No. 93-463 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

:.?I., JR. individually an3 by 

his parents, an3 next friends, 

J.M. and S.X., 

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, Gougn, 

Shanzhan, Johnson & Katerman, Helena, Montana 

For Respccdents: 

lavid J. Klng, Butte, Montana 

Submitted on Briefs: ??arch 13, 1394 

3ecided: Way 5, 1994 
This is an appeal from the Second judicial District Court, 

Silver Bow County, granting a preliminary injunction against the 

defendants, the Montana High School Association (XMA), the Board 

of Control of HHSA, and Butte Central High School (Butte Central), 

enjoining them from enforcing NHSA's maximum participation 

eligibility rules against the plaintiff. MHSA and the Board of 

Control appealed, asking this Court to dissolve the injunction. We 

reverse, remand and dissolve the injunction. 

ISSUES 

This appeal involves two issues which relate to whether the 

District Court erred in applying the statutory rights and renedies 

of the Individuals with Disabilities Education Act, 20 U.S.C. 5 

1400 et. seq., (IDEA), to enjoin MHSA from enforcing its 

eligibility rules against the plaintiff, J.M., Jr. The two issues 

are as follows: 

1. Whether rights arising under IDEA afford protections to 

stud en:^ who my be learning disabled but uho do not have a written 

Individualized Education Program (IEP), and are not otherwise 

participating in a special education prograin prescribed under IDEA. 

2. lihether the principles enunciated in T.H. v. Montana High 

School Ass'n. (D. Mont., Sept. 24, 1992), CV-92-150-BLG-JFB, apply 

to students who have exhausted their allotted eligibility under 

MHSA's rules. 

BACKGROUND 

This case involves an eighteen year old Butte Central st~.ident 

2 
:ihc claims learnin2 disabilities, and who ran afoul of 143S.4'~ 

maximum parr-icipation eligibility requirements. Lnder those rules, 

he was ineligible to play football or to wrestle during his senior 

year of high school. MHSA is a non-profit association 

incorporated under the laws of Kontana. Merr.bership in MHSA is 

xroluncary, and is comprised of public and private high schools in 

Kontana, including 3utte Central. MHSA has the exclusive authority 

and responsibility for supervising and controlling all phases of 

interscholastic programs among its member schools. MHSA prohibits 

member schools from allowing any student to participate in 

interscholastic athletics if that student is ineligible to 

participate under MHSA rules and bylaws, and it has the power to 

sanction and penallze member schools which allow ineligible 

students to participate. 

The two MESA rules at issue in this case are called "maximum 

participation rules," in that they delineate the maximum semesters 

or seasons of eligibility for student participants in 

interscholastic contests. 

The first rule prohibits students from parricipating in any 

MHSA regulated activity for more than eight semesters. The "eight 

senester" rule provides: 

No student shall be eligible to participate in an 

Association Contest who has been in attendance in any 

secondary school more than eight (8) semesters. An 

attendance of tln'enty (20) days during a semester shall 

canstitute one senester's attendance under this section. . . . 

Fo-.tana High School 3-ss'n. Cfficial Handbook (i993-1991), By-La;;s, 

.Z.rticle 11, Section (9), p. 19. 
The secad rule, or "four season" rule, provides: 

No student shall be eligible to participate in an 

Association Contest during more than four seasons in any 

one sport. . . . 

Nontana High School Ass'n. Official Handbook (1993-1994), By-Laws, 

Article 11, Section (ll), p. 20. 

Inasmuch as students gain physical and mental naturity each 

season that they participate in sports and thereby gain the 

advantage of size, strength, and speed over younger students, MHSA 

established these maximum participation rules t3 promote safety, 

interscholastic competition, the opportunity to compete, and to 

insure that students do not delay graduation for athletic purposes. 

