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 thisCourttodissolve 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:^

### whomybe learningdisabled but uho do not have 

### a written Individualized Education Program (IEP), and are not otherwise participating in a specialeducationprograinprescribed under IDEA. 2. 

### lihether the principles enunciated in T.H. v. Montana High SchoolAss'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 eighteenyear old Butte Central st~.ident 2

### :ihc claims learnin2 disabilities, and who ran afoul of 143S.4'~ maximumparr-icipationeligibility requirements. Lnder thoserules, he was ineligible toplay football or towrestle 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, including3utteCentral. MHSAhas the exclusive authority and responsibility for supervising and controlling all phases of interscholasticprograms 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 themaximum 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 attendanceunder this section.



### . 

## . . Fo-.tanaHigh 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 SchoolAss'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 studentsdonot delaygraduation for athletic purposes. Thestudent 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 familymoved toMissoula. 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 ineligibletoplay football in the fall of 1993 at the connencexent of his senior year, by reason of the MSSA four seasons rule. J.M., Jr.alsowrestled for3;tte Central, co~~eting during the spring semestersof 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 eligibilitytoplay football and towrestle, 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 ineligibletoparticipate 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 coan eligibility hearing held inmid-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 illustratesJ.M., Jr.'s participation in hghschoci athletics and the expiration of his eligibility underEKA'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 tobe ineligible forany other reason, i.e., because of age limitations, or academic performance. Hewas denied eligibility solelybecause hiseligibilityhad 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,restrainingKHSA and the Board of Control from enforcing its rules against J.M.,Jr.,thereby pernitting him toparticipate 

### 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,itsAmended Findings of Fact,~onclusiocs of Law and Order dated Septenber 10, 1993,xhich ~reiiminarily en3oined !WSA from enforcing its four seasons ruleagainst ?,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 Courtbased its order ontheprotections 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 injunctionbe 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 conclusionof law,andwe reviewthe 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 TheDistrict Court found thar.

### J.M.

### , Jr.had rightsunder IDEA.p,:SAli 

### ..-.. , 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 accordingto 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. 20U.S.C. 

### 55 :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 ap2ropriatepublic 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 FederalRegulations specify the mechanism by :~;hicha persan is deternined to be learning-disabled and 

### by i.,:hichhe or she qualifies for education-related benefits under IDEA. In surmary,that process includes: (1) the identificationaf the stcdent potentially in need of special education services; (2) the 

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

### 95 300.531, .532, .540 (1992); (3)the addition of theparents 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 toprovide the studentwith 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 studentreceive 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. 20U.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 theAct is a critical component of IDEA. In fact, the Act requires that an IEP be in effect, before special education services areprovided 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 ineligibletoplay sports during his senior year because of ?1HSAfs"age rule,

### " codifiedat~rticle 11,

### 5 8of theMHSA 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-JFBat 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 interscholasticsports, it isaprivilege which may bewithdrawn by the school or

### by a voluntary associationwhose rules the schoolhas agreed to follcw.

### T.H. (D.Mont., Sept. 24, 1992), CV-92-150-EL2';-3FB at 9. (Citationsomitted.) 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. (5thCir. 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 sportsareoffered,they acquire theprotection from anunconstitutional 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 'relatedservice',

## 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 establisheda rule codifyingrhehearing process foraddressing 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 competitivenessof theparticular 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 schoolyear to allow the KHSA a reasonable opportunity to make an inforned decision

## .... Montana High SchoolAss'n. Official Handbook (1993-1994),By-Laws, Article VII, 

### Section (?), 

### p. 30-31. In the instantcase,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 theXHSA 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 formaximumparticipation rulesand the legalprinciples 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 toprovide those special educationbenefitsand servicestohim, isnot before us and,we do not address those issueshere. Respondents argue thatJ.M., Jr.was entitled tohave special education and related services provided to him at public expense pursuant to theprovisions 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 educationalprogrart, hewas notparticipating in a formal, written ZEP 

### established under the statutory and administrative mechanism mandated by IDEA and its impleneLting regulations. Thatpoint isdispositive forpurposes 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 ofthat IEPwas 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 intoT.H.'s waiver requestanddenial

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 itsdecision and thenecessity for carefully following themechanism foradopting and ccnsideringthe 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 isineligiblebecause 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 disappointmentand failurewhen and if valid restricrions on eligibility are ultimately enforced. 

### T.H. (D. Mont., Sept. 24, 1992), CV-92-150-BLG-JFB at 13. We concludethat the DistrictCourt's relianceon

## 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-hereasJ.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, whetherhis formal, written IEPwould havemandated 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 ~rctectedright cithconcomitant 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 toavailhimself 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 isnot 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.'srequest 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 

### ineffect during the fall semester of the 1993-1994 school i7ear,and it is now April, 1994. We disagree and conclude that although the timehas lapse3 on the DistriccCourt's preliminary injunction,the mootness doctrine does not bar our review. Aside from the fact that

### J.M.,Jr., did not argue thatwe should not rule on themerits 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 injuactionwas in effect. 

### To mechanically apply the doctrine of mootness under such circurstanceswould 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~ber10, 1393 and dissolve the preli~inary



### . , 1n3unction. To the extent that other issues rerain to be resolved under respondent's conplaint,we

lie Concsr:

17Justice William 

### E. Hunt, Sr., did not participate in this action.

### Justice Terry N. 

### Trieweiler dissenting. 

### Idissent from the majority opinion. The District Court's preliminary injunction pertained only to athletic activities during the fall semester of the 1993-94 

### academicyear. As 

### Ireview themajority's proposed opinion, it is April 18, 1994. 

### TheDistrictCourt's restrainingorder isno 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 themerits in this case. For these reasons, 

### Idissent from the majority's decision to issue an opinionwhich has no effect on the rights of either party in this case.