Comm for Equity v. MI High School Athle

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0299p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

COMMUNITIES FOR EQUITY,

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No. 02-1127

v.

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MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION, -

Defendant-Appellant. -

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On Remand from the United States Supreme Court.

No. 98-00479—Richard A. Enslen, District Judge.

Argued: March 14, 2006

Decided and Filed: August 16, 2006

Before: KENNEDY, COLE, and GILMAN, Circuit Judges.

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COUNSEL

ARGUED: Maureen E. Mahoney, LATHAM & WATKINS, Washington, D.C., for Appellant.

Kristen Galles, EQUITY LEGAL, Alexandria, Virginia, for Appellee. ON BRIEF: Maureen E.

Mahoney, LATHAM & WATKINS, Washington, D.C., for Appellant. Kristen Galles, EQUITY

LEGAL, Alexandria, Virginia, for Appellee. Brad A. Banasik, MICHIGAN ASSOCIATION OF

SCHOOL BOARDS, Lansing, Michigan, Jonathan E. Lauderbach, CURRIE KENDALL, Midland,

Michigan, for Amici Curiae.

GILMAN, J., delivered the opinion of the court, in which COLE, J., joined. KENNEDY,

J. (pp. 20-24), delivered a separate opinion concurring in part and dissenting in part.

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OPINION

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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 Michigan’s Elliott-Larsen Civil Rights Act. In 2004, this

court affirmed the judgment of the district court on the ground that MHSAA’s actions violate the

Equal Protection Clause. Cmtys. for Equity v. Mich. High School Athletic Ass’n (CFE I), 377 F.3d

504 (6th Cir. 2004). The CFE I court did not reach the Title IX or state-law issues.

1

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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. The order, commonly

referred to as a grant/vacate/remand order (GVR), directed this court to reconsider the case in light

of Rancho Palos Verdes v. Abrams, 544 U.S. 113 (2005), a case decided in the Court’s last term.

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, Communities for Equity v. Michigan High School Athletic Association, 178 F. Supp. 2d 805,

807-846 (W.D. Mich. 2001), and in CFE I, 377 F.3d at 506-10. 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, which provides in relevant part as follows: “Petition for writ of certiorari

granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Sixth

Circuit for further consideration in light of our opinion in Rancho Palos Verdes v. Abrams. . . .”

Mich. High School Athletic Ass’n v. Cmtys. for Equity, 125 S. Ct. 1973 (2005).

On remand, MHSAA argues that, based on the Supreme Court’s decision in Ranchos Palos

Verdes, Title IX provides the exclusive remedy for the alleged violations that bars CFE from seeking

additional remedies under 42 U.S.C. § 1983. CFE responds by contending that Rancho Palos

Verdes does not apply to the present case and that CFE is therefore entitled to prevail under both

Title IX and § 1983.

II. ANALYSIS

A. Standard of review

Constitutional and statutory interpretation questions are issues of law, which we review de

novo. Ammex, Inc. v. United States, 367 F.3d 530, 533 (6th Cir. 2004). In contrast, we apply the

“clearly erroneous” standard of review to the factual findings of the district court. Berger v. Medina

City Sch. Dist., 348 F.3d 513, 519 (6th Cir. 2003).

B. The Effect of Rancho Palos Verdes

1. Implications of the GVR

MHSAA relies on the following description of the GVR procedure to argue that the result

in CFE I must be altered:

Where intervening developments, or recent developments that we have reason to

believe the court below did not fully consider, reveal a reasonable probability that

the decision below rests upon a premise that the lower court would reject if given the

opportunity for further consideration, and where it appears that such a

redetermination may determine the ultimate outcome of the litigation, a GVR order

is . . . potentially appropriate.

Lawrence v. Chater, 516 U.S. 163, 167 (1996) (holding that a GVR is “an appropriate exercise of

[the Supreme Court’s] discretionary certiorari jurisdiction”). Subsequent interpretations of that

language, however, make clear that a GVR does not indicate, nor even suggest, that the lower

court’s decision was erroneous.

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In Stutson v. United States, 516 U.S. 193, 197-98 (1996), for example, the Court issued a

GVR directing the Eleventh Circuit to reconsider that case in light of the Supreme Court’s decision

in Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993).

Focusing on the fact that the Eleventh Circuit did not fully consider whether Pioneer applied, and

classifying Pioneer as a “potentially relevant decision[],” 516 U.S. at 197 (emphasis added), the

Stutson Court acknowledged that the Eleventh Circuit may “conclude that Pioneer does not apply”

and thus reach the same result on remand. Id. at 196.

Other courts have also opined that a GVR does not necessarily indicate that the Supreme

Court desires a different result. In Gonzales v. Justices of the Municipal Court of Boston, 420 F.3d

5, 7 (1st Cir. 2005), for example, the First Circuit pondered the implication of a GVR that instructed

the court to reconsider an earlier holding in light of a recent Supreme Court decision. After

discussing the above-quoted language from Lawrence, the Gonzales court opined:

It is important to remember, however, that a GVR order is neither an outright

reversal nor an invitation to reverse; it is merely a device that allows a lower court

that had rendered its decision without the benefit of an intervening clarification to

have an opportunity to reconsider that decision and, if warranted, to revise or correct

it. . . . Consequently, we do not treat the Court’s GVR order as a thinly-veiled

direction to alter our course; rather, the order recognizes—as do we—that the Smith

decision is pertinent and requires us to determine whether anything that the Smith

Court said demands a different result.

Id. at 7-8; see also United States v. Norman, 427 F.3d 537, 538 n.1 (8th Cir. 2005) (“The GVR is

not the equivalent of a reversal on the merits, however. Rather, the Court remands for the sake of

judicial economy—so that the lower court can more fully consider the issue with the wisdom of the

intervening development.”). The GVR therefore requires us to consider the effect of Rancho Palos

Verdes on the present case, but it does not suggest that the Supreme Court believes that CFE I was

wrongly decided.

2. Summary of the Sea Clammers/Rancho Palos Verdes doctrine

In order to analyze the issue highlighted by the GVR, a brief summary of § 1983 and the line

of cases on which Rancho Palos Verdes relied is essential. The key language of 42 U.S.C. § 1983

provides in relevant part as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress. . . .

For plaintiffs, then, § 1983 serves as a vehicle to obtain damages for violations of both the

Constitution and of federal statutes.

Middlesex County Sewerage Authority v. National Sea Clammers, 453 U.S. 1 (1981), is the

seminal case discussing the intersection between statutory remedies and § 1983, and it provides the

basis for the Supreme Court’s later decision in Rancho Palos Verdes. In Sea Clammers, the

plaintiffs were fishermen who worked off the coast of New York and New Jersey. They brought suit

under the Federal Water Pollution Control Act (the FWPCA), 33 U.S.C. § 1251, the Marine

Protection, Research, and Sanctuaries Act of 1972 (the MPRSA), 33 U.S.C. § 1401, and § 1983,

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alleging a violation of the preceding statutes as a result of damage to fishing grounds caused by

polluters dumping sewage and other waste in the ocean. Sea Clammers, 453 U.S. at 4-5.

The substantive statutes at issue in Sea Clammers—the FWPCA and the MPRSA—authorize

the Administrator of the Environmental Protection Agency (EPA) to seek civil and criminal

penalties for violations of the acts, and permitted “any interested person[]” to seek judicial review

of the Administrator’s actions regarding the issuance of pollutant discharge permits and the

establishment of pollution standards. Id. at 13-14. Both statutes contain an express citizen-suit

provision, but those provisions authorize private parties to sue only for injunctive relief rather than

the monetary relief the plaintiffs in Sea Clammers were seeking. Id.

The Sea Clammers Court focused on Congress’s intent, and held that the plaintiffs could not

use § 1983 as a vehicle to enforce federal statutory laws where the acts themselves contained

“unusually elaborate enforcement provisions.” Id. at 13. Because Congress enacted “so many

specific statutory remedies, including the two citizen-suit provisions” in the FWPCA and the

MPRSA, the Court found it “hard to believe that Congress intended to preserve the § 1983 right of

action.” Id. at 20. Instead, the Sea Clammers Court emphasized that the nature and extent of the

remedies available in the water-pollution statutes clearly indicated that Congress had considered the

methods of redress for violations of the statutes and intended the remedies provided in the statutes

to be complete. Id. As a result, the Court held that when claiming a violation of the FWPCA and

the MPRSA, the remedies authorized in those acts preclude resort to § 1983.

The Court interpreted the Sea Clammers doctrine a few years later in Smith v. Robinson, 468

U.S. 992 (1984). In Smith, the plaintiffs were the parents of a handicapped child who was allegedly

being denied a “free appropriate public education.” They brought suit against the school district for

relief under the Education of the Handicapped Act (the EHA), 20 U.S.C. § 1400, and the Due

Process and Equal Protection Clauses of the Fourteenth Amendment, pursuant to § 1983. Unlike

Sea Clammers, which concerned an effort to enlarge a statutory remedy by asserting a claim based

on the “and laws” provision of § 1983, the Smith case questioned the ability of plaintiffs to use

§ 1983 as a vehicle to enforce a constitutional remedy in addition to the remedies available under

the EHA. Id. at 1005. Because the Court concluded that the constitutional claims were “virtually

identical to their EHA claims,” it framed the issue as whether “Congress intended the EHA to be the

exclusive avenue through which a plaintiff may assert those claims.” Id. at 1009.

