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January 2, 1990

TANYA LIBBY, by her father and next friend, Charles F. Libby, Plaintiff,

Ilana Diamond Rovner, United States District Judge.

The opinion of the court was delivered by: ROVNER


 Plaintiff Tanya Libby, a student at defendant Romeoville High School ("Romeoville"), brought this lawsuit on August 26, 1987, challenging her inability to play interscholastic soccer. After the entry of a series of temporary restraining orders in Libby's favor, the case was dismissed as moot on December 20, 1988. Pending is Libby's petition for attorneys' fees and costs pursuant to 42 U.S.C. § 1988. For the reasons described below, Libby's petition is denied.


 At the time this lawsuit was filed, there was no girls' soccer team at Romeoville. According to Romeoville, this was due to a lack of interest on the part of its female students. The majority of interscholastic games in which the Romeoville boys' soccer team participated were sponsored by defendant South Inter-Conference Association ("SICA"), whose rules prohibited girls from playing in games between boys' teams. Similarly, the post-season Boys State Soccer Tournament was sponsored by defendant Illinois High School Association ("IHSA"), whose rules also prohibit girls from playing in boys' competitions. Accordingly, although Romeoville was willing to allow Libby to play soccer on its boys' team, Libby was precluded from playing soccer in most of the regular season, and all of the post-season, competitions in which the Romeoville boys' team was scheduled to participate. Libby was thus effectively unable to play high school soccer because of the combination of the lack of a girls' soccer team at Romeoville and the SICA and IHSA rules.

 The Court referred Libby's request for provisional injunctive relief to Magistrate Bucklo for a report and recommendation. Romeoville did not oppose the entry of a temporary restraining order ("TRO"). (In fact, throughout the litigation, Romeoville has not opposed relief and has been aligned with the plaintiff for many purposes.) On September 1, 1987, the Magistrate recommended that a TRO be entered against all defendants other than IHSA. She stated that a TRO against IHSA would be premature because the IHSA tournament did not begin until October 24, 1987. Judge Marshall, acting as emergency judge in this Court's absence, entered a TRO on the same date against all defendants other than IHSA. On September 10, 1987, this Court entered an agreed extension of the TRO.

 On September 22, 1987, a preliminary injunction hearing commenced before the Magistrate. In the meantime, the parties had engaged in substantial discovery. The hearing continued on September 23, 24 and 25. A settlement was then reached with SICA, which was dismissed from the case. On October 23, 1987, the Magistrate issued a report and recommendation that Libby's motion for a preliminary injunction be granted. However, the IHSA tournament was due to begin the following day, and allowance of the ten-day periods for objections and responses would preclude effective relief. Plaintiff therefore moved for another TRO, and on October 23, this Court entered a TRO against IHSA requiring it to allow Libby to participate in the IHSA tournament as a member of the Romeoville boys' team. On October 24, the Romeoville team lost in the first round of the tournament. The motion for a preliminary injunction thus became moot.

 Romeoville subsequently determined that there was sufficient interest to field a girls' soccer team, and the following year Libby played soccer on the Romeoville girls' team. On December 20, 1988, the Court dismissed Libby's complaint as moot. IHSA has appealed that dismissal to the Court of Appeals for the Seventh Circuit. Libby now seeks to recover her attorneys' fees from IHSA.


 IHSA's first argument in response to Libby's fee request is that IHSA's conduct is not state action. To begin with, it is not clear that the Court should reach that issue at this stage of the case. Whether IHSA is a state actor is an issue that goes to the merits of the case. IHSA is essentially arguing that if Libby was a prevailing party, she prevailed wrongfully. In determining the appropriateness of attorneys' fees under § 1988, the Court knows of no authority which supports the idea that it should ask not only whether the plaintiff prevailed but also whether the plaintiff prevailed correctly. A fee petition is not the appropriate time for arguing that a case was decided wrongfully on the merits.

 In any event, IHSA clearly is a state actor. Many similar athletic associations have been held to be state actors. See, e.g., Clark v. Arizona Interscholastic Ass'n, 695 F.2d 1126, 1128 (9th Cir. 1982), cert. denied, 464 U.S. 818, 104 S. Ct. 79, 78 L. Ed. 2d 90 (1983); Yellow Springs Bd. of Educ. v. Ohio High School Athletic Ass'n, 647 F.2d 651, 653 (6th Cir. 1981); Brenden v. Independent School Dist. 742, 477 F.2d 1292, 1295 (8th Cir. 1973); Mitchell v. Louisiana High School Ass'n, 430 F.2d 1155, 1157 (5th Cir. 1970); Louisiana High School Athletic Ass'n v. St. Augustine High School, 396 F.2d 224 (5th Cir. 1968). Even IHSA itself has until recently agreed that it was a state actor:

As a preliminary matter, we note that the presence of state action is not in dispute in this case. Public schools make up 85% of the IHSA's membership, and although the IHSA is a purely voluntary association, the overwhelmingly public character of the IHSA membership is sufficient to confer state action for the purposes of § 1983. See In re United States ex rel. Missouri State High School Activities Ass'n, 682 F.2d 147, 151 (8th Cir. 1982); Walsh v. Louisiana High School Athletic Ass'n, 616 F.2d 152, 156 (5th Cir. 1980), cert. denied, 449 U.S. 1124, 101 S. Ct. 939, 67 L. Ed. 2d 109 (1981); see also Menora v. Illinois High School Ass'n, 683 F.2d 1030, 1032 (7th Cir. 1982), cert. denied, 459 U.S. 1156, 103 S. Ct. 801, 74 L. Ed. 2d 1003 (1983) (assuming, without deciding the question, that the IHSA is an arm of the state for Fourteenth Amendment purposes).

 Griffin High School v. IHSA, 822 F.2d 671, 674 (7th Cir. 1987).

 IHSA's argument here that it is not a state actor is premised on Nat'l Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 109 S. Ct. 454, 102 L. Ed. 2d 469 (1988), in which the Supreme Court held that the NCAA is not a state actor. IHSA enumerates several ways in which it is similar to the NCAA, including voluntary membership, membership by both public and private schools, the absence of any delegation of any disciplinary power by member schools to IHSA, and the absence of governmental powers. Despite these similarities, there are important differences as well -- most significantly, that the IHSA is composed entirely of schools within the State of Illinois, many of which are Illinois public schools. The Supreme Court itself found this distinction to be determinative in Tarkanian, where the Court cited Clark, supra, and Louisiana High School Athletic Ass'n, supra, with approval and stated that the situation would be different in such a case. 109 S. Ct. at 462 n.13. In accord with the Supreme Court's view, this Court will follow this line of cases and hold that IHSA is a state actor.


 IHSA's second argument is that plaintiff is not entitled to an award of attorneys' fees because she is not a prevailing party. "Plaintiffs may be considered 'prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939, 76 L. Ed. 2d 40 (1983), quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978). "'Respect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail.' Thus, at a minimum, to be considered a prevailing party within the meaning of § 1988 the plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant." ...

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