Evan Ng v. Board of Regents of the U of M ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-1505
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Evan Ng
lllllllllllllllllllllPlaintiff - Appellant
v.
Board of Regents of the University of Minnesota; Mark Coyle, in his official
capacity as Director of Athletics for the University of Minnesota; Joan T.A. Gabel,
in her official capacity as President of the University of Minnesota
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the District of Minnesota
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Submitted: October 18, 2022
Filed: April 5, 2023
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Before SMITH, Chief Judge, BENTON and SHEPHERD, Circuit Judges.
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SMITH, Chief Judge.
Evan Ng filed suit against the Board of Regents of the University of Minnesota
(University) following the elimination of the University’s men’s gymnastics team. He
then sought a preliminary injunction to reinstate the team pending the outcome of the
litigation. The district court1 denied the motion for the preliminary injunction, finding
that Ng’s delay in filing for the injunction undermined his claim of irreparable harm
and that the other preliminary injunction factors favored the University. Ng appeals
the order denying the motion for the preliminary injunction.2 We affirm.
I. Background
In 2014, the Department of Education’s Office for Civil Rights (OCR) began
investigating the University’s compliance with Title IX, 20 U.S.C. §§ 1681–88, and
reported its findings in a 2018 letter. To determine compliance with Title IX, it
applied the three-factor test in accordance with 1996 OCR Guidance:
1
The Honorable Susan Richard Nelson, United States District Court for the
District of Minnesota.
2
Additionally, we decline Ng’s invitation to take judicial notice of a letter from
Board of Regents member, Darrin Rosha (the “Rosha Letter”). Ng attempts to make
the letter judicially noticeable by characterizing it as a public record under Minn. Stat.
§ 13.02, subd. 7. See Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005)
(“[W]e may take judicial notice of judicial opinions and public records”). However,
we may only “judicially notice a fact that is not subject to reasonable dispute because
it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be
accurately and readily determined from sources whose accuracy cannot reasonably
be questioned.” Fed. R. Evid. 201(b). The contents of the Rosha Letter are not
generally known nor determinable from unquestionable sources but argumentative.
See Amer. Prairie Constr. Co. v. Hoich, 560 F.3d 780, 797 (8th Cir. 2009); see also
McIvor v. Credit Control Servs., Inc., 773 F.3d 909, 914 (8th Cir. 2014) (“Judicial
notice of another court's opinion takes notice of the existence of the opinion, which
is not subject to reasonable dispute over its authenticity, but not of the facts
summarized in the opinion.” (internal quotation marks omitted)). Ng relies on these
argumentative contents in his Reply Brief. Appellant Reply Br. at 1, 18, 22, 25, and
31. Therefore, we decline to judicially notice the Rosha Letter and order the
references to the letter in the Reply Brief to be stricken from the record since they
were not introduced in the district court. See United States v. Sykes, 356 F.3d 863,
865 (8th Cir. 2004).
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1. Whether intercollegiate level participation opportunities for male
and female students are provided in numbers substantially
proportionate to their respective enrollments; or
2. Where the members of one sex have been and are
underrepresented among intercollegiate athletes, whether the
institution can show a history and continuing practice of program
expansion that is demonstrably responsive to the developing
interests and abilities of that sex; or
3. Where the members of one sex are underrepresented among
intercollegiate athletes, and the institution cannot show a
continuing practice of program expansion such as that cited
above, whether it can be demonstrated that the interests and
abilities of the members of that sex have been fully and
effectively accommodated by the present program.
R. Doc. 29-1, at 5. Compliance with any of these three factors would constitute
compliance with Title IX. The OCR relied on the following data in making its
determination that the University was compliant:
Sex Athletic Participation Full-Time Undergraduate
Opportunities: 2016-2017 Enrollment: 2016-2017
Men 457 49.51% 13,828 48.04%
Women 466 50.49% 14,955 51.96%
Total 923 28,283
Id. at 6. The OCR determined that the school needed 28 more female participation
opportunities for strict proportionality, but that the school was substantially
proportionate because the average team size was 35.85 female athletes, more than the
disparity of 28.
