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CROCKER v. TENNESSEE SECONDARY SCH. ATH. ASSN.

April 20, 1990

MICHAEL RAY CROCKER
v.
TENNESSEE SECONDARY SCHOOL ATHLETIC ASSOCIATION AND RONALD LEE CARTER, individually and as Executive Director of the Tennessee Secondary School Athletic Association; and THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY v. RAY CROCKER and wife, SUSAN CROCKER, as Legal Guardians and Next Friends of Michael Crocker, a Minor; TENNESSEE SECONDARY SCHOOL ATHLETIC ASSOCIATION; and CHARLES SMITH, Commissioner of the Tennessee Department of Education



The opinion of the court was delivered by: NIXON

 JOHN T. NIXON, UNITED STATES DISTRICT JUDGE

 Pending before the Court are plaintiffs' motion for a preliminary injunction and defendants' motion to dismiss.

 FACTS

 The plaintiff, Michael Crocker, is a student enrolled in the 12th grade at McGavock High School in Nashville, Davidson County, Tennessee. The defendant, Tennessee Secondary School Athletic Association, is an organization designed to regulate high school athletic activities.

 On March 2, 1988, during the middle of the Spring semester, Michael Crocker transferred as a tenth grade student from Ezell-Harding Christian School into McGavock High School, a Metropolitan public school.

 Ronald Lee Carter, the Executive Director of the Tennessee Secondary Schools Athletic Association [TSSAA], ruled that Michael Crocker was ineligible to participate in interscholastic football, basketball, baseball, and track for a period of twelve months from his enrollment at McGavock pursuant to TSSAA transfer regulations, Article II, Section 13.

 On March 14, 1988, McGavock High School submitted an appeal of Executive Director Carter's eligibility ruling pursuant to the TSSAA hardship rule. On March 15, 1988, Executive Director Carter denied the hardship request. McGavock High School appealed Carter's decision to the TSSAA Board of Control, the administrative authority of the TSSAA, and the Board of Control denied the hardship appeal on March 23, 1988.

 On or about May 4, 1988, Michael Crocker was certified by Metropolitan Public Schools, as having a learning disability in the specific area of written language. Michael Crocker was certified "handicapped" pursuant to the Education of the Handicapped Act [EHA], 20 U.S.C. § 1400 et seq.

 On August 20, 1988, in light of Michael Crocker's certification as "handicapped," McGavock High School presented a second hardship appeal on behalf of Michael Crocker to the TSSAA Board of Control. On August 22, 1988, the Board of Control denied this second hardship appeal.

 After the first four games of the 1988-89 football season, on August 23, 1988, Mr. and Mrs. Crocker filed suit in this Court on behalf of their son, claiming that Michael's ineligibility for participation in interscholastic athletics at McGavock High School deprived him of his rights under the EHA. (Crocker v. TSSAA, et al., No. 3-88-0710). Defendants in the suit were the TSSAA; Charles Smith, Commissioner of the Tennessee Department of Education; and the Metro Board of Education.

 Following an evidentiary hearing on Mr. and Mrs. Crocker's application for a temporary injunction and a trial on the merits, this Court announced its opinion on September 23, 1988. The Court found that although the EHA did not require that the local and state educational agencies affirmatively provide extracurricular activities for handicapped students, it did prohibit discrimination against those students. The Court concluded that a student who transferred from one school to another for the purpose of receiving a free appropriate public education under the EHA could not be prohibited from participating in extracurricular activities since such a prohibition would amount to discrimination based on handicap. The Court found that it was necessary to determine the reason for Michael Crocker's transfer and that the determination must be made by the local educational agency. Pending that determination, this Court declared "that no athletic contest that he [Michael Crocker] participates in is to be determined by TSSAA to be an invalid contest." (September 23, 1988, transcript of Crocker v. TSSAA, et al., No 3-88-0710). Michael Crocker participated in interscholastic football and basketball during the remainder of the 1988-89 school year.

 On December 13, 1988, the Sixth Circuit Court of Appeals vacated this Court's decision because the Crockers had failed to exhaust the administrative remedies mandated by the EHA and state procedures. The plaintiffs allege that the Court of Appeals ordered from the bench that: "Metropolitan Public Schools, specifically McGavock High School, was not to be penalized for allowing Michael to participate pursuant to Judge Nixon's Order." The defendant does not deny that such an order was made from the bench. The defendant asserts that it is only aware of what the Court of Appeals says through the Court's written opinion. The defendant contests the binding force of such an order since it did not appear in the Sixth Circuit Court of Appeals written decision.

