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Maki v. Minnesota State High School League

United States District Court, D. Minnesota

December 27, 2016

Scott and Rhonda Maki, on behalf of their minor child, C.K.M., Plaintiffs,
v.
Minnesota State High School League and Craig Perry, individually and in his official capacity, Defendants.

          REPORT AND RECOMMENDATION

          HILDY BOWBEER United States Magistrate Judge.

         This matter is before the Court on Plaintiffs' Motion for Temporary Restraining Order, Preliminary Injunction, and Waiver of Security [Doc. No. 2]. Plaintiffs Scott and Rhonda Maki, on behalf of their minor child, C.K.M., move the Court for an Order (1) requiring Defendants Minnesota State High School League and Craig Perry to allow C.K.M. to continue to be fully varsity eligible during the pendency of this action; (2) temporarily enjoining Defendants from preventing, barring, or otherwise hindering C.K.M. from fully participating in school activities, including varsity athletics, at any level; (3) barring Defendants from taking any disciplinary action against any public school for allowing C.K.M. to participate in any interscholastic activity, including varsity athletics; and (4) directing that Plaintiffs are not required to give security as provided in Federal Rule of Civil Procedure 65(c). (Mot. at 1 [Doc. No. 2].) The motion was referred to this Court for a report and recommendation by the Honorable Michael J. Davis in an Order of Referral dated December 13, 2016 [Doc. No. 10]. The Court held a hearing on the motion on December 21, 2016. For the reasons set forth below, the Court recommends that the motion be denied.

         I. Background

         The facts set forth below were compiled primarily from the exhibits attached to Plaintiffs' original complaint and the Declaration of Margaret O'Sullivan Kane, [1] as well as the Declaration of Defendant Craig Perry and attached exhibits. Although both the original complaint [Doc. No. 1] and the amended complaint [Doc. No. 12] contain a “Verification” section, no plaintiff signed the “Verification” section on either pleading, and thus the facts alleged in the complaints cannot be considered verified. The Court nonetheless has cited to factual allegations in the amended complaint when they are undisputed or provide helpful context.

         A. The Minnesota State High School League

         The Minnesota State High School League (“League”) is a non-profit corporation, whose members include more than 500 public and other schools. (Perry Decl. ¶¶ 3, 10 [Doc. No. 15].) The League adopts standards for interscholastic activities and competitions for athletics, speech, debate, cheerleading, and music. (Perry Decl. ¶ 9.) Dr. Craig Perry is an Associate Director of the League. (Perry Decl. ¶ 2.)

         The League is governed by a Constitution and Bylaws, which are included in the League's Handbook. (Perry Decl. ¶ 4 & Ex. B.) Copies of the League's Handbook are available at the League's office in Brooklyn Center, Minnesota, and the Handbook is also publicly available online twenty-four hours a day. (Perry Decl. ¶ 7.)

         The League Constitution § 211.02 sets forth the “Powers and Duties” of the Board of Directors, which includes the power to “interpret all bylaws and provisions set forth in this Constitution, the Activity Bylaws and other bylaws and regulations of the League.” (Perry Decl. ¶ 13.) The Board of Directors has no power to pass or amend Bylaws, however, as the member schools retained that authority. (Perry Decl. ¶ 14.)

         The League's student eligibility requirements are set forth in Bylaws 101-111. (Perry Decl. ¶ 19; Kane Decl. Ex. 4.) Bylaw 111 governs transfer eligibility. (Kane Decl. Ex. 4.) A “transfer student” is defined as

one who discontinues enrollment and attendance in any high school, public or non-public, located in a public school district attendance area and enrolls in any high school in Minnesota, or outside of MN. Essentially, a transfer occurs anytime the school of record changes. A transfer is considered complete when the student attends school at the new school or participates with an athletic program.

