Opposition Brief — Michigan High High School Athletic Association Association, Inc. v. Communities for Equity (No. 06-1038)

FILED

® : FEB 28 2007

No. 06-1038 | OFFICE OF THE CLER

aie WH SL Le U.S.

IN THE

Supreme Court of the Anited States

MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION, INC.,

Petitioner,

. -

COMMUNITIES FOR EQUITY ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF IN OPPOSITION

Of Counsel KRISTEN GALLES

Counsel of Record

EQUITY LEGAL

10 Rosecrest Avenue

Alexandria, VA 22301

MARCIA D. GREENBERGER

JOCELYN F. SAMUELS

DINA K. LASSOW

NEENA K. CHAUDHRY

NATIONAL WOMEN’S LAW (703) 683-4491

CENTER H. RHETT PINSKY

11 Dupont Circle, N.W. PINSKY, SMITH, FAYETTE

Suite 800 & KENNEDY

Washington, D.C. 20036 1515 McKay Tower

(202) 588-5180 Grand Rapids, MI 49503

(616) 451-8496

Counsel for Respondents

February 28, 2007

WiLSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

QUESTIONS PRESENTED

(1) Whether the Sixth Circuit properly ruled, based on the

district court’s detailed findings of fact, that the Michigan

High School Athletic Association’s scheduling of girls’ sports

only in disadvantageous seasons violates the Fourteenth

Amendment’s Equal Protection Clause, Title [X, and Michi-

gan’s Elliott-Larsen Civil Rights Act.

(2) Whether this Court should address MHSAA’s argu-

ment that plaintiffs’ equal protection claim is displaced by

Title LX given that the lower courts have already correctly

held that MHSAA violated Title [X as well as state law.

TABLE OF CONTENTS

Page

CL FESF INS Fur B Ea iicincienescaraeitecontnnvvebeunertvacempiin 1

CARRE Cr AU TI Ti vecccescncccescctuvsrrncucenineventereres Vv

INTRODUCTION AND SUMMARY.............cceeceeteees l

SEA ETS GE BEM GA cccentrerencevenvenserneavsianciuns 5

REASONS FOR DENYING THE WRIT.........000..000.. 1]

I. THE SIXTH CIRCUIT PROPERLY AP-

PLIED EQUAL PROTECTION LAW AS TO

WHICH THERE IS NO CONFLICT IN THE

CFS Le PUR Reel vevicidecsntesceinerntnentioaieeans 11

A. This Case Is Not An Appropriate Vehicle

For Resolution of the First Question

PO cise siasicciatctiilalicciiissleiblataiaitinas taeda: 12

B. The Sixth Circuit’s Heightened Scrutiny

Analysis Comports With VM17 ................00- 14

C. This Case Presents No Conflict About the

Proper Rule of Law That Applies to

Gender-Based Classifications...................... 15

1. The Sixth Circuit’s Decision Does Not

Conflict With This Court’s Cases

Addressing Sex Discrimination Under

CE EG a iscscticindcciinccabescnsieneitseriess 15

2. The Sixth Circuit’s Decision Does Not

Conflict With the Decisions of Other

CRG CIE PII iv secsivsiivssctitovensinitadiioninn 20

Il. THE COURT SHOULD NOT ADDRESS

WHETHER TITLE IX IS THE EXCLUSIVE

REMEDY FOR PLAINTIFFS’ INJURIES IN

BOR Ie sicévnrcndineccdnnsinaneasscaaenadatedaa 23

iV

TABLE OF CONTENTS—Continued

Page

A. This Case Is Not An Appropriate Vehicle

TO AGIOS FOE TIDE isecicicecrscscctnssnestesessonds 23

B. Title 1X Does Not Provide the Exclusive

Remedy for Plaintiffs’ Claims..................... 25

HI. IN LIGHT OF THE DECISIONS BELOW,

THE PETITION DOES NOT PRESENT

ANY LEGAL ISSUE OF NATIONAL

IGS PAPE AS trestidavevantmsccivibiakacaberrsonciauniiiibibads 29

CL PIPE INT inskncbnviiasniecilasiitenipepeneidcnicedcteatbecanpedasiinneess 30

Vv

TABLE OF AUTHORITIES

CASES Page

ASW v. Oregon, 424 F.3d 970 (9th Cir. 2005)...... 27,29

Belcher v. Stengel, 429 U.S. 118 (1976)...........008 12

Bishop v. Wood, 426 U.S. 341 (1976) ..........cccc008 13

Blessing v. Freestone, 520 U.S. 329 (1997).......... 26, 28

Brentwood Academy v. Tennessee Secondary

Sch. Athletic Association, 531 U.S. 288 (2001). 9

Brockett v. Spokane Arcades, Inc., 472 U.S. 491

ES TUNE Picss ects tes tui davacsascceseadsensistnlabeauiotaakatamniehias 12

Butner v. United States, 440 U.S. 48 (1979)......... 12

Califano v. Goldfarb, 430 U.S. 199 (1977)........... ae

Cannon v. University of Chi., 441 U.S. 677

CPF Pisrisvsinstelaisnschicaiuicenashonbrcusesdadibisen sdasileibaioies 27, 28

City of Rancho Palos Verdes v. Abrams, 544

U.S. 113 (2005).......... 1, 2, 4, 11, 23, 25, 26, 27, 28, 29

Franklin v. Gwinnett County Public Sch., 503

RF RPE D cris tiscsdéesiavitdennsissseaaletesaaicd 27

Frontiero v. Richardson, 411 U.S. 677 (1973) ..... 17

Geduldig v. Aiello, 417 U.S. 484 (1974)... 18

Haffer v. Temple University, 678 F. Supp. 517

CER Fh TOF eeseisniclinicnadssitstichaiescdarieieaien 15

Harlow v. Fitzgerald, 457 U.S. 800 (1982)........... 28

Johnson v. California, 543 U.S. 499 (2005) ......... 21

Keevan v. Smith, 100 F.3d 644 (8th Cir. 1996)..... 22

Klinger v. Department of Corrections, 31 F.3d

Fat GA PPP siicdercicins pemcadiieavbccbinied 2h, 22

Lillard v. Shelby County Board of Education, 76

Fie FOC FOGG iicise cen 1]

Lipsett v. University of P.R., 864 F.2d 881 (lst

Bie Risdon Aiccectenissosask ntosioassaaleisuaselad ates 28

McCormick ex rel. McCormick v. School District

of Mamaroneck, 370 F.3d 275 (2d Cir. 2004)... 13

Middlesex County Sewerage Authority v.

