No. 03-022

IN THE SUPREME COURT OF THE STATE OF MONTANA

2004 MT 41

VALLEY CHRISTIAN SCHOOL, CLINT MOREY,

individually and as parent of JOSHUA C. MOREY, 

a minor child; COLBURN T. DAVIS, individually

and as parent of NICOLE DAVIS, a minor child; JULIE

A. VON ESCHEN, individually and as parent of 

DANIELLE VON ESCHEN, a minor child; RODNEY 

K. HAYNES, individually and as parent of RACHEL

D. HAYNES, a minor child; and TRACI D. FISTER, 

Plaintiffs and Appellants, 

v.

MONTANA HIGH SCHOOL ASSOCIATION, 

a non-profit corporation, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and For the County of Missoula, Cause No. DV-01-813, 

Honorable Ed McLean, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

John E. Smith, David C. Avery, and Matthew Thiel (argued), Smith

and Thiel Law Offices, Missoula, Montana 

For Respondent:

Jock O. Anderson (argued), Gough, Shanahan, Johnson & Waterman, 

Helena, Montana 

Heard and Submitted: July 15, 2003

 Decided: February 24, 2004

Filed:

__________________________________________

Clerk
2

Justice W. William Leaphart delivered the Opinion of the Court. 

¶1 The appellants here are comprised of the Valley Christian School in Missoula , certain

high-school students who attend VCS and their parents (collectively referred to as VCS).

VCS sought a preliminary injunction preventing the Montana High School Association

(MHSA) from enforcing its rule that schools must be accredited to be members. The District

Court denied VCS’s motion for a preliminary injunction and subsequent motion to

reconsider. VCS now appeals that decision. We affirm.

FACTS

¶2 VCS is a privately run, religious school, providing an education to students in grades

Kindergarten through twelve. VCS is limited in the pool of teachers it may hire by its own

criteria. VCS’s most important standard is that teachers personally recognize Jesus Christ

as their personal Lord and Savior. VCS’s policy requires teachers to integrate the Bible and

the teaching of Christ into their daily subject matter. VCS hired Doug Dierking (Dierking)

to teach science. Dierking was not certified to teach by the Office of Public Instruction

(referred to as OPI or the State). Finding that he lacked moral fitness for the profession due

to a previous conviction for cruelty to animals, the State declared Dierking was uncertifiable.

Nonetheless, given Dierking’s otherwise excellent credentials and experience teaching at the

college level and his philosophical fit with the school, VCS determined Dierking had been

“called by God” and hired him.

¶3 In order for a school to be accredited by the State, its teachers must be certified. The

State does not require private schools to be accredited, but it will accredit private schools

which apply and meet the criteria. MHSA is a private, voluntary association of public and
3

private schools in Montana. MHSA promulgates rules and standards for interscholastic

activities. Two MHSA bylaws are of import here. First, MHSA membership is conditioned

on state accreditation. Second, an MHSA member school may compete on a one-on-one

basis with a non-MHSA member school, but any tournament or activity involving more than

two schools shall be comprised only of MHSA members. Thus, when VCS hired Dierking,

it not only lost the state accreditation it had maintained for fifteen years, but it also lost its

MHSA membership and the ability to compete in certain interscholastic competitions.

¶4 VCS petitioned for a preliminary injunction preventing MHSA from enforcing its

membership bylaws against VCS, contending that the bylaws impermissibly burdened its free

exercise of religion. 

DISCUSSION

¶5 In reviewing an order granting or denying a preliminary injunction we determine

whether the district court committed a manifest abuse of its discretion. Shammel v. Canyon

Resources Corp., 2003 MT 372, ¶ 12, 319 Mont.132, ¶ 12, 82 P.3d 912, ¶ 12. A manifest

abuse of discretion is one that is obvious, evident or unmistakable. Shammel, ¶ 12.

However, where the district court denies injunctive relief based on conclusions of law, no

discretion is involved, and we review the conclusions of the law to determine whether they

are correct. Hagener v. Wallace, 2002 MT 109, ¶ 12, 309 Mont. 473, ¶ 12, 47 P.3d 847, ¶

12. 