The Court then engaged in a thorough analysis of the EHA’s provisions and legislative

history in order to answer this question. Id. at 1009-12. After discussing the “carefully tailored

administrative and judicial mechanism set out in the [EHA],” the Court concluded:

In light of the comprehensive nature of the procedures and guarantees set out in the

EHA and Congress’ express efforts to place on local and state education agencies the

primary responsibility for developing a plan to accommodate the needs of each

individual handicapped child, we find it difficult to believe that Congress also meant

to leave undisturbed the ability of a handicapped child to go directly to court with an

equal protection claim to a free appropriate public education. . . . [W]e think

Congress’ intent is clear. Allowing a plaintiff to circumvent the EHA administrative

remedies would be inconsistent with Congress’ carefully tailored scheme.

Id. at 1011-12. In other words, Congress intended for the EHA to serve as the exclusive method by

which plaintiffs could assert the right to a free appropriate public education, and resort to § 1983 is

prohibited. Id. at 1013. Such an intent, according to the Court, was found in the comprehensive

procedures and guarantees established in the EHA. Id.

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Finally, the Court decided Rancho Palos Verdes in 2005 and remanded the present case in

light of that decision. In Rancho Palos Verdes, plaintiff Abrams brought suit against the Rancho

Palos Verdes municipal government after he was denied a permit to build a radio tower on his

property. 125 S. Ct. at 1457. Abrams sought injunctive relief under the Telecommunications Act

(the TCA), 47 U.S.C. § 327(c)(7), and damages and attorney’s fees under § 1983—essentially using

both statutes to enforce the violation of rights created by the TCA. Id. Like the statutes at issue in

Sea Clammers and Smith, the TCA itself does not expressly provide for monetary relief. Id. at 1459.

Instead, the TCA permits private parties to seek redress through administrative channels and through

injunctive relief in the courts. Id.; see also 47 U.S.C. § 332(c)(7). The Court, as it had done in Sea

Clammers, 435 U.S. at 20, framed the issue as whether Congress intended the judicial remedy

expressly authorized in the TCA to coexist with the alternative remedy authorized in § 1983.

Rancho Palos Verdes, 125 S. Ct.. at 1458.

Although the TCA expressly provides a private judicial remedy, the Court explicitly rejected

the notion that the availability of a private remedy under the substantive statute necessarily

forecloses an action under § 1983. Id. at 1459; see also ASW v. Oregon, 424 F.3d 970, 977-78 (9th

Cir. 2005) (characterizing the holding of Rancho Palos Verdes as one focused on the

comprehensiveness of the remedy). The Court instead looked to the extent of the remedy authorized

by the TCA, reasoning that “the existence of a more restrictive private remedy for statutory

violations has been the dividing line between those cases in which we have held that an action would

lie under § 1983 and those in which we have held that it would not.” Rancho Palos Verdes, 125 S.

Ct. at 1458-59 (noting that both Sea Clammers and Smith “rested upon the existence of more

restrictive remedies provided in the violated statute itself”). After engaging in a careful analysis of

the legislative history of the TCA and the remedies it expressly provided, id. at 1459-62, the Court

concluded that Congress must have intended the TCA remedies to be the exclusive relief available

to a plaintiff complaining of a TCA violation. Id. at 1462.

Sea Clammers and the other cases on which the Supreme Court relied operate under the

assumption that limitations placed by Congress upon statutory remedies are not to be evaded through

§ 1983. See ASW, 424 F.3d at 978 (noting that the Rancho Palos Verdes Court wanted to prevent

§ 1983 from serving as an “end run around the enforcement mechanism Congress provided”). The

TCA, like the statutes at issue in Sea Clammers and Smith, contains express private remedies for

violations of rights granted in those statutes. See Rancho Palos Verdes, 125 S. Ct. at 1458-59, 1462.

Because the administrative and judicial remedies authorized in the TCA are detailed, yet more

restrictive than the remedies available under § 1983, the Court reasoned that it would contravene

Congress’s intent to allow Abrams to recover under both statutes where Congress had provided in

the TCA precisely the remedies it considered appropriate. Id. at 1462.

3. Application of the Sea Clammers/Rancho Palos Verdes doctrine to Title IX

As a result of the decision in Rancho Palos Verdes and the GVR, MHSAA argues that Title

IX precludes CFE’s claims under § 1983. CFE, however, contends that the Sea Clammers line of

cases does not control the result here, and urges us to reach the merits of both the Title IX claim and

the constitutional claims brought pursuant to § 1983. For the reasons set forth below, we agree with

CFE that Title IX does not preclude recovery under § 1983.

Both Sea Clammers and Rancho Palos Verdes dealt with plaintiffs who attempted to enforce

federal statutory rights through the “and laws” language of § 1983. The Sea Clammers plaintiffs

based their action on several federal statutes, but sought recovery pursuant to § 1983 because of the

additional remedies available through that statute that were not available under the substantive

water- pollution statutes. Similarly, the plaintiff in Rancho Palos Verdes sought money damages

and attorney’s fees pursuant to § 1983 because the TCA failed to authorize that type of recovery.

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In both Sea Clammers and in Rancho Palos Verdes, furthermore, the rights that plaintiffs were

asserting were based solely on federal statutory law—in other words, rights created by Congress.

Even though the statutes that created the very rights that they were asserting did not authorize

monetary damages, the plaintiffs in Sea Clammers and Rancho Palos Verdes sought such damages

pursuant to § 1983.

This litigation strategy was explicitly disapproved of by the Supreme Court in both cases and

forms the bedrock for the Sea Clammers principle. The key inquiry is whether Congress intended

the remedies in the substantive statute to be exclusive. See Sea Clammers, 453 U.S. at 14 (“In view

of these elaborate enforcement provisions, it cannot be assumed that Congress intended to authorize

by implication additional judicial remedies for private citizens suing under [the water-pollution

statutes].)” To allow the plaintiffs in such cases to benefit from the additional remedies available

pursuant to § 1983 would create an end-run around the substantive statutory remedies and

contravene Congress’s intent. See, e.g., Smith, 468 U.S. at 1012 (relying on the Sea Clammers

doctrine to hold that “[a]llowing a plaintiff to circumvent the EHA administrative remedies would

be inconsistent with Congress’ carefully tailored scheme”). The Court recently reaffirmed its

concern in Rancho Palos Verdes when it held that “enforcement [of the TCA] through § 1983 would

distort the scheme of . . . limited remedies created by [the TCA].” 125 S. Ct. at 1462.

Unlike the plaintiffs in Sea Clammers and Rancho Palos Verdes, CFE invoked § 1983 not

as a vehicle to enforce the substantive federal law found in Title IX, but as a vehicle to recover for

alleged violations of the Equal Protection Clause of the Fourteenth Amendment. This is a critical

distinction. The Court’s analysis both in Sea Clammers and Rancho Palos Verdes hinges on the

fact that when Congress created the particular rights through statute, it also created particular

remedies for those statutory violations. See Rancho Palos Verdes, 125 S. Ct. at 1458 (“Thus, the

existence of a more restrictive private remedy has been the dividing line between those cases in

which we have held that an action would lie under § 1983 and those in which we have held that it

would not.”); see also Sea Clammers, 453 U.S. at 20 (“When the remedial devices provided in a

particular act are sufficiently comprehensive, they may suffice to demonstrate congressional intent

to preclude the remedy of suits under § 1983.”).

In the present case, however, CFE asserts violations of Title IX and of the Fourteenth

Amendment, meaning that CFE’s allegations would be actionable even if Congress had never

enacted Title IX. The question of what Congress intended, then, concerns not only which remedies

Congress sought to provide for Title IX violations, but whether Congress intended to abandon the

rights and remedies set forth in Fourteenth Amendment equal protection jurisprudence when it

enacted Title IX in 1972.

Because Sea Clammers and Rancho Palos Verdes concerned plaintiffs who attempted to

recover only for violations of federal statutory law (as opposed to constitutional law) through the

enforcement mechanism of § 1983, those cases are distinguishable from the present case. Although

not on all fours, the Smith case provides the closest fit to the situation here because the § 1983

claims in Smith were based on Fourteenth Amendment violations rather than the violations of “other

laws.” 468 U.S. at 1005. The Smith Court held that where the constitutional claims pursuant to

§ 1983 were “virtually identical” to the statutory claims, the § 1983 claims were precluded because

“Congress intended handicapped children with constitutional claims to a free appropriate public

education to pursue those claims through the carefully tailored administrative and judicial

mechanism set out in the statute.” Id. at 1009.

Applying Smith to the case before us, the necessary factors to consider in order to determine

if Title IX precludes resort to § 1983 are (1) whether CFE’s Title IX claims are “virtually identical”

to its constitutional claims, and (2) whether the remedies provided in Title IX indicate that Congress

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intended to preclude reliance on § 1983. Id. Recovery under § 1983 is precluded by Smith only if

both factors are satisfied. See Smith, 468 U.S. at 1009.

