# Communities for Equity v. Michigan High School Athletic Association

> Court of Appeals for the Sixth Circuit · August 16, 2006 · 459 F.3d 676

URL: https://www.frixlaw.com/law-library/cases/9499145

## Case

- **Full name:** COMMUNITIES FOR EQUITY, Plaintiff-Appellee, v. MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION, Defendant-Appellant
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** August 16, 2006
- **Citations:** 459 F.3d 676; 2006 U.S. App. LEXIS 20918; 2006 WL 2355596
- **Precedential status:** Published
- **Opinion:** Concurring in part by Kennedy
- **Judges:** Kennedy, Cole, Gilman
- **Cited by:** 50 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9499145

## How later opinions describe it (automated extraction)

- stating that when there is a facially discriminatory policy, the plaintiff needn’t show that the defendant acted with discriminatory animus but only that the defendant intentionally treated one group less favorably because of their sex
- noting that when the Supreme Court grants a writ of certiorari, vacates, and remands, it “does not indicate, nor even suggest, that the lower court’s decision was erroneous”
- applying Brentwood Academy to deem the Michigan High School Athletic Association a state actor for § 1983 purposes
- affirming finding of Title IX violation based on girls’ sports being scheduled for disadvantageous seasons

## Opinion text

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 Palos 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 plaintiffs 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 ba *700 sis of sex.. .[Njeither 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 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 , 104 S.Ct. 3457 , 82 L.Ed.2d 746 (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, 104 S.Ct. 3457 . 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 analy-ses? 1 In other words, if the majority’s *701 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.
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 Lil-lard 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, *702 through section 1983, National Sea Clam-mers 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 , 104 S.Ct. 3457 . As discussed, I believe the rights conferred 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 , 104 S.Ct. 3457 .
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 , 99 S.Ct. 1946 , 60 L.Ed.2d 560 (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 *703 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 , 112 S.Ct. 1028 , 117 L.Ed.2d 208 (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, 112 S.Ct. 1028 . 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 Palos Verdes, 544 U.S. 113 , 125 S.Ct. 1453 , 161 L.Ed.2d 316 (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 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 es *704 tablishes, 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 , 95 S.Ct. 2080 , 45 L.Ed.2d 26 (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 , 99 S.Ct. 1946 . 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 , 112 S.Ct. 1028 . 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 nonexistence 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.
. 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 687. 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 *701 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.
. 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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9499145. Public record. Not legal advice.