Kleczek v. Rhode Island Interscholastic League

• Decision Date: 01 August 1991
• Docket Number: Civ. A. No. 91-0091L.
• Parties: Edward KLECZEK and Alyce Kleczek, On Behalf of Their Son, Brian KLECZEK v. RHODE ISLAND INTERSCHOLASTIC LEAGUE, INC.; Arthur B. Campbell, Superintendent of Schools for South Kingstown, Rhode Island; Eric D. Wertheimer, Principal, South Kingstown High School; the School Committee of the Town of South Kingstown; Suzanne R. Browning, Michael Chadwick, Patricia A. Ciccone, Joan H. Crothers, Cynthia G. Collins, James H. Deluca, Jr., Lesley J. Mills, in their capacities as members of the School Committee of the Town of South Kingstown.
• Court: U.S. District Court — District of Rhode Island

768 F. Supp. 951

Edward KLECZEK and Alyce Kleczek, On Behalf of Their Son, Brian KLECZEK v. RHODE ISLAND INTERSCHOLASTIC LEAGUE, INC.; Arthur B. Campbell, Superintendent of Schools for South Kingstown, Rhode Island; Eric D. Wertheimer, Principal, South Kingstown High School; the School Committee of the Town of South Kingstown; Suzanne R. Browning, Michael Chadwick, Patricia A. Ciccone, Joan H. Crothers, Cynthia G. Collins, James H. Deluca, Jr., Lesley J. Mills, in their capacities as members of the School Committee of the Town of South Kingstown.

Civ. A. No. 91-0091L.

United States District Court, D. Rhode Island.

August 1, 1991.

Robert D. Parrillo, Hanson, Curran, Parks & Whitman, Providence, R.I., for plaintiffs.

Paul A. Ward, Jr., James F. McAleer, McAleer & McAleer, Providence, R.I., David J. Kehoe, Warwick, R.I., for defendants.

MEMORANDUM AND ORDER

LAGUEUX, District Judge.

Plaintiffs Edward Kleczek and Alyce Kleczek brought this action on behalf of their son Brian, a South Kingstown High School student who desires to play on that school's girls' field hockey team. Defendants are the Rhode Island Interscholastic League, Inc. ("RIIL"), which is a private nonprofit organization, and various officials associated with South Kingstown High School, including the Superintendent of Schools, the Principal, and the School Committee and its individual members.

Presently before the Court is plaintiffs' motion for preliminary injunction. Plaintiffs seek an order enjoining defendants from preventing or interfering with Brian's participation in interscholastic field hockey. Plaintiffs also seek an order enjoining defendants from obstructing the South Kingstown High School field hockey team's participation in interscholastic competition because of the fact that Brian is male. For the reasons set forth below, plaintiffs' motion for a preliminary injunction must be denied.

I. BACKGROUND

In August of 1990, at the beginning of his sophomore year, Brian Kleczek tried out for the South Kingstown High School girls' field hockey team. Based upon his skills, the team coach determined that Brian was best qualified to compete on the junior varsity squad. The coach did not have to cut any players to make room for Brian. The total number of players interested in competing did not exceed the maximum number that the coach indicated would be the roster limit. In short, any student interested and committed made the team; ability only determined placement on either the varsity or junior varsity team. Of course, if many more students had tried out for the team, the coach would have had to exclude some to keep a manageable number.

Brian became interested in playing on the team because his older sister had played varsity field hockey for South Kingstown High and also because he had himself played the sport in physical education class at the high school. Because South Kingstown High School does not field a boys' field hockey team, nor do any such teams exist in Rhode Island, Brian decided to try-out for the girls' team.¹

Brian's parents supported his decision to try-out for the team. On August 27, 1990, they wrote to the athletic director at the high school requesting his permission to allow Brian to play. The principal of the high school, defendant Eric Wertheimer, then requested the RIIL to allow Brian to compete. The RIIL refused, pointing to Article 25, Section 1 of its Rules and Regulations which limits competition in field hockey to only girls. Prompted by the Kleczeks, Mr. Wertheimer then requested the RIIL to waive the application of Article 25, Section 1 in Brian's case. A committee of the RIIL conducted a hearing on the requested waiver and heard testimony from several witnesses. It thereafter concluded, by a unanimous vote, that no waiver should be permitted and that Brian should not be allowed to join the team. The RIIL notified Mr. Wertheimer of its decision on September 26, 1990. As a result, Brian spent last fall on the sidelines, serving as a manager for the team and occasionally joining in team practices.

Plaintiffs filed this suit on February 21, 1991. They alleged that the actions of the defendants violate Brian's rights under Title IX (20 U.S.C. § 1681), the federal equal protection clause (U.S. Const. amend. XIV), Section 16-38-1.1 of the General Laws of Rhode Island, and Article I, Section 2 of the Rhode Island Constitution. A hearing was held on plaintiffs' motion for a preliminary injunction on May 20, 1991. The matter is now in order for decision.