A comprehensive discussion of both factors is not necessary so long as one factor is clearly

not satisfied, which is the case here. See Lillard v. Shelby County Board of Education, 76 F.3d 716,

723 (6th Cir. 1996) (declining to engage in a protracted discussion of the first factor because the

second one was not satisfied). So even if we were to hold that CFE’s Title IX claims are “virtually

identical” to its claims brought pursuant to § 1983, we would still have to consider whether

Congress intended for Title IX to supplant CFE’s constitutional claim pursuant to § 1983. See

Smith, 468 U.S. at 1009 (determining that the claims were virtually identical and then considering

“whether Congress intended that the EHA be the exclusive avenue through which a plaintiff may

assert those claims.”).

Our dissenting colleague correctly notes that the Smith inquiry contains two prongs:

(1) whether the constitutional claim pursuant to § 1983 is virtually identical to the claim under Title

IX, and (2) whether Title IX provides a remedy comprehensive enough to be exclusive. After

articulating the inquiry, however, the dissent appears to conflate the two prongs by stating that once

a court determines that the constitutional claim pursuant to § 1983 is virtually identical to the

statutory claim, we have reason to “assume that Congress intended to preclude use of § 1983 to

enforce those claims.” Dissenting Op. at 23. This purported presumption finds no support in the

caselaw, and we respectfully disagree that such a presumption exists. We instead believe that the

two prongs set forth in Smith are intended to be independently evaluated. Neither the Supreme

Court nor any of our sister circuits has suggested that the second prong is a more difficult obstacle

for a plaintiff to overcome once the first prong is satisfied.

This court in Lillard has already addressed the second prong of the Smith inquiry—whether

Title IX provides a remedy comprehensive enough to be exclusive. Id. Several plaintiffs in Lillard

sought relief under both Title IX and under the First and Fourteenth Amendments (as remedied

through § 1983). The Lillard court was faced with the issue of “whether Title IX’s statutory remedy

precludes the plaintiffs from bringing a substantive due process claim under section 1983,” id. at

718, and it began its analysis by distinguishing Sea Clammers:

[W]hile in National Sea Clammers, allowing the section 1983 action to enforce the

rights at issue would have effectively circumvented the implicit congressional

intention to foreclose the private rights of action, here, the plaintiffs’ section 1983

action does not attempt either to circumvent Title IX procedures, or to gain remedies

not available under Title IX. . . . Plainly, National Sea Clammers does not, on its

face, stand for the proposition that a federal statutory scheme can preempt

independently existing constitutional rights, which have contours distinct from the

statutory claim, thus prohibiting a section 1983 action grounded in substantive due

process. Instead, that case speaks only to whether federal statutory rights can be

enforced both through the statute itself and through section 1983.

Id. at 723.

After distinguishing Sea Clammers, the Lillard court went on to characterize Smith as

standing for the proposition that Congress can create a statutory vehicle as an alternative to

enforcing constitutional rights pursuant to § 1983. Id. As highlighted by the second factor of the

Smith inquiry, however, Congress’s intent to do so must be clear. Id.

The Lillard court concluded that, in contrast to the statutes at issue in Sea Clammers and

Smith, Title IX contains no comprehensive enforcement scheme indicating that Congress intended

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to preclude recovery under § 1983. Id. Although the Supreme Court found an implied private right

of action for Title IX violations in Cannon v. University of Chicago, 441 U.S. 677, 683 (1979), the

only enforcement mechanism expressly authorized in Title IX is the withdrawal of federal funds.

Lillard, 76 F.3d at 723. This stands in stark contrast to the water-pollution statutes at issue in Sea

Clammers and the EHA at issue in Smith. Those statutes expressly provided “carefully tailored”

administrative and judicial remedies clearly indicating that Congress intended plaintiffs seeking

redress to use the substantive statute rather than the additional remedies available under § 1983. Sea

Clammers, 453 U.S. at 20; Smith, 468 U.S. at 1009. A review of the provisions and legislative

history of Title IX, however, led this court to the following conclusion:

One can only conclude, therefore, that National Sea Clammers does not speak to

Title IX, since there is no evidence in Title IX that ‘Congress intended to foreclose

[a § 1983] action by providing an exclusive remedy within’ Title IX. Thus, even if

the defendants’ argument had been directed at an attempt by the plaintiffs to enforce

their Title IX rights, rather than their constitutional rights, through section 1983,

National Sea Clammers would have provided no support.

Lillard, 76 F.3d at 723 (citation omitted).

Whereas the Supreme Court in Sea Clammers and Smith was able to highlight specific

statutory remedies as evidence of Congress’s intent for the substantive statutes to provide the

exclusive means of relief, the Lillard court found no similar examples of congressional intent in

Title IX. Title IX, after all, contains no express private remedy at all. Id.; see also Rancho Palos

Verdes, 125 S. Ct. at 1459 (citing Sea Clammers and Smith, and explaining that the existence of a

private judicial remedy is an important factor to consider when attempting to discern congressional

intent). Lillard, then, concluded that the remedies afforded in Title IX are insufficient to preclude

the pursuit of a remedy under § 1983.

4. The precedential value and vitality of Lillard

Our dissenting colleague argues that we are not bound by Lillard because its discussion

regarding the extent of the Title IX remedy was dicta. See Dissenting Op. at 23. We respectfully

disagree. Rather than focusing on the first Smith factor—whether the constitutional and statutory

claims are virtually identical—the Lillard court held that “neither [Smith] factor appears here.”

76 F.3d 716, 723 (6th Cir. 1996) (emphasis added). We therefore do not see the holding as one

focused on the first Smith factor, nor the discussion of the second Smith factor as dicta. In fact, the

Lillard court engaged in no substantive analysis of the first Smith factor at all, instead dedicating the

entirety of the Smith analysis to a discussion of the second factor—whether Title IX provides a

remedy comprehensive enough to be exclusive.

The dissent’s emphasis on one line of Lillard to the effect that Sea Clammers would not have

required preemption “even if the defendants’ argument had been directed at an attempt by the

plaintiffs to enforce their Title IX rights,” Dissenting Op. at 23, does not persuade us that Lillard’s

conclusion as to the extent of the Title IX remedy was dicta. In Lillard, the court articulated two

“important distinctions” that rendered the Sea Clammers analysis inapposite: (1) the plaintiffs in

Lillard were seeking to enforce constitutional rights rather than statutory rights, and (2) Title IX,

unlike the statutes at issue in Sea Clammers, did not provide a comprehensive and exclusive remedy.

76 F.3d at 722-23. The “even if” language on which our colleague seizes, then, proves nothing more

than that the court had two grounds for concluding that the plaintiffs could seek remedies under both

Title IX and § 1983, and that the outcome would have remained the same despite the nature of the

underlying claim.

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We also acknowledge our dissenting colleague’s argument that Lillard should not control

our decision in the present case because Lillard dealt with a substantive due process claim pursuant

to § 1983 rather than an equal protection claim. See Dissenting Op. at 21-25. Contrary to our

dissenting colleague’s view, however, we see no consequence to this distinction. As discussed

above, regardless of whether CFE’s equal protection claim is “virtually identical” to its Title IX

claim, we still must consider whether Title IX provides the exclusive and comprehensive remedy

for MHSAA’s alleged violations. Lillard answered this latter inquiry in the negative, and we remain

bound by its holding despite the dissent’s suggestion that “[w]hen ascertaining Congress’

intent, . . . we have to do so with the precise rights in mind.” Dissenting Op. at 22.

Although the Lillard court noted that the plaintiffs were seeking to enforce substantive due

process rights that were “wholly independent” and “totally distinct” from the rights granted in Title

IX, its discussion of the extent of the remedies contained in Title IX focused on the provisions of

Title IX generally, not on whether Title IX’s enforcement scheme was comprehensive with regard

to the substantive due process claim. We have found no decision, either by the Supreme Court or

our sister circuits, holding that Congress intended Title IX to be the exclusive remedy for one claim

but not another, and we fail to understand how this could possibly be the case considering that

Congress provided no express remedies at all in the statute.

The dissent also relies on Smith, 468 U.S. at 1013-1014, as support for the proposition that

“for each constitutional claim, a court must engage in a separate analysis of whether that claim,

provided for by a statutory remedy, is precluded from being brought under § 1983. . . .” Dissenting

Op. at 22. Although we acknowledge that the Smith Court did in fact contemplate two separate

analyses—one concerning the equal protection claim and one concerning the substantive due process

claim—the statute at issue in Smith provided express remedies that the Court concluded were

carefully tailored so as to preempt recovery for an equal protection violation under § 1983. The

Smith Court’s apparent willingness (we say willingness because the Court did not ultimately reach

this issue) to conduct a similar analysis as it pertained to substantive due process is not surprising

given the clear textual indication of Congress’s intent in the EHA to preempt reliance on § 1983 by

affording a comprehensive remedy for equal protection claims, whereas the statutory language may

not provide an adequate remedy for other constitutional claims brought pursuant to § 1983.

