Appeal from an Order for Preliminary Injunction of the District Court for the Northern District of Illinois, Eastern Division. No. 80 C 5660 -- Prentice H. Marshall, Judge .
Before Sprecher, Bauer and Wood, Circuit Judges.
In this equal protection case, the district court granted a preliminary injunction restraining the Board of Education of Prospect Heights School District No. 23, and other defendants, from refusing to permit plaintiff-appellee Karen O'Connor to try out for the boys' sixth grade basketball team. We stayed enforcement of the preliminary injunction pending appeal and now reverse.
Karen O'Connor is an 11-year-old sixth grade student at MacArthur Junior High School in suburban Cook County, Illinois. The school is a member of the Mid-Suburban Junior High School Conference, an association of six junior high schools engaged in interscholastic athletics. Conference rules require separate teams for boys and girls in contact sports, including basketball.*fn1
On August 27, 1980, Karen's father asked that she be permitted to try out for the boys' interscholastic basketball team. Karen is a good athlete; a professional basketball coach who observed her play rated her ability as equal to or better than a female high school sophomore and equal to that of a male eighth-grade player. Nonetheless, on October 10, 1980, the Board of Education denied the request, but invited Karen to try out for the girls' interscholastic team.
Karen, represented by her parents, filed her complaint and a motion for a temporary restraining order or preliminary injunction on October 22, 1980. The district court held an adversary hearing on October 23 and afterward rendered an oral opinion. The court held that the O'Connors had established a likelihood of success on the merits and that Karen would suffer irreparable injury if temporary relief was denied. The court found that the school's classification violated her fundamental "right to develop" and that "the right to education is a fundamental right and the rights to the constituent elements of an education is a fundamental right (sic)." The court further held that the MacArthur programs for boys' and girls' basketball were unequal because Karen's competition with girls of substantially lesser skill was not as valuable as competition with persons of equal or better skills in the boys' program. The district court also rejected defendants' argument that they would have to open both teams to both sexes and that the boys would dominate. Applying a strict scrutiny analysis, the court held simply that the Board had failed to show that the MacArthur program was the least restrictive alternative.
The district court refused to grant a stay pending appeal. Defendants immediately applied for a stay in the Court of Appeals, which was granted on October 27 by a three judge panel. On October 29, this Court, sitting en banc, voted 5 to 3 to continue the stay pending appeal.
Plaintiff filed a petition to vacate the stay with Mr. Justice Stevens, sitting as Circuit Justice. On November 4, 1980, he denied the petition, holding that the circumstances did not justify a departure from the usual rule of according great deference to a Court of Appeals decision to enter a stay. O'Connor v. Board of Education, 449 U.S. 1301, 101 S. Ct. 72, 66 L. Ed. 2d 179 (1980) (Stevens, Circuit Justice).
Tryouts for the boys' basketball team at MacArthur took place on October 28, 1980 through October 30, 1980. Karen was not permitted to try out for the team and she voluntarily chose not to try out for the girls' team.
We can reverse the grant of a preliminary injunction only if "the issuance of the injunction, in the light of the applicable standard, constituted an abuse of discretion." Doran v. Salem Inn, Inc., 422 U.S. 922, 931-32, 95 S. Ct. 2561, 2567-68, 45 L. Ed. 2d 648 (1975). The district court's exercise of discretion in issuing a preliminary injunction is guided by four familiar factors:
(1) whether the plaintiff will have an adequate remedy at law or will be irreparably harmed if the ...