M.H. v. Montana High School Ass'n

• Decision Date: 11 December 1996
• Docket Number: No. 96-024,96-024
• Citation: 280 Mont. 123,929 P.2d 239
• Parties: , 115 Ed. Law Rep. 94, 20 A.D.D. 300 M.H., Jr., individually and by his parents, and next friends, M.H. and T.H., Plaintiffs and Respondents, v. MONTANA HIGH SCHOOL ASSOCIATION and the Board of Control of the Montana High School Association, and Butte High School, Defendants and Appellants.
• Court: Montana Supreme Court

Page 239

929 P.2d 239

280 Mont. 123, 115 Ed. Law Rep. 94,

20 A.D.D. 300

M.H., Jr., individually and by his parents, and next

friends, M.H. and T.H., Plaintiffs and Respondents, v. MONTANA HIGH SCHOOL ASSOCIATION and the Board of Control of

the Montana High School Association, and Butte

High School, Defendants and Appellants.

No. 96-024.

Supreme Court of Montana.

Submitted on Briefs Aug. 8, 1996.

Decided Dec. 11, 1996.

Jock O. Anderson, David C. Dalthorp; Gough, Shanahan, Johnson & Waterman, Helena, for Defendants and Appellants.

David J. Wing; Hennessey, Joyce and Wing, Butte, for Plaintiffs and Respondents.

GRAY, Justice.

The Montana High School Association (MHSA) appeals from the Findings of Fact, Conclusions of Law and Order of the Second Judicial District Court, Silver Bow County, enjoining it from enforcing the "age rule" against M.H., Jr. (M.H.). We reverse.

The issue on appeal is whether the District Court abused its discretion in granting a preliminary injunction against MHSA.

Section 504/IDEA

Resolution of this appeal depends, in large part, on the proper interpretation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) ( § 504), and the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 through § 1491o (IDEA). Because of the importance of these federal statutes in understanding this case, we begin with a general overview of § 504 and IDEA.

Section 504 was enacted to address discrimination against disabled persons. It provides in pertinent part:

No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....

29 U.S.C. § 794(a). Section 504 is divided into different subsections which address subject matters ranging from education and employment to social services. See 34 C.F.R. § 104. The § 504 definition of disabled is broad and includes persons who have "physical or mental impairment which substantially limits one or more major life activities." See 34 C.F.R. § 104.3(j). A student who meets all of the criteria of § 504 must be provided an opportunity to participate in extracurricular activities, such as interscholastic athletic competitions, which is equal to that of other students. 34 C.F.R. § 104.37(a)(1) and (c)(1).

IDEA originally was enacted to address the failure of state education systems to recognize and meet the educational needs of children with disabilities. 20 U.S.C. § 1400. IDEA is much narrower than § 504 with regard to the types of disabilities which are protected. Compare 20 U.S.C. § 1401(a) with 29 U.S.C. § 706(7)(B) and 34 C.F.R. § 104.3(j). For example, IDEA lists specific disabilities, such as mental retardation, blindness and deafness, which qualify a student for IDEA assistance. See 20 U.S.C. § 1401(a)(1)(i). Thus, all students who are qualified under IDEA also fall within the anti-discrimination protections of § 504; however, all § 504 students are not necessarily IDEA-qualified.

State and local education agencies are required to provide children who qualify as disabled under IDEA with free and appropriate public education which means, in part, special education and related services provided in conformity with an individualized education program (IEP). See 20 U.S.C. §§ 1400(c), 1415; 34 C.F.R. § 300.8(d). An IEP, as that term is used in IDEA, is a formal written statement developed for an IDEA-qualified disabled student; an IEP must specify the student's educational goals, objectives, curriculum and related services and be in effect before special education is provided to the child. See 20 U.S.C. § 1401(a)(20); 34 C.F.R. §§ 300.340, 300.342, 300.346.

"Each public agency must provide special education and related services to a child with a disability in accordance with an IEP." 34 C.F.R. § 300.350. "Related services," as that term is used in IDEA, includes recreational activities where such activities are required to assist an IDEA-qualified disabled student in benefitting from special education. 20 U.S.C.

                §   1401(a)(17).  Thus, where an IEP contains a requirement for participation in extracurricular activities, for example, interscholastic sports, such participation is encompassed in the student's guaranteed right to free and appropriate public education.  [280 Mont. 127] See 20 U.S.C. §§ 1400(c), 1401(a)(17), (18) and (20);  34 C.F.R. §§ 300.1, 300.8, 300.16, 300.350
                

Facts

MHSA is a nonprofit association incorporated under the laws of Montana. Membership in MHSA is voluntary and is comprised of various public and private high schools, including Butte High School. MHSA has the exclusive authority to supervise, control, regulate and administer interscholastic activities among member high schools. To that end, MHSA has enacted by-laws and rules governing member high schools, including rules addressing eligibility requirements for participating in interscholastic athletic competitions. MHSA has the power to sanction and penalize a member school which allows an ineligible student to participate in such competitions.

