United States Court of Appeals

For the Eighth Circuit

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No. 18-3077

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D.M., a minor, by Bao Xiong, the mother, legal guardian, and next friend of D.M.;

Z.G., a minor, by Joel Greenwald, the father, legal guardian, and next friend of Z.G.

lllllllllllllllllllllPlaintiffs - Appellants

v.

Minnesota State High School League; Bonnie Spohn-Schmaltz, in her official

capacity as President of the Board of Directors for the Minnesota State High School

League; Erich Martens, in his official capacity as Executive Director of the

Minnesota State High School League; Craig Perry, in his official capacity as an

Associate Director of the Minnesota State High School League; Bob Madison, in his

official capacity as an Associate Director of the Minnesota State High School League

lllllllllllllllllllllDefendants - Appellees

------------------------------

Missouri State High School Activities Association; Arkansas Activities Association;

Nebraska School Activities Association; North Dakota High School Activities

Association; National Federation of State High School Associations

lllllllllllllllllllllAmici on Behalf of Appellee(s)

____________

Appeal from United States District Court 

for the District of Minnesota

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Submitted: December 12, 2018

Filed: March 6, 2019

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Before LOKEN, MELLOY, and ERICKSON, Circuit Judges.

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MELLOY, Circuit Judge.

In 2018, two boys sued their state’s high school athletic league and several of its

officers for declaratory and injunctive relief under 42 U.S.C. § 1983. The boys alleged

that the league violated their rights under the Equal Protection Clause of the Fourteenth

Amendment to the U.S. Constitution and under Title IX of the Education Amendments

of 1972, 20 U.S.C. §§ 1681–88 (“Title IX”). Specifically, they claimed that the league

unlawfully discriminated against them on the basis of sex through its rule prohibiting

boys from participating on high school competitive dance teams. The district court

denied the boys’ motion for a preliminary injunction, and they appealed. Having

jurisdiction under 28 U.S.C. § 1292(a)(1), we reverse and direct the district court to

enter a preliminary injunction.

 I.

Appellants D.M. and Z.G. are sixteen-year-old boys who attend high school in

Maplewood and Minnetonka, Minnesota, respectively. Both are in the eleventh grade.

Both are passionate about dance and have participated in various dance classes and

programs. Both want to dance on their schools’ competitive dance teams but, for

reasons explained below, have been prohibited from doing so.

Appellee Minnesota State High School League (the “League”) is a non-profit

corporation that is a voluntary association of high schools. The League exercises

authority delegated to it by the high schools to control high school extracurricular

activities and sports throughout the state. To obtain and maintain such control, the

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League passes bylaws and rules that set forth the standards member schools use to

regulate and supervise those activities and sports.

The League’s Bylaw 412 limits participation on a school’s competitive dance

team to females. The League claims that the reason for this limitation is that girls’

“overall athletic opportunities have previously been limited,” whereas boys’ have not.

To support its claim, the League pointsto data compiled by Amicus National Federation

of High School Athletic Associations (“NFHS”). The League also relies on Minnesota

law, which allows for gender-based, athletic limitations in certain circumstances. See

Minn. Stat. § 121A.04, subdiv. 3 (“[I]n athletic programs operated by educational

institutions or public services and designed for participants 12 years old or older or in

the 7th grade or above, it is not an unfair discriminatory practice to restrict membership

on an athletic team to participants of one sex whose overall athletic opportunities have

previously been limited.”). Pursuant to Bylaw 412, neither D.M. nor Z.G. have been

allowed to participate on their schools’ competitive dance teams.

D.M. and Z.G. sued the League in July 2018 for allegedly violating Title IX and

theirrights to equal protection underthe Fourteenth Amendment. Shortly thereafter, the

boys moved for a preliminary injunction of Bylaw 412 as it pertains to boys and

competitive dance teams. The district court denied the motion. Despite finding that the

boys suffered irreparable harm and that “the balance of harms may favor” them, the

district court concluded that the injunction was not warranted because the boys were not

likely to prevail on the merits. The district court also concluded that the public interest,

asreflected in Minnesota Statute section 121A.04, favored denying the injunction. The

court explained that “[t]he girls-only dance team rule is substantially related to an

important governmental objective”—namely, “increasing girls’ athletic opportunities.”