National Sea Clammers, 453 US. 1

CDF Vics icitpisioussinsusucldaruthiesanapbacaccvepacssastécisatale: aaa aaa

vi

TABLE OF AUTHORITIES—Continued

Page

Mississippi University for Women v. Hogan, 458

ee Fae ED cascasicoeadchiciiaiisisnaccntaiinaniodeiihiucienies 21, 28

Monrosa v. Carbon Black Exp., 359 U.S. 180

CF iiiphiccbsicesiashietintictiletibicageciniininsneiibliinaaanatel 12, 24

O’Connor v. Board of Education, 449 U.S. 1301

Ear TD cshiciawuitesiniaibiiedsasipiacehcpiecblosauascheiabipia sbuasaaniciioeeaniaiie 15

O’Lone v. Estate of Shabazz, 482 U.S. 342

DIET Ritebinsssteaieutanusararadedensciciaciondatnodguidisoueatanniie 21

Pederson v. Louisiana State University, 213 F.3d

Be Ge Gs BE eicaceviicolbeinsedinuisensitetitinctdcueuiiens 24, 25

Personnel Administrator of Massachusetts v.

Feeney, 442 U.S. 256 (1979).......ccccssccsssseeeesenes 18

Shaw v. Reno, 509 U.S. 630 (1993).......:cccceseceeeeees 18

Smith v. Butler, 366 U.S. 161 (1961)... ee 12

Smith v. Robinson, 468 U.S. 992 (1984) .....25, 26, 27, 28

Turner v. Salfey, 482 U.S. 78 (1987)........cccccceeceees 21

UAW vy. Johnson Controls, Inc., 499 U.S. 187

ETO scctaidushdesctceais didacheresanpnisota sunt icnthaaiideessenaaionian 16

United States v. Ortiz, 422 U.S. 891 (1975).......... 24

United States v. Virginia, 518 U.S. S15

Se assed sdissininiiliastedblinblesiiaiion 3, 14, 16, 17, 19, 20, 22

Vorchheimer v. School District, 532 F.2d 880

(3rd Cir. 1976), aff'd, 430 U.S. 703 (1977)....... 21

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975)... 17

Women Prisoners of the District of Columbia

Department of Corrections v. District of

Columbia, 93 F.3d 910 (D.C. Cir. 1996)........... 22

STATE CASES

Department of Civil Rights ex rel. Forton v.

Waterford Twp. Department of Parks and

Rec., 425 Mich. 173 (1986)............ -iaiehiainileniei 2,14

Vii

TABLE OF AUTHORITIES—-Continued

STATUTES AND REGULATIONS Page

ph My SRR en meee Rene IC EEE 6, 13

rE Cale 2: BOGS SON Rae enn ONT: 27

42 U.S.C. § 1983 ......... 4, 6, 10, 11, 23, 25, 26, 27, 28, 29

TOES BINT 13

hE OS 13

20 U.S.C. § 1415(e)(4)(B) (1985) ceccsecccseecseecseeeeees 25

REE A. © SISO E06 vossnisictecsinsicicses 6

MISCELLANEOUS

Title IX of the Education Amendments of 1972; A

Policy Interpretation; Title LX and Intercolle-

giate Athletics, 44 Fed. Reg. 71413 (Dec. 11,

1979) (codified at 45 C.F.R. pt. 86)............0... bts ae

Title LX Athletics Investigator’s Manual (1990)... 13

INTRODUCTION AND SUMMARY OF ARGUMENT

This case arises in a distinctive factual and procedural

scenario. It was initially brought as a broad based challenge

to practices of the Michigan High School Athletic Associa-

tion (“MHSAA”) that discriminate against girls. After the

district court entered a Consent Decree that settled numerous

claims, see Consent Decree in Case No. 1:98-CV-479, Dec.

17, 2004 (W.D. Mich.), the case went to trial on one of

the discriminatory practices: the scheduling of six girls’

sports, and no boys’ sports, in nontraditional, disadvantageous

seasons. |

After trial, the district court held that MHSAA violated the

Fourteenth Amendment’s Equal Protection Clause, Title IX

of the Education Amendments Act of 1972, and Michigan’s

Elliott-Larsen Civil Rights Act (““ELCRA”), by scheduling

girls’ sports only in nontraditional or disadvantageous sea-

sons and causing substantial harm to girls, without legally

sufficient justification for the discriminatory treatment. Spe-

cifically, the court concluded that MHSAA had failed to

demonstrate that its discriminatory scheduling was “substan-

tially related” to the achievement of the state’s alleged

logistical and other objectives, and that even if MHSAA had

proven that its scheduling decisions furthered those objec-

tives, “that would not justify forcing girls to bear all of the

disadvantageous playing seasons alone to solve the logistical

problems.” Pet. App. 147a.

In its initial opinion in this case, the Sixth Circuit affirmed

the district court’s determination that MHSAA violated the

Fourteenth Amendment. After this Cuurt remanded the case

so that the Court of Appeals could consider the potential

application of City of Rancho Palos Verdes v. Abrams, 544

' The Consent Decree addressed publicity, additional tournaments for

girls, volleyball and golf rules, fast-pitch softball finals and tournament

facilities, and girls’ basketball tournament sites.

2

U.S. 113 (2005), the Sixth Circuit reaffirmed its decision that

MHSAA violated the Fourteenth Amendment, and affirmed

the district court’s alternate holdings that MHSAA violated

Title IX and Michigan’s ELCRA. Pet. App. 2a.

This case would be a poor vehicle to decide the equal pro-

tection issue MHSAA seeks to raise because its consideration

will not change the outcome of this case. The district court

found, and the appeals court has affirmed, that MHSAA’s

scheduling policy violates not only the Constitution, but also

Title IX and state law. MHSAA seeks to avoid the import of

that ruling by claiming that the tests for violation of Title [X

and the ELCRA are no different than its test for a violation of

the Equal Protection Clause. Practices such as disadvanta-

geous playing seasons, however, violate Title [IX when the

harms are substantial enough to deny equal participation

opportunities in athletics to students of one sex -a finding

made by the trial court here. See, e.g., Title LX of the Educa-

tion Amendments of 1972; A Policy Interpretation; Title LX

and Intercollegiate Athletics, 44 Fed. Reg. 71413, 71418

(Dec. 11, 1979) (codified at 45 C.F.R. Pt. 86) (“Policy Inter-

pretation”). No “animus” towards the disadvantaged sex is

required. And, with respect to the ELCRA, any similarity in

the tests does not alter the fact that there is an independent

state law ground for the decision below. Indeed, the Michi-

gan Supreme Court has stated that the ELCRA does not

“create a standard Jess protective than the constitutional test

developed by the courts in the course of interpreting the equal

protection provisions of both the Michigan and the United

States Constitutions.” Dept. of Civil Rights ex rel. Forton v.