Two MHSA by-laws are at issue here. The first is a by-law commonly referred to as the "age rule." It provides, in pertinent part, that "[n]o student is eligible to participate in an Association contest [including interscholastic athletic competitions] who has become nineteen (19) years old on or before midnight, August 31, of a given year." Montana High Sch. Ass'n Official Handbook (1995-1996), By-Laws, Article II, Section (8), p. 19. The second is a by-law entitled "IDEA/SECTION 504 AGE RULE APPEALS" (IDEA/s 504 appeals rule) which provides that a "special education" student may appeal an MHSA ineligibility decision made under the age rule. Under the IDEA/s 504 appeals rule, the appealing student has the burden of proof with regard to six enumerated requirements. See Montana High Sch. Ass'n Official Handbook (1995-1996), By-Laws, Article VII, Subsection (B)(4), p. 31.

Here, M.H. repeated both kindergarten and the third grade due to difficulties in school. In November of 1985, during his second year in the third grade, M.H. was referred to special education and a Child Study Team (CST) determined that M.H. was "Learning Disabled" due to difficulties with reading and spelling. After completing his freshman year at Butte High School in 1993, M.H. was diagnosed with Attention Deficit Disorder (ADD).

During his freshman through junior years at Butte High School, M.H. competed in both wrestling and football. As a result of repeating kindergarten and the third grade, he turned nineteen prior to beginning his senior year. In May of 1995, just before M.H. turned nineteen years of age, a CST determined that M.H. qualified as a § 504 student due to difficulties in English resulting from his ADD. M.H. did not qualify as a disabled student under IDEA.

Joseph Masolo (Masolo), a § 504 coordinator for the Butte public schools, made written recommendations regarding M.H. in a one-page letter. Specifically, Masolo recommended that M.H. continue to participate in wrestling to insure "academic success for the 1995-96 school [year]." Masolo later stated that his letter was an "IEP" developed pursuant to Montana guidelines for § 504 students. See Montana Office of Public Instruction, Section 504 Guidelines for Educators (1995) (OPI guidelines). Masolo correctly noted, however, that § 504, unlike IDEA, does not require the development of an IEP. He acknowledged that, while OPI guidelines recommend development of an "IEP" for § 504 students, such a § 504 "IEP" can be informal and even verbal. Moreover, Masolo recognized--and it is undisputed in this case--that the recommendations he developed for M.H. fall far short of the requirements for an IEP under IDEA.

On behalf of M.H., Daniel J. Peters (Peters), the principal of Butte High School, petitioned MHSA for waiver of the age rule to allow M.H. to participate in wresting and football during the 1995-1996 school year. MHSA held a telephone hearing on the petition, during which Peters explained that M.H.'s parents requested that the age rule be waived due to M.H.'s ADD. MHSA denied the request.

M.H. appealed MHSA's decision pursuant to the IDEA/s 504 appeals rule. MHSA conducted a hearing and received evidence according to the procedure provided for such appeals. See Montana High Sch. Ass'n Official Handbook (1995-1996), By-Laws, Article VII, Subsection (B)(3), p. 30. Thereafter, it denied M.H.'s appeal on the basis that M.H. failed to prove, as required by Article VII, Subsection (B)(4), that: (1) he would not create a safety risk to other players; (2) he would not skew the overall competitiveness of the particular activities in which he would participate; and (3) his participation would not result in the exclusion of other eligible players.

M.H., individually and by his parents, filed a complaint and a motion for a preliminary injunction against MHSA in November of 1995, based primarily on IDEA. MHSA opposed M.H.'s motion for a preliminary injunction. It argued that M.H. had not been classified as a disabled student under IDEA, had not received any services under IDEA, had no IEP under IDEA and, therefore, was not entitled to the rights and protections afforded by IDEA.

The District Court held a hearing on M.H.'s motion for a preliminary injunction. M.H. indicated at the beginning of the hearing that he had spoken with MHSA about his intent to amend his complaint. Although M.H. did not file an amended complaint, he stated that he would be asserting a claim based on § 504 and Article VII, Subsection (B)(4) of the MHSA by-laws; he further indicated that he would be deleting the cause of action based on IDEA. MHSA stated that it had no objection to such an amendment of the complaint. Accordingly, the record before us contains evidence and arguments...