Opinion
Case No. 04-1319-JTM.
October 15, 2004
MEMORANDUM AND ORDER
This matter comes before the court on the plaintiff's Motion for a Preliminary Injunction (Dkt. No. 2). After a hearing of plaintiffs' case, the court denies the request for a preliminary injunction and dismisses this case.
I. BACKGROUND
Plaintiff Timothy R. Love II, by his father Timothy Love, brings this action alleging due process and equal protection violations under the Fourteenth Amendment. Plaintiffs allege that Dan Johnson, head football coach at Wichita Southeast, began recruiting student Love by calling his father and discussing football, by sending an instructional tape for quarterbacks prepared by Southeast's athletic director, and by sending a student to visit student Love's house to make sure he attended the summer practices. Student Love attended the summer conditioning program, summer football camp, and football practices. After attending two half-days of school at Southeast, Tim Love II decided to transfer to Kapaun and sent Southeast a limited eligibility transfer form, which would make him eligible for non-varsity sports. See KSHSAA Rule 18, Art. 6. Tim Love II alleges his transfer was not athletically motivated.
Mark Lamb, director of Southeast's athletic program, denied Tim Love II's limited eligibility stating that, "We feel that the move was athletically motivated." The Executive Director of KSHSAA approved the denial. In subsequent reviews, the KSHSAA's Executive Board and Appeals Board denied Tim Love II's request for limited eligibility. The Boards relied on affidavits of school officials, which suggested that Tim Love had been considering his son's opportunities "to pass" in Southeast's football program.
In this action, Tim Love II alleges: 1) due process violations because he was not allowed to cross examine witnesses in KSHSAA's administrative hearings, and there were no standards or procedures for these hearings; 2) equal protection violations because different standards apply to recruited vs. non-recruited athletes and athletes vs. other students; and 3) procedural due process violations because he has a property interest in playing non-varsity sports at Kapaun. The court will review these allegations in determining whether a preliminary injunction is appropriate.
II. STANDARD
Under Fed.R.Civ.P. 65, a preliminary injunction is designed to preserve the status quo between the parties pending a final determination on the merits. University of Texas v. Camenisch, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). It is an equitable remedy within the sound discretion of the district court. Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980). To make a prima facie showing for a preliminary injunction, plaintiff must show: 1) irreparable injury if the injunction is not granted; 2) the threatened injury outweighs any harm the preliminary injunction will cause the opposing party; 3) the preliminary injunction is not adverse to the public interest; and 4) a substantial likelihood of success on the merits. SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991); Lundgrin, 619 F.2d at 63.
The 10th Circuit has modified the "likelihood of success" prong and requires the plaintiff to establish the likelihood of success by showing questions "so serious, substantial, difficult and doubtful, as to make the issues ripe for litigation and deserving of more deliberate investigation." Walmer v. United States Dept. of Defense and Dept. of Army, 52 F.3d 851, 854 (10th Cir. 1995);City of Chanute v. Kansas Gas and Elec. Co., 754 F.2d 310, 314 (10th Cir. 1985). The preliminary injunction is an extraordinary remedy. GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir. 1984). As such, it should only be granted when the right to relief is clear and unequivocal. See Penn v. San Juan Hosp., 528 F.2d 1181, 1185 (10th Cir. 1975).
III. ANALYSIS
Having heard all of plaintiffs' evidence, the court finds that a preliminary injunction is not warranted. Plaintiffs have not met the "irreparable injuries" requirement for a preliminary injunction. While student Love will miss eighteen weeks of eligibility at Kapaun, this does not amount to an irreparable harm. As a freshman at Kapaun, he will still have the opportunity to practice with the football team, as he has been doing. He will also be able to practice with the basketball team and play in competitive games early next year.
As to plaintiffs' due process claims, the testimony presented indicates that the KSHSAA has an extensive hearings process with several levels of review. Cross-examination in an administrative hearing is not a necessary component of due process under the case law. The Board has demonstrated that it does re-examine and overturn decisions when the evidence requires. The record indicates that the Board had a basis for denying eligibility to student Love, and the court declines to re-weigh this evidence. The court cannot find that the KSHSAA's review was arbitrary and capricious. Thus, the Board's decision must be left undisturbed.
As to plaintiffs' claims to equal protection violations and procedural due process violations, the court finds these arguments without merit. The court does not find an equal protection violation as to the treatment of athletes vs. non-recruited athletes and athletes vs. other students. The court also does not recognize a property interest in playing non-varsity sports and thus finds no procedural due process violation. See Boyle by Boyle v. Pennsylvania Interscholastic Athletic Association, Inc. (PIAA), 676 A.2d 695, 702 (Pa. Cmwlth. Mar. 22, 1996) appeal denied by 546 Pa. 684, 686 A.2d 1313 (Pa. Dec. 20, 1996).
Having decided that the plaintiffs do not meet the requirements of the first prong of the preliminary injunction, the court will not discuss the remaining prongs.
IT IS ACCORDINGLY ORDERED this 15th day of October, 2004, that the court denies the motion for a preliminary injunction (Dkt. No. 2) and dismisses this case.