UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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COMMUNITIES FOR EQUITY,
Plaintiff-Appellee,
v.
Defendant-Appellant.
Argued: March 14, 2006
Decided and Filed: August 16, 2006
Before: KENNEDY, COLE, and GILMAN, Circuit Judges.
_________________
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge.
Communities for Equity (CFE), a group comprised of
parents and high school athletes that advocates on behalf of Title IX
compliance and gender equity in athletics, brought a class action lawsuit
against the Michigan High School Athletic
Association (MHSAA), arguing that MHSAA’s
scheduling of sports seasons discriminates against female athletes on the basis
of gender. The district court concluded that MHSAA’s
actions violate the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution, Title IX of the Civil Rights Act of 1964, and
Following a petition for certiorari filed by MHSAA,
the United States Supreme Court vacated the CFE I decision and remanded
the case for further consideration. * * * After reconsideration, and for the
reasons set forth below, we again AFFIRM the judgment of the district
court.
I. BACKGROUND
The background of this case is thoroughly discussed
in the findings of fact of the district Court * * * . CFE’s basic complaint is that MHSAA discriminates against
female high-school athletes by scheduling girls’ sports to play in
disadvantageous, nontraditional seasons. Our task is now to reevaluate this
claim in light of the Supreme Court’s GVR, (requiring reevaluation under the recently decided)
II. ANALYSIS
A. Standard of review
* * *
B. The Effect of
1. Implications of the GVR
(The court discussed the impact
of the Supreme Court’s return of the case under a GVR. The court concluded that the GVR does not
necessarily imply that the Supreme Court believed the case to be wrongly
decided, and the court was free to affirm the lower court.)
2. Summary of the Sea Clammers/Rancho Palos Verdes doctrine
(The
court laid out the history and background of the law governing application of
Title IX and §1983 (two different anti discrimination laws) and when each
applies).
3. Application of the Sea Clammers/Rancho Palos Verdes doctrine to Title IX
(The court concluded that
Title IX did not preclude the plaintiffs from proceeding under §1983. §1983 allows more remedies than Title IX,
meaning the plaintiffs can recover more money under §1983).
4. The precedential value
and vitality of Lillard
(The court analyzed a case named Lillard,
and concluded Lillard was still good law. Lillard therefore
bound the court to allow the §1983 action to go forward.)
C. Equal Protection Clause
1. State action
The Fourteenth Amendment to the United States
Constitution provides that“[n]o state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property without due process
of law; nor deny to any person within its jurisdiction the equal protection of
the laws.” An entity or
individual charged under § 1983 with a Fourteenth Amendment
violation must be a “state actor.” LRL Props.
v.
In determining that MHSAA was a state actor, the
district court relied upon the United States Supreme Court’s decision in
The Court acknowledged that the analysis of whether
state action existed was a “necessarily factbound
inquiry,” and noted that state action may be found only where there is “such a
close nexus between the State and the challenged action that seemingly private behavior
may be fairly treated as that of the State itself.”
influenced by the fact that TSSAA’s
primary revenue source was gate receipts from tournaments between TSSAA member
schools.
MHSAA, like TSSAA, is comprised primarily of public
schools, and MHSAA’s leadership is dominated by
public school teachers, administrators, and officials. Students at MHSAA-member
schools, like
entwined with the public schools and the state of
2. Denial of equal protection
The Supreme Court has held that “[p]arties who seek
to defend gender-based government action must demonstrate an ‘exceedingly persuasive’
justification for that action.” United States v. Virginia, 518
To summarize the Court’s current directions for cases
of official classification based on gender:
Focusing on the differential treatment or denial of
opportunity for which relief is sought, the reviewing court must determine
whether the proffered justification is “exceedingly persuasive.” * * * The
State must show at least that the challenged classification serves important
governmental objectives and that the discriminatory means employed are
substantially related to the achievement of those objectives. * * *
The district court analyzed the scheduling of the
Michigan athletic seasons under V.M.I.’s
standard, determining that MHSAA had to show that scheduling team sports in
different seasons based on gender “serves important governmental objectives and
that this scheduling is substantially related to the achievement of those
objectives.” Cmtys. for Equity, 178
F.Supp.2d at 850. In addition, the district court noted that MHSAA’s justifications must be “exceedingly persuasive.”
Conceding that MHSAA’s
logistical concerns were important, the district court concluded that MHSAA had
failed to demonstrate, pursuant to the standards set forth in V.M.I., that
discriminatory scheduling was “‘substantially related’ to the achievement of
those asserted objectives.”
On appeal, MHSAA reiterates its argument made below
that the purpose of separate athletic seasons for boys and girls is to maximize
opportunities for athletic participation. MHSAA asserts that statistics showing
that
The evidence offered by MHSAA, moreover, does not
establish that separate seasons for boys and girls—let alone scheduling that
results in the girls bearing all of the burden of playing during
disadvantageous seasons—maximizes opportunities for participation. MHSAA simply
states that bare participation statistics “are the link showing that separate
seasons are substantially related to maximum participation.” But a large
gross-participation number alone does not demonstrate that discriminatory
scheduling of boys’ and girls’ athletic seasons is substantially related to the
achievement of important government objectives.
* * * (The court rejected
MHSAA’s argument that there must be an intent to harm
girls to be unlawful discrimination. The
intentional classification is enough).
