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Students and Parents for Privacy v. United States Department of Education

United States District Court, N.D. Illinois, Eastern Division

December 29, 2017

STUDENTS AND PARENTS FOR PRIVACY, a voluntary unincorporated association; C.A., a minor, by and through her parent and guardian, N.A.; A.M., a minor, by and through her parents and guardians S.M. and R.M.; N.G., a minor, by and through her parent and guardian R.G.; A.V., a minor, by and through her parents and guardians T.V. and A.T.V.; and B.W., a minor, a minor, by and through his parents and guardians, D.W. and V.W., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF EDUCATION; JOHN B. KING, JR., in his official capacity as United States Secretary of Education; UNITED STATES DEPARTMENT OF JUSTICE, LORETTA E. LYNCH, in her official capacity as United States Attorney General, and SCHOOL DIRECTORS OF TOWNSHIP HIGH SCHOOL DISTRICT 211, COUNTY OF COOK AND STATE OF ILLINOIS, Defendants. and STUDENTS A, B, AND C, by and through their parents and guardians, Parents A, B, and C; and the ILLINOIS SAFE SCHOOLS ALLIANCE, Intervenors-Defendants

          MEMORANDUM OPINION AND ORDER

          Jorge L. Alonso, United States District Judge.

         For the following reasons, Plaintiffs' objections [146] to the Report and Recommendation of the Magistrate Judge [134] are overruled and the Report and Recommendation is adopted.

         Background

         Plaintiffs, Students and Parents for Privacy, an unincorporated association, and five current or prospective students of Township High School District 211, brought this action against the United States Department of Education, the United States Department of Justice (together with the Secretary of Education and the Attorney General collectively, “the Federal Defendants”), and the School Directors of Township High School District 211 (“District 211” or “the District”) challenging the District's policy of allowing transgender students to use the restrooms consistent with their gender identity, a federal rule requiring schools in the United States to allow students to use sex-segregated facilities consistent with their gender identity, and an agreement that the Department of Education had entered into with District 211 by which Student A, a transgender girl, was allowed to use the girls' locker room at William Fremd High School. [Dkt 1.] Plaintiffs alleged that the Department of Education had violated the Administrative Procedure Act, 5 U.S.C. § 500, et seq., in issuing the rule, and that the policy and the agreement violate Girl Plaintiffs'[1] rights to privacy and to an equal education. Plaintiffs also brought claims for violation of their parental right to direct the education and upbringing of their children, the Illinois and Federal Religious Restoration Act, and the Free Exercise of the First Amendment. The factual background of the case is laid out in great detail in the Magistrate Judge's Report and Recommendation, and is not repeated here. [Dkt 134.]

         Plaintiffs moved for a preliminary injunction seeking to require the District to segregate restrooms and locker rooms on the basis of students' biological sex which Plaintiffs consider to be sex assigned at birth, by enjoining the federal rule, enjoining the District's policy, and enjoining the agreement regarding Student A. [Dkt 21.] The motion was premised on Plaintiffs' Administrative Procedure Act claim, their constitutional privacy claim, and their claim under Title IX (Counts I, II, and IV). Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, the motion was referred to the Magistrate Judge for a report and recommendation. [Dkt 24, 26.]

         Shortly after Plaintiffs filed their motion, District 211 sought leave to conduct discovery on it. Plaintiffs successfully opposed the District's efforts, arguing that their claims rested on a facial challenge and not on any specific interaction in any particular restroom or locker room between any plaintiff and Student A or anyone else, but only on the fact that Student A, who Plaintiffs call a biological boy, is or could be present in the girls' restroom and locker room. [Dkt 50 at 4-5.] During oral argument on the motion, Plaintiffs narrowed the scope of their requested relief from enjoining the federal rule outright to only asking that the Federal Defendants be enjoined from “further application of the rule to force District 211 to comply with it in the operation of its facilities.” [Dkt 127 at 155.]

         Also during the pendency of the motion, Student A, along with Students B and C, by and through their parents and legal guardians, and the Illinois Safe Schools Alliance, were allowed to intervene in the case. [Dkt 56.]