         (Kane Decl. Ex. 4 at 24.) “A transfer student is eligible for varsity competition provided the student was in Good Standing on the date of withdrawal from the last school the student attended” and one of five enumerated criteria are met. (Kane Decl. Ex. 4 at 21.) The five criteria are: (1) 9th Grade Option, (2) Family Residence Change, (3) Court Ordered Residence Change for Child Protection, (4) Divorced Parents, (5) and Move From Out of State. (Kane Decl. Ex. 4 at 21-22.) It is undisputed that C.K.M.'s transfer did not meet any of the five criteria.

         If none of the five criteria are present, “the student is ineligible for varsity competition for a period of one (1) calendar year beginning with the first day of attendance at the new school.” (Kane Decl. Ex. 4 at 22.) The student is “immediately eligible for competition at the non-varsity level, ” however. (Kane Decl. Ex. 4 at 22.)

         The League's administration of student eligibility Bylaws is governed by Bylaws 300-308. (Kane Decl. Ex. 4.) A section of the Bylaws titled “Fair Hearing Procedure and Acknowledgment of Rights” sets forth the League's policy “to promote, extend, manage and administer competitive activities for Minnesota youth” by restricting “student movement from school to school . . . to prevent athletic transfers and ensure competitive equity amongst schools regardless of athletic ability.” (Kane Decl. Ex. 4 at 51.) In furtherance of that policy, the League will “not determine whether a transfer was for athletic purposes but rather determines that all Transfer Students are deemed presumptively ineligible for varsity athletics unless they meet one of the exceptions listed in Bylaw 111 or as outlined in these Independent Hearing Procedures.” (Kane Decl. Ex. 4 at 51.)

         The Fair Hearing Procedure and Acknowledgment of Rights section further provides that the school administrator at the receiving school makes the initial eligibility determination, after the student has completed the transfer to the receiving school. (Kane Decl. Ex. 4 at 52.) The receiving school administrator is responsible for informing the student and parents of the initial eligibility determination. (Kane Decl. Ex. 4 at 52.) The notification must include a copy of the Fair Hearing Procedure and Acknowledgment of Rights. (Kane Decl. Ex. 4 at 50.) The receiving school administrator also submits the determination via an electronic transfer form to the League for review. (Kane Decl. Ex. 4 at 52.) The League reviews the determination and sends an electronic response agreeing or disagreeing with the school administrator's initial decision. (Kane Decl. Ex. 4 at 52.)

         If the student or parent wishes to appeal the initial eligibility decision, he or she may do so by submitting an appeal to the League through the receiving school administrator. (Kane Decl. Ex. 4 at 52.) The appeal must include (1) the rationale for the appeal and any supporting documentation, (2) information and documentation from the receiving school, and (3) information and documentation from the sending school. (Kane Decl. Ex. 4 at 52.) The transfer eligibility appeal process is limited to six circumstances, including:

Intolerable conditions at the Sending School as affirmed in writing by the Sending School. When situations arise that the student or parents believe have created an intolerable condition, the acts complained of must first be reported to the appropriate administrators at the school so they have the opportunity to investigate and take any action they deem necessary to resolve the problem. If the parents believe that actions or situations are occurring that have an adverse impact on the physical or psychological well-being of the student, the student must have been referred to an appropriate medical or psychological professional. That professional must prepare a written report that can be provided, on a confidential basis, to the school, the League office and the independent hearing officer if a hearing is required. If police action has been taken, copies of the reports showing that an investigation was actually conducted and the results of that investigation must be provided. In general, allegations alone are not sufficient. There must be some reasonable and believable substantiation presented to indicate an incident or incidents actually occurred. As well, the perpetrators must be identified.

(Kane Decl. Ex. 4 at 52.)

         If the appeal is denied, the student or parent may request an independent hearing at the League level through the receiving school administrator. (Kane Decl. Ex. 4 at 52.) The League may grant or deny the request for a hearing. (Kane Decl. Ex. 4 at 52.) If the request for a hearing is denied, the Board reviews the eligibility decision at its next meeting. (Kane Decl. Ex. 4 at 53.) If the request for a hearing is granted, “the hearing will be held before an independent hearing officer appointed by the League and at the League's expense.” (Kane Decl. Ex. 4 at 52.) The student has the right to be represented by counsel or another person chosen by the student. (Kane Decl. Ex. 4 at 52.) The League Board of Directors reviews the hearing officer's recommendation at the next Board meeting. (Kane Decl. Ex. 4 at 52.) The Board of Directors' decision on the hearing officer's recommendation is final. (Kane Decl. Ex. 4 at 53.)