The student involved in this case, J.M., Jr., had participated 

in four seasons of football prior to the 1993 fall season. J.N., 

Jr.'s high school football career began in 1989, when he played 

freshman football at Helena High School. In late October of 1989, 

J.X., Jr. and his family moved to Missoula. Because of educational 

di~~: ,,,culties, J.M., Jr. finished the remainder of the 1989-90 

school year in the eighth grade. In the summer of 1990, J.M., Jr. 

moved vith his family to Butte. He enrolled as a freshman in Butte 

Central, a grivate school, and played football for Butte Central 

for the 1990, 1991, 1992, seasons, thereby playing four seasons of 

football. Because J.., Jr. had already participated in fcsr 

seascns of football, he was ineligible to play football in the fall 

of 1993 at the connencexent of his senior year, by reason of the 

MSSA four seasons rule. J.M., Jr. also wrestled for3;tte Central, 

co~~eting during the spring semesters of 1991, 1992 and it apFears, 
althongh not completely clear froa the record, spring semester of 

1993. Secause of the eight semester rule, J.X., Jr. would have 

been ineligible to compete in spring semester wrestling durinq 

school year 1993-94. 

In January 1993, in anticipation of J.M., Jr.'s porentiai 

ineligibility, his parents requested a formal ruling from MHSA 

regarding their son's eligibility to play football and to wrestle, 

for the 1993-94 sctool year. In February 1993, MHSA, through its 

executive director, Dan Freund, ruled that because the fall 

sexester of 1993 would be J.M., Jr.'s fifth season of fall sports, 

and the spring semester would be his ninth semester of school, 

J.. Jr. would be ineligible to participate in any interscholastic 

activities for the 1993-94 school year. J.., Jr.'s parents 

appealed this decision to MHSA's Board of Control, the governing 

body responsible for the interpretation and enforcement of MHSP 

rules 

Subsequent co an eligibility hearing held in mid-April, 1993, 

the Eoard of Control denied J.M., Jr.'s request to waive the four 

seascn rule for the fall senester of the 1993-94 school year, but 

apprcved the request for a waiver of the eight sexester rule for 

the spring semester. The Board of Control based its decision on 

the fact that J.M., Jr. had already competed in four seasons of 

fall spcrts, but had only corrpeted in three seasons of sprlng 

Sports. 

Tl-e follo.ding chart illustrates J.M., Jr.'s participation in 

hgh schoci athletics and the expiration of his eligibility under 
EKA's four season and eight semester rules. 

1989-1990 (9tin/8th grade) 

1990-1991 (9th grade) 

1991-1992 (10th grade) 

1992-1993 (11th grade) 

Total Semesters/Seasons of 4 

eligibility before 

1993-1994 school year 

J.Y., Jr. was nat found to be ineligible for any other reason, 

i.e., because of age limitations, or academic performance. He was 

denied eligibility solely because his eligibility had expired under 

the four season rule. 

On September 3, 1993, J.M., Jr.'s parents filed a complaint in 

District Court alleging, primarily, that he had constitutional 

rig3ts and statutory rights under IDEA which allowed hin to 

participate in fall semester sports. On this same date, J.M., 

Jr.'s parents moved for, and were granted, a temporary restraining 

order, restraining KHSA and the Board of Control from enforcing its 

rules against J.M., Jr., thereby pernitting him to participate in 

fifth season football during the pendency of the order. 

'he defendants moved to dissolve the temporary restraining 

order, and an evidentiary hearing was held on September 9, 1993. 

After considering the parties' testimony and other evidence, the 

District Co~rt filed on September 20, 1993, its Amended Findings of 

Fact, ~onclusiocs of Law and Order dated Septenber 10, 1993, xhich 

~reiiminarily en3oined !WSA from enforcing its four seasons rule 
against ?,M., jr. and from imposing sanctions against Wtte 

Central, pending a further good faith, meaningful hearing by XXA 

icto the propriety of waiving the rule. The District Court also 

crdered H3SA to reconsider its action as it affects J.E., Jr., in 

wrestling, so as not to deny him permission to begin practice for 

h-restling tluring the fall semester. The complaint also raised 

other claims not at issue here. 

The District Court based its order on the protections afforded 

ky IDEA, and the holding set forth in T.H. v. Montana High Scho-l 

Ass'n. (D. Mont., Sept. 24, 1992), CV-92-150-BLG-JFB. Defendants 

appeal from the District Court's order and request that the 

preliminary injunction be dissolved. 