Lillard’s analysis, however, was based on the fact that “Title IX contains no comprehensive

enforcement scheme.” 76 F.3d at 723. The Lillard court did not suggest that the dearth of

enforcement provisions in Title IX was relevant to substantive due process claims only, as opposed

to equal protection claims or other claims brought pursuant to § 1983. In fact, language in the

opinion indicates that the court considered the lack of remedies in Title IX as it pertained to all

§ 1983 claims. Id. (“[T]here is no evidence in Title IX that Congress intended to foreclose a section

1983 action by providing an exclusive remedy within Title IX.”) (citation and quotation marks

omitted).

Two of our sister circuits, moreover, have relied on Lillard to hold that Title IX is not

comprehensive enough to be exclusive even though the plaintiffs in those cases sought relief under

§ 1983 for equal protection violations rather than substantive due process violations. See Crawford

v. Davis, 109 F.3d 1281, 1284 (8th Cir. 1997) (distinguishing Sea Clammers and finding

“unpersuasive the [] argument that Title IX contains a sufficiently comprehensive remedial scheme”)

(quotation marks omitted); Seamons v. Snow, 84 F.3d 1226, 1234 (10th Cir. 1996) (“We agree with

the Sixth Circuit [in Lillard], and conclude that [the plaintiff’s] § 1983 action [to enforce

independent constitutional rights] is not barred by Title IX.”). The analysis employed by the Eighth

and Tenth Circuits in those cases did not differ from the analysis of Lillard even though those courts

were, like in the present case, considering the preemption of equal protection claims pursuant to

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§ 1983. In sum, the question of whether Title IX is comprehensive enough to be exclusive is an

inquiry that does not change regardless of the constitutional claim at issue.

The bottom-line argument of both our dissenting colleague and MHSAA is that we should

not follow Lillard. MHSAA contends that the GVR commands us to reconsider, and thus overturn,

that decision. The dissent likewise articulates its disagreement with the reasoning of Lillard, arguing

that the second prong of the Smith inquiry must include consideration of not only the express

remedies in Title IX, but also the remedies implied by the Supreme Court. We will address these

arguments in turn.

MHSAA argues that “the clear implication of the Supreme Court’s remand order is that it

would like this Court to reconsider Lillard.” The Supreme Court, of course, did not mention Lillard

in the GVR. Nor did the Court address Title IX in either the GVR or in Rancho Palos Verdes, the

case on which the GVR is based. Although MHSAA argues that Rancho Palos Verdes demands that

we revisit Lillard, it fails to support its contention with any reasoned analysis. Instead, MHSAA

simply recites the holding of Sea Clammers, acknowledges this court’s holding in Lillard, and

concludes that because Rancho Palos Verdes falls within the Sea Clammers line of cases, Lillard

must be revisited.

MHSAA’s own characterization of the Sea Clammers holdingn“that specific statutory

remedies displace the general private right of action under 42 U.S.C. § 1983 when they are

comprehensive enough to be exclusive”n demonstrates why Lillard is still good law. The Lillard

court acknowledged the Sea Clammers doctrine and held that it did not apply to Title IX because

Title IX was not comprehensive enough to be exclusive. In other words, the Lillard court found that

the dearth of remedies authorized in Title IX, either private or public, indicated that Congress did

not intend to preclude recovery under § 1983 when it enacted Title IX. See Lillard, 76 F.3d at 723.

Rancho Palos Verdes did not alter the premise on which Sea Clammers was based and thus

did not alter the vitality of Lillard. In Rancho Palos Verdes, as in the Sea Clammers and Smith

cases, the primary question was whether Congress intended to foreclose reliance on § 1983. The

Court in each of these cases focused on the extent of the rights and remedies provided in the

statutory scheme. In those cases, the statutes at issue provided detailed means by which the private

parties could seek redress, either through judicial or administrative channels. And in each of those

cases, Congress neglected to explicitly authorize the types of remedies available under § 1983. The

lodestar, in all cases, is what Congress intended. This court in Lillard addressed that precise inquiry

as it related to Title IX and held that Congress did not intend to preclude recovery under § 1983.

76 F.3d at 723. “[U]nless an inconsistent decision of the United States Supreme Court requires

modification of the decision or this Court sitting en banc overrules the prior decision,” Salmi v.

Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985), we remain bound by Lillard.

We see nothing in Rancho Palos Verdes that requires modification of Lillard or its reasoning,

even though, as MHSAA notes, three other circuits have held that Congress intended Title IX to be

exclusive. See Bruneau v. South Kortright Cent. Sch. Dist., 163 F.3d 749, 756-59 (2d Cir. 1998);

Waid v. Merrill Area Pub. Sch., 91 F.3d 857, 862-63 (7th Cir. 1996); Pfeiffer v. Marion Ctr. Area

Sch. Dist., 917 F.2d 779, 789 (3d Cir. 1990). Unlike this court in Lillard, the Second, Third, and

Seventh Circuits declined to distinguish Sea Clammers on the basis that the Title IX cases concerned

application of § 1983 to enforce independent constitutional rights rather than federal statutory law.

See, e.g., Bruneau, 163 F.3d at 757 (“We see nothing in Sea Clammers that would support a

constitutional rights exception.”). Those circuits also held that because the Supreme Court

concluded that Title IX contains an implied damages remedy, see Franklin v. Gwinnett County

Public Schools, 503 U.S. 60, 76 (1992), Title IX “gives plaintiffs access to the full panoply of

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judicial remedies.” See Waid, 91 F.3d at 862-63 (holding that such access indicates Congress’s

intent to preclude reliance on § 1983).

On the other hand, MHSAA fails to recognize the cases from the Eighth and Tenth Circuits

that have agreed with this court’s holding in Lillard. See Crawford, 109 F.3d at 1284; Seamons, 84

F.3d at 1234. The fact that the courts of appeal are evenly split on the issue of whether Congress

intended Title IX to provide a complete remedy bolsters the conclusion that the GVR in the present

case did not imply that this court should reconsider Lillard. Even if the Supreme Court thought

Lillard was wrongly decided and attempted to cure the defect through a GVR in the present case,

the decisions of the Eighth and Tenth Circuits would be unaffected—meaning that the circuit split

would continue.

Because we have determined that Lillard is controlling precedent, we need not extol its

virtues in order to reach a decision in the present case. We nevertheless defend Lillard’s approach

in response to the great weight that our dissenting colleague gives to Cannon v. University of

Chicago, 441 U.S. 677, 689 (1979), in which the Supreme Court held that a private remedy was

implicit in Title IX. Dissenting Op. at 24. The dissent also relies on Franklin v. Gwinnett County

Public Schools, 503 U.S. 60, 72 (1992), in which the Supreme Court relied on Congress’s silence

subsequent to the Cannon decision to hold that Congress “did not intend to limit the remedies

available in a suit brought under Title IX.” Id.; Franklin, 530 U.S. at 73. Although Cannon and

Franklin relied on implicit evidence of congressional intent rather than the explicit text of Title IX,

the dissent reasons that “[t]he [implied] intent found by the Supreme Court. . . should be given the

same weight as expressed intent[]”—essentially arguing that the private damages remedy that the

Supreme Court read into Title IX satisfies Smith. Dissenting Op. at 24. We respectfully disagree.

Although the Supreme Court read an implied remedy into Title IX in Cannon, 441 U.S. at

689, this implied remedy does not satisfy the second prong of the Smith inquiry. The Supreme Court

has made clear that the question of what Congress intended is an inquiry focused on the statute itself.

In Smith, for example, the Court referred to the “carefully tailored administrative and judicial

mechanism set out in the statute.” 468 U.S. at 1009 (emphasis added). The Rancho Palos Verdes

Court also focused on the explicit text of the statute:

Our cases have explained that evidence of such congressional intent may be found

directly in the statute creating the right, or inferred from the statute’s creation of a

“comprehensive enforcement scheme that is incompatible with individual

enforcement under § 1983. . . . The provision of an express, private means of redress

in the statute itself is ordinarily an indication that Congress did not intend to leave

open a more expansive remedy under § 1983.

544 U.S. at 120-21 (emphasis added). Although the Court later in its decision discusses the

“availability of a private judicial remedy”—language that the dissenting opinion adopts—without

making the distinction between explicit and implied remedies, the statute at issue in Rancho Palos

Verdes (as well as in Sea Clammers and Smith) contains an explicit private remedy. We therefore

read Rancho Palos Verdes as extending only to statutes that contain an explicit private remedy that

is sufficiently comprehensive for us to infer that Congress intended the remedy to be exclusive.

Title IX does not satisfy this standard. The fact that the Supreme Court implied a private

remedy in Cannon gives strength to the argument that Congress did not intend for the termination

of federal funds—the only remedy explicitly authorized by Title IX—to serve as a comprehensive

or exclusive remedy. See Michael A. Zwiebelman, Why Title IX Does Not Preclude Section 1983

Claims, 65 U. Chi. L. Rev. 1465, 1481-82 (1998). Rather, the Supreme Court held that an implied

private right of action—in addition to the explicit remedy of termination of federal funds—was

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necessary to achieve the fundamental purpose of Title IX. Cannon, 441 U.S. at 709. Whether

Congress intended to create or foreclose a private remedy, as was at issue in Cannon, is decidedly

different from the second prong of Smith, which asks whether Congress intended to create an

enforcement scheme so comprehensive that it could serve as the exclusive avenue for relief, thus

precluding claims under § 1983.

The Supreme Court’s decision in Franklin, 503 U.S. at 66, does not undermine our analysis.