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Six years later, in 2020, the COVID-19 pandemic caused the University
financial losses estimated between $45 and $65 million. In response, the University
initiated a hiring freeze and furloughed or dismissed certain athletics department
employees. By this time, the female undergraduate population had increased
significantly relative to the male undergraduate population. This increased the
disparity between male and female participation opportunities from 28 to 80, more
than double the average team size. The University considered creating a new female
athletics team to address the disparity. It ultimately determined that creating a new
female athletics team to create substantial proportionality would cost approximately
$3.5 million.
Instead, it created a compliance plan, which would cut Men’s Indoor Track and
Field, Men’s Outdoor Track and Field, Men’s Tennis, and Men’s Gymnastics. The
plan also included not filling vacant roster spots left by graduating seniors on
women’s teams. The plan’s purpose was to bring the athletics program into
compliance with Title IX and to reduce annual costs by approximately $1.6 million.
Upon consideration, the Board voted 7-5 to approve much of the original compliance
plan but retain Men’s Outdoor Track and Field.
Ng, a male gymnast, enrolled as a student at the University to compete as a
scholarship athlete beginning in 2020. On September 10, 2020, prior to his arrival,
he learned that the team would be disbanded at the end of the 2020–2021 season. He
still chose to attend the University and competed in two gymnastic meets in his first
season prior to a shoulder injury. Despite the elimination of the team, he chose to stay
at the University and is currently in his third year.
Following the elimination of the team, private parties formed the Friends of
Minnesota Men’s Gymnastics. This group offered to privately fund the team with a
proposed budget of $200,000 a year, or at least fund the team for three years to allow
the remaining members to compete during the remaining years of eligibility. The
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University rejected both proposals. Since elimination of the gymnastics program, all
faculty and staff assigned to the team have left, and fewer than five former male
gymnasts remain at the University. It is unclear whether the team would be capable
of competing in the 2023-24 season. The University continues to pay their
scholarship fees.
On October 19, 2021, Ng filed his initial complaint, alleging sex
discrimination in violation of both the Equal Protection Clause of the Fourteenth
Amendment and Title IX of the Education Amendments of 1972. 20 U.S.C.
§§ 1681–88; 34 C.F.R. §§ 106.1–106.71. On November 8, 2021, Ng moved for a
preliminary injunction, seeking a reinstatement of Men’s Gymnastics pending a
decision on the merits. The district court denied Ng’s motion after applying the
familiar Dataphase3 factors. Under a Dataphase analysis,
whether a preliminary injunction should issue involves consideration of
(1) the threat of irreparable harm to the movant; (2) the state of balance
between this harm and the injury that granting the injunction will inflict
on other parties litigant; (3) the probability that movant will succeed on
the merits; and (4) the public interest.
Id. at 114.
Taken in turn, the district court found that Ng could not show irreparable harm
because of his delay in filing the preliminary injunction. According to the district
court, Ng waited 13 months before filing a motion for a preliminary injunction. Even
considering Ng’s argument that he was pursuing alternatives to litigation, the district
court still found that there was at least a six-month delay. The court found this delay
unreasonable. In considering the second factor, the district court acknowledged that
3
Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en
banc).
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Ng was harmed by not being able to compete, but it noted that “an injunction cannot
resolve that harm because nothing in the record suggests that, even if the injunction
issued, [Ng] could compete this year.” Ng v. Bd. of Regents of Univ. of Minn., No.
21-cv-2404, 2022 WL 602224, at *11 (D. Minn. Mar. 1, 2022).
On the likelihood of success on the merits, the district court considered both
Ng’s Title IX discrimination claim and his Equal Protection claim. It ruled that the
Title IX claim was foreclosed by Chalenor v. University of North Dakota, 291 F.3d
1042 (8th Cir. 2002). As to the constitutional claim, the court agreed with the
University that the claim was an “impermissible collateral attack on Title IX.” Ng,
2022 WL 60224, at *9. On the merits of the constitutional claim, the district court
found that intermediate scrutiny was the appropriate standard to apply and was met
by the University.