Waterford Twp. Dept. of Parks and Rec., 425 Mich. 173, 186-

87 (1986) (emphasis added).

* In fact, the Michigan Supreme Court emphasized that if the Michigan

Constitution “requir[es] a stricter standard than that established under the

Fourteenth Amendment, it goes without saying that the standard to be

3

Moreover, the decisions below, holding that MHSAA’s

discriminatory scheduling policies violate the Fourteenth

Amendment, are entirely consistent with this Court’s prece-

dents and do not conflict with decisions from other circuits.

Heightened scrutiny is applied to gender-based classifications

that harm, and may therefore be challenged by, a plaintiff.

United States v. Virginia, 518 U.S. 515 (1996) (“VMTP’).

MHSAA’s argument that its explicit scheduling of girls’

seasons differently from boys’ seasons is not a facial gender

classification was rightly rejected by the Court of Appeals.

Its scheduling is the essence of a facial classification—

MHSAA has defined the seasons in which each team will

play by the sex: of the team’s members. Neither logic nor

precedent supports MHSAA’s claim that because the sched-

uling of seasons is one aspect of a separate sex program, it is

no longer a facial gender classification. |

MHSAA’s additional contention that VMI stands for the

proposition that separate-sex programs violate equal pro-

tection only if the programs as a whole are substantially

«unequal misreads the case and is equally meritless. Ifa plain-

tiff challenges an entire program, the court will examine the

entire program. If a plaintiff challenges only one aspect of

a program, that is all that a court need examine. The nature

of the rest of the program will not change the analysis. See,

e.g., Califano v. Goldfarb, 430 U.S. 199 (1977). Under the

heightened scrutiny standard, the defendant must show that

the particular sex-based classification that is challenged has

an exceedingly persuasive justification and is substantially

related to the achievement of important governmental objec-

tives.

MHSAA put the boys in the seasons that they and their

coaches wanted and gave the girls the leftovers. The courts

applied to gender discrimination cases brought pursuant to the Michigan

Civil Rights Act would be altered accordingly.” /d. at 187 n.4.

4

below properly found that the girls were harmed by MHSAA’s

actions, and that it had not met its burden of justifying them

under the Equal Protection Clause. MHSAA’s claims below

that its actions were justified because of the benefits of

playing in nontraditional seasons are particularly unconvinc-

ing in light of its strenuous resistance during the near decade

it has litigated this case to conferring these “benefits” on

boys.

The Sixth Circuit’s decision in no way conflicts with the

decisions of this Court or those of other courts of appeals.

This case thus presents a routine application of this Court’s

legal standards governing equal protection to record facts that

are unique and unlikely to recur, and this Court’s review is

unwarranted.

Finally MHSAA’s argument that the § 1983 claim is dis-

placed by Title [IX—improperly made for the first time in

MHSAA’s 2005 petition for certiorari to this Court—is also

irrelevant to the outcome here.’ If § 1983 were ousted by

Title IX, plaintiffs would nonetheless prevail because the

district court found, and all members of the Sixth Circuit

panel agreed, that MHSAA violated Title [X and state law.

In any event, the Sixth Circuit correctly found that Con-

gress did not intend Title [X, which provides no express

private remedy let alone a comprehensive private enforce-

ment scheme, to displace plaintiffs’ constitutional right to

equal protection enforced under § 1983. No other court of

appeals has yet had the opportunity to reconsider its decision

on the relationship between Title [X and § 1983 in light of

Rancho Palos.

* MHSAA also petitioned for certiorari in 2000, seeking interlocutory

review of the denial of its motion for summary judgment. That petition

was denied.

2

STATEMENT OF THE CASE

1. Since the 1920s, MHSAA has supervised and controlled

interscholastic athletics in Michigan. In this role, it regulates

almost every aspect of sports in the state, including the area

most pertinent to this case—the season in which each sport

will be played. Pet. App. 76a-82a. When MHSAA began to

sanction and regulate sports for girls in the 1970s, it followed

the above “boys-first” philosophy and scheduled the girls’

seasons in the months when boys were not playing. See id. at

83a-84a (statement by MHSAA’s Executive Director that

“*Boys’ sports were in [MHSAA member] schools first and

girls’ sports, which came later, were fitted around the pre-

existing boys’ program’”) (alteration in original). This phi-

losophy also extended to sports that were contemporaneously

sanctioned for boys and girls, such as soccer. /d. at 83a.

As a result, MHSAA now schedules the seasons for all

twelve boys’ sports it sanctions during the traditional or most

advantageous times of the year, while it schedules six girls’

sports during nontraditional or disadvantageous times that are

harmful to girls. Specifically, while MHSAA schedules boys’

basketball in the traditional, advantageous winter season along

with every other state and college in the nation, it schedules

girls’ basketball in the fall season. It schedules boys’ soccer

in the traditional fall season, but girls’ soccer in the spring. It

schedules boys’ tennis in the traditional spring season, but

girls’ tennis in the fall. It schedules boys’ swimming in the

traditional winter season, but girls’ swimming in the fall. It

schedules boys’ golf in the fall, but girls’ golf in the spring.*

And it is the only state athletic association in the nation that

* While MHSAA previously scheduled boys’ golf in the traditional

spring season, it moved the boys to the fall season in 1975 because it is

easier to obtain tee times and better courses in the fall due to weather con-

ditions. When MHSAA began sanctioning girls’ golf, it set spring as their

season, having previously determined that it was less advantageous. Pet.

App. 5Sa.

6

schedules girls’ volleyball in the winter instead of the tradi-

tional fall season. Pet. App. 52a-56a.

MHSAA was aware that its “boys-first” scheduling nega-

tively affected girls’ athletic opportunities and that it could be

held legally liable for this discriminatory treatment. Indeed,

in the early 1990s, MHSAA studied changes to its scheduling

of seasons “‘mostly to do what is needed for girls, but also in

part to keep the MHSAA in a position of choosing its future

voluntarily rather than being forced to fight legislated or

court-ordered changes in the future if something is not done

soon.’” However, it made no changes. Pet. App. 87a.