Franklin’s conclusion was guided by the traditional presumption that all appropriate remedies may

be implied in a statute unless Congress has explicitly indicated otherwise. See id. In other words,

the Court relied on Congress’s silence in implying the damages remedy in Franklin. Id.

Congressional silence, though sufficient to find an implied remedy, cannot be equated with the

carefully tailored remedies present in Sea Clammers, Smith, and Rancho Palos Verdes.

Justice Stevens’s concurrence in Rancho Palos Verdes supports our determination that the

Smith inquiry is distinct from the question of whether the Supreme Court may imply a private

judicial remedy:

Sometimes the question is whether, despite its silence, Congress intended us to

recognize an implied cause of action. [citing Cannon, 441 U.S. 677]. Sometimes we

ask whether, despite its silence, Congress intended us to enforce the pre-existing

remedy provided in [42 U.S.C. § 1983]. And still other times, despite Congress’

inclusion of specific clauses designed specifically to preserve pre-existing remedies,

we have nevertheless concluded that Congress impliedly foreclosed the § 1983

remedy. [citing Sea Clammers, 453 U.S. at 13].

Rancho Palos Verdes, 544 U.S. at 129 (Stevens, J., concurring in the judgment) (emphasis added).

The Smith inquiry, as highlighted by Justice Stevens, is not an offshoot of the inquiry performed in

Cannon. See also Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002) (“[W]hether a statutory violation

may be enforced through § 1983 is a different inquiry than that involved in determining whether a

private right of action can be implied from a particular statute.”).

In short, we cannot agree with our dissenting colleague that Title IX precludes relief under

§ 1983 simply because the Supreme Court has implied a private right of action. The Supreme Court

has never held that an implied judicial remedy is enough to preclude relief under § 1983, and the

caselaw does not support such a conclusion in the present case. The rationale on which Lillard was

based, therefore, remains persuasive. Because we conclude that Lillard remains good law and is

unaffected by Rancho Palos Verdes, CFE may seek remedies under § 1983 as well as under Title

IX.

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. Portage Metro Hous. Auth., 55 F.3d 1097, 1111 (6th Cir. 1995) (“To state a claim

under the Equal Protection Clause, a § 1983 plaintiff must allege that a state actor intentionally

discriminated against the plaintiff because of membership in a protected class.”) (citation and

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quotation marks omitted). As a threshold issue, therefore, we must determine whether MHSAA is

a state actor.

In determining that MHSAA was a state actor, the district court relied upon the United

States Supreme Court’s decision in Brentwood Academy v. Tennessee Secondary School Athletic

Association, 531 U.S. 288 (2001). Cmtys. for Equity v. Mich. High Sch. Athletic Ass’n, 178 F. Supp.

2d 805, 846-848 (W.D. Mich. 2001). The Brentwood Court addressed the issue of whether the

Tennessee Secondary School Athletic Association (TSSAA), which was “incorporated to regulate

interscholastic athletic competition among public and private secondary schools,” engaged in state

action when it enforced one of its rules against a member school. Brentwood Academy, 531 U.S.

at 290. Because of “the pervasive entwinement of state school officials in the structure of the

association,” the Court held that the TSSAA’s regulatory activity constituted state action. Id. at 291.

The Court acknowledged that the analysis of whether state action existed was a “necessarily fact-

bound 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.” Id. at 295, 298 (citation and quotation marks omitted).

Public schools constituted 84% of TSSAA’s membership, the Court noted, and public school

faculty and administrators provided TSSAA’s leadership. Id. at 298. The Court was further

influenced by the fact that TSSAA’s primary revenue source was gate receipts from tournaments

between TSSAA member schools. Id. at 299. In conclusion, the Court stated that,

to the extent of 84% of its membership, the Association is an organization of public

schools represented by their officials acting in their official capacity to provide an

integral element of secondary public schooling. There would be no recognizable

Association, legal or tangible, without the public school officials, who do not merely

control but overwhelmingly perform all but the purely ministerial acts by which the

Association exists and functions in practical terms.

Id. at 299-300. The Court also found significant that TSSAA ministerial employees were treated

like state employees by virtue of their eligibility for membership in the state retirement system. Id.

at 300.

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 Tennessee students, may satisfy physical education requirements for high school by

participating in MHSAA-sanctioned interscholastic sports. Because MHSAA, like TSSAA, is so

entwined with the public schools and the state of Michigan, and because there is “such a close nexus

between the State and the challenged action,” MHSAA is a state actor. Tellingly, MHSAA argued

earlier in this litigation, before the Supreme Court reversed the Sixth Circuit’s opinion in Brentwood

Academy, that “the nature and function of the MHSAA is virtually identical to that of the TSSAA.”

Cmtys. for Equity, 178 F. Supp. 2d at 847. MHSAA, in sum, has failed to present any compelling

argument to distinguish itself from TSSAA. We therefore uphold the determination of the district

court that MHSAA is a state actor.

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 U.S. 515, 531 (1996) (dealing with the admission of women to the Virginia Military

Institute, hereafter referred to as V.M.I.). In V.M.I., the Court further explained the state’s burden

under the heightened standard for gender-based classifications:

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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 burden of justification is demanding

and it rests entirely on the State. 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 justification must be genuine, not hypothesized or invented post hoc in response

to litigation. And it must not rely on overbroad generalizations about the different

talents, capacities, or preferences of males and females.

Id. at 532-33 (citation and quotation marks omitted).

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.” Id.

MHSAA asserted that the scheduling decisions sought to maximize girls’ and boys’ participation

in athletics, arguing that the scheduling system maximizes opportunities for participation “by

creating optimal use of existing facilities, officials and coaches, thereby permitting more teams in

a sport or more spots on a team.” Id.

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.” Id. at 850-51. MHSAA’s reliance upon anecdotal and “weak circumstantial” evidence

was found insufficient to carry MSHAA’s burden. The district court also pointed out that even if

MHSAA had sufficiently proven their point about athletic participation opportunities, “that would

not justify forcing girls to bear all of the disadvantageous playing seasons alone to solve the

logistical problems.” Id. at 851.

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 Michigan has a higher number of female participants in high school

athletics than most states satisfies the requirements of V.M.I. It also argues that the “unavoidable

consequence of separate teams was accommodation of twice the number of teams, games and

participants.” Although we acknowledge that schools in Michigan may have limited facilities,

MHSAA’s claim that the inadequate facilities require the female athletes to always play in the

disadvantageous seasons is without merit. MHSAA could, after all, rearrange the schedules and

require some of the male sports to play in disadvantageous seasons without increasing the overall

use of the facilities.

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.

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MHSAA also argues that it cannot be liable under the Equal Protection Clause because there

is no evidence that MHSAA acted with discriminatory intent. It points out that “[t]here is no

evidence that MHSAA [] scheduled [] sports seasons because of ‘sexual stereotypes’ or as a result

of any discriminatory purpose or intent.” This argument appears to confuse intentional

discrimination—i.e., an intent to treat two groups differently—with an intent to harm. As stated

above, equal protection analysis requires MHSAA to show that its disparate treatment of male and

female athletes “serves ‘important governmental objectives and that the discriminatory means

employed’ are ‘substantially related to the achievement of those objectives.’” V.M.I., 518 U.S. at

532-33. MHSAA’s justifications for its actions must also be “exceedingly persuasive.” Id.

Disparate treatment based upon facially gender-based classifications evidences an intent to

treat the two groups differently. V.M.I. imposes no requirement upon CFE to show that an evil,

discriminatory motive animated MHSAA’s scheduling of different athletic seasons for boys and

girls. The cases that MHSAA cites to the contrary, such as Hernandez v. New York, 500 U.S. 352

(1991), are inapposite because they involve facially neutral classifications, rather than facially

gender-based classifications. In Hernandez, for example, the Court analyzed a racially neutral

explanation for a prosecutor’s exercise of peremptory strikes, noting that “[u]nless a discriminatory

intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.”

Id. at 360. The facts of the present case are quite different from those of Hernandez, and proof of

a discriminatory motive is not necessary.

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. If we were to find that any such difference between

girls and boys sports is a facial classification, MHSAA argues, this would lead to absurd results.

Facial classifications engender a presumption of discriminatory purpose, and MHSAA asserts that

this is because there is typically a reason to infer antipathy—a reason, it claims, not present here.

MHSAA’s characterization of the issue, however, misses the point. The issue is not whether

any difference between male and female high school sports is deserving of being classified as a case

of disparate treatment. Rather, the issue is whether the seasonal scheduling differences on the basis

of gender that result in unequal treatment of women in comparison to men is considered disparate

treatment. 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 U.S. 324, 335

n.15 (emphasis added). Thus, the reason that scheduling differences properly receive disparate

treatment analysis based on facial discrimination is not just because boys and girls are separated, but

because they are separated and treated unequally in the scheduling of seasons.

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.

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D. Title IX

1. Applicability of Title IX

Title IX, enacted as part of the Education Amendments of 1972, proscribes gender

discrimination (with certain exceptions not applicable here) in educational programs receiving

federal financial assistance. 20 U.S.C. § 1681(a). The statute provides, in pertinent part, that

[n]o person in the United States shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be subjected to discrimination under

any education program or activity receiving Federal financial assistance . . . .

