United States District Court, D. South Dakota, Southern Division
ORDER DENYING PRELIMINARY INJUNCTION
KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE
Defendant, Augustana University, is a private liberal arts college located in Sioux Falls, South Dakota. Plaintiff, Koh Tsuruta, was a student at Augustana University. During the summer of 2015, Tsuruta was accused of rape and sexual assault by another Augustana student. The incident allegedly occurred on July 3, 2015. On August 4, 2015, the student reported the incident to Minnehaha County law enforcement. Tsuruta was arrested and charged with several counts of sexual assault. His criminal proceedings are currently pending in state court.
On August 5, 2015, the student also reported the incident to Augustana and filed a complaint against Tsuruta pursuant to Augustana’s Title IX Equal Opportunity (Civil Rights) Policies and Procedures handbook. Augustana suspended Tsuruta pending the outcome of its internal investigation and complaint-adjudication procedures. Tsuruta requested Augustana to stay its internal proceeding pending the outcome of his state criminal matters. Augustana refused.
On September 22, 2015, Tsuruta filed a complaint with the Circuit Court in the Second Judicial Circuit of South Dakota. He sought declaratory and injunctive relief that would stay the Augustana proceeding. On September 28, 2015, the matter was removed to this court. Docket 1. Pending is Tsuruta’s motion for a preliminary injunction that would stay the Augustana proceedings. A hearing on the matter was held before this court on October 6, 2015.
“A preliminary injunction is an extraordinary remedy.” Roudachevski v. All-American Care Centers, Inc., 648 F.3d 701, 705 (8th Cir. 2011) (citation omitted). “The burden of proving that a preliminary injunction should be issued rests entirely with the movant.” Goff v. Harper, 60 F.3d 519, 520 (8th Cir. 1995). To determine whether the issuance of a preliminary injunction is appropriate, the court considers the following factors:
(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;
(3) the probability that movant will succeed on the merits; and
(4) the public interest.
Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981). The Dataphase test for preliminary injunctive relief is flexible, and the court must ask “whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.” Id. at 113; see also Hubbard Feeds, Inc. v. Animal Feed Supplement, Inc., 182 F.3d 598, 601 (8th Cir. 1999).
I. Likelihood of Success on the Merits
The Eighth Circuit has explained that “[t]he most important of the Dataphase factors is the . . . likelihood of success on the merits.” Shrink Mo. Gov’t PAC v. Adams, 151 F.3d 763, 764 (8th Cir. 1998). Generally, this factor requires the moving party to demonstrate that it has “a ‘fair chance’ of success on the merits[.]’ ” Planned Parenthood Minn., N.D., S.D., v. Rounds, 530 F.3d 724, 731 (8th Cir. 2008). A “fair chance” of success does not mean a greater than fifty percent likelihood of prevailing on the merits of the claim. Heartland Acad. Cmty. Church v. Waddle, 335 F.3d 684, 690 (8th Cir. 2003) (citing Dataphase, 640 F.2d at 113). Thus, “[a]t the early stage of a preliminary injunction motion, the speculative nature of this particular inquiry militates against any wooden or mathematical application of the test.” United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir. 1998).
A. § 1983 - Due Process
Section 1983 provides a cause of action against any “person who, under the color of any statute, ordinance, regulation, custom, or usage, of any state” causes the deprivation of a right protected by federal law or the United States Constitution. 42 U.S.C. § 1983. Tsuruta contends that Augustana’s complaint-resolution procedures deny him due process of law as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution. He must first demonstrate, however, that Augustana is a “state actor” and therefore amenable to his § 1983 claim. See, e.g., Blum v. Yaretsky, 457 U.S. 991, 1002 (1982); Kroupa v. Nielsen, 731 F.3d 813, 818 (8th Cir. 2013).
Augustana is a private university. Although it is not an entity of either the State or Federal government, it may be deemed a state actor if its allegedly unconstitutional conduct is said to be “fairly attributable” to the government. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999). There are several different theories that the Supreme Court has endorsed to determine whether an entity’s conduct is “fairly attributable” to the government. See Blum, 457 U.S. at 1005.
In Rendell-Baker v. Kohn, 457 U.S. 830 (1982), the Court was asked to determine whether a private school was nonetheless a state actor. Augustana acknowledges that it receives federal funding for its compliance with Title IX regulations. But in Rendell-Baker, the Court observed that the receipt of federal funding alone does not transform an otherwise private entity into an entity of the state. Id. at 840. This was so even when “virtually all of the school’s income was derived from government funding[.]” Id.
Augustana likewise acknowledges that its receipt of certain federal funds is contingent upon its compliance with Title IX’s regulations. See 20 U.S.C. 1681(a). Title IX’s regulations require recipients of those funds to “adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging any action which would be prohibited by this part.” 34 C.F.R. 106.8(b); see also 2011 Dear Colleague Letter, http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf (last visited Oct. 2, 2015) (providing examples of features these procedures may share). In Rendell-Baker, the Court noted that “extensive regulation” that compels or coerces a private school to act in a given way could constitute state action. Rendell-Baker, 457 U.S. at 841 (ultimately finding the school was not so extensively regulated); see also Blum, 457 U.S. at 1009-1010 (finding no state action even when regulations impose penalties). Tsuruta has disclosed no cases where a court has found that a private school’s compliance with Title IX’s complaint-resolution regulations make that entity a state actor. The courts that have considered this issue appear to agree that private colleges are not state actors by virtue of their adoption of Title IX grievance procedures. See, e.g., Xiaolu Peter Yu v. Vasser College, 2015 WL 1499408 at * 11 (S.D.N.Y. ...