2. Plaintiffs Communities for Equity (an organization

founded by parents and students to promote gender equity in

athletics) and individual parents on behalf of their daughters

sued MHSAA in 1998. They alleged that MHSAA discrimi-

nates against girls in numerous ways, including the schedul-

ing of sports seasons, in violation of (1) the Equal Protection

Clause of the Fourteenth Amendment to the United States

Constitution (as enforced through 42 U.S.C. § 1983); (2) Title

IX of the Education Amendments of 1972 (20 U.S.C. § 1681

et seq.); and (3) the Elliott-Larsen Civil Rights Act of Michi-

gan state law (M.C.L.A. § 37.2301 ef seq.). Specifically,

plaintiffs alleged that MHSAA required females but not

males to play sports in nontraditional or disadvantageous

seasons; operated shorter athletic seasons for girls for certain

sports; scheduled girls’ competitions at times and places

inferior to those for boys; provided, assigned, and operated

inferior athletic facilities for girls to use for MHSAA-sanc-

tioned games; and allocated more resources to the support

and promotion of boys’ interscholastic athletic programs. See

Complaint, June 26, 1998. Before trial, the parties settled all

claims through a court enforced Consent Decree, except the

one involving seasons.

In December 2001, after a trial in which the United States

participated as litigating amicus in support of the plaintiffs,

7

the district court ruled in favor of plaintiffs on all three legal

claims. The district court’s ruling spans almost 100 pages,

over 30 of which detail findings of fact about the multiple and

significant harms girls suffer as a result of MHSAA’s dis-

criminatory scheduling of seasons. Pet. App. 88a-126a. For

example, the court made factual findifgs that Michigan girls:

(1) lose opportunities to be recruited by college coaches and

receive athletic scholarships; (2) lose opportunities to par-

ticipate in Olympic Development Programs and national club

sport programs (e.g., female volleyball players lose 16-20

months of club playing time over a four-year career); (3) have

shorter seasons in some girls’ sports by as much as 21 days

(resulting in less practice time, skill development, and coach-

ing); (4) lose opportunities to participate in special events

like March Madness and fall blue-chip basketball shoot-outs;

(5) miss out on national publicity, rankings, and All-Ameri-

can honors; (6) lack contemporaneous college and profes-

sional role models; (7) cannot compete against teams in

neighboring states, which could lessen travel burdens; and

(8) endure psychological harm from being treated like

“second-class” citizens, resulting in low self-esteem and low

life expectations. Jd. at 122a-125a.°

The district court recognized that the state had an important

interest in “[e]nsuring the greatest number of participation

opportunities for children in interscholastic sports,” Pet. App.

127a, but held that MHSAA had failed to present sufficient

evidence that logistical limitations require separate seasons

> MHSAA’s petition (pp. 6-10) simply repeats its evidence that the

scheduling decisions were not disadvantageous or harmful to girls. On

pp. 5-6 of its petition, MHSAA also belittles the disadvantages of dis-

criminatory scheduling. But the district court’s findings of fact were to

the contrary, and these findings support its determination that MHSAA

violated Title [X and state law as well as the Equal Protection Clause.

This Court does not grant review based on disagreement with a district

court’s factual findings.

8

for the sexes to maximize participation. See id at 126a

(“MHSAA presented insufficient evidence in all of the sports

at issue that logistical concerns could not be resolved if both

sexes played in the same season”).° The court similarly found

that MHSAA’s argument that Michigan girls preferred the

extant seasons was unsupported by the evidence and based on

an inadequate and biased post hoc survey. See id. at 126a-

127a.

Expressly applying the standard set forth in VMI, the court

found that MHSAA “intentionally treats boys and girls differ-

ently by scheduling their interscholastic sports seasons at

different times of the year.” Pet. App. 142a. The court found

that MHSAA’s logistics and participation-based objectives

were important, but “conclude{d] that the discriminatory

scheduling is not ‘substantially related’ to the achievement of

those asserted objectives. The empirical evidence was wholly

insufficient.” /d. at 147a. Further, the court held that “[e]ven

assuming that the MHSAA had sufficiently proven this point,

that would not justify forcing girls to bear all of the disad-

° MHSAA’s petition does not respect this finding of fact. For example,

on p. 3, MHSAA states that its scheduling decisions “allow[] schools with

limited facilities or coaching resources to avoid resource conflicts and

offer a better program to all students.” And MHSAA repeatedly claims

that its season-scheduling has “been very successful at promoting partici-

pation,” Pet. 4, although the district court found that Michigan’s season

scheduling was not a cause of increased participation. See, e.g., Pet. App.

127a (“the Court is not convinced that the MHSAA’s scheduling system

maximizes participation”); id. at 127a-13 1a (rejecting MHSAA’s evidence

on this point). Thus, MHSAA’s statement (Pet. 25) that it has “[a] sched-

ule designed to maximize overall participation” is contrary to the district

court’s factual findings.

” In its petition (p. 20), MHSAA relies on this survey purporting to

show that Michigan girls prefer the disadvantageous scheduling. The

district court rejected MHSAA’s reading of the survey, see Pet. App. 133a;

noted that *‘MHSAA did not offer the testimony of any girl or parent who

was in favor of keeping the current seasons[,]”; and found the survey

suffered from “design flaws and bias.” /d.

9

vantageous playing seasons alone to solve the logistical

problems.” /d. And, the court continued, “the logistics

justification smacks of post hoc rationalization for a system

that only in the relatively recent past decided that girls were

entitled to play sports ....” Ia.®

In the alternative, the court found that “[p]laintiffs have

demonstrated that female high school athletes are denied the

benefits of school athletic programs as a result of the sched-

uling system of [MHSAA] that they would otherwise enjoy if

they were male,” demonstrating that Title LX had been vio-

lated. Pet. App. 155a-156a. Finally; the court determined

that MHSAA’s discriminatory scheduling of girls’ sports sea-

sons violated Michigan’s ELCRA. J/d. at 159a.

Based on these violations, the district court ordered MHSAA

to reschedule its sports seasons in compliance with the

Constitution, Title IX, and Michigan state law by the 2003-04

school year. Pet. App. 166a-167a. The district court did not

order MHSAA to combine girls’ and boys’ seasons in any

sport, but stated that if MHSAA chose to keep separate sea-

sons, it had to schedule them so that boys and girls equitably

share the benefits and burdens of different seasons. /d. at

167a.