STANDARD OF REVIEW 

Granting a preliminary injunction is within a trial court's 

discretion, 2nd we will not interfere unless manifest abuse is 

shown. Frane v. Frame (1967), 227 Mont. 439, 444, 710 P.2d 655, 

659. However, no discretion is involved when the court arrives at 

a conclusion of law, and we review the district court's conclusions 

of law to determine whether the district court's interpretation of 

the lab 1s correct. Steer, Inc. v. Departnent of Revenue (1990), 

245 Yor,:. 470, T4, 803 P.2d 601, 603. In the instanr case, be 

conclude that the District Court's interpretation of the law h-as 

erroneoss and that, accordingly, the preliminary injunction xas 

improperly granted. 

DISCUSSION 

The District Court found thar. J.M. , Jr. had rights under IDEA. 
p,:S Ali ..-.. , guarantees that. all child.ren with disabilities have 

available to them a free appropriate public education and related 

services to meet their uniq~e needs. 20 U.S.C. 5 1400(c). 

IDEA provides federal funding for states which provide 

students with disabilities, special education services according to 

the Act. 20 U.S.C. 55 l400(b) (9), 1412, 1413. The Act is 

implenented through both the "State education agency" and through 

"local education agencies, " the public school system. 20 U. S. C. 5 5 

:431(a) (7)&(8), 1412(6), 34 C.F.R. 5 300.2 (b) (1992). The State 

and local education agencies are required to guarantee procedural 

safeguards for handicapped children, in providing a free and 

ap2ropriate public education. 20 U.S.C. 5 1415(a). Central avong 

the safeguards is the development of a written IEP for each child. 

20 U.S.C. 5 1401(a)(20), 34 C.F.R. 5 300.130(a), W.G. v. Board of 

Trustees of Target Range School D. (9th Cir. 1992), 960 F.2d 1479, 

1'33. 

The IEP is a formal, written statement wnich delineates the 

dlsabled srudent's unlque educational goals, objectives, 

c~rricului-, and related services. 20 U.S.C. g 1401(a)(20), 34 

C.F.R. 5 300.335 (1992). 

IDZA and the Code of Federal Regulations specify the mechanism 

by :~;hich a persan is deternined to be learning-disabled and by 

i.,:hich he or she qualifies for education-related benefits under 

IDEA. In surmary, that process includes: (1) the identification af 

the stcdent potentially in need of special education services; (2) 

the appointment of a Child Study Team (CST) which determines 
ether the student qualifies for such services, 34 C.F.R. 95 

300.531, .532, .540 (1992); (3) the addition of the parents of the 

student to the CST, assuming the student is initially found to be 

qualified by the CST, 34 C.F.X. 300.345 (1992); (4) the 

determination of the student's special needs and services which are 

necessary to provide the student with an appropriate education, 34 

C.F.R. 55 300.341 -.345 (1992); and, (5) the incorporation of the 

student's special needs and necessary services into a formalized, 

xritten IEP which controls the student's curriculum, 34 C.F.R. $5 

300.341, .346 (1992). 

I~pcrtantly, IDEA's regulations require that a student receive 

special education related benefits only pursuant to an IEP. 34 

C.F.R. $5 300.340, .342(5) (1) (1992). Under the federal regulations 

implenenting IDEA, "[aln individualized education program nust: (1) 

Be in effect before special education and related services are 

prov2de.j. to a child." 34 C.F.R. 5 300.?42(b) (1) (1992). The 

requirexent of a written IEP, insures that those students truly in 

need of special education receive services designed to meet their 

individual needs. 20 U.S.C. 55 1401(a)(20), 1412(2)(c), 34 C.F.R. 

303.340 - .349 (1992). It is clear, that a formal, written IE? 

developed pursuant to the Act is a critical component of IDEA. In 

fact, the Act requires that an IEP be in effect, before special 

education services are provided to a child. 34 C.F.R. 95 303.340, 

.342 (1992) . 

In its decision, thc District Court relied on T.H. v. Montana 

Xiqh School Ass'n. (D. Mont., Sept. 24, 1992), CV-92-150-BLG-JF3. 
In that case, a 19 year old learning disabled high school student 

became ineligible to play sports during his senior year because of 

?1HSAfs "age rule, " codified at ~rticle 11, 5 8 of the MHSA By-Laws. 

That rule prohibits any student who becomes 19 years of age on or 

before midnight of August 31, of a given year, from participating 

in any interscholastic sports contest. 

