseimportance inanyinterscholastic sports program. Pottsen, 40 F.3d at 929. However, even though Pottgen could not meet this essential eligibility requirement, hewould still bean "otherwise qualified individual" for § 504 anti-discrimination purposes if reasonable accommodations would enable himto meet the age limit. Pottqen, 40F.3d at 929 (citations omitted). The Eighth Circuit noted that, since Pottgen already had exceeded MSHSAA'sagelimit, the only possible accommodation would beto waive the agerule. 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 afundamental alteration in the nature of the baseball program and that accommodations which require such a fundamental alteration are not reasonable. Pottqen, 40F.3d at 930. Observing that "[slection 504wasdesigned only to extend protection to those potentially able to meet the essential eligibility requirements of

aprogram or activity," the Eighth Circuit held that Pottgen was

15not 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 agerule case. SeeSandison, 64F.3d at 1034-35. Sandison involved two Michigan high school students whowere held back in school due to learning disabilities andbecamenineteen 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.Thestudents suedMHSAAin federal district court, based on§ 504, and the court held that the students were "otherwise qualified" anddiscriminated against based ontheir disabilities. The federal district court preliminarily enjoined MHSAAfrom enforcing its agerule against the students. Sandison, 64F.3d at 1029.The Sixth Circuit relied on Pottqen and concluded, on the record before it, that the age rule is anecessary 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 agerule asa"reasonable

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

F.3d at 1035. Ordinarily, an accommodation of an individual's disability operates sothat the disability is overcome andthe disability nolonger 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 agerestriction is not directed at helping them overcome learning disabilities; the waiver merely removes the ageceiling as anobstacle. Sandison, 64F.3d at 1035. TheSixth Circuit also considered the "solely by reason of

. disability" language of 5504 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 agerule doesnot exclude students "solely by reason of" their disabilities; rather, it excludes students "'solely by reason of' age, not disability." Sandison, 64F.3d at 1035. Both Pottcren and Sandison involved appeals from preliminary injunctions enjoining enforcement of ageeligibility requirements for interscholastic sports. In both cases, the Circuit Courts of Appeals held that the preliminary injunctions were improperly granted because the students hadvirtually nolikelihood of success onthe merits of their §504claims. SeePottqen, 40F.3d at 930- 31; Sandison, 64F.3d at 1035.

15In the present case, the District Court implicitly concluded

that M.H. likely would prevail onhis underlying 5504claim. The court then specifically granted the preliminary injunction onthe basis that M.H. would suffer irreparable injury if it did not enjoin MHSAfrom enforcing its agerule. Thetwo statutory bases for granting apreliminary injunction at issue here--namely, the "likelihood of success onmerits" basis andthe "irreparable injury I'basis asset forth in 5527-19-201(l) and (2), MCA,respectively--are not unrelated. "Injury" is defined

as "[a]ny wrong or damagedone to another, either in his person, rights, reputation, or property." BLACK'sLAWDICTIONARY,924 (1968). Thus, the irreparable injury basis for granting preliminary injunctions is based on an implicit determination that the applicant is likely to succeed onhis or her underlying claim and,

as a result, would suffer a "wrong or damagedone to

. his person, rights, reputation, orproperty" if someact were committed

or allowed to continue during the litigation. Similarly, wepreviously have indicated that alikelihood of

success onthe merits is not always sufficient, in andof itself, to warrant injunctive relief. SeePorter, 627P.2d at 840. There must also beashowing that, absent apreliminary injunction, the applicant would suffer harmwhich could not beadequately remedied after a trial on the merits and, therefore, a preliminary injunction is necessary to maintain the status quo andminimize harm to the parties. See Porter, 627 P.2d at 839-40. In other words, the applicant also must makeashowing of irreparable harm.

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

would suffer irreparable injury presupposes that enforcement of MHSA'sagerule would constitute awrong or damageto M.H.'s right to participate in interscholastic sports. As is clear from J.M. andour discussion above, however, participation in interscholastic sports is aprivilege, 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 neednot makeacase that would entitle him

or her to relief at atrial onthe merits; anapplicant must prove only aprobable right andaprobable danger that such right will be denied absent injunctive relief. See Porter, 627 P.2d at 840; Boyer v. Karagacin (1978), 178Mont. 26, 33, 582 P.2d 1173, 1177. Indeed, weconsistently haveheld that district courts cannot issue preliminary injunctions absent the applicant establishing aprima facie case onthe underlying claim or, based onthe 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 onits erroneous conclusion that M.H. had

a federally protected right to participate in interscholastic sports. Wehold that the District Court erred in concluding that

19M.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. Wereverse, dissolve the injunction andremand for such further proceedings as maybeappropriate, consistent with this opinion.

Weconcur:

Justices

20Justice 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 adistinction without adifference. 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 5504. 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. 5104.33(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 21adherence 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 20U.S.C. 51401(18) of the IDEA. Logically, when participation in interscholastic sports is included as acomponent of an IEP developed for §504 students, it is also afederally-protected right. The Montana High School Association (MHSA) was aparty to T.H. v.MontanaHighSchoolAssociation (D. Mont. Sept. 24, 1992), CV92-150-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.

22In 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 afree 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 20U.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 afederally 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 awaiver 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 asufficient evidentiary basis for that decision, the MHSAhas made amockery 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 arefusal to waive the rule, where afederally protected right to participate is concerned. 11. First, the MHSAmust conduct ahearing and determine whether T.H.'s participation in interscholastic sports actually creates asafety 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. 23T.H., CV92-150-BLG-JFB, slip op. at 9-12 (footnote omitted)

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

case that MHSAdid 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 onthe safety of other students, whether his participation would skew competitiveness in his events, or the effect of his participation

on other athletes. Absolutely nofindings 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 hehad not done so. More is required to dispense with the rights provided by federal law. The MHSAhas not contended onappeal 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 bythe 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 bewritten 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

24forth 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. Theabove 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 aform that wasto be used when anappeal 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 whomM. H.Jr. might becompeting 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