Lastly, the district court considered the public interest under the final
Dataphase factor. It determined that because Ng could not show a fair chance of
success on the merits, the public interest favored the University. Further, the court
noted that “[t]he public interest weighs in favor of the University making good faith
decisions to comply with Title IX.” Id. at *11. Based on its analysis, the district court
denied the preliminary injunction.
II. Discussion
On appeal, Ng contends that the elimination of the men’s gymnastics team
satisfies the Dataphase factors and that the district court erred by denying his
preliminary injunction. The University argues that, among other things, Ng
unreasonably delayed in filing his motion for a preliminary injunction. This alone is
a sufficient basis to deny a preliminary injunction.
“A preliminary injunction is an extraordinary remedy, and the burden of
establishing the propriety of an injunction is on the movant.” Turtle Island Foods,
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SPC v. Thompson, 992 F.3d 694, 699 (8th Cir. 2021) (internal quotation marks
omitted). “We review the [d]istrict [c]ourt’s material factual findings for clear error,
its legal conclusions de novo, and the court’s equitable judgment—the ultimate
decision to grant the injunction—for an abuse of discretion.” Heartland Acad. Cmty.
Church v. Waddle, 335 F.3d 684, 689–90 (8th Cir. 2003). A district court abuses its
discretion in the preliminary injunction context “when a relevant factor that should
have been given significant weight is not considered, when an irrelevant or improper
factor is considered and given significant weight, or when all proper and no improper
factors are considered, but the court in weighing those factors commits a clear error
of judgment.” Baker Elec. Coop., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir. 1994).
When determining whether a preliminary injunction should issue, we consider
“(1) the threat of irreparable harm to the movant; (2) the state of balance between this
harm and the injury that granting the injunction will inflict on other parties litigant;
(3) the probability that movant will succeed on the merits; and (4) the public interest.”
Dataphase, 640 F.2d at 114. There is no single factor that is regarded as dispositive;
rather, the court should balance all the factors in considering whether the injunction
should be granted. Id. at 113. However, an unreasonable delay in moving for the
injunction can undermine a showing of irreparable harm and “is a sufficient ground
to deny a preliminary injunction.” Phyllis Schlafly Revocable Tr. v. Cori, 924 F.3d
1004, 1009 (8th Cir. 2019) (internal quotation marks omitted).
“Students who are denied the opportunity to join their schools’ sports teams
because of their sex may suffer irreparable harm.” D.M. by Bao Xiong v. Minn. State
High Sch. League, 917 F.3d 994, 1003 (8th Cir. 2019). A delay may belie the claim
of an irreparable injury before trial if it is unreasonable but that depends on the facts
of the specific case. Safety-Kleen Sys., Inc. v. Hennkens, 301 F.3d 931, 935 (8th Cir.
2002). “To establish the need for a preliminary injunction, the movant must show
more than the mere possibility that irreparable harm will occur. A movant must show
he is ‘likely to suffer irreparable harm in the absence of preliminary relief.’” Sessler
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v. City of Davenport, 990 F.3d 1150, 1156 (8th Cir. 2021) (quoting Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). Additionally, “the absence of a
finding of irreparable injury is alone sufficient ground for vacating the preliminary
injunction.” Dataphase, 640 F.2d at 114 n.9.
This case presents two discrete legal issues: first, whether Ng has suffered
irreparable harm, and second, whether he unreasonably delayed in bringing the claim.
An instructive case on the first issue is Ohlensehlen v. University of Iowa,
509 F. Supp. 3d 1085 (S.D. Iowa 2020), appeal dismissed, No. 21-1203, 2021 WL
3174982 (8th Cir. Feb. 26, 2021). There, the University of Iowa decided to eliminate
its women’s swimming and diving teams. Id. at 1088. The court found that the
school’s elimination of the team caused irreparable harm and rejected arguments that
the harm was somehow remedied because the athletes kept their scholarships and
were free to transfer before the start of the next season. Id. at 1102–03; see also Portz
v. St. Cloud State Univ., 196 F. Supp. 3d 963, 972–73 (D. Minn. 2016) (holding that
the ability to transfer to another school to play women’s tennis did not vitiate the
movant’s showing of irreparable harm).