         B. C.K.M.

         C.K.M. is a student athlete who plays basketball, volleyball, and softball. (Am. Compl. ¶ 3 [Doc. No. 12].) She enrolled at Dassel-Cokato High School in ninth grade after her family moved to Cokato, Minnesota, from Bettendorf, Iowa. (Am. Compl. ¶ 12; Perry Decl. ¶ 31.) In the fall of her eleventh grade year, on October 24, 2016, she discontinued enrollment at Dassel-Cokato High School and enrolled at Maple Lake High School. (Perry Decl. ¶ 32.) Plaintiffs allege C.K.M. transferred “because of the unprofessional conduct of a [Dassel-Cokato] coach and the significant adverse effect that conduct had on C.K.M.” (Am. Compl. ¶ 4.) Plaintiffs further allege that Dassel-Cokato school officials were not receptive to their attempts to work out the issues, and “the conditions became more intolerable and hostile, expanding to include other coaching staff and members of the Maki family.” (Am. Compl. ¶ 4.) There is no dispute that C.K.M.'s discontinued enrollment at Dassel-Cokato High School and enrollment at Maple Lake High School met the definition of a “transfer” under League rules.

         Maple Lake Activities Director Tim Tungseth submitted an electronic Student Transfer Form to the League, on which he made the initial determination that C.K.M. was ineligible for varsity competition for one full calendar year under League rules, pursuant to Bylaw 111. (Kane Decl. Ex. 6.) Based solely on the information provided on the form, the League indicated on October 26, 2016, its agreement with the initial determination of ineligibility. (Kane Decl. Ex. 6 at 2.)

         On November 4, 2016, Tungseth submitted an Application to Appeal an Eligibility Determination to the League, based on the “Intolerable conditions at the Sending School” provision contained in the Fair Hearing Procedure and Acknowledgment of Rights section of the Bylaws. (Kane Decl. Ex. 6 at 3-6; see Kane Decl. Ex. 4 at 52.) The intolerable conditions were described as bullying and “[s]evere retaliation including defamation, further bullying, public humiliation, sabotage, false accusations involving the family and defamation/false rumor spreading outside of the district.” (Kane Decl. Ex. 6 at 3.) Tungseth indicated there was reasonable and believable substantiation of intolerable conditions, that the family reported the incidents, and that the student visited with an appropriate psychological professional, but that the sending school did not investigate the complaints and law enforcement officials were not involved. (Kane Decl. Ex. 6 at 3.) Tungseth included as supporting documentation a letter from the Makis, letters from C.K.M.'s previous coaches, and a letter from C.K.M.'s psychologist. (Kane Decl. Ex. 6 at 4.) As the sending school, Dassel-Cokato provided its position, as required, disclaiming any interest in interfering with C.K.M.'s varsity eligibility, but denying there were intolerable conditions at the school. (Kane Decl. Ex. 6 at 4.) Dassel-Cokato included a narrative detailing the nature of the incidents, its investigation of the incidents, and its communications with Plaintiffs. (Kane Decl. Ex. 6 at 4-5.)

         On November 8, 2016, the League denied the appeal, explaining:

The rationale submitted by the family in the appeal does not meet the criteria identified in the MSHSL Transfer Eligibility Appeal Policy, provisions 2.A-F. The League agrees with the school's determination of eligibility. The student will be 100% ineligible for varsity competition for one calendar year . . . . The student is eligible for participation at the JV or lower levels. The documents submitted for review in support of the family's rationale for the transfer eligibility appeal do not demonstrate intolerable conditions existed for the student at Dassel-Cokato High School.

(Kane Decl. Ex. 1 at 3, Ex. 6 at 6.) Tungseth emailed the sending school's response and the League's response to Rhonda Maki on ...


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