         After extensive briefing and oral argument, the Magistrate Judge issued a comprehensive and well-reasoned report in which he recommended denying Plaintiffs' motion upon a finding that they had not made any of the threshold showings for a preliminary injunction. [Dkt 134.] Specifically, he found that Plaintiffs had failed to demonstrate a likelihood of success on the merits that the Administrative Procedure Act had been violated, that the District or the Federal Defendants were violating Plaintiffs' constitutional right to privacy, or that the District was violating Title IX by permitting transgender students to use restrooms consistent with their gender identity and allowing Student A to use the girls' locker room. Even if Plaintiffs had shown a likelihood of success on the merits, the Magistrate Judge found, they still would not be entitled to an injunction because they had not shown they were likely to suffer irreparable harm or that they lacked an adequate remedy at law. Because he found that the Plaintiffs had not made the threshold showings necessary for an injunction to issue, the Magistrate Judge found it unnecessary to engage in a balancing analysis. Plaintiffs object to the Magistrate Judge's decision, and the parties have submitted briefs detailing their respective positions.

         While the objections were pending, several significant developments occurred, substantially narrowing the scope of the parties' dispute. First, Student A graduated from Fremd High School and the Locker Room Agreement pertaining to her was accordingly terminated. [Dkt 185-1.] Second, the United States Department of Education Office for Civil Rights and the United States Department of Justice Civil Rights Division withdrew the administrative guidance that Plaintiffs had challenged in this action, and issued a joint guidance letter instructing that the views conveyed in the earlier materials should not be relied upon while the issue is under further consideration. [Dkt 165-1.] In light of the withdrawal of those materials, Plaintiffs voluntarily dismissed the Federal Defendants, thereby eliminating their Administrative Procedure Act claim, and mooting much of their motion and objections to the Magistrate Judge's Report and Recommendation. [Dkt 178, 179.]

         Standard of Review

         When a party raises specific objections to a portion of a Magistrate Judge's report and recommendation, “[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). “The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Id.

         Discussion

         A preliminary injunction is an extraordinary remedy that is available only when the movant shows clear need. See Turnell v. Centimark Corp., 796 F.3d 656, 661 (7th Cir. 2015). A two-step inquiry applies when determining whether such relief is required. Id. First, the party seeking the preliminary injunction must make a threshold showing that: (1) absent preliminary injunctive relief, it will suffer irreparable harm in the interim prior to a final resolution; (2) there is no adequate remedy at law; and (3) the party has a reasonable likelihood of success on the merits. See Id. at 661-62. If the movant makes the required threshold showing, then the court proceeds to a balancing analysis in which it considers: (4) the irreparable harm the moving party will endure if the preliminary injunction is wrongfully denied versus the irreparable harm to the nonmoving party if it is wrongfully granted; and (5) the effects, if any, that the grant or denial of the preliminary injunction would have on nonparties (the “public interest”). See Id. at 662. “The court weighs the balance of potential harms on a ‘sliding scale' against the movant's likelihood of success: the more likely he is to win, the less the balance of harms must weigh in his favor; the less likely he is to win, the more it must weigh in his favor.” Id. at 662.

         Given the developments since the issuance of the Magistrate Judge's opinion, only a portion of Plaintiffs' claims remain at issue. Because the Federal Defendants have been dismissed, Plaintiffs' motion as to the federal rule embodied in the guidance documents is now moot. Likewise, because Student A has graduated and the Locker Room Agreement has been terminated, this aspect of Plaintiffs' claims is also moot. See City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1984) (“Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continued, present adverse effects” (internal quotation omitted); Young v. Lane, 922 F.2d 370, 373-74 & n. 8 (plaintiffs request for injunctive relief on exercise of religion claim mooted by transfer from prison facility where challenged restrictions occurred). Plaintiffs resist this result by pointing to Intervenor Parent B's declaration that Student B may want to use a District 211 locker room consistent with his gender identity [dkt 32-2], and a recently filed charge of discrimination brought by a transgender student who was denied access to the locker room consistent with her gender identity at a District 211 school [dkt 186-1].[2] The fact that other transgender students want or might want to use sex-segregated facilities consistent with their gender identity, however, neither suggests that the injury of which Plaintiffs complained is continuing or that the injury complained of will be repeated. In any event, even if it could be said that Plaintiffs challenge to the ...


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