“

3. The Sixth Circuit affirmed the judgment on the equal

protection claim, “thus finding no need to reach the Title [X

and state-law issues.” Pet. App. Sla. After holding MHSAA

to be a state actor, See Brentwood Acad. v. Tennessee Secon-

dary Sch. Athletic Ass’n, 531 U.S. 288 (2001), the court

* The trial court did not need to and therefore did not specifically

address whether plaintiffs had shown that MHSAA’s scheduling policies

reflected discriminatory animus towards girls. The finding, however, that

MHSAA’s explanation for its disadvantageous scheduling for girls was

pretextual comes very close to a finding of animus. In combination with

other findings (that the boys’ golf season was changed after the boys’

coaches complained and pointed to its disadvantages, see Pet. App. 55a),

this finding is strongly indicative of discriminatory animus.

10

wholly adopted the district court’s factual findings, stating

that “the district court painstakingly discussed each sport at

issue and analyzed why play in the non-traditional season . . .

harmed female athletes.” Pet. App. 52a. Next, applying this

Court’s heightened scrutiny standard consistent with VM/, the

court examined and rejected MHSAA’s main argument that

separate seasons maximize athletic participation: “The evi-

dence offered by MHSAA .. . 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 par-

ticipation... . [A] large... participation number alone does

not demonstrate that discriminatory scheduling of boys’ and

girls’ athletic seasons is substantially related to the achieve-

ment of important government objectives.” /d. at 64a. Thus,

the court held MHSAA had not shown that its discriminatory

scheduling was substantially related to an important govern-

ment objective and, necessarily, that it had not provided an

“exceedingly persuasive” justification for its discrimination.

Id. at 65a.

MHSAA filed a petition for certiorari to this Court, seeking

review of the decision that it had violated the Equal Protec-

tion Clause on two grounds: First, MHSAA argued for the

first time that Title [X is the exclusive remedy for its dis-

criminatory conduct in the scheduling of girls athletic sea-

sons.” Second, MHSAA argued that if an action for violation

of the Equal Protection Clause under § 1983 could be brought

for discriminatory scheduling, then plaintiffs had failed to

prove such a violation at trial because they had failed to show

intentional discrimination. MHSAA did not seek review of

the decision that it had violated Title IX or the ELCRA.

This Court granted the petition, vacated the Sixth Circuit’s

decision, and remanded the case to the court of appeals with

* MHSAA had previously argued that it was not covered by Title IX,

but changed its position to make this argument. Pet. App. 32a.

1}

instructions to further consider the case “in light of our

opinion in Rancho Palos.” 544 U.S. 113 (2005).

On remand, the panel unanimously affirmed the trial court’s

holdings that MHSAA violated Title [IX and the ELCRA, as

well as the Fourteenth Amendment. Pet. App. 33a, 35a. The

panel majority also held that Title [IX does not provide the

exclusive remedy for MHSAA’s discriminatory scheduling

decisions. /d. at 33a. The court analyzed this Court’s deci-

sion in Rancho Palos and determined that it had not under-

mined the reasoning of the Sixth Circuit’s earlier decision in

Lillard v. Shelby County Bd. of Educ., 76 F.3d 716 (6th Cir.

1996), holding that a plaintiff's constitutional claims under

§ 1983 were not displaced simply because the facts also gave

rise to a statutory claim under Title LX. /d. at 722-23.

Judge Kennedy concurred in the majority’s holding that

MHSAA’s scheduling of high school athletics seasons vio-

lates Title IX and the ELCRA, but dissented from the alterna-

tive holding that plaintiffs could seek relief for discriminatory

scheduling under the Equal Protection Clause, as enforced

through § 1983. Pet. App. 38a.

REASONS FOR DENYING THE WRIT

MHSAA’s petition raises two issues: (1) whether the Sixth

Circuit properly followed this Court’s equal protection

analysis, and (2) whether Title [X displaces plaintiffs’ § 1983

claim. Neither issue is dispositive of this case and neither

warrants this Court’s review.

I. THE SIXTH CIRCUIT PROPERLY APPLIED

EQUAL PROTECTION LAW AS TO WHICH

THERE IS NO CONFLICT IN THE COURTS OF

APPEALS.

The trial court found and the court of appeals has now

affirmed that MHSAA violated not only the Fourteenth

Amendment but also Title [IX and state law. It thus makes

12

little sense for this Court to address the equal protection issue

raised by MHSAA. Moreover, MHSAA’s claim that this

case creates a conflict about the legal standards for addressing

the constitutionality of gender-based discrimination is without

merit. This Court in VM/ articulated the standard for scrutiny

of claims like those at issue, and the Sixth Circuit properly

applied that standard to the facts found by the district court

after a bench trial. This case, accordingly, does not warrant

review.

A. This Case Is Not An Appropriate Vehicle For

Resolution of the First Question Presented.

As noted above, in addition to the violation of the Equal

Protection Clause, two alternative grounds support the deci-

sions of the courts below in this case. This Court has made

clear that when, as here, the outcome of litigation does not

turn on the answer to the question presented, the petition for

certiorari should be denied. See, e.g., Smith v. Butler, 366

U.S. 161 (1961). Where alternative grounds exist that sup-

port the same result regardless of the Court’s decision on

the question presented, this Court has declined review. See

Monrosa v. Carbon Black Exp., 359 U.S. 180, 184 (1959)

(“[{w]hile this Court decides questions of public importance, it

decides them in the context of meaningful litigation”); see

also Belcher v. Stengel, 429 U.S. 118 (1976) (same).

Deciding the equal protection question presented by

MHSAA would not alter the outcome of this litigation

because, in addition to holding that MHSAA violated the

Equal Protection Clause, the district court held that MHSAA

violated both Title [IX and Michigan state law.'’ The Sixth

'° This Court generally defers to the construction of a state statute

given it by the lower courts. See Brockett v. Spokane Arcades, Inc., 472

U.S. 491, 499 (1985); Butner v. United States, 440 U.S. 48, 57-58 (1979)

(declining to address state law claim because “federal judges who deal

regularly with questions of state law in their respective districts and cir-

cuits are in a better position than we to determine how local courts would

13

Circuit has unanimously affirmed these alternative holdings.

This case is thus a very poor vehicle to address MHSAA’s

equal protection claim.

MHSAA tries to circumvent the importance of these alter-

native holdings by suggesting that neither the Title IX nor the

ELCRA holding would stand if the courts below misapplied

VMI in finding a violation of the Equal Protection Clause, but

that is not the case. Unequal treatment of girls and boys

teams violates Title 1X, see 20 U.S.C. § 1681(a); Education

Programs or Activities, 34 C.F.R. § 106.31(b), unless that

treatment does not disadvantage or harm one sex or the harm

is “negligible.” Policy Interpretation, 44 Fed. Reg. at 71415.