Before Title IX was amended by the Civil Rights Restoration Act in 1987, the statute was

construed by the Supreme Court in Grove City College v. Bell, 465 U.S. 555, 574-75 (1984), as

being program specific, meaning that Title IX was interpreted as not providing institution-wide

coverage. See also Horner v. Kentucky High Sch. Athletic Ass’n, 43 F.3d 265, 271 (6th Cir. 1994)

(recounting the history of Title IX). Congress responded to the Supreme Court’s holding in Bell by

adding § 1687 to Title IX, which provides in pertinent part as follows:

For the purposes of this chapter, the term “program or activity” and “program” mean

all of the operations of –

...

(2) (B) a local educational agency, system of vocational education, or other school

system; . . . any part of which is extended Federal financial assistance.

Horner, 43 F.3d at 271 (quoting 20 U.S.C. § 1687) (emphasis added by the court).

The legislative history concerning this amendment explains that Congress sought “to restore

the broad scope of coverage and to clarify the application of title IX of the Education Amendments

of 1972 . . . .” S. Rep. No. 64, 100th Cong., 2d Sess. 4, reprinted in 1988 U.S.C.C.A.N. 3, 6. As

stated in Horner, “the definitions of ‘program or activity’ and ‘program’ make clear that

discrimination is prohibited throughout entire agencies or institutions if any part receives Federal

financial assistance.” 43 F.3d at 271 (quoting S. Rep. No. 64, 100th Cong., 2d Sess. 4, reprinted in

1988 U.S.C.C.A.N. 3, 6) (quotation marks omitted).

MSHAA’s brief on remand concedes that it is subject to Title IX. (“[MHSAA] represented

to the Supreme Court that it would waive its argument that Title IX does not apply if the Court

granted review of the preclusion issue. As a consequence, MHSAA does not now contest that it is

subject to Title IX for purposes of this case.”). Our only focus, then, is on whether MHSAA actually

violated Title IX.

2. Intentional discrimination under Title IX

MHSAA contends that the district court erred in finding that MHSAA violated Title IX

because, according to MHSAA, CFE had to offer proof of discriminatory animus on MHSAA’s part.

But this argument lacks merit for the same reasons that MHSAA’s analogous argument regarding

equal protection, discussed above, lacks merit. The district court noted that a Title IX violation, like

an equal protection violation,

does not require proof that the MHSAA intended to hurt girls and chose the

scheduling system as a way to do that. The Court's task is to analyze the resulting

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athletic opportunities for girls and boys from the different treatment that they

experience by being placed in different athletic seasons, and if girls receive unequal

opportunities, Title IX has been violated.

Cmtys. for Equity, 178 F. Supp. 2d at 856. Horner v. Kentucky High School Athletic Association,

206 F.3d 685, 692 (6th Cir. 2000), relied upon by MHSAA, is inapposite because it addressed a

facially neutral policy challenged under a disparate-impact theory. The policy challenged in Horner

allowed the introduction of a new sport only if 25% of the member schools indicated a willingness

to participate. This is quite different than the explicit gender-based scheduling policy in effect here.

We therefore agree with the district court that proof of a discriminatory motive is not required for

a Title IX claim based upon disparate treatment, and uphold its judgment in finding that MHSAA

is in violation of Title IX.

E. Michigan’s Elliott-Larsen Civil Rights Act

MHSAA’s next argument addresses Michigan’s Elliott-Larsen Civil Rights Act, M.C.L.A.

§§ 37.2101-37.2804, which, among other things, proscribes gender discrimination in the provision

of public services and public accommodations. M.C.L.A. § 37.2302(a). Section 37.2302(a) provides

in pertinent part as follows:

Except where permitted by law, a person shall not:

(a) Deny an individual the full and equal enjoyment of the goods, services, facilities,

privileges, advantages, or accommodations of a place of public accommodation or

public service because of . . . sex . . . .

The district court determined that MHSAA constitutes a “person” under the statute, defined as “[a]n

individual, agent, association, corporation, . . . unincorporated association, the state or a political

subdivision of the state, or any agency of the state, or any other legal or commercial entity.”

M.C.L.A. § 37.2103(g). MHSAA does not contest the conclusion of the district court on this point.

“Place of public accommodation” is defined in the statute as

a business, or an educational, refreshment, entertainment, recreation, health, or

transportation facility, or institution of any kind, whether licensed or not, whose

goods, services, facilities, privileges, advantages, or accommodations are extended,

offered, sold, or otherwise made available to the public.

M.C.L.A. § 37.2301(a).

And “public service” is defined as

a public facility, department, agency, board, or commission, owned, operated, or

managed by or on behalf of the state, a political subdivision, or an agency thereof or

a tax exempt private agency established to provide service to the public . . . .

M.C.L.A. § 37.2301(b).

MHSAA argues that the district court erred in finding that MHSAA serves as a “public

accommodation” and provides a “public service.” The case most directly on point on these issues

is Rogers v. International Association of Lions Clubs, 636 F. Supp. 1476, 1479 (E.D. Mich. 1986),

where the district court found that a Lions Club qualified as a place of public accommodation

providing public services. The Lions Club qualified as “a place of public accommodation” because

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its meetings are held in a public place (a Howard Johnson’s restaurant), the meetings are open to the

public, and the volunteer efforts of the Lions Club’s members are made available to the public. Id.

As the district court noted, MHSAA sponsors championship athletic tournament events that are held

in public places and open to members of the general public. Cmtys. for Equity, 178 F. Supp. 2d at

859. Competitions are also held in public places for which MHSAA facilitates the scheduling.

The district court in Rogers further considered whether the Lions Club provided a “public

service.” 636 F. Supp. at 1479. After noting that the Club is a tax-exempt, nonprofit private agency

whose stated purpose is to provide volunteer public service through its members, the court

concluded that the Club provides a public service. Id. MHSAA is likewise a tax-exempt entity that

provides a service to the public—“the organization of interscholastic athletics in the state’s schools.”

Cmtys. for Equity, 178 F.Supp.2d at 859. The district court therefore determined that MHSAA

qualifies as providing a “public service” under Michigan law.

We conclude that the district court did not err in finding that MHSAA, like the Lions Club

discussed in Rogers, qualifies as “providing a public service” and as a “place of public

accomodation.” MHSAA’s unsupported contentions to the contrary are not persuasive. It cites

Sandison v. Michigan High School Athletic Association, 64 F.3d 1026, 1036 (6th Cir. 1995), for

example, to support its argument that it is not a “place of public accommodation.” Sandison,

however, is inapposite. Although this court in Sandison held that MHSAA was not a “place of

public accommodation” within the meaning of the Americans with Disabilities Act (ADA), that was

because the ADA narrowly defines “a place of public accommodation” as a “facility.” Id. The

ADA’s definition differs from the broader definition under the Elliott-Larsen Civil Rights Act.

Moreover, even if we were to hold that MHSAA is not a “place of public accommodation” under

Elliott-Larsen, MHSAA would still be subject to the Act because it provides a “public service.” We

therefore uphold the determination of the district court that MHSAA is in violation of Michigan’s

Elliott-Larsen Civil Rights Act.

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 Michigan’s Elliott-Larsen Civil

Rights Act, the district court ordered MHSAA to “bring its scheduling of the seasons of high school

sports into compliance with the law by the 2003-2004 school year.” Cmtys. for Equity, 178 F. Supp.

2d at 862. MHSAA was required to submit a compliance plan to the court by June 24, 2002. Id.

After MHSAA filed its proposed compliance plan, CFE and the Department of Justice filed

responses, arguing that MHSAA’s plan failed to remedy the inequities that existed in the scheduling

of Michigan’s high school athletics seasons. The Department of Justice noted that “the proposed

Compliance Plan would perpetuate sex discrimination by requiring more than three times as many

girls as boys to play in disadvantageous seasons and by addressing only sports, with the exception

of boys’ golf, offered by less than half of MHSAA’s member schools.”

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 Lower Peninsula, reverse two girls’ seasons

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

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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.

Although MHSAA argues that the district court erred in rejecting its initial compliance plan,

we must determine whether appellate jurisdiction exists to hear the issue before we can address the

merits of this argument. CFE contends that MHSAA failed to appeal the compliance-plan order

because MHSAA’s January 2002 notice of appeal references only the opinion, judgment, and

injunctive order entered in December of 2001. MHSAA did not file an amended notice of appeal

following the district court’s rejection of MHSAA’s initial compliance plan in August of 2002.

We lack jurisdiction over issues that are the subject of post-judgment motions when those

issues are not included in a notice of appeal. In United States v. Warner, 10 F.3d 1236 (6th Cir.

1993), for example, this court held that “by being a distinct appealable order from which a separate

appeal must be taken,” a denial of a motion for new trial

is subject to the requirement that the appeal be taken within ten days from the

docketing of the district court’s order. Absent an appeal within this time, or an

extension from the district court for filing the notice of appeal, this court, being

without authority to extend the time for filing a notice of appeal, will lack the

jurisdiction to hear the appeal.

Id. at 1240. 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.