T.H. applied for a waiver of the age rule based upon his 

special needs as a learning disabled student. T.H. (D. Mont., 

Sept. 24, 1992), CV-92-150-BLG-JFB at 5. MHSA denied the waiver, 

and the student sought a preliminary injunction in Federal District 

Court. T.H. (D. Mont., Sept. 24, 1992), CV-92-150-3LG-JFB at 1, 6. 

The Federal District Court granted the preliminary injunction, 

holding that the student had a federally protected right under 

IDEA, as his IEP reauired that he participate in interscholastic 

sports as a motivational tool. (D. Mont., Sept. 24, l992), 

CV-32-150-BLG-JFR at 9. The Federal District Court in T.H., found 

that the guarantee to a free and appropriate public education and 

related services for handicapped children, extends to 

interscholastic sports when such participation is included as a 

conponent 3f their IEP. T.H. (D. Mont., Sept. 24, 1992), CV-92- 

150-EX-JFB at 9. 

As the Federal Court observed in T.a., generally speaking, a 

student has no constitutional right to participate in 

interscholastic sports, it is a privilege which may be withdrawn by 

the school or by a voluntary association whose rules the school has 

agreed to follcw. T.H. (D. Mont., Sept. 24, 1992), CV-92-150-EL2';- 
3FB at 9. (Citations omitted.) 

Furthermore, limitations on maximum eligibility for 

participation have been generally upheld. Smith v. Crim (Ga. 

1957), 240 S.E.2d 884; Mitchell v. Louisiana High School Athletic 

'.ssln. (5th Cir. 1970), 430 F.2d 1155; California Interscholastic 

 federation"^. Jones (Cal. App. 1988), 243 Cal. Rptr. 271; Alabama 

High School Athletic Ass'n. v. Medders (Ala. 1984), 456 S.2d 284: 

Furtaugh v. Nyquist (N.Y. Sup. 1974), 358 N.Y.S.2d 595; David v. 

Louisiana High School Athletic Ass'n. (La. App. 1971), 244 S.2d 

292; Burtt v. Nassau County Athletic Ass'n. (N.Y. Sup. 1979), 421 

N.Y. S. 2d 172. In State ex rel. Bartmess v. Board of Trustees of 

School Dist. No. 1 (1986), 223 Mont. 269, 726 P.2d 801, we 

determined that academic eligibility standards as a condition of 

participation in extracurricular activities were lawful. 

However, once interscholastic sports are offered, they acquire 

the protection from an unconstitutional deprivation. Bartmess, 726 

P.2d at 804-605. In T.H. the Federal District Court concluded that 

"[":hen participation in interscholastic sports is included as a 

component of an IEP as a 'related service', see 20 U.S.C. 9 1401 

(l), (17), the 'privilege' of competing in interscholastic sports 

is transformed into a federally protected right." T.H. (D. Icont., 

Sect. 24, 1992), CV-92-150-ELG-JFB at 9. 

The Federal District Court also ruled that "due process 

requires that the KHSA conduct an individualized inquiry to 

determine whether any of the four stated concerns underlying the 

age rule are implicated 2nd violated by [the learning disabled 
student's] participation in interscholastic sports, before it may 

deny a waiver of that rule." T.H. (D. Mont., Sept. 24, 1992), CVAs a result of the decision in m, MHSA's Board of Control 

established a rule codifying rhe hearing process for addressing the 

concerns underlying the age rule. The rule provides that the 

student requesting the hearing prove that: 

(1) the student does not create a safety risk to other 

players, and 

(2) the student does not skew the overall 

competitiveness of the particular activity(ies) for 

which the student will participate, and 

(3) the student's participation will not result in the 

exclusion of other eligible players, and 

(4) the student meets all other criteria necessary for 

participation in MHSA activities, and 

(5) the student has an IEP in compliance with OPI 

requirement standards, and 

(6) the petition for a hearing must be initiated 

sufficiently in advance of the affected school year 

to allow the KHSA a reasonable opportunity to make 

an inforned decision .... 

Montana High School Ass'n. Official Handbook (1993-1994), By-Laws, 

Article VII, Section (?), p. 30-31. 