MHSAA asserts, however, that the “only facial
classification at work in this case was the original decision to have separate
high school sports teams for boys and girls.” Once the legality of separate
programs has been conceded, MHSAA argues, issues regarding the implementation
of those programs do not classify the players by gender. Conceding that
separating boys and girls sports is a facial classification, MHSAA
claims that other issues (scheduling, uniforms, coaches,
etc.) are not prohibited facial
classifications. * * * Disparate
treatment does not arise from any and all differences in treatment; it occurs
only where the offending party “treats some people less favorably than
others because of their race, color, religion, sex, or national origin.” Int’l
Bhd. of Teamsters v. United States, 431
In sum, MHSAA has failed to satisfy its burden of
justifying its discriminatory scheduling practices under V.M.I. We
therefore uphold the district court’s grant of relief to CFE on the equal
protection claim.
D. Title IX
1. Applicability of Title IX
(MHSAA
conceded Title IX applied).
2. Intentional discrimination under Title IX
(The court decided no intentional discrimination was
required for a disparate impact claim).
(
F. Compliance plan
After finding that MHSAA’s
scheduling of high school athletic seasons violated the Equal Protection Clause
of the Fourteenth Amendment, Title IX, and
2d at 862. MHSAA was required to submit a compliance plan to
the court by June 24, 2002. * * *
In August of 2002, the district court rejected MHSAA’s proposed plan as not achieving equality and offered
MHSAA three options:
(1) combine all sports
seasons so both sexes’ teams play in the same season . . . and move girls’
volleyball to its advantageous season of fall; or (2) reverse girls’
basketball and volleyball; and in the
with two boys’ seasons from among golf, tennis,
swimming, and soccer; and in the Upper Peninsula, keep combined seasons in golf
and swimming and reverse seasons in either tennis or soccer; or otherwise treat
the Upper Peninsula the same as the Lower Peninsula; or (3) reverse girls’
basketball and volleyball; and in both peninsulas, combine seasons in two
sports, and reverse seasons in one of the two remaining sports at issue.
MHSAA selected the second option in the amended
compliance plan that it filed with the district court in October of 2002. * * * Because MHSAA did
not file an amended notice of appeal following the district court’s rejection
of the initial compliance plan, we have no jurisdiction to consider MHSAA’s argument
concerning the same.
* * *
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the
judgment of the district court.
(The 2006
opinion does not state the harm to girls due to the differential
scheduling. The 2004 opinion lays out
the alleged harm as follows, read it if you are interested, but it’s not
required).
Girls have historically played in the
less advantageous seasons because of the way that high school athletics
developed in
In its
findings of fact, the district court painstakingly discussed each sport at
issue and analyzed why play in the nontraditional season (or,
in the case of golf, in the traditional season) harmed female athletes.
[G]irls’
basketball [is played] in the fall. Forty-eight states schedule girls’
basketball in the winter. . . .
Kristi Madsen said that not being
able, as a high school basketball player, to participate in the “March Madness”
hype made her feel “[a]ngry. I didn’t like it. Again,
the guys get a ton of special perks or attention because it’s ‘March Madness’
and because they are playing in March, during ‘March Madness.’” . . .
[I]t is undisputed that if
In volleyball, the non-traditional
season is the disadvantageous season for girls. . . .
The traditional playing season for
women’s volleyball is the fall. Forty-eight states play high school girls’
volleyball in the fall. The NCAA schedules women’s volleyball in the fall.
Although the MHSAA does not currently sponsor boys’ volleyball, the MHSAA’s executive staff and volleyball committee have
recommended that once the sport is adopted, it be played in the spring when the
NCAA schedules men’s volleyball.
College volleyball recruiting
focuses on the amateur, private club programs, like those sponsored by an
organization called the United States Volleyball Association (USAV), rather
than the high school programs . . .
The USAV and AAU, another private
club program, seasons for high school age players to play in their amateur
programs are from January through June or July. MHSAA rules prohibit athletes
from participating in USAV or AAU club volleyball during their December through
March high school season.
[T]he Court finds that the spring
season is the inferior season, as compared to fall, for playing soccer in
The NCAA schedules women’s soccer in
the fall. . . .
The MHSAA schedules the boys’ soccer
state championship tournament in the fall, at the same time that the NCAA
schedules men’s soccer. . . .
The MHSAA’s
scheduling of girls’ soccer in the spring in
The increased number of games per
week causes a greater risk of injury for girls that
Girls’ opportunities for collegiate
recruitment are decreased because college scholarships for soccer are awarded
in November and April. Recruiters will not have had an opportunity to see
female soccer players in
The court finds that in
In addition, because the NCAA letter
of intent signing date is in early November,
The Court finds that the winter
season for swimming has advantages that outweigh advantages to swimming in
fall. . . .
[T]he
[The]
[T]he winter season is more
advantageous than fall for swimming. For one reason,
[T]he Court finds that spring is the
more advantageous playing season for tennis. . . .
[
Boys’ high school tennis immediately
precedes the United States Tennis Association (USTA) summer tennis tournament
circuit, so boys have the advantage of high school practice, competition, and
coaching before participating in the circuit and are better prepared for the
summer circuit, where college coaches watch play. . . .
In addition
to sport-specific harms, the district court found that the scheduling of
seasons harmed
The
above-quoted findings are only a fraction of the harms that the district
court found are experienced by female athletes in