¶6 VCS claims that it has established a prima facie case sufficient to meet any one of the

three disjunctive criteria of the preliminary injunction statute. Section 27-19-201, MCA.
4

VCS contends MHSA’s bylaws excessively burden its religious freedom; its fundamental

right to determine the upbringing of their children; and its freedom of association. VCS

claims infringement of multiple rights creates a hybrid free exercise claim, and that hybrid

claims merit strict scrutiny analysis as stated in Employment Division, Dep’t. of Human

Resources v. Smith (1990), 494 U.S. 872, 881, 110 S.Ct. 1595, 1601, 108 L.Ed.2d 876, 887.

¶7 VCS alleges that its free exercise of religion is being infringed in violation of the

United States and Montana Constitutions. U.S. Const. amend. I.; Art. II, Sec. 5, Mont.

Const. A facially neutral regulation impermissibly infringes on the constitutional

requirement of government neutrality if it unduly burdens the free exercise of religion.

Wisconsin v. Yoder (1972), 406 U.S. 205, 220, 92 S.Ct. 1526, 1536, 32 L.Ed.2d 15, 28. The

United States Supreme Court has established the following test for determining whether there

is a burden on the free exercise of religion:

Where the state conditions receipt of an important benefit upon conduct

proscribed by a religious faith, or where it denies such a benefit because of

conduct mandated by religious belief, thereby putting substantial pressure on

an adherent to modify his behavior and to violate his beliefs, a burden upon

religion exists. 

Thomas v. Review Bd. of Indiana Employment Sec. Division (1981), 450 U.S. 707, 717-18,

101 S.Ct. 1425, 1432, 67 L.Ed.2d 624, 634. For purposes of this appeal, MHSA concedes

that, although it is a private association, it meets the criteria of a “state actor.” 

¶8 The first part of the Thompson analysis is to determine whether an important benefit

is at issue. We have previously recognized the important interest high school students have

in extracurricular activities. In Bartmess, we applied a middle tier analysis to determine the
5

rights of a public school student to participate in his school’s extracurricular activities. St.

ex rel. Bartmess v. Sch. Dist. No. 1 (1986), 223 Mont. 269, 275, 726 P.2d 801, 804. In

Kaptein, we recognized a student in a private school had a constitutionally-recognized

interest in participating in a public school’s extracurricular activities, but we upheld as

reasonable the public school’s policy of only providing those activities to its students.

Kaptein v. Conrad Sch. Dist. (1997), 281 Mont. 152, 931 P.2d 1311. In light of our

decisions recognizing the rights of high school students to participate in extracurricular

activities, membership and participation in the MHSA is an important benefit. 

¶9 Thus, our analysis of VCS’s claimed burden focuses on “conduct proscribed by a

religious faith” and conduct “mandated by religious belief.” Thomas, 450 U.S. at 718, 101

S.Ct. at 1432, 67 L.Ed.2d at 634. VCS’s claim is premised on a false dilemma of its own

creation. It claims that MHSA’s accreditation bylaw requires it to choose between: (1) hiring

Dierking and continuing to provide a Christian education; and (2) participating in MHSA.

While the MHSA membership rule very well may put substantial pressure on a private school

to hire only certified teachers, this does not violate any religious belief. Nothing before this

Court indicates that VCS’s internal standard of hiring teachers of faith precludes it from

hiring certified teachers. OPI does not refuse certification to those candidates who are

religious. OPI simply refuses to grant certification to candidates with low moral character

as evidenced by their criminal record. The record establishes that VCS is able to hire

certified or certifiable teachers whose religious beliefs are compatible with VCS. For fifteen

years, prior to hiring Dierking, VCS hired certified teachers who presumably met its religious
6

requirements, and for that same fifteen-year period it qualified for state accreditation and

membership in the MHSA. The situation presented does not satisfy the Thomas definition

of a “burden” on religion. As is evidenced by VCS’s fifteen years of compliance, the

requirement that teachers be certified is not “proscribed by religious faith.” Furthermore, the

hiring of noncertified teachers (such as Dierking) is not “mandated by religious belief.”

¶10 Our decision here is easily distinguishable from Wisconsin v. Yoder, upon which VCS

relies. In Yoder, the United States Supreme Court struck down a Wisconsin statute which

burdened the Amish by requiring that all children attend school until the age of sixteen. A

central concept to the Amish faith is a fundamental belief that salvation requires life in a

church community separate and apart from the world and worldly influence. Yoder, 406 U.S.

at 210, 92 S.Ct. at 1530, 32 L.Ed.2d at 22. The Amish religion emphasizes a harmony with

nature and the soil, a life of goodness, community welfare, and physical labor. Thus, the

Amish allowed their children to attend public school only until the eighth grade, but refused

high school because it would impermissibly expose their children to the worldly influence

of science, competitiveness and socialization. Yoder, 406 U.S. at 211, 92 S.Ct. at 1531, 32

L.Ed.2d at 22. The United States Supreme Court noted that the Amish showing of a burden

upon their religion was one that probably few other religious groups or sects could make.