G. Judge Enslen’s refusal to recuse himself

In 1983, MHSAA filed suit against the United States Department of Education and the Office

of Civil Rights in the case of Michigan High School Athletic Association v. Bell, No. 83-CV-6250-

AA (E.D. Mich. 1983), seeking a declaratory judgment and injunctive relief. Judge Enslen, the

district court judge in the present case, recused himself from the 1983 case for reasons that no one,

including Judge Enslen, can presently recall. MHSAA nevertheless argues that because Judge

Enslen recused himself then, he should have recused himself now.

The evidence of record does not explain why Judge Enslen recused himself from the 1983

case. And in denying MHSAA’s motion for disqualification in this case, Judge Enslen stated that

he could think of no reason why he would be unable to remain impartial. Judge Enslen also noted

that “only one of the 21 Defendants in the current case was a party to the 1983 case, and none of the

class Plaintiffs in the current case was involved in the 1983 case.” Because MHSAA failed to

provide any valid basis for Judge Enslen’s recusal, we uphold the ruling of the district court denying

its motion. See Person v. General Motors Corp., 730 F.Supp. 516, 518-19 (W.D.N.Y. 1990) (stating

that a judge’s recusal in a prior case involving a party is not alone sufficient for disqualification in

a later case involving that party).

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.

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__________________________________________________

CONCURRING IN PART, DISSENTING IN PART

__________________________________________________

KENNEDY, Circuit Judge, concurring in part and dissenting in part. I agree with the

majority’s holding that MHSAA’s scheduling of high school athletic seasons violates Title IX and

the Elliot-Larsen Civil Rights Act. I write separately because I do not believe we are bound by the

holding in Lillard and thus, the question of whether Title IX supplants equal protection claims

brought pursuant to § 1983 is one of first impression in this circuit. After applying the test in Smith

v. Robinson, and having due regard for the Supreme Court’s direction that this case was to be

“remanded...for further consideration in light of Rancho Palo Verdes v. Abrams” (“Rancho”), I

conclude that Title IX supplants plaintiffs’ gender-based equal protection claims brought pursuant

to § 1983.

I. The Effect of Lillard

The majority finds that Lillard v. Shelby County, 76 F.3d 716 (6th Cir. 1996), is controlling

and thus that the issue of whether Title IX supplants an equal protection claim brought pursuant to

§ 1983 has already been decided. Yet, the majority fails to distinguish the type of claims brought

pursuant to § 1983. In Lillard, the issue was not whether Title IX precluded an equal protection

claim, but whether it precluded a substantive due process claim.

Lillard was a sexual harassment case. This case is one of sexual discrimination. In Lillard

the issue was whether Title IX precluded substantive due process claims brought pursuant to § 1983.

In this case, the issue is whether Title IX precludes equal protection claims brought pursuant to

§ 1983. This is a key difference and one deserving of a separate analysis. As explained by one

scholar:

A victim of sexual harassment by a teacher would have several constitutional Section

1983 claims against the teacher and the school district. She might bring claims based

on: (1) the Fourteenth Amendment right to due process, alleging a denial of a fair

hearing in which to bring her complaint; (2) the liberty interest in bodily integrity

under the substantive due process right in the Fourteenth Amendment; and (3) the

right under the Equal Protection Clause of the Fourteenth Amendment to be free

from discrimination on the basis of sex. Because Title IX confers on plaintiffs a right

to be free from discrimination on the basis of sex, the plaintiff's third Constitution-

based Section 1983 claim is “virtually identical” to the right conferred by Title IX...

A court confronted with these remaining Constitution-based Section 1983 claims

must determine whether either claim is virtually identical to the right under Title IX

against discrimination on the basis of sex...[N]either procedural nor substantive due

process rights are identical to, or even virtually identical to, rights under Title IX,

which affords protection against discrimination on the basis of sex. Consequently,

if a plaintiff brings procedural and substantive due process claims under Section

1983, those claims would not be precluded by Title IX, for they do not satisfy the

first prong of the Smith test.

Zwibelman, Michael, WHY TITLE IX DOES NOT PRECLUDE SECTION 1983 CLAIMS, 65 U. Chi. L.

Rev. 1465, 1479 (Fall 1998); see also Burke, Beth, TO PRECLUDE OR NOT TO PRECLUDE, 78 Wash.

U. L.Q. 1487, 1512 (noting that some courts fail to apply properly the “virtually identical” prong

of the Smith test by “combin[ ing] all the alleged constitutional violations without analyzing each

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claim separately under the Smith test”). While this is just one scholar’s view regarding which type

of constitutional claims should be precluded, it demonstrates the problem: this circuit has previously

determined that due process claims are not “virtually identical” to Title IX claims, but we have not

yet held that equal protection claims are not “virtually identical” to Title IX claims.

I believe we are required to do such a separate analysis under the Supreme Court’s decision

in Smith v. Robinson. 468 U.S. 992 (1984). In Smith, the petitioners alleged violations of the

Education of the Handicapped Act (“EHA”) and of both equal protection and due process.

Tellingly, the Court did not combine the alleged due process and equal protection violations in its

discussion of preclusion; rather, the Court was prepared to analyze each claim separately. The Court

first found that EHA claims were virtually identical to the claims brought under the Equal Protection

Clause and that Congress intended that equal protection claims be precluded. Next, the Court was

prepared to separately address “whether the procedural safeguards set out in the EHA manifest

Congress’ intent to preclude resort to § 1983 on a due process challenge.” Id. at 1013-1014.

However, the Court found such analysis “unnecessary” because, even if the petitioners could

maintain a due process challenge, they were not entitled to attorney’s fees. The opinion in Smith

illustrated that for each constitutional claim, a court must engage in a separate analysis of whether

that claim, provided for by a statutory remedy, is precluded from being brought under § 1983,

another statutory remedy.

Even though Lillard addressed the preclusion of different right, the majority holds we are

bound by it. I see several problems with not addressing the precise issue before us. First, it

contradicts the procedure set forth by the Court in Smith. For, if finding what Congress intended

with respect to one constitutional claim - say equal protection - is enough to find what Congress

intended with respect to all constitutional claims, then why was the Court prepared to do two

separate analyses?1 In other words, if the majority’s position is correct, that a holding that Congress

did not intend a statute to be the “exclusive avenue” for bringing one type of constitutional claim

applies to all constitutional claims brought pursuant to § 1983, then, according to the majority, the

Supreme Court was prepared to engage in a meaningless exercise of addressing whether “the

procedural safeguards set out in the EHA manifest Congress’ intent to preclude resort to § 1983 on

a due process challenge.” Id. According to the majority view, the Court had already decided this

issue when it discussed what Congress intended with respect to equal protection claims.

Secondly, to say that what Congress intended with respect to one type of constitutional claim

is what Congress meant with respect to all, is an overly-simplistic justification for the majority’s

decision. When ascertaining Congress’ intent, I believe we have to do so with the precise rights in

mind. I do not think one can assume that simply because Congress did not intend to preclude

substantive due process claims, it did not intend to preclude equal protection claims. It seems clear

to me that Congress could intend to preclude one type of constitutional claim, by providing a

statutory remedy for it, but not others.

1

The majority answers this question by acknowledging that the Smith Court “did in fact contemplate two

separate analyses,” but by reasoning that a separate analysis was warranted in Smith - and not in this case - because there

was a “clear textual indication” in the EHA that Congress intended for that statute to preclude equal protection claims

brought pursuant to § 1983. Op. at 9. By distinguishing Smith in this way, the majority is treating implied rights as

second-class rights as they are undeserving of a separate analysis. The Court has not indicated in either Smith or Sea

Clammers that implied rights are to be treated differently than express and I decline to do so here. For, as I explain later,

once we include the implied rights to bring individual actions, including damages, as what Congress intended and read

Title IX to so provide, Congress has provided a statutory remedy for gender-based equal protection claims so that § 1983

is not available for equal protection actions.

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In Lillard this court found the claims at issue were not “virtually identical” to those provided

in Title IX. Lillard, 76 F.3d at 723. I agree, as the plaintiff in Lillard alleged sexual harassment and

Title IX was designed to target gender discrimination. While I recognize the court in Lillard

summarily concluded these claims were not “virtually identical,” that does not take away from the

fact that because the claims were so different, there is further reason to assume Congress did not

intend to preclude the use of § 1983. Similarly, where the claims are “virtually identical,” as I

believe they are in this case, there seems to me more reason to assume Congress intended to

preclude use of § 1983 to enforce those claims. Thus, when a court finds the first part of the Smith

test is not satisfied (are the claims virtually identical), the answer to the second (did Congress intend

that the statute supplant the constitutional claims), seems obvious. It only makes sense to conclude

that when a constitutional claim is not virtually identical to the statutory claim, Congress did not

intend to preclude the former.