Indeed, Title 1X’s regulations expressly require equitable

scheduling of athletic practices and competitions. See, e.g.,

34 C.F.R. § 106.41(c)(3); Policy Interpretation, 44 Fed. Reg.

at 71416; Title IX Athletics Investigator’s Manual (1990), p.

37. It is undisputed that MHSAA schedules boys’ and girls’

seasons differently, and the trial court’s factual findings are

that MHSAA’s disparate scheduling is harmful to girls in

substantial (i.e., non-negligible) ways. Pet. App. 88a-126a.

This proves a Title [X violation, as the courts below found.

See also McCormick ex rel. McCormick v. School Dist. of

Mamaroneck, 370 F.3d 275 (2d Cir. 2004) (holding that girls,

but not boys, playing in nontraditional season violated Title

IX).

In addition, there exists an independent state law ground

for the trial court’s decision: MHSAA’s violation of the

ELCRA. Plaintiffs adhere to their long standing argument

that since MHSAA did not appeal that holding to the Sixth

Circuit, they cannot raise it now. In any event, the Sixth

Circuit unanimously affirmed the district court’s decision that

MHSAA’s scheduling of girls’ sports violates the ELCRA.

dispose of comparable issues”); Bishop v. Wood, 426 U.S. 341, 346 n.10

(1976) (explaining that the Court is hesitant to overrule decisions by

federal courts skilled in the law of particular states).

14

This Court’s treatment of the equal protection claim would

not determine the question whether the ELCRA was violated,

see Forton, supra; and, as plaintiffs demonstrated to the trial

court, MHSAA’s practices would be deemed a violation of

state law. Pet. App. 159a-162a.

B. The Sixth Circuit’s Heightened Scrutiny Analy-

sis Comports With VMI.

The Sixth Circuit adhered to this Court’s heightened scru-

tiny analysis in VM/ and properly concluded that MHSAA’s

scheduling of girls’ sports only in disadvantageous seasons

violates the Equal Protection Clause.

In VMI, this Court was asked to decide whether Virginia’s

exclusion of women from the educational opportunities of-

fered by the Virginia Military Institute violated the Equal

Protection Clause. In answering this question, the Court reit-

erated the heightened standard that must be met to justify

gender-based classifications:

Focusing on the differential treatment or denial of oppor-

tunity 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 re-

lated to the achievement of those objectives.’” [518

U.S. at 532-33 (alteration in original) (internal citation

omitted). |

The district court and the Sixth Circuit cited and then care-

fully applied and followed this Court’s analysis in holding

MHSAA’s discriminatory scheduling of girls’ seasons to be

unconstitutional. These courts found that MHSAA treats

boys and girls differently in the scheduling of their sports

seasons and that this disparate treatment harms girls in

numerous ways. The courts examined MHSAA’s justifica-

15

tions for the disparate scheduling and held that they had not

even been proven, much less that they were exceedingly

persuasive and substantially related to important government

objectives. Therefore, the courts properly concluded that

MHSAA’s scheduling of girls’ seasons violates the Equal

Protection Clause. Pet. App. 146a-147a.

C. This Case Presents No Conflict About the

Proper Rule of Law That Applies to Gender-

Based Classifications.

MHSAA tries to turn its dissatisfaction with the outcome in

this case into a conflict about the appropriate analysis of

gender-based classifications, but there is no conflict on this

issue.

1. The Sixth Circuit’s Decision Does Not

Conflict With This Court’s Cases Addressing

Sex Discrimination Under the Constitution.

MHSAA’s argument that its scheduling of girls’ seasons

does not constitute a facial gender classification was rejected

by all courts below and is wrong. The scheduling decisions at

issue are made by MHSAA explicitly on the basis of the sex

of the members of the team, not pursuant to a facially-neutral

rule.'' As the courts below held, it is hard to imagine a

clearer facial classification. The Sixth Circuit’s decision is

'' Plaintiffs do not seek to invalidate the separation of sports teams by

sex. Indeed, separate sex sports teams have been held constitutionally

permissible in the unique context of athletics. See, e.g., Haffer v. Temple

Univ., 678 F. Supp. 517, 525 (E.D. Pa. 1987) (separate men’s and women’s

teams are permissible because they “expand substantially the opportunity

for women to participate”; “courts have repeatedly observed. . . that sepa-

rate and equal athletic programs are constitutionally permissible”) (citing

several cases)); see also O'Connor v. Board of Educ., 449 U.S. 1301

(1980) (Petition to Stevens, J., Circuit Justice for the Seventh Circuit, to

vacate stay) (“Without a gender-based classification in competitive con-

tact sports, there would be a substantial risk that boys would dominate the

girls’ programs and deny them an equal opportunity to compete . . . .”).

16

thus in complete accord with this Court’s treatment of

gender-based classifications. See UAW v. Johnson Controls,

Inc., 499 U.S. 187, 197 (1991) (“[t]he policy [at issue] ex-

cludes women with childbearing capacity from lead-exposed

jobs, and so creates a facial classification based on gender’’).

MHSAA contends that only the initial decision to have

separate boys’ and girls’ teams creates a facial gender clas-

sification that is subject to heightened scrutiny. Under this

theory, a facial gender classification somehow ceases to be a

facial gender classification if it is in a program that separates

genders. Thus, if a coeducational high school allowed boys,

but not girls, to use its science laboratories, that would be a

facial gender classification. But, if a school system had sepa-

rate boys’ and girls’ high schools, and only the boys’ school

had science laboratories, that would not be a facial gender

classification. The court of appeals correctly concluded that a

facial gender classification does not mutate into something

else simply because it is part of a single-gender program.

There is also no conflict between the Sixth Circuit’s deci-

sion and this Court’s cases holding that the Equal Protection

Clause reaches only purposeful sex discrimination. Facial

gender classifications are, by definition, purposeful. Plaintiffs

were thus not required to show a specific intent to harm

female athletes, discriminatory animus, malice or other evi-

dence of motive. See Johnson Controls, 499 U.S. at 199

(“[w]hether an employment practice involves disparate treat-

ment through explicit facial discrimination does not depend

on why the employer discriminates”). Rather, MHSAA was

obligated—-but failed—to show an exceedingly persuasive

justification for its classification once plaintiffs showed that

MHSAA treated girls differently than boys in ways that

caused harm to girls in the scheduling of sports seasons.

MHSAA’s argument that /M/ stands for the proposition

that the Equal Protection Clause requires only that programs

be substantially equal as a whole in their treatment of males

17

and females is also meritless. Heightened scrutiny has always

been applied to the particular aspect of a program that is

being challenged. See, e.g., Califano v. Goldfarb, 430 U.S.