Yoder, 406 U.S. at 235-36, 92 S.Ct. at 1543, 32 L.Ed.2d at 37. Thus, a facially neutral law,

applied in a non-discriminatory fashion, and enacted for the general welfare of the citizenry

had to yield to the practices of the Amish, because it was incompatible with their religion.
7

¶11 In contrast to the situation in Yoder, VCS has not shown that its religious beliefs are

incompatible with teacher certification. Rather than attempting to preserve a unique religious

culture and a right to live apart from the predations and vices of modern society, VCS seeks

to fully integrate itself, and allow VCS students to exemplify their Christian ideals in

competition with the students of other schools. VCS strives to be of the world, but not

bound to its rules.

¶12 The United States Supreme Court has held that the free exercise clause does not imply

that incidental effects of government programs which may make it more difficult to practice

certain religions, but which have no tendency to coerce individuals into acting contrary to

their religious beliefs, require government to bring forward a compelling justification for its

otherwise lawful actions. “The crucial word in the constitutional text is ‘prohibit’: ‘For the

Free Exercise Clause is written in terms of what the government cannot do to the individual,

not in terms of what the individual can exact from the government.’” Lyng v. Northwest

Indian Cemetery Protective Ass’n. (1988), 485 U.S. 439, 450-51, 108 S.Ct. 1319, 1326, 99

L.Ed.2d 534, 548 (quoting Sherbert v. Verner (1963), 374 U.S. 398, 412, 83 S.Ct. 1790,

1798, 10 L.Ed.2d 965, 975 (Douglas, J., concurring)).

¶13 Even if one assumes arguendo that the MHSA bylaw requiring accreditation of

member schools limits VCS’s pool of potential teacher candidates and thereby makes it more

difficult for VCS to offer a Christian education, the bylaw does not have a tendency to

coerce individuals into acting contrary to their religious beliefs. We find no constitutional
8

basis for VCS’s contention that MHSA should have to yield to VCS’s wish to employ a

teacher who, although devoted to VCS’s religious principles, is not certified by OPI.

¶14 Finally, we note that VCS’s “hybrid claim” argument is premised on an assumption

that the MHSA bylaws infringe on the free exercise of religion and the exercise of another

constitutionally protected right, such as freedom of association. Here, VCS has failed to

clear the first hurdle. It has not shown any burden upon the free exercise of religion. Thus,

we need not address the hybrid claim. 

¶15 The order of the District Court denying the preliminary injunction is affirmed.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ KARLA M. GRAY

/S/ PATRICIA O. COTTER

/S/ JIM REGNIER

/S/ JOHN WARNER

/S/ JIM RICE
9

Justice James C. Nelson dissents.

¶16 I dissent from the majority’s failure to consider Valley Christian’s hybrid free exercise

claim and the majority’s consequent failure to reverse the District Court’s denial of a

preliminary injunction. 

¶17 Section 27-19-201, MCA, specifies when an order for an injunction may be granted:

(1) when it appears that the applicant is entitled to the relief demanded

and the relief or any part of the relief consists in restraining the commission

or continuance of the act complained of, either for a limited period or

perpetually;

(2) when it appears that the commission or continuance of some act

during the litigation would produce a great or irreparable injury to the

applicant;

(3) when it appears during the litigation that the adverse party is doing

or threatens or is about to do or is procuring or suffering to be done some act

in violation of the applicant’s rights, respecting the subject of the action, and

tending to render the judgment ineffectual;

(4) when it appears that the adverse party, during the pendency of the

action, threatens or is about to remove or to dispose of the adverse party’s

property with intent to defraud the applicant, an injunction order may be

granted to restrain the removal or disposition;

(5) when it appears that the applicant has applied for an order under the

provisions of 40-4-121 or an order of protection under Title 40, chapter 15.

[Emphasis added.] 

We have previously stated that the subsections of this statute are disjunctive, consequently,

findings that satisfy one subsection are sufficient for an injunction to issue. Sweet Grass

Farms v. Board of County Com’rs, 2000 MT 147, ¶ 27, 300 Mont. 66, ¶ 27, 2 P.3d 825, ¶

27 (citing Stark v. Borner (1987), 226 Mont. 356, 359, 735 P.2d 314, 317).