Moreover, the court said that Title IX permits the League to create girls-only athletic

teams such as dance teams. The boys timely filed a notice of appeal.

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II.

We review “the denial of a preliminary injunction for abuse of discretion.”

Gresham v. Swanson, 866 F.3d 853, 854 (8th Cir. 2017). A district court abuses its

discretion when it “rests its conclusion on clearly erroneous factual findings or

erroneouslegal conclusions.” Jones v. Kelley, 854 F.3d 1009, 1013 (8th Cir. 2017) (per

curiam). “We will not disturb a district court’s discretionary decision if such decision

remains within the range of choice available to the district court, accounts for all

relevant factors, does not rely on any irrelevant factors, and does not constitute a clear

error of judgment.” Richland/Wilkin Joint Powers Auth. v. U.S. ArmyCorps of Eng’rs,

826 F.3d 1030, 1035 (8th Cir. 2016) (quoting PCTV Gold, Inc. v. SpeedNet, LLC, 508

F.3d 1137, 1142 (8th Cir. 2007)). We review a district court’s legal conclusions de

novo. Barrett v. Claycomb, 705 F.3d 315, 320 (8th Cir. 2013). 

When determining whether to issue a preliminary injunction, the district court

considers: “(1) the threat of irreparable harm to the movant; (2) the state of balance

between this harm and the injury that granting the injunction will inflict on other parties

litigant; (3) the probability that [the] movant will succeed on the merits; and (4) the

public interest.” Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir.

1981) (en banc). Generally, no one of these factors is determinative. Id. at 113.

However, “the absence of a likelihood of success on the merits strongly suggests that

preliminary injunctive relief should be denied.” Barrett, 705 F.3d at 320 (quoting CDI

Energy Servs., Inc. v. West River Pumps, Inc., 567 F.3d 398, 402 (8th Cir. 2009)).

Consequently, we will begin our review with an analysis of that factor.

A.

There are two standards a district court may apply when assessing a movant’s

probability of success on the merits. The first, which applies in most instances, directs

the district court to ask whether the party requesting a preliminary injunction has a “fair

chance of prevailing.” Planned Parenthood Minnesota, North Dakota, South Dakota v.

Rounds, 530 F.3d 724, 732 (8th Cir. 2008) (en banc). This fair-chance standard does

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not require the party seeking relief to “show ‘a greater than fifty per cent likelihood that

he will prevail on the merits.’” Id. at 731 (citation omitted). The second, which we have

called a “more rigorous standard,” calls on the district court to determine, as a threshold

matter, whether the movant is “likely to prevail” on his or her claims. Id. at 733. The

likely-to-prevailstandard applies when “a preliminary injunction issought to enjoin the

implementation of a duly enacted state statute.” Id. at 732. The district court applied

the heightened, likely-to-prevail standard because “the challenged policy is supported

by a Minnesota statute.” The parties dispute whether that was error.

As noted above, the test for determining which standard applies is whether the

“preliminary injunction is sought to enjoin the implementation of a duly enacted state

statute.” Id. We apply a heightened standard in such instances because the duly enacted

state statute constitutes “government action based on presumptively reasoned

democratic processes,” and such action is “entitled to a higher degree of deference and

should not be enjoined lightly.” Id. at 732 (quoting Able v. United States, 44 F.3d 128,

131 (2d Cir. 1995)). The likely-to-prevail test may also be appropriate when a movant

seeks to preliminarily enjoin other forms of government action such as “administrative

actions by federal, state or local government agencies.” Id. at 732 n.6. However, in

those cases, the suggested course of action is to first “evaluate whether ‘the full play of

the democratic process[]’ was involved” in the actions and “then determine which

standard would be more appropriate.” Richland/Wilkin, 826 F.3d at 1040 (quoting

Rounds, 530 F.3d at 732 n.6).

Here, Bylaw 412 can, under Eighth Circuit precedent, rightly be considered

government action. See Brenden v. Indep. Sch. Dist. 742, 477 F.2d 1292, 1295 (8th Cir.