Third, it is important to point out that the court in Lillard did not indicate its holding was to

be extended to the preclusion of rights other than substantive due process. The court in Lillard

concluded that the rights were not “virtually identical” but then went on to discuss, at length,

congressional intent. The court reasoned that because the private right of action found in Title IX

was implied, rather than express, Congress did not intend to preclude due process claims when it

enacted Title IX. There was no indication that this logic regarding implied rights was meant to

extend to other constitutional rights beyond substantive due process. The court limited its finding,

stating, “the National Sea Clammers doctrine presents no impediment to the plaintiffs’ pursuit of

remedies for alleged violations of substantive due process.” Lillard, 76 F.3d at 724 (emphasis

added). More importantly, the court indicated its finding regarding congressional intent was dicta,

concluding that, “even if the defendants’ argument had been directed at an attempt by the plaintiffs

to enforce their Title IX rights, rather than their constitutional rights, through section 1983, National

Sea Clammers would have provided no support.” Lillard, 76 F.3d at 723 (emphasis added).2

For the foregoing reasons, I believe that we need to engage in a separate analysis as required

by the Supreme Court in Smith and that we must address this issue as one of first impression in this

circuit.

II. Applying Smith v. Robinson’s Two-Prong Test

In Smith, the Supreme Court established a two-prong test for determining whether § 1983

claims predicated on constitutional rights are precluded by statute: first, courts must address

whether the rights underlying the § 1983 claim are “virtually identical” to the rights in the relevant

statute; second, courts must address whether Congress intended the statute to be the “exclusive

avenue” for asserting those rights. 468 U.S. at 1009. As discussed, I believe the rights conferred

2

The defendants in Lillard argued that due process claims brought pursuant to § 1983 should be precluded by

Title IX under the Sea Clammers doctrine. The Lillard court pointed out that Sea Clammers did not apply to the

preclusion of constitutional claims, only the preclusion of statutory claims, stating:

There are two important distinctions that make the National Sea Clammers doctrine inapposite here.

First, and most crucial, is the fact that in National Sea Clammers, the plaintiffs’ section 1983 action

sought to enforce the rights created by federal statutes which did not provide for a private right of

action, while here, the plaintiffs’ section 1983 claims are premised on alleged constitutional

violations. Thus, while in National Sea Clammers, allowing the section 1983 action to enforce the

rights at issue would have effectively circumvented the implicit congressional intention to foreclose

private rights of action, here, the plaintiffs’ section 1983 action does not attempt either to circumvent

Title IX procedures, or to gain remedies not available under Title IX...Instead, the plaintiffs seek to

enforce wholly independent, and totally distinct, substantive due process rights.

Lillard, 76 F.3d at 722-723 (citation omitted).

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in Title IX - to be free from discrimination on the basis of sex - are virtually identical to those

granted in the Equal Protection Clause. The next issue then, and the one requiring further analysis,

is whether Congress intended Title IX to be the “exclusive avenue” for bringing those gender-based

equal protection claims. In other words, by enacting Title IX, did Congress intend to preclude

reliance on § 1983, a separate statute, to remedy an equal protection violation? Smith, 468 U.S. at

1012.

As a preliminary matter, I want to express my disagreement with the rationale behind one

holding in Lillard that Title IX does not supplant due process claims brought pursuant to § 1983.

The court reasoned that because the private right of action was implied rather than express, Congress

did not intend it to be the exclusive avenue for bringing constitutional claims. I find this reasoning

unpersuasive for two reasons. First, I believe it undermines the Supreme Court’s decision in Cannon

v. University of Chicago, 441 U.S. 677 (1979). In Cannon, the Court found Congress intended to

create a private judicial remedy in Title IX and we should not second-guess that holding. The intent

found by the Supreme Court, although implied, should be given the same weight as expressed intent.

Second, the opinion in Lillard is silent with respect to the fact that after the Supreme Court’s holding

in Cannon, but prior to the decision in Lillard, Congress essentially ratified the Supreme Court’s

holding in Cannon by subsequently enacting two legislative provisions which did not interfere with

the implied right, the Civil Restoration Act of 1987 and the Rehabilitation Act Amendments of 1986.

This point was acknowledged by the Supreme Court in Franklin v. Gwinnett County Public Schools,

where the Court held a person could receive both compensatory and punitive damages in a private

action for sex discrimination. Franklin, 503 U.S. 60, 72 (1992). The Court noted that while

Congress had an opportunity to abrogate the implied right of action found in Cannon, it remained

silent stating, “[o]ur reading of the two amendments to Title IX enacted after Cannon leads us to

conclude that Congress did not intend to limit the remedies available in a suit brought under Title

IX,” id., and later that:

In seeking to correct what it considered to be an unacceptable decision on our part

in Grove City College v. Bell, Congress made no effort to restrict the right of action

recognized in Cannon and ratified in the 1986 Act or to alter the traditional

presumption in favor of any appropriate relief for violation of a federal right. We

cannot say, therefore, that Congress has limited the remedies available to a

complainant in a suit brought under Title IX.

Id. at 73. Thus, I am not persuaded by the argument that because the private right of action in Title

IX was implied by the Supreme Court, this court is prevented from finding Congress intended Title

IX to supplant gender-based equal protection claims. With this in mind, I now address whether

Congress intended to preclude equal protection gender-based §1983 claims.

In ascertaining Congress’ intent in this case, I believe we should first look to the decision

the Supreme Court asked us to consider on remand, Rancho Palo Verdes. 125 S.Ct. 1453 (2005).

I agree with the majority’s finding that the case before us is a Smith case rather than a Sea Clammers

case in that it deals with both constitutional and statutory rights. Further, I agree that Rancho is a

Sea Clammers decision. However, I still believe that we should consider the Court’s holding in

Rancho, specifically, the potential reach of the Court’s holding.

Prior to Rancho, courts applied no inference regarding congressional intent. The Court in

Rancho changed that and, where a judicial remedy exists in a statute, made it much easier to infer

that Congress intended to preclude reliance on § 1983. While the Court declined to hold that the

“availability of a private judicial remedy...conclusively establishes a congressional intent to preclude

§ 1983 relief,” id. at 1459, the Court did state that the availability of such a remedy in the statute

would give rise to an, “ordinary inference that the remedy provided in the statute is exclusive,” but

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such an inference, “can surely be overcome by textual indication, express or implicit, that the

remedy is to complement, rather than supplant, § 1983” id. at 1459 (emphasis added). Again, I

recognize that factually Rancho is analogous to Sea Clammers in that it involved two statutes.

However, worth mentioning, is the fact that the reasoning behind this inference was not limited to

Sea Clammers cases. Rather, the Court spoke at length about both Sea Clammers and Smith in

articulating this rule:

We have found § 1983 unavailable to remedy violations of federal statutory rights

in two cases: Sea Clammers and Smith. Both of those decisions rested upon the

existence of more restrictive remedies provided in the violated statute itself...

The Government as amicus, joined by the City, urges us to hold that the availability

of a private judicial remedy is not merely indicative of, but conclusively establishes,

a congressional intent to preclude § 1983 relief. We decline to do so.

Rancho Palos Verdes, 125 S.Ct. at 1459 (citations omitted). Because the Court analyzed Sea

Clammers (only statutory claims) and Smith (statutory and constitutional claims) and their progeny

and found that in both types of cases the pivotal issue was whether the statute at issue provides for

a private judicial remedy, the discussion leading up to the establishment of the inference adopted

in Rancho suggests that it does not apply solely to Sea Clammers cases. There is an argument that

such an inference applies to Smith cases as well. Yet, as this case can be decided under the standard

set forth in Smith, I find it unnecessary to apply the Rancho holding to decide this case; however,

I believe the reasoning in Rancho suggests we should conclude that Congress, by enacting Title IX,

intended to preclude reliance on § 1983 as a remedy for an equal protection claim.

Again, under the test in Smith, we must ask whether Congress intended Title IX to be the

“exclusive avenue” through which a plaintiff may assert an equal protection claim. I believe we

must address this question with the relevant Supreme Court decisions in mind. In Cannon, the

Supreme Court applied the four-factor test of Cort v. Ash, 422 U.S. 66, 78 (1975), to hold that Title

IX created a private right of action. The second Cort factor asks whether “any indication of

legislative intent, explicit or implicit, either to create a remedy or deny on” exists. Id. The court in

Cannon found that,“[f]ar from evidencing any purpose to deny a private cause of action, the history

of Title IX rather plainly indicates that Congress intended to create such a remedy.” Cannon, 441

U.S. at 694. In Franklin, the Court went on to hold that “Congress did not intend to limit the

remedies available in a suit brought under Title IX.” Franklin, 503 U.S. at 72. Finally, in Rancho

the Court established the above-discussed inference. Again, while we need not extend the Rancho

holding to Smith cases, I believe the reasoning sheds some light on how we should dispose of the

case before us. As emphasized by the Supreme Court, the central issue in both Smith and Sea

Clammers cases has been, and is, whether the statute at issue provides for a judicial remedy:

[I]n all of the cases in which we have held that § 1983 is available for a violation of

a federal statute, we have emphasized that the statute at issue, in contrast to those in

Sea Clammers and Smith, did not provide a private judicial remedy (or, in most

cases, even a private administrative remedy) for the rights violated.

Rancho, 125 S.Ct. at 1459. Title IX, like the statutes at issue in Sea Clammers and Smith, does

provide for both a private right of action and for damages. Thus, because the Supreme Court has

held Congress intended to create a private judicial remedy in Title IX, and because the non-existence

of such a remedy has repeatedly given rise to a finding that Congress did not intend to preclude

relief sought through § 1983, I would hold that Congress did intend for Title IX to be the “exclusive

avenue” through which a plaintiff may assert a gender-based equal protection claim.