¶18 In conducting a hearing on a motion for a preliminary injunction, it is not the province

of a district court to determine matters that may arise during a trial on the merits. Knudson

v. McDunn (1995), 271 Mont. 61, 65, 894 P.2d 295, 298 (citing Porter v. K & S Partnership
10

(1981), 192 Mont. 175, 183, 627 P.2d 836, 840). Rather, the court should balance the

equities and minimize the damage that could befall the moving party if the status quo is not

preserved pending the resolution of the underlying action. Porter, 192 Mont. at 182, 627

P.2d at 840. The relevant inquiry then is whether the moving party has made out a prima

facie case under any of the disjunctive subsections contained in § 27-19-201, MCA, or

shown “that it is at least doubtful whether or not he will suffer irreparable injury before his

rights can be fully litigated.” Sweet Grass, ¶ 28. 

¶19 In my opinion, Valley Christian did indeed make out a prima facie case under each

of the first three subsections of § 27-19-201, MCA,--more than sufficient for a preliminary

injunction to issue. By ignoring the relevant inquiry under § 27-19-201, MCA, and by

instead prematurely reaching the ultimate issues raised in Valley Christian’s complaint, the

District Court committed reversible error. 

¶20 In reaching its decision, the District Court relied on Windsor Park Baptist Church,

Inc. v. Arkansas Activities Ass’n (8th Cir. 1981), 658 F.2d 618, wherein the Eighth Circuit

Court of Appeals determined that the rule conditioning participation in interscholastic

activities on state accreditation was a “reasonable regulation” of education and that no

violation of the Free Exercise Clause had been made out. The District Court erred in

applying the “reasonable regulation” standard in the instant case as Windsor Park was

decided almost ten years before the United States Supreme Court’s articulation of the hybrid

claims doctrine in Employment Division v. Smith (1990), 494 U.S. 872, 110 S.Ct. 1595, 108

L.Ed.2d 876. 
11

¶21 MHSA’s membership bylaw is a neutral law of general applicability. It is neither

intended to exclude religious schools from membership in MHSA, nor is it intended to

exclude any particular religious constituency from membership in MHSA. While it is

constitutionally permissible for a neutral law of general applicability to incidentally infringe

upon religious freedom so long as the law has a rational basis, a neutral law of general

applicability must withstand strict scrutiny if the law burdens religious freedom in

conjunction with another fundamental right. Smith, 494 U.S. at 880-82, 110 S.Ct. at 1601-

02.

¶22 The majority cites Thomas v. Review Bd. of Indiana Employment Sec. Div. (1981),

450 U.S. 707, 717-18, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624, wherein the United States

Supreme Court held that

[w]here the state conditions receipt of an important benefit upon conduct

proscribed by a religious faith, or where it denies such a benefit because of

conduct mandated by religious belief, thereby putting substantial pressure on

an adherent to modify his behavior and violate his beliefs, a burden upon

religion exists. While the compulsion may be indirect, the infringement upon

free exercise is nonetheless substantial. 

Contrary to the majority’s conclusion that no burden on religion exists in the case sub judice,

I would conclude that by forcing Valley Christian parents to choose between their children’s

attendance at Valley Christian and their children’s meaningful participation in extracurricular

activities, the MHSA membership bylaw does burden religious freedom. Similarly, by

forcing Valley Christian to choose between belonging to MHSA and hiring a teacher who

can implement the school’s Christian educational mission, the bylaw again burdens religious

freedom. 
12

¶23 Along with this burden on the free exercise of religion, Valley Christian has asserted

another constitutional right.

When some other constitutional right is combined with a free exercise

claim in a so-called “hybrid claim,” the state must demonstrate more than

merely a reasonable relation to a valid, secular state purpose to sustain the

validity of the regulation over First Amendment concerns. Where either

parental interests or free speech are asserted in conjunction with a free

exercise claim, something more than a mere “reasonable relation to some

purpose within the competency of the State is required to sustain the validity

of the State’s requirement under the First Amendment.” 

Alabama & Coushatta Tribes v. Trustees of Big Sandy Indep. Sch. Dist. (E.D. Tex. 1993),

817 F.Supp. 1319, 1332 (citing Wisconsin v. Yoder (1972), 406 U.S. 205, 233, 92 S.Ct. 1526,

1542, 32 L.Ed.2d 15; Smith, 494 U.S. at 881, 110 S.Ct. at 1601). Valley Christian has

advanced just such a “hybrid” claim in that MHSA’s membership bylaw burdens Valley

Christian parents’ free exercise of religion in conjunction with the right of Valley Christian

parents to direct the upbringing of their children.