1973) (determining that the League “act[ed] under color of state law” for purposes of

42 U.S.C. § 1983 in promulgating rules governing high school athletics). However, the

bylawwas not based on the “presumptively reasoned democratic processes” thatRounds

contemplated. Rounds, 530 F.3d at 732. Indeed, the creation of the bylaw did not

involve “the full play of the democratic process.” Id. at 732 n.6; see also

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Richland/Wilkin, 826 F.3d at 1040. There was no lengthy public debate involving both

the legislative and executive branches before the formulation of the bylaw and its

subsequent enactment. Cf. Able, 44 F.3d at 131–32 (imposing a heightened likelihoodof-success standard upon a motion to enjoin federal legislation and regulation because

“Congress and the President [had] engaged in lengthy public debate before formulating”

them).1 And the bylaws are created by League-member schools throughout the state, not

by democratically elected officials who must answer to their constituents or face the

possibility of not being reelected.

To the extent the League argues that the heightened standard applies because it

is implementing a state statute, Minnesota Statute section 121A.04, we reject the

argument. Section 121A.04 does not direct the League to do anything;rather, the statute

permits the League to discriminate on the basis of sex in limited circumstances—when

athletic opportunities for a sex have previously been limited. The League must still

show the continuing lack of opportunity and how the challenged policy addresses that

inequity. Nothing in this action callsinto question the validity of the underlying statute.

Consequently, the heightened, likely-to-prevail standard does not apply to the

boys’ preliminary injunction motion. We ask, instead, whether the boys have a fair

chance of prevailing.

B.

We now turn to the merits of the boys’ claims, applying the appropriate standard.

The boys argue that the League violated their Fourteenth Amendment equal protection

rights when it banned them from participating on their high schools’ competitive dance

teams because they are male. The League contends that it is justified in precluding the

1Able served as an important guide for us when we adopted our heightened,

likely-to-prevail test in Rounds. SeeRounds, 530 F.3d at 731–33; see also id. at 732 n.6.

Able’streatment of when government action represents “the full play of the democratic

processes” is, therefore, significant.

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boys from the dance teams because doing so constitutes means that are “substantially

related to the important governmental interest of redressing past discrimination and

providing equal opportunities for women.”

On the issue of past discrimination, the parties have submitted a chart thatshows,

for Minnesota in a given year, the relative percentages of boys and girls enrolled in

League-member schools statewide. It then shows the relative percentages of boys and

girls among those students participating in interscholastic sports. The underrepresented

sex column shows the difference between the percentage of students enrolled and the

percentage of students participating in interscholastic sports for whichever gender is

underrepresented that year. The chart is reproduced here as follows:

League-Member School Enrollments and Athletes by Gender

Year

League

Members

Enrollment

Boys

League

Members

Enrollment

Girls

League

Athletes

Boys

League

Athletes

Girls

Underrepresented

Sex

2013–14

133,964

(51.3%)

127,364

(48.7%)

119,034

(53.2%)

104,706

(46.8%)

Girls

(-1.9%)

2014–15

134,879

(51.3%)

128,128

(48.7%)

118,899

(52.4%)

108,084

(47.6%)

Girls

(-1.1%)

2015–16

136,257

(51.3%)

129,394

(48.7%)

121,024

(52.4%)

110,023

(47.6%)

Girls

(-1.1%)

2016–17

137,603

(51.4%)

130,263

(48.6%)

122,269

(51.1%)

117,020

(48.9%)

Boys

(-0.3%)

Average

135,676

(51.3%)

128,787

(48.7%)

120,307

(52.2%)

109,958

(47.8%)

Girls

(-1.0%)

The same data for 2017–18 shows boys were underrepresented by 0.35%.

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The Fourteenth Amendment providesthat “[n]o State shall . . . deny to any person

within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.

In the context of gender-based discrimination, the U.S. Supreme Court has interpreted

that clause to mean that unless a government actor can meet the “demanding” burden

ofshowing an “exceedingly persuasive” justification for treating males differently from

females, the differential treatment is unconstitutional. United States v. Virginia, 518

U.S. 515, 533 (1996); see also Duckworth v. St. Louis Metro. Police Dep’t, 491 F.3d

401, 406 (8th Cir. 2007). To successfully justify a classification based on gender, the

actor “must show ‘at least that the [challenged] classification serves “important

governmental objectives and that the discriminatorymeans employed” are “substantially

related to the achievement of those objectives.”’” Virginia, 518 U.S. at 533 (alteration

in original) (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)). 

