By Will Foster ’20
I’m pleased to see that Chicago attorney Kevin A. Sterling has filed a Complaint and Emergency Motion for Temporary Restraining Order in Cook County Circuit Court, requesting injunctive relief allowing CPS student-athletes to participate in Saturday’s IHSA Regional Cross-Country Meet despite the ongoing teacher strike. The filing is quite impressive given how quickly it was apparently drafted. Sterling (the father of a Jones cross-country runner) is counsel on behalf of 14 members of the Jones College Prep Boys Cross-Country team (acting through their parents), as well as “similarly situated CPS student-athletes.” The defendants are the IHSA and CPS.
I know very little about Illinois state law or state court procedure, so I’ll first just try to summarize Sterling’s argument:
- The crux of the complaint and motion for a temporary restraining order (TRO) is that “Defendants lHSA and CPS are preventing Plaintiffs … from competing at the IHSA Regional Cross Country Meet … Further, CPS has removed student-athletes from IHSA state series competition in violation of the rights conferred on CPS student-athletes to participate in such competitions during the Strike. IHSA and CPS’ acts are in violation of IHSA Administrative Procedures, Guidelines and Policies.”
- It turns out that I did correctly identify the IHSA rule at issue last night (see screenshot). The “beginning level of competition” phrase is key here.
- On October 16, a day before the strike started, Jones’ boys cross-country team, along with other CPS high school athletes, participated in the Chicago Public League Cross Country Championship (CPL Championship). “Under the Chicago Public Schools Athletics Bylaws,” the TRO request argues, “participation in the CPL Championship is a prerequisite for a team to be eligible to qualify to compete at the IHSA regional cross country meet … Accordingly, that CPL Champion event constituted the ‘beginning level of competition in a given state series’ … Therefore … all student-athletes that participated in the CPL Championship should be deemed eligible to participate in the upcoming Regional Meet … notwithstanding the ongoing CPS Strike.”
- Nevertheless, the IHSA has refused to budge, asserting that the CPL Championship was not the “beginning level of competition in a given state series.” IHSA apparently defines the beginning level of competition to be Saturday’s regionals.
- A TRO should be issued to allow the athletes to participate. In Illinois state court, a party seeking a TRO must show the following: “(1) the party seeking relief has a protectable right; (2) he will suffer irreparable injury if injunctive relief is not granted; (3) his remedy at law is inadequate; and (4) there is a likelihood that he will succeed on the merits.” Murges v. Bowman, 254 Ill. App. 3d 1071, 1081 (1st Dist. 1993) (internal quotation marks omitted). Sterling argues all four factors have been met here.
- As for the likelihood of success on the merits prong, “it is well established that a party seeking a temporary restraining order is not required to make out a case which would entitle him to relief on the merits. He need only show that he raises a ‘fair question’ regarding the existence of his right and that the court should preserve the status quo until the case can be decided on the merits.” Stanton v. Chicago, 177 Ill. App. 3d 519, 524 (1st Dist. 1988) (cited in the brief).
Some brief comments:
- It is a standard canon of construction that a “text must be construed as a whole,” because “[c]ontext is a primary determinant of meaning.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 167 (2012). Thus, to figure out the meaning of “state series” as used in the IHSA rules, I would think one would need to look at how “state series” (which, as far as I can tell, is never formally defined) is used in the rest of the document. And the term is used a lot. For example, there appear to be numerous rules about how a state series athletic event must be conducted. Did the CPL Championship satisfy those requirements? If so, that would suggest it was part of the cross-country state series, namely, the “beginning level of competition in [the] state series.” And if not, the contrary conclusion might be drawn. Pg. 116 of the IHSA handbook does contain the phrase “including regional, sectional and super-sectional events (collectively, ‘State Series Events’).” However, this sentence is buried in an obscure section on “Trademark Use and Royalty Policy,” and in any event does not necessarily imply that the three listed events are the only state series events. (Also, throughout this paragraph I’ve been assuming that Sterling’s argument is that the CPL Championship was a “state series event.” But I suppose one could make the argument — and perhaps this is in fact the argument being made — that regardless of whether it was a “state series event,” it was the “beginning level of competition in [the] state series.” So phrased the argument sounds somewhat self-contradictory, but it might actually be a plausible contention.)
- I’m not completely convinced that the fact that “participation in the CPL Championship is a prerequisite for a team to be eligible to qualify to compete at the IHSA regional cross country meet” implies “that CPL Champion event constituted the ‘beginning level of competition in a given state series.'” For example, completing eighth grade is a prerequisite for entering high school, but eighth grade is not part of high school. That said, for the reasons given in point #4 below, it may be prudent to interpret the rules broadly in this case to effectuate their purpose.
- Courts often are tempted to defer to an organization’s interpretation of its own rules. The rationale is partially this: “Want to know what a rule means? Ask its author.” Kisor v. Wilkie, 588 U. S. ____ (2019) (opinion of Kagan, J.) (slip op. at 9). So a judge in this case could be tempted to defer to IHSA’s apparent understanding that the CPL Championship was not the “beginning level of competition in a given state series.” Perhaps in an attempt to avoid this prospect, Sterling’s filing argues that his interpretation is “the only fair and reasonable interpretation” of the regulations (emphasis mine). Even proponents of deference often emphasize that deference should be granted only where “genuine ambiguity” exists, and where the interpretation adopted by the rule-maker is “within the bounds of reasonable interpretation” left open by the ambiguity. Id. at ___ (slip op. at 14) (internal quotation marks omitted).
- Courts sometimes take a flexible rather than formalistic view of a statute or regulation’s purpose. See, e.g., National Federation of Independent Business v. Sebelius, 567 U. S. 519, 565 (2012) (using “functional approach” to determine that even an exaction explicitly denominated a “penalty” could be considered a tax); King v. Burwell, 576 U.S. ___ (2015) (slip op. at 10-21) (holding that, at least for purposes of one particular provision, “Exchange established by the State” could mean “Exchange established by the State or the Federal Government”). When deciding whether a flexible reading is appropriate, it is useful to examine the purpose of a particular rule. See Burwell, at ___ (slip op. at 15-19, 20-21). Here IHSA’s own stated purpose is to “provide leadership for the development, supervision and promotion of good sportsmanship in interscholastic competition and other activities in which its member schools choose to engage.” Because Sterling’s reading would further that noble aim, rather than frustrate it (as the IHSA’s does), Sterling’s is to be preferred, ceteris peribus. I think the Circuit Court should strive, “[i]f at all possible,” id. at ___ (slip op. at 21), to interpret “beginning level of competition in a given state series” to include the CPL Championship.
- The sections on irreparable harm and balance of the equities in the brief are very powerful. It seems hard to contest that, if no TRO is entered before Saturday, CPS cross-country athletes will lose a chance they will never be able to get back. Even if a court were to determine later that they’d been wronged, that would do nothing to redress their injury — emergency relief is needed now. On the other hand, it is hard to see how IHSA or CPS would be significantly harmed by CPS runners competing in regionals — which was the planned status quo before the strike anyway (as Sterling writes, “IHSA and CPS will not suffer any harm, financial or otherwise [from an injunction]”). The only significant harm, I suppose, would be to schools that are looking forward to coasting through regionals without any CPS competition. But those schools are not parties to this lawsuit, and regardless there is not (as far as I know) any legal entitlement to have your competitors kicked out of a competition!
A TRO is an extraordinary remedy so it is hard to know whether this lawsuit will ultimately succeed (I’m told the hearing is set for 10:30 a.m. tomorrow morning). Nevertheless, it is worth a shot, and I’m glad that Sterling has put together such a strong filing so quickly.