In the instant case, relying on T.H., the District Court found 

that, although J.M., Jr. did not have a foraalized IEP, there was 

evidence indicating that there was an unwritten IEP in effect for 

4, Jr. at Butte Central which had been formulated by his 

teachers, principal, counselcr, private doctor and parents. 

Therefore, the District Court concluded that J.M., Jr. had rights 

under IDEA. The District Court granted the preli2inary injunction 

alloving J.H., Jr., to participate in a fifth season of football 

and, since the XHSA hearing process developed pursuant to T.H. had 
nor been available to J.M., Jr., the District Court also directed 

KHSA to hold an individualized inquiry into the propriety of 

waiving the maximum participation rules with respect to J.M., Jr. 

At the outset, we note that T.H, involved a maximum 

participation rule based on age, unlike this case, where the 

maximum participation rules are based on the nunher of seasons 

played or number of semesters attended. However, since the basic 

rationale for maximum participation rules and the legal principles 

discussed are the same, we conclude that distinction is not 

material for purposes of this opinion. 

Furthermore, whether J.M., Jr., is learning disabled and, 

therefore, eligible for special education benefits and services 

under IDEA, and if so, whether Butte Central, the Butte Public 

School District or the State, (the latter two entities not being 

parties to this litigation), are required to provide those special 

education benefits and services to him, is not before us and, we do 

not address those issues here. 

Respondents argue that J.M., Jr. was entitled to have special 

education and related services provided to him at public expense 

pursuant to the provisions of IDEA, 20 U.S.C. § 1413(a) (4) (B) (i) . 

They also claim that if they had sought involvement of the local 

education agency, a written IEP would have been developed. 

Assuving, arguendo, that thelr conclusions are correct, it remains 

tnat J.. Jr.'s parents did not seek the involvement of the 

appropriate State or local education agencies; that the statutory 

and administrative mechanism for identifying J.M., Jr., as 
learning-disable2 and qualifying him for IDEA benefits an3 services 

was not implemented; and that a formal, written IEP requiring his 

participation in interscholastic sports was not adopted to govern 

J.M., r. s curriculum. Although J.M., Jr., had a specialized 

educational progrart, he was not participating in a formal, written 

ZEP established under the statutory and administrative mechanism 

mandated by IDEA and its impleneLting regulations. 

That point is dispositive for purposes of the issues addressed 

in this opinion. The Federal District Court's grant of the 

preliminary injunction in T.H. and its requirement for a further 

individualized inquiry was premised on the fact that the disabled 

student in that case had been placed in a formal, written IEP 

tailored to meet his particular needs, in accordance with IDEA. 

T.WL (D. Mont., Sept. 24, 1992), CV-92-150-BLG-JFB at 4. One 

important and integral component of that IEP was a requirement that 

he participate in interscholastic sports. T.H. (D. Mont., Sept. 

24, 1992), CV-92-150-BLG-JFB at 4. The coxbination of those two 

factors led the Federal District Court to conclude the "privilege" 

of competing in interscholastic sports was transformed into a 

federally protected right which could not be abrogated, absenc a 

case-specific factual inquiry into T.H.'s waiver request and denial 

cn a sufficient evidentiary basis. T.H. (D. Mont., Sept. 24, 

1992), CV-92-150-BLG-JFB at 9-10. 

That the Federal District Court xas duly mindful of the 

potentially serious ramifications of its decision and the necessity 

for carefully following the mechanism for adopting and ccnsidering 
the components zf the fcrmal IEE is evident in the Court's 

decision: 

As an aside, and as a final matter, the Court would 

strongly encourage the Fairview High School, and other 

schools developing IEPs under the IDEA, to exercise 

prudence when including as a component of an IEP any 

activity for which a student is ineligible because of the 

KHSA age rule or any other factor beyond the control of 

the school. By doing so, the school is potentially 

naking a promise it simply cannot keep, and is setting 

students like T.H. up for disappointment and failure when 

and if valid restricrions on eligibility are ultimately 

enforced. 

T.H. (D. Mont., Sept. 24, 1992), CV-92-150-BLG-JFB at 13. 