The Court has explained that “gender-based classification[s] favoring one sex”

that are designed to remedy past discrimination can be justified “[i]n limited

circumstances.” Miss. Univ., 458 U.S. at 728. Such circumstances exist when the

classification “intentionally and directly assists members of the sex that is

disproportionately burdened.” Id. However, a government actor may “evoke a

compensatory purpose to justify an otherwise discriminatory classification only if

members of the gender benefited by the classification actually suffer a disadvantage

related to the classification.” Id. (emphasis added). In other words, for a government

actor to classify individuals based on gender for the purpose of remedying a prior lack

of opportunities, the individuals must continue to lack opportunities orthe classification

is not constitutionally justified. See id. at 729 (declaring a public university’s womenonly policy to be unconstitutional because the university had “made no showing . . . that

women [were] currently . . . deprived of” opportunities to obtain nursing training or

positions of leadership); id. at 730 (“[A]lthough the State recited a ‘benign,

compensatory purpose,’ it failed to establish that the alleged objective is the actual

purpose underlying the discriminatory classification.”).

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The parties agree that girls historically have been underrepresented in Minnesota

high school athletics. However, over the past five years, the representation of girls in

Minnesota athletics has been almost directly proportional to the number of girls enrolled

at Minnesota schools. In fact, in both the 2016–17 and 2017–18 school years, the

parties’ means of determining representation show that boys have been slightly

underrepresented in high school athletics. Thus, the League has not shown that the

underlying problem it initially sought to remedy by creating all-girl teams—the overall

underrepresentation of girls in high school athletics—continues to exist, at least in

Minnesota.2 Without this underlying problem to remedy, the League cannot prohibit

boys from participating on girls’ teams unless it has some other “exceedingly

persuasive” justification for doing so. Virginia, 518 U.S. at 533. 

The League does not offer any such justification. Instead, it merely argues, in

broad terms, that restricting the membership of athletic teams to one sex “advances the

important government interest of promoting safety, increasing competition, redressing

past discrimination, and providing more athletic opportunitiesfor female athletes.” The

League also cites a Rhode Island Supreme Court case, Kleczek v. R.I. Interscholastic

2The U.S. Department of Education’s Office of Civil Rights, the League, and the

NFHS all repeatedly stress that girls are underrepresented in high school athletics

nationwide. To support their claims, they point to data that show “[o]ver the last four

years 1,218,125 (15.6%) more boys participated nationwide in interscholastic sports, on

average, than girls.” The problem with the data they cite, however, is that the data do

not show the total, nationwide number of students enrolled in schools that offer

interscholastic athletic programs. Nor do the data break down how many of those

students are boys and how many are girls. Without that information, it is impossible to

appreciate the extent to which either gender is over- or underrepresented in

interscholastic athletics at the national level. There may be more boys than girls

participating in interscholastic sports because there are simply more boys than girls

enrolled. Moreover, the alleged fact that girls are underrepresented in sports nationwide

does not address the question of whether girls are underrepresented in Minnesota so as

to justify a bylaw that prohibits boys from joining high school competitive dance teams

in that state.

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League, Inc., 612 A.2d 734 (R.I. 1992) (per curiam), in which the court held that

promoting safety and preserving interscholastic athletic competition for boys and girls

are important government interests. Id. at 739. Kleczek, however, in addition to being

non-binding, is distinguishable from this case. Kleczek involved a ban on boys

participating on girls-only field hockey teams. Id. at 735. The court, understandably,

had concerns about participants’ safety if boys were allowed on the teams. Id. at 739. 

Here, the League does not explain how allowing boys to dance on their schools’

competitive dance

3

teams would be unsafe or how it would deprive girls of opportunities

to compete. Moreover, Kleczek was decided under the Rhode Island constitution, not

the U.S. Constitution. Id. at 736. We find the League’s asserted other justifications for

prohibiting boys from participating on high school competitive dance teams

unpersuasive.

Because the League has not asserted an “exceedingly persuasive” justification for

keeping boys from participating on high school competitive dance teams, we hold that

the boys had more than a fair chance of prevailing on the merits of their case.