 On or about August 21, 1989, after this Court's injunction had been dissolved, McGavock High School Principal, Dr. Howard Baltimore, was notified by TSSAA Executive Director Carter that pursuant to a decision by the TSSAA Board of Control, Michael Crocker would be ineligible to participate in interscholastic football and basketball after the fourth football game of the 1989-90 school season. In a second letter dated August 21, 1989, Mr. Carter ordered McGavock High School to forfeit all games in which Michael had participated during the 1988-89 school year, as well as all championships and trophies, which resulted from those games. Dr. Baltimore appealed the directive to forfeit all games, championships and trophies to the TSSAA Board of Control. A letter was sent on August 29, 1989, reflecting the Board of Control's decision to uphold Mr. Carter's directive. As of this date McGavock High School has not forfeited the games, championships, nor the trophies which resulted from those games.

 On September 5, 1989, an Individualized Education Program (IEP) was proposed for Michael Crocker as a 12th grade special education student at McGavock High School. The IEP provided for continued participation in the regular education program, allowing McGavock's special education department to monitor Michael's progress and to be available to Michael and his teachers on an "as needed" basis. Michael's parents were in agreement with the proposed educational program, but did not sign the IEP due to Metro's position that football was not a related service to be included in his IEP because it would not help Michael's written language handicap.

 On September 5, 1989, the Crockers requested an EHA due process hearing regarding Metro's refusal to write into Michael's IEP that he should participate in interscholastic athletics for the 1989-90 school year. A due process hearing was held on September 29, 1989, by Judge Mulroy, an Administrative Law Judge. On October 13, 1989, Judge Mulroy held that TSSAA had discriminated against Michael, pursuant to 29 U.S.C. § 794, in prohibiting him from participating in interscholastic athletics by failing to grant a special hardship exception to the TSSAA Transfer Rule. The ruling also placed responsibility upon the State of Tennessee to "use its good offices to obtain reversal of the TSSAA decision which voided the public high school's 'win' record for academic year 1988-89 for games in which Michael played." (In the Matter of Michael Ray Crocker, Judge Mulroy, No. 89-29, at p. 4)

 On October 18, 1989, the Metropolitan Public Schools received a letter from the Tennessee Commissioner of Education, Charles Smith, requiring the school system to provide written assurances that the October 13, 1989 administrative decision was being complied with, and that Michael Crocker be allowed to participate in interscholastic sports without interference.

 On October 18, 1989, the Metropolitan Government of Nashville and Davidson County [Metro] filed suit in this Court, alleging an action involving the EHA and claiming federal question jurisdiction under 28 U.S.C. § 1331. Metro sought a declaratory judgment declaring the rights and obligations of the parties under Judge Mulroy's decision In the Matter of Michael Ray Crocker, No. 89-29. In addition, Metro sought injunctive relief to prevent TSSAA from taking reprisals or retaliation against McGavock High School or Metro for allowing Crocker to participate in interscholastic athletics in accordance with Administrative Judge Mulroy's decision. Finally, Metro sought an injunction preventing TSSAA from requiring McGavock High School to forfeit athletic contests, championships and trophies for games in which Crocker participated at McGavock High School during the 1988-89 school year.

 Also on October 18, 1989, Michael Ray Crocker filed his second suit in this Court alleging that TSSAA and Ronald Lee Carter, Executive Director of TSSAA, had deprived Crocker of rights secured to him by the Education of the Handicapped Act, 20 U.S.C. § 1400, et seq. and Section 504 of the Rehabilitation Act, 20 U.S.C. § 794 [Rehabilitation Act], and further alleging that TSSAA and Carter would continue to violate the rights of Crocker under said Acts unless enjoined by this Court. Crocker also sought compensatory damages in the amount of $ 500,000 and punitive damages in the amount of $ 1,000,000. Crocker brought his action pursuant to 42 U.S.C. § 1983, claiming federal question jurisdiction under 28 U.S.C. § 1331.

 Upon application of Crocker, this Court on October 19, 1989, issued a temporary restraining order in accordance with Rule 65(b) of the Federal Rules of Civil Procedure, restraining Carter and TSSAA from "all acts which might prevent, prohibit or discourage McGavock High School, its coaches or administrative personnel from allowing Michael Ray Crocker full participation in interscholastic athletics, pending further order of this Court." Upon application of Metro, the Court on the same day issued a temporary restraining order restraining TSSAA from imposing sanctions upon McGavock High School, its coaching staff or athletic team members for compliance with Administrative Judge Mulroy's decision, issued October 13, 1989. On October 23, 1989, a hearing was held before this Court to determine whether Crocker's and Metro's applications for preliminary injunctions should be granted.

 DISCUSSION

 In ruling upon the appropriateness of preliminary injunctive relief, this Court must consider four factors:

 
1) Whether the plaintiff has shown a strong likelihood of success on the merits;
 
2) Whether the plaintiff has shown irreparable harm;
 
3) Whether the issuance of a preliminary injunction would cause substantial ...

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