Circuit Court Finds Boys Have a Constitutional Right to Try Out and Participate on Dance Teams

May 10, 2019

The 8th U.S. Circuit Court of Appeals has reversed a trial court and determined two Minnesota high school students, who were males, were denied their rights under the Equal Protection Clause of the Constitution when their school did not allow them to try out for the female-only competitive dance teams.
The circuit court found, in sum, “that the boys had more than a fair chance of prevailing on the merits of their case, and that the district court erred in concluding otherwise.”
In 2018, two boys, D.M. and Z.G., sued the Minnesota State High School 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. 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, leading to the instant opinion.
By way of background, the court noted that the plaintiffs, who were 11th graders, “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 (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 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 points to 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 (“In 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 based on the aforementioned grounds.
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, as reflected in Minnesota Statute section 121A.04, favored denying the injunction. The court explained that “the 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.
On appeal, the 8th Circuit reviewed the “the denial of a preliminary injunction” to determine if there had been an abuse of discretion in the lower court, or that the court had missed the mark by applying the wrong standard when considering the merits of the boys’ claims.
“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,” wrote the panel of judges in the 8th Circuit. “The League contends that it is justified in precluding the 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.”
While “the parties agree that girls historically have been underrepresented in Minnesota high school athletics,” there has been a shift over the past five years. During that span, “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. 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 opportunities for female athletes.’ The League also cites a Rhode Island Supreme Court case, Kleczek v. R.I. Interscholastic 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 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. The district court erred in concluding otherwise.”
The court continued, using the Dataphase factors as a guide. “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,” it wrote citing Richland/Wilkin, 826 F.3d at 1040. “The plaintiff ‘need only establish a likelihood of succeeding on the merits of any one of [its] claims.’”
While the district court correctly ruled that the boys suffered irreparable harm, it erred, according to the circuit court, “in concluding that the public interest favored denying the injunction. The district court reasoned that ‘the 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. ‘The public is served by the preservation of constitutional rights.’ Phelps-Roper v. Nixon, 545 F.3d 685, 694 (8th Cir. 2008). … 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’ competitive dance teams. The negative public consequences of such an allowance, if any, will be slight. (See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008). ‘In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.’ (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S. Ct. 1798, 72 L. Ed. 2d 91 (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.
“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.”
D.M. v. Minn. State High Sch. League; 8th Cir.; 2019 U.S. App. LEXIS 6777 *; __ F.3d __; 2019 WL 1050420; 3/6/19
Attorneys of Record: (for plaintiffs — appellants) Anastasia Boden, Timothy R. Snowball, Joshua Paul Thompson, Caleb R. Trotter, Pacific Legal Foundation, Sacramento, CA; Erick G. Kaardal, Mohrman & Kaardal, Minneapolis, MN.
(for defendants — appellees) Kevin Michael Beck, Joseph A. Kelly, Patrick John Kelly, Kelly & Lemmons, Saint Paul, MN.
For Missouri State High School Activities Association, Amicus on Behalf of Appellee(s): Mallory V. Mayse, Columbia, MO.
For Arkansas Activities Association, Amicus on Behalf of Appellee(s): Edward W. McCorkle, Mcmillan & Mccorkle, Arkadelphia, AR.
For Nebraska School Activities Association, Amicus on Behalf of Appellee(s): Rex R. Schultze, Perry Law Firm, Lincoln, NE.
For North Dakota High School Activities Association, Amicus on Behalf of Appellee(s): Rachel Bruner, Pearce & Durick, Bismarck, ND.
For National Federation of State High School Associations, Amicus on Behalf of Appellee(s): William E. Quirk, Polsinelli, PC, Kansas City, MO.


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