4 The

district court erred in concluding otherwise.

C.

Because we conclude that the boys have a fair chance of prevailing on the merits

of their equal protection claim, we need not address their probability of success on their

Title IX claim. See Richland/Wilkin, 826 F.3d at 1040 (“The plaintiff ‘need only

3

In many sports, single-sex teams can be justified if boys enjoy a competitive

advantage over girls due to their weight and height. The League has not presented any

evidence (and does not seem to seriously argue) that boys enjoy any competitive

advantage over girls in dance.

4Given the lack of justification for the policy, we have no doubt that the boys

could even satisfy the heightened, likely-to-prevail standard if it were applicable.

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establish a likelihood ofsucceeding on the merits of any one of [its] claims.’” (alteration

in original) (citation omitted)). We turn now to the other Dataphase factors.

The district court concluded that the boys “sufficiently demonstrated irreparable

harm.” We agree. Students who are denied the opportunity to join theirschools’ sports

teams because of their sex may suffer irreparable harm. See Bednar v. Neb. Sch.

Activities Ass’n, 531 F.2d 922, 923 (8th Cir. 1976) (per curiam). That is especially true

here. Both boys are juniors in high school. They love to dance and want to do so

competitively as part of a school team. The League’s ban has prohibited them from

doing so this year. They cannot get that season back. Without injunctive relief or final

resolution of their suit, they will be prevented from competing next year as well. These

sorts of injuries, i.e., deprivations of temporally isolated opportunities, are exactly what

preliminary injunctions are intended to relieve.

Furthermore, we hold that the district court erred in concluding that the public

interest favored denying the injunction. The district court reasoned that “[t]he public

interest is evidenced in the Minnesota statute allowing girls-only teams that do not

violate Title IX or the Equal Protection Clause.” That statement, while true enough,

overlooks the fair probability that the League’s bylaw violates the Constitution. “[T]he

public is served by the preservation of constitutional rights.” Phelps-Roper v. Nixon,

545 F.3d 685, 694 (8th Cir. 2008), overruled on other grounds by Phelps-Roper v. City

of Manchester, 697 F.3d 678, 692 (8th Cir. 2012) (en banc); see also Awad v. Ziriax,

670 F.3d 1111, 1132 (10th Cir. 2012) (“[I]t is always in the public interest to prevent

the violation of a party’s constitutional rights.” (quoting G & V Lounge, Inc. v. Mich.

Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994))). As such, the public

interest Dataphase factor favors the boys.

Finally, we hold that the balance of harms tips in favor of granting an injunction.

The district court alluded that such may be the case in its memorandum and order, and

for good reason. If the injunction is granted, the boys may try out for their schools’

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competitive dance teams. The negative public consequences of such an allowance, if

any, will be slight.

5

 See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)

(“In exercising their sound discretion, courts of equity should pay particular regard for

the public consequencesin employing the extraordinary remedy ofinjunction.” (quoting

Weinberger v. Romero–Barcelo, 456 U.S. 305, 312 (1982))). On the other hand, if the

injunction is denied, the boys will continue to suffer irreparable harm—namely, they

will be prevented from trying out for and participating on their schools’ competitive

dance teams in probable violation of their constitutional rights. The balance of harms

is decidedly in the boys’ favor.

III.

In sum, all of the Dataphase factors favor granting D.M.’s and Z.G.’s motion for

a preliminary injunction. We therefore reverse the judgment of the district court and

remand for the district court to issue a preliminary injunction in favor of the boys.

______________________________

5The League argues that “[g]ranting an injunction would fundamentally alter the

requirements for MSHSL-sponsored activities and would disregard the unambiguous

language of Minn. Stat. § 121A.04.” The League worries that were the preliminary

injunction to be granted and the boys “subsequently determined ineligible after a trial

on the merits,” their teams would be required to forfeit “all contests in which [the boys]

participated.” We do not share the League’s concerns. If the injunction is granted, the

boys are “eligible” for all intents and purposes. Therefore, we are not convinced that

their teams would have to forfeit contests under the League’s rules. Moreover, the

League’s inability to show an “exceedingly persuasive” justification for its

discriminatory rule at this stage of the litigation makes a scenario wherein the boys lose

at trial highly unlikely.

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