We conclude that the District Court's reliance on m, in the 

instant case was error. The student in =, had a written IEP 

developed according to the requirements of IDEA that required his 

participation in interscholastic sports as an integral component, 

h-hereas J.M., Jr. did not. It was improper for the District Court 

to elevate J.M., Jr.'s privilege of participating in 

interscholastic sports to the level of a federally protected right 

under IDEA and to afford him the individualized inquiry referenced 

in T.n., and codified in Article VII, Section (4) of MHSA Official 

Handbook's 3y-laws, when J.M., Jr. had not followed the statutorily 

and adninistratively mandated mechanism for identifying and 

qualifying him under IDEA and for developing his for~al, writte~ 

IFF, assuming that he did qualify. 

Moreover, whether his formal, written IEP would have mandated 

J.M., Jr's, participation in interscholastic sports as an integral 

component of the prograr,, thereby elevating his privilege to 

participate to the status of a federally ~rctected right cith 
concomitant individualize:! hearing rights, is simply academic 

unless an3 until J.K., Jr. first qualifies for ICEA benefits and 

services and until a formal IEP incorporating that requirement is, 

i? fact, adopted. Here, J.M., Jr. seeks to avail himself of rights 

under a particular statutory scheme even before he has complied 

with the requirements of those very laws which, arguably, might 

bring those rights into existence. J.M., Jr., has put the cart 

before the horse. 

Furthermore, NHSA is not a State or local education agency as 

defined under IDEA. T.H. (D. Mont., Sept. 24, 1992), CV-92-150-BLGJFB at 12-13. MHSA has no obligation under IDEA to identify or 

evaluate J.M., Jr.'s special education needs. Therefore, we are 

reluctant to impose upon MHSA the obligation to conduct an 

inZividualized hearing, with the potential for further litigation 

if the hearing decision is not to the liking of the respondents, 

absent J.M. , Jr. 's request for waiver being prenised on a federally 

prctected right to participate in interscholastic sports contests 

under a formal, written IEP developed in accordance with IDEA 

~andates. Accordingly, we hold that it was improper for the 

District Court to grant the preliminary injunction and to require 

EISA to conduct an individualized inquiry into the propriety of 

waiving its ~aximum partici2ation rules when J.X., Jr. had not 

first established a federally protected right to participate in 

interscholastic sports in contravention of those rules. 

The disseEt contends that the issues presented on appeal are 

m~ct because the Diszrict Court's restraining order was only in 
effect during the fall semester of the 1993-1994 school i7ear, and 

it is now April, 1994. We disagree and conclude that although the 

time has lapse3 on the Districc Court's preliminary injunction, the 

mootness doctrine does not bar our review. Aside from the fact 

that J.M., Jr., did not argue that we should not rule on the merits 

of this appeal because of mootness, we also note that given the 

amount of tine inherent in the litigation process, and given our 

reluctance to entertain original proceedings and special writs 

except under extracrdinary circumstances, it would be nearly 

impossible for any case such as this to ever reach this Court, via 

the usual litigation/appeal process, within the tine during which 

the injuaction was in effect. 

To mechanically apply the doctrine of mootness under such 

circurstances would effectively deny the remedy of appeal. Where 

MHSA will, undoubtedly, be faced with future challenges to its 

maximum participation rules on issues and facts such as those 

presented here, it has a right to a final decision of this Court on 

the merits of its appeal. 

For the foregoing reasons, we reverse the District Court's 

order dated Septe~ber 10, 1393 and dissolve the preli~inary 

. , 1n3unction. To the extent that other issues rerain to be resolved 

under respondent's conplaint, we 

lie Concsr: 

17 
Justice William E. Hunt, Sr., did not participate in this action. 
Justice Terry N. Trieweiler dissenting. 

I dissent from the majority opinion. 

The District Court's preliminary injunction pertained only to 

athletic activities during the fall semester of the 1993-94 

academic year. As I review the majority's proposed opinion, it is 

April 18, 1994. 

The District Court's restraining order is no longer in effect. 

The issues raised on appeal are moot. The majority's opinion is 

merely advisory and has no direct bearing on the respective 

interests of the parties who are before the Court. Therefore, I 

would dismiss the appeal and not reach the merits in this case. 

For these reasons, I dissent from the majority's decision to 

issue an opinion which has no effect on the rights of either party 

in this case.