We agree with these district courts that the irreparable harm of being denied
the opportunity to compete in intercollegiate athletics may remain despite the
retention of scholarships and the ability to transfer. See D.M. by Bao Xiong, 917 F.3d
at 1003. “Congress passed Title IX pursuant to its power to enforce the Fourteenth
Amendment to combat gender discrimination in education, and the denial of a
constitutional right is a cognizable injury and an irreparable harm.” Ohlensehlen, 509
F. Supp. 3d at 1103 (cleaned up); see also Elrod v. Burns, 427 U.S. 347, 373–74
(1976). Ng may be able to show irreparable harm if he is able to show that any delay
was reasonable.
We have found that “[d]elay is only significant if the harm has occurred and the
parties cannot be returned to the status quo.” McKinney ex rel. NLRB v. S. Bakeries,
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LLC, 786 F.3d 1119, 1125 (8th Cir. 2015) (alternation in original) (quoting Sharp ex
rel. NLRB v. Webco Indus., Inc., 225 F.3d 1130, 1136 (10th Cir. 2000)). The mere
length of the delay is not determinative of whether the delay was reasonable. Delays
of seven months have been held to be reasonable, Safety-Kleen Sys., 301 F.3d at 936,
as well as delays of eight months, McKinney, 786 F.3d at 1123. Additionally, we have
previously concluded that a delay of roughly five months was unreasonable, see
Phyllis Schlafly Revocable Trs., 924 F.3d at 1010 n.4, as well as 17 months, see
Novus Franchising, Inc. v. Dawson, 725 F.3d 885, 895 (8th Cir. 2013). Likewise, we
have found a delay of several years unreasonable. See Hubbard Feeds Inc .v. Animal
Feed Supplement, Inc., 182 F.3d 598, 603 (8th Cir. 1999). Thus, the determination
of the reasonableness of a delay is context dependent.
Ng learned that the team would be disbanded on September 10, 2020. He filed
his initial complaint in this action on October 29, 2021. He then sought an injunction
nearly two months after that in November 2021. This means 13 months elapsed
before he filed for an injunction. Ng tries to justify this delay by noting that he
“joined the efforts of Coach Burns and the Friends of Minnesota Men’s Gymnastics
to convince the University to keep the team.” Appellant’s Br. at 24. There is nothing
in the record explaining what he did during this time, aside from joining the club
gymnastics team. Ng implies participation in these efforts, but there is nothing in the
record to support the claim. Even assuming he did get involved in the campaign, six
months still passed before he moved for a preliminary injunction.
The men’s collegiate gymnastics season begins in December at the earliest and
January at the latest. The goal of a preliminary injunction is “to preserve the status
quo until the merits are determined.” Dataphase, 640 F.2d at 113. Given that the
injunction motion was not filed until November 2021 and that the majority of the
coaching staff and other gymnasts had left the University by this time, it would have
been improbable at best for the team to have competed in the 2021–2022 season.
Because Ng sought an injunction after it would have been possible “to preserve the
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status quo,” id., we hold that the delay was unreasonable and that it consequently
defeated Ng’s goal of preventing irreparable harm.
Because we hold that the delay was unreasonable, and “an absence of a finding
of irreparable injury is alone sufficient ground for vacating the preliminary
injunction,” id. at 114 n.9, we need proceed no further in analyzing the Dataphase
factors.
III. Conclusion
We hold that the district court did not err in denying Ng’s motion for a
preliminary injunction. Given the context of the collegiate gymnastics season, Ng’s
delay of at least six months in filing the motion was unreasonable, which undermines
his claim of irreparable harm as a basis for injunctive relief. Accordingly, we affirm.
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