¶24 The right to direct the upbringing of one’s children is a fundamental right that is

grounded in the Due Process Clause. As the United States Supreme Court has explained:

The Due Process Clause guarantees more than fair process, and the

“liberty” it protects includes more than the absence of physical restraint . . . .

The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests . . . . In a long line

of cases, we have held that, in addition to the specific freedoms protected by

the Bill of Rights, the “liberty” specially protected by the Due Process Clause

includes the right[ ] . . . to direct the education and upbringing of one’s

children . . . . 

Washington v. Glucksberg (1997), 521 U.S. 702, 720, 117 S.Ct. 2258, 2267, 138 L.Ed.2d

772 (citing Meyer v. Nebraska (1923), 262 U.S 390, 43 S.Ct. 625, 67 L.Ed. 1042; Pierce v.
13

Society of Sisters (1925), 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070). Thus, the Supreme

Court’s recognition of the right to direct the education and upbringing of one’s children as

a liberty specially protected by the Due Process Clause reflects that Court’s conclusion that

such a right is “‘deeply rooted in this Nation’s history and tradition,’ . . . and ‘implicit in the

concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if [it] were

sacrificed. . . .’” Hicks v. Halifax County Bd. of Educ. (E.D. N.C. 1999), 93 F.Supp.2d 649,

658 (quoting Glucksberg, 521 U.S. at 721, 117 S.Ct. at 2268).

Indeed, as the Supreme Court explained in 1944, “[i]t is cardinal with us that

the custody, care and nurture of the child reside first in the parents, whose

primary function and freedom include preparation for obligations the state can

neither supply nor hinder.”

Hicks, 93 F.Supp. at 658 (quoting Prince v. Massachusetts (1944), 321 U.S. 158, 166, 64

S.Ct. 438, 442, 88 L.Ed. 645).

¶25 The Hicks court further concluded that the conjunction of the two constitutional

interests of free exercise and the parental right to direct the religious upbringing of one’s

children, in and of itself, merited heightened scrutiny. 

In other words, where a parent’s free exercise right may not be sufficient to

justify an exemption from a neutral, generally applicable law, that right, when

combined with the constitutional right of the individual, as a parent, to direct

her child’s upbringing may be sufficient. Whether or not the second

constitutional interest is independently viable is not at issue. It is the mere

presence of the interest, as a genuine claim, supported by evidence in the

record, that triggers the heightened scrutiny of the free exercise claim.

Hicks, 93 F.Supp. at 662.
14

¶26 In analyzing this doctrine, the Supreme Court of Indiana noted that while the United

States Supreme Court has not again addressed the hybrid claim issue since Smith (other than

a brief observation by Justice Kennedy), the issue has 

received considerable attention in other federal and state courts. Although

arguably not uniformly construed and applied, the hybrid claim exception has

been acknowledged in all the federal circuits. State courts addressing the issue

have also acknowledged the legitimacy of hybrid claims.

City Chapel Evangelical Free Inc. v. City of South Bend (Ind. 2001), 744 N.E.2d 443, 452-

53 and n.11, 12 (collecting cases).

¶27 While other courts may have adopted more stringent predicates for a hybrid rights

claim, the Ninth Circuit Court of Appeals determined that 

[a]lthough the [United States Supreme] Court “has been somewhat less than

precise with regard to the nature of hybrid rights,” we recently held that, to

assert a hybrid-rights claim, “a free exercise plaintiff must make out a

‘colorable claim’ that a companion right has been violated–that is, a ‘fair

probability’ or a ‘likelihood,’ but not a certitude, of success on the merits.”

Miller v. Reed (9th Cir. 1999), 176 F.3d 1202, 1207 (quoting Thomas v. Anchorage Equal

Rights Comm’n (9th Cir. 1999), 165 F.3d 692, 703, 707). I would conclude that Valley

Christian has presented a colorable claim in this case.

¶28 Under § 27-19-201(1), MCA, a preliminary injunction may be granted “when it

appears that the applicant is entitled to the relief demanded.” Here, Valley Christian appears

entitled to relief because, contrary to the District Court’s determination that a “reasonable

regulation” standard is all that is necessary when analyzing the bylaw, the bylaw infringes

on Valley Christian parents’ free exercise of religion in conjunction with the right of Valley
15

Christian parents to direct the upbringing of their children, thus requiring a strict scrutiny

analysis. 

