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COURT OF CHANCERY OF THE STATE OF DELAWARE
STEPHEN P. LAMB VICE CHANCELLOR New Castle County Court House 500 N. King Street, Suite 11400 Wilmington, Delaware 19801

December 21, 2006 Ronald G. Poliquin, Esquire Young Malmberg & Howard, P.A. 30 The Green Dover, DE 19901 Jennifer L. Kline, Esquire Delaware Department of Justice 102 West Water Street, 3d Floor Dover, DE 19904

RE: Elvin Dempsey, III v. State of Delaware, Delaware Interscholastic Athletic Association C.A. No. 2606-N Dear Counsel: The court has reviewed the parties' submissions in connection with the above referenced matter and has considered the various contentions made at yesterday's oral argument. For the reasons discussed below, the plaintiff's request for a temporary restraining order and a declaratory judgment is denied. I. The plaintiff, Elvin Dempsey, III, is a 17-year-old student currently enrolled at Christiana High School in New Castle County, Delaware. The defendant is the Delaware Interscholastic Athletic Association ("DIAA"), the official designee of the Secretary of Education with the authority to implement the Delaware Department of Education's rules and regulations governing the conduct of interscholastic athletics by and through member schools located in the State.

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A departmental regulation prohibits any student from participating in interscholastic athletics after four consecutive years from the date of the student's first entrance into the ninth grade.1 A student may obtain an exemption from the strictures of this regulation by petitioning the DIAA's board of directors for a "hardship" waiver. According to the regulations, hardship waivers are extraordinary and exceptional relief. Any student who seeks one must make a showing at a hearing to establish the presence of a hardship by a preponderance of the evidence.2 Specifically, the DIAA rules require that the board must find: [a] clear and direct causal relationship . . . between the alleged hardship condition and the failure of the student to complete the academic requirements for graduation within the normal period of eligibility and the loss of all or part of one of his/her opportunities to participate in a particular sports season.3 Moreover, the regulations define a hardship as: extenuating circumstances peculiar to the student athlete caused by unforeseen events beyond the election, control, or creation of the student athlete, his/her family, or school which (1) deprive him/her of all or part of one of his/her opportunities to participate in a particular

Regulation 1009.2.7.1. The DIAA regulations are codified in Title 14, Chapter 1000 of the Delaware Administrative Code. The DIAA's regulations can also be found on the Delaware Department of Education's website. 2 Regulation 1006.9.1.2. 3 Regulation 1009.2.7.1.2.2.

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sports season; and (2) preclude him/her from completing the academic requirements for graduation within the normal period of eligibility.4 Dempsey, who is now enrolled in his fifth year of high school, sought a hardship exemption in order to play basketball for Christiana High during the current school year. On November 9, 2006, the DIAA board held a hearing to examine Dempsey's request. At the hearing, Dempsey contended that his mother was involved in a serious car accident at the end of his eighth grade year. As a result, Dempsey argued, he was forced to care for his siblings and otherwise maintain the workings of the household throughout his ninth grade year (2002-03), since his mother was unable to attend to such tasks due to her injuries from the auto accident. These responsibilities allegedly led Dempsey to often be late for school and otherwise took precedence over his studies during his ninth grade year, ultimately causing him to repeat that grade. After Dempsey presented his case, the DIAA board deliberated and then ruled against him. It found that none of the hardship criteria were satisfied. The board specifically ruled that Dempsey had not proffered sufficient evidence to carry the evidentiary burden imposed upon him by the regulations. Dempsey produced no witnesses, other than himself, to testify as to his domestic conditions during his ninth grade year. Dempsey did not substantiate the existence of his
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Regulation 1009.2.7.1.2.

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mother's incapacity by means of heath records, a police accident report, or otherwise. He also failed to introduce attendance records to buttress his testimony regarding his tardiness or absence from school. The board also found that no causal relationship existed between Dempsey's alleged hardship and his failure to graduate within the normal four-year period. Instead, the board concluded that it was Dempsey's failure to attended summer school, along with his poor academic performance during the 2004-05 school year, that prevented him from graduating on time. The DIAA issued its written opinion in early December 2006. Dempsey filed a complaint in the Court of Chancery on December 13, 2006 rather than appeal the DIAA's decision to the Board of Education. II. Dempsey seeks a temporary restraining order preventing the Board of Education from enforcing the DIAA's ruling against him. He further seeks a judgment declaring him eligible to participate in interscholastic athletics for the Christiana High basketball team during the 2006-07 season. In support of the TRO application, Dempsey first argues that he has a colorable claim on the underlying merits of his case because the board's ruling was arbitrary and capricious. Second, Dempsey asserts that, absent injunctive relief, he

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will suffer substantial and irreparable harm because he will lose an opportunity to obtain an athletic scholarship to attend college. Finally, Dempsey says that the balance of hardships weigh in his favor, since a favorable decision would cause no harm to the DIAA whereas a decision against him would necessarily preclude him from attending college or otherwise pursuing a higher education. The DIAA urges the court to uphold the board's decision on several grounds. First, the DIAA argues that the extraordinary relief of a temporary restraining order is inappropriate because Dempsey did not proceed promptly with his initial hardship request and thus contributed to the emergency situation that now purportedly exists. Second, the DIAA argues that Dempsey does not have a colorable claim because the facts clearly show that the board's decision denying the hardship waiver was rationally and logically based upon the evidence presented at the hearing. Third, the DIAA asserts that the claimed loss of an opportunity to gain an athletic scholarship in the future is overly generalized and speculative. In particular, the DIAA argues that Dempsey's alleged harm is not cognizable since he produced no evidence that he is being actively recruited, has actually been offered a scholarship, or even that he lacks an adequate alternative to interscholastic sports (i.e. recreational leagues or intramural athletics). Fourth, the DIAA says that the balance of hardships favors denial of the temporary restraining

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order since premature intervention by a court would undermine the functioning and legitimacy of an administrative body that manages and ensures uniform compliance with the Board of Education's regulations. Finally, in an argument closely intertwined with the last point, the DIAA emphasizes that the court should deny Dempsey relief because he failed to exhaust his administrative remedies before filing this suit. III. From a procedural standpoint, injunctive relief is improper here, if for no other reason than simply because Dempsey's application is not made in conformity with the requirements of Court of Chancery Rule 65. A court should deny a request for provisional injunctive relief where there is neither a verified complaint nor a supporting affidavit.5 Dempsey did not file a verified complaint. Nor did he

See Ct. Ch. R. 65(a)(1), 65(b); see also TCW Tech. Ltd. P'ship v. Intermedia Commc'ns, Inc., 2000 WL 1478537, at *1 n.2 (Del. Ch. Oct. 2, 2000) and DONALD J. WOLFE, JR. & MICHAEL A. PITTENGER, CORPORATE AND COMMERCIAL PRACTICE IN THE DELAWARE COURT OF CHANCERY

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