II. DISCUSSION

The First Circuit has recently reaffirmed the well-settled standard that governs a district court's determination of a motion for preliminary injunction. The four-part test requires careful consideration of the following factors:

(1) The likelihood of success on the merits;

(2) The potential for irreparable injury;

(3) A balancing of the relevant equities (most importantly, the hardship to the nonmovant if the restrainer issues as contrasted with the hardship to the movant if interim relief is withheld); and

(4) The effect on the public interest of a grant or denial of the restrainer.

Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir.1991). Application of this standard to the facts of this case mandates denial of plaintiffs' motion for a preliminary injunction. Denial of the motion is necessary primarily because plaintiffs have failed to demonstrate a likelihood of success on the merits. In addition, consideration of the other three factors supports the denial of injunctive relief.

A. Probability of Success

It is "critical" for a party seeking a preliminary injunction to demonstrate a probability of success on the merits. Narragansett Indian Tribe, 934 F.2d at 6. Of course, a party need not prove its claims at the preliminary injunction stage, only that it is likely to be able to prove its claims later. Plaintiffs have not done this. Indeed, at this point, the chances of plaintiffs actually succeeding on the merits appear quite slim. See id. (noting that conclusions as to probability of success are only statements of "probable outcomes"). The Court reaches this conclusion because plaintiffs have failed to demonstrate the existence of federal funding which makes Title IX applicable. Furthermore, even if Title IX is assumed to apply, plaintiffs have not shown that it is likely that they would succeed under the plain meaning of the applicable regulations. In addition, plaintiffs have not shown that they are likely to succeed on their claim under the federal equal protection clause. Because success on both federal claims appears unlikely, the Court would have the discretion to refuse to exercise jurisdiction over the pendent state claims.

1. Title IX

Title IX prohibits sex discrimination in any "program or activity receiving Federal financial assistance." 20 U.S.C. § 1681. Both the RIIL and the South Kingstown athletic program are programs or activities within the prospective reach of Title IX. See 20 U.S.C. § 1687. However, because neither appears to receive federal financial assistance, they remain outside of Title IX's grasp.

The funding issue was explored carefully by counsel at the hearing held on this motion. David D. Gainey, the Chairman of the RIIL's Principal's Committee on Athletics, testified that the league receives no federal funds. Indeed, he also testified that the league does not even receive state funds. Instead, the league is funded entirely from dues collected from member schools, revenues collected from state championship events, and corporate sponsorship of some of those championships.

In addition, defendant Arthur Campbell, the Superintendent of Schools for South Kingstown, testified about the school system's receipt of federal funds. On examination by plaintiffs' counsel, Mr. Campbell stated that the school system receives federal funds and also pays membership dues to RIIL. However, when examined in more detail by RIIL's attorney, Mr. Campbell testified that the school system only receives "restrictive" federal funds, which are to be used for specific designated purposes such as vocational education programs, math and science training, reading programs, and so on. He also testified that no federal funds are used to support any school activity, including athletics.

On this evidence, plaintiffs are very unlikely to prevail on their Title IX claim. Proving that South Kingstown High School receives some federal money and that it in turn expends some money for membership in the RIIL is legally insufficient for Title IX purposes. The First Circuit has clearly held that Title IX adopts a "programmatic approach rather than an institutional approach to combating sex discrimination in education." Rice v. President and Fellows of Harvard College, 663 F.2d 336, 339 n. 1 (1st Cir.1981) (citing Othen v. Ann Arbor School Bd., 507 F.Supp. 1376, 1380-83 (E.D.Mich.1981), aff'd, 699 F.2d 309 (6th Cir.1983)), cert. denied, 456 U.S. 928, 102 S.Ct. 1976, 72 L.Ed.2d 444 (1982). See also North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 537, 102 S.Ct. 1912, 1926, 72 L.Ed.2d 299 (1982) (noting the "program-specific focus" of Section 1681 of Title IX).

Thus, in order to even have a chance of succeeding on their Title IX claim, plaintiffs must demonstrate that the RIIL and the South Kingstown athletic program are recipients of federal funds. Because the prospect of that happening appears remote, the Court must hold that plaintiffs have failed to demonstrate a likelihood of success on the merits of their Title IX claim. See Yellow Springs Exempted Village School Dist. Bd. of Educ. v. Ohio High School Athletic Ass'n, 647 F.2d 651, 656 (6th Cir.1981); Lantz by Lantz v. Ambach, 620 F.Supp. 663, 665 (S.D.N.Y.1985).

Even if Title IX eventually proves to be applicable, the Court believes that plaintiffs have not shown a likelihood of succeeding under the regulations promulgated under the authority of Title IX. The applicable...