¶29 Strict scrutiny requires that the membership bylaw be invalidated unless it is justified

by a compelling state interest and employs the least restrictive means of furthering that

interest. See, e.g., Armstrong v. State, 1999 MT 261, ¶ 34, 296 Mont. 361, ¶ 34, 989 P.2d

364, ¶ 34. Moreover, strict scrutiny places the burden on MHSA to demonstrate the

constitutionality of the bylaw. Armstrong, ¶ 41. This burden will be difficult for MHSA to

overcome as not even the Board of Education has the authority to require accreditation or

teacher certification of private schools. Indeed, Montana law does not impose any

requirements that private schools be publicly or privately accredited or that their teachers be

publicly or privately certified. MHSA has imposed requirements upon Valley Christian that

the Board of Education has no power to impose. In effect, the District Court has granted

MHSA authority that the Legislature has not seen fit to grant to either the Board of Education

or MHSA. If there were a compelling state interest in requiring private schools to be

accredited by the State and to employ only State certified teachers, that interest would

presumably be reflected in the law. Ultimately, MHSA’s membership bylaw is simply a

convenient mechanism that allows MHSA to assume that its member schools have all met

the same level of educational quality.

¶30 In addition to requiring a compelling state interest, strict scrutiny requires that a state

actor use the least restrictive means to accomplish its objective. Here, MHSA’s director

conceded that it would not burden MHSA to accept an alternative form of accreditation.
16

Thus, even if the bylaw was justified by a compelling state interest, and even if the bylaw

was effective in furthering that interest--neither of which has been demonstrated--the bylaw

does not further the purportedly compelling interest in the least restrictive manner. See

Alabama, 817 F. Supp. at 1330. 

¶31 Furthermore, the bylaw is meaningless in the context of MHSA’s operations. MHSA

has no authority, legal or otherwise, to assure the educational quality of their member

schools--that is the job of the Montana Board of Education and the Office of Public

Instruction. There is no evidence in the record that Valley Christian students are not as well,

if not better, educated than the students of the public school members of MHSA, the noncertified teacher notwithstanding. Moreover, there is no state requirement that private

schools such as Valley Christian be accredited. MHSA is thus, in its capacity as a state

actor, imposing upon Valley Christian a requirement that even the State does not impose--

accreditation. Furthermore, MHSA’s enforcement of this accreditation requirement

frustrates Valley Christian parents in the religious upbringing of their children and in their

choice of educational institutions in a way that the State of Montana itself does not. The

parents have two choices, hire a certified teacher or forego a non-certified teacher that

instructs within the tenets of their religious views. The fact that they could hire a teacher that

met both criteria for 15 years does not affect the analysis. Until they were no longer eligible

to join MHSA, Valley Christian did not have a justiciable controversy.
17

¶32 Because there is a substantial likelihood of success on the merits of Valley Christian’s

hybrid free exercise claim, Valley Christian is entitled to a preliminary injunction under §

27-19-201(1), MCA.

¶33 Furthermore, under § 27-19-201(2), MCA, Valley Christian needed only to present

a prima facie case that enforcement of the bylaw pending litigation would cause them

irreparable harm. Valley Christian presented ample evidence that enforcement of the bylaw

would cause Valley Christian students to lose valuable opportunities to enhance their

collegiate opportunities. Even if such enhanced collegiate opportunities are never a

certainty, participation in formal interscholastic competition is itself a type of important

experience that most high school students never repeat after graduation. Such lost

opportunities cannot be restored, thus the harm is irreparable. 

¶34 Finally, under § 27-19-201(3), MCA, Valley Christian needed only to present a prima

facie case that enforcement of the bylaw pending litigation would infringe upon the rights

at issue in a manner that cannot be effectively remedied by a favorable resolution of the case.

The Ninth Circuit Court of Appeals has asserted that the infringement of a First Amendment

freedom, even for a minimal period of time, cannot be effectively restored. Foti v. City of

Menlo Park (9th Cir. 1998), 146 F.3d 629, 643.

¶35 Consequently, I would reverse and remand to the District Court with instructions to

issue injunctive relief pursuant to § 27-19-201, MCA, and I dissent from our failure to do so.

/S/ JAMES C. NELSON