199 (1977) (provision of the Social Security Act that treated

nondependent widows and widowers differently held to deny

equal protection); Weinberger v. Wiesenfeld, 420 U.S. 636

(1975) (provision of the Social Security Act that provided

fewer benefits to male surviving spouses than to female sur-

viving spouses held to deny equal protection): Frontiero v.

Richardson, 411 U.S. 677 (1973) (provision of the statute

governing benefits for the armed services that treated female

dependents of servicemen more favorably than male depend-

ents of servicewomen held to deny equal protection).

As quoted above, VM1/ itself requires the court to “[f]ocus[]

on the differential treatment or denial of opportunity for

which relief is sought.” 518 U.S. at 532-33 (emphasis added).

Initially, VMI focused on women’s exclusion from VMI.

Then, when the state proposed to establish a new program

that purported to offer equal opportunity for women, this

Court looked at all the components of that new program.

Here, plaintiffs challenged the disparate treatment in the

scheduling of sports seasons, and the courts below properly

focused on that scheduling.

MHSAA’s theory that violations of the law can be excused

by focusing on other parts of a program is thus a serious

misreading of this Court’s precedent. Schools may not avoid

heightened scrutiny of a sex-based classification—such as

failing to provide any science laboratories in a girls’ school

while providing them in a boys’ school—by pointing to the

caliber of the girls’ history teachers.

In addition, this case provides an excellent illustration of

why MHSAA’s overall equality test makes no sense. Plain-

tiffs challenged MHSAA’s discrimination against girls in

numerous aspects of their programs, but many of these chal-

lenges were settled in a consent decree. See supra at 1.

18

Under MHSAA’s theory, plaintiffs would be deterred from

settling those aspects of the case that the parties were able to

resolve for fear of losing their ability to effectively challenge

the disputes that remained.

MHSAA’s concern that allowing equal protection chal-

lenges to components of separate sex programs will result in

lawsuits based on minor differences between programs is

misplaced. It is only where, as here, similarly situated girls

and boys are classified based on their sex and treated differ-

ently and harmfully for reasons that are not substantially

related to any important government purpose that a violation

of the Equal Protection Clause has been proven. See Pet.

App. 30a (“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 compari-

son to men is considered disparate treatment.”).

The disparate impact cases MHSAA cites to argue that

plaintiffs should have been required to show discriminatory

animus are inapplicable because in those cases, the specific

conduct challenged was found to be facially neutral. For

example, in Personnel Administrator of Massachusetts v.

Feeney, 442 U.S. 256 (1979), which challenged veterans’

preferences, the Court found that status as a veteran was not a

proxy for gender, since some men are not veterans and some

women are. In such cases, the Constitution requires a show-

ing of animus to determine “whether the adverse effect

reflects invidious gender-based discrimination.” /d. at 274;

see also Shaw v. Reno, 509 U.S. 630, 649 (1993) (describing

reapportionment legislation as race-neutral on its face).'? In

"* Geduldig v. Aiello, 417 U.S. 484 (1974), cited by MHSAA to sup-

port its argument that its scheduling of girls’ seasons is not a facial clas-

sification is also not relevant. Leaving aside the question of whether

Geduldig’s reasoning is still valid, in that case the Court held only that

19

contrast, the courts below agreed that the conduct challenged

here—such as the decision that the girls’ basketball season

will be in the fall while the boys’ season is in the winter—is

an explicit classification based on sex.

MHSAA’s claim that the Sixth Circwit’s decision conflicts

with VM/ thus must be rejected. While MHSAA mischar-

acterizes VMI/ as deciding that separate but equal programs

for males and females satisfy heightened scrutiny,'? the criti-

cal points here are that the state has the burden of showing

that challenged programs are substantially related to an im-

portant government purpose, and that separate and unequal

programs for females are unconstitutional. See VM/, 518

U.S. at 553 (rejecting alternative program for women estab-

lished by state because it was a “pale shadow” of VM/). The

courts below found as a matter of fact that MHSAA’s dis-

criminatory scheduling of girls’ and boys’ seasons was not

substantially related to an important government purpose.

And, because MHSAA’s scheduling of girls’ seasons is

manifestly unequal to its scheduling of boys’ seasons for the

multiple reasons found by the courts below, the Sixth Circuit

correctly held that MHSAA’s scheduling is unconstitutional.

This decision in no way conflicts with VMI.

Finally, MHSAA erroneously claims that the Sixth Circuit

deviated from VMI by requiring identical, rather than equal,

treatment of boys and girls. See Pet. 21, 24. But neither the

pregnancy-based distinctions were not explicit facial classifications. Here,

MHSAA’s scheduling decisions explicitly and on their face treat boys’

and girls’ teams differently.

' In fact, the Court did not address the argument that the Constitution

permits “separate but equal” educational programming for male and female

students. See VMI, 518 U.S. at 533 n.7. Noting but not deciding this

question in evaluating Virginia’s proposed remedy, the Court found in-

stead that the Virginia Women’s Institute for Leadership—the program

established by the state as an alternative to admitting women to VM/—

was manifestly unequal to VMI in both tangible and intangible benefits.

Id. at 534, 547, 551, 557.

20

district court nor the Sixth Circuit in this case suggested that

MHSAA must schedule girls’ sports in seasons that mirror

the boys’ seasons. To the contrary, the district court repeat-

edly stated that MHSAA could schedule girls’ and boys’

sports in separate seasons as long as the sexes split advanta-

geous and disadvantageous seasons equitably. See also Pet.

App. 167a (“The parties are reminded that Defendant MHSAA

may design the new schedule in a number of different ways,

and as long as girls and boys share the advantages and

disadvantages of the new seasons equitably, the Court will

approve the Compliance Plan.”).'*

The trial court held, and the Sixth Circuit correctly af-

firmed, that in this case, similarly situated girls and boys were

classified based on their sex and treated differently and

harmfully in the scheduling of athletic seasons for reasons

that are not substantially related to any important government

purpose. This decision fully comports with this Court’s

jurisprudence.

2. The Sixth Circuit’s Decision Does Not

Conflict With the Decisions of Other Courts

of Appeals.

There is no conflict between the Sixth Circuit’s decision

and the decisions of the Third, Fourth, Eighth, and D.C.

Circuits that MHSAA cites. These cases are all readily

distinguishable, and thus do not create any conflict.

First, there is no conflict between the Sixth Circuit’s

decision in this case and the Fourth Circuit’s decision in VM/.

In trying to demonstrate such a conflict, MHSAA repeats the

same arguments it made to show a purported conflict with

this Court’s decision in VM/. Therefore, plaintiffs incorpo-

'* MHSAA’s petition (p. 5 n.3) suggests that the district court specified

a detailed scheduling remedy. In fact, MHSAA was provided an

opportunity to design a constitutional schedule. See Pet. App. 166a-167a.

21

rate their responses to MHSAA’s arguments. See supra at

14-20.

Second, there is no conflict with the Third Circuit’s deci-

sion in Vorchheimer v. School District, 532 F.2d 880 (3rd

Cir. 1976), aff'd, 430 U.S. 703 (1977), which held that a

female high school student was not denied equal protection

when she was denied admission to an all-male high school,

because she could attend an allegedly equal girls’ high school.

Vorchheimer was decided before this Court’s amplification of

the proper scrutiny for such cases in Mississippi University

for Women v. Hogan, 458 U.S. 718 (1982), and in any event

is distinguishable. Unlike the separate female school that the

Third Circuit found equal to the all-male school in that case,

MHSAA’s scheduling of girls’ sports seasons here has been

found unequal by the district court, a factual finding affirmed

by the court of appeals.

Finally, MHSAA relies on three decisions by the Eighth

and D.C. Circuits involving equal protection claims by female

prisoners alleging discrimination in the provision of educa-

tional, employment, and other programs and services. But

once again, there is no conflict. Initially, we note that the

analysis in these cases (all decided before Johnson v. Califor-

nia, 543 U.S. 499 (2005)) is affected by this Court’s decisions

in Turner v. Salfey, 482 U.S. 78 (1987), and O’Lone v. Estate

of Shabazz, 482 U.S. 342 (1987), which held that prison

regulations challenged as burdening constitutional rights are

subject to only minimal constitutional scrutiny. See, e.g.,

Turner, 482 U.S. at 81.

Moreover, in each of these cases, the relevant facts led the

courts to conclude that the female and male inmates were not

similarly situated as a threshold matter. Thus, the courts held

that the plaintiffs in those cases did not have viable equal

protection claims. See, e.g., Klinger v. Department of Corr.,

31 F.3d 727, 731 (8th Cir. 1994) (“[d]issimilar treatment of

dissimilarly situated persons does not violate equal protec-

22

tion”); Keevan v. Smith, 100 F.3d 644, 647-51 (8th Cir. 1996)

(same). In this case, in contrast, female and male athletes

in Michigan schools clearly are similarly situated, and thus

entitled to equal treatment.

While Klinger and Keevan also held that there would be no

equal protection violations even if the court assumed the

female and male inmates were similarly situated, that was

because they found that the prisoners were challenging

facially neutral rules. See, e.g., Klinger, 31 F.3d at 734 (no

facial gender classification regarding 24-hour medical care ©

where some male and female prisoners are deprived of this

service); Keevan, 100 F.3d at 651 (“[w]hen attempts are made

to compare programs offered at facilities housing inmates

who are not similarly situated, ‘it is hardly surprising, let

alone evidence of discrimination, that the smaller correctional

facility offered fewer programs than the larger one”). Here,

both courts below rightly concluded that MHSAA’s sched-

uling decisions facially classify athletes by gender. See Pet.

App. la-2a.

Women Prisoners of the District of Columbia Department

of Corrections v. District of Columbia, 93 F.3d 910 (D.C. Cir.

1996), is similarly inapposite. In that case, too, the court

found that male and female inmates were not similarly

situated. Jd. at 924-27. In addition, the D.C. Circuit rejected

female prisoners’ claims that they were entitled to the identi-

cal programs offered to male prisoners. In this case, how-

ever, the court found that MHSAA’s scheduling decisions

treated boys and girls differently on their face, and that these

differences resulted in significant harm to girls and were not

substantially related to any important government interest.

In VMI, this Court made clear that a gender-based clas-

sification must be justified under the heightened scrutiny

standard set forth in that case. In light of this Court's

decision, there can be no conflict among the courts of appeals

on this issue, and there is not.

23

Il. THE COURT SHOULD NOT ADDRESS

WHETHER TITLE IX IS THE EXCLUSIVE

REMEDY FOR PLAINTIFFS’ INJURIES IN

THIS CASE.

A. This Case Is Not An Appropriate Vehicle To

Address This Issue.

Plaintiffs do not dispute that when this Court decided

Rancho Palos, there was a conflict among the courts of

appeals on the question whether Title IX is the exclusive

remedy for gender discrimination in athletic programs of

federal fund recipients. This case, however, is the first to

address the question since this Court decided Rancho Palos.

Other courts of appeals have not yet had a chance to deter-

mine whether the directive of Rancho Palos—that § 1983

claims should be foreclosed only where there is compelling

evidence of congressional intent to restrict plaintiffs to the

remedies provided in the violated statute—requires a new

analysis of the question whether Title [X provides the exclu-

sive remedy for gender discrimination in this setting. It

remains to be seen whether Rancho Palos will smooth away

the conflict among the circuits on the issue.

In any event, for several additional reasons, this case

should not be utilized to resolve the conflict that pre-existed

Rancho Palos.

First, during nearly seven years of litigation, MHSAA

never mentioned, let alone pressed, the question of whether

Title IX provides the exclusive remedy for plaintiffs’ claims.

MHSAA’s second petition to this Court, filed in 2005, is the

first place that this argument arose, despite MHSAA’s numer-

Ous dispositive motions and its 2000 petition to this Court

seeking interlocutory review of a denial of summary judg-

ment.

The reason for this omission is simple: Until it had no

alternative litigation strategy, MHSAA consistently asserted

24

that it was not covered by, and thus did not have to comply

with, Title IX. Once MHSAA lost this case at trial and on

appeal, it sought an argument to try to bring the case to the

attention of this Court. MHSAA decided to abandon its prior

position that Title [X does not apply so that it could raise with

the Court the conflict among the courts of appeals on the

question whether Title 1X is the exclusive remedy for gender

discrimination in athletics at federally-funded institutions.

Plaintiffs respectfully submit that MHSAA should not be

rewarded for this gamesmanship, and should not now be

allowed to claim that Title [X is plaintiffs’ only remedy, when

it repeatedly argued that it was not subject to Title [X in the

face of multiple rulings by the district court and Sixth Circuit

to the contrary. Rather, these circumstances constitute a fur-

ther reason why this Court should decline to review the

exclusivity question. See United States v. Ortiz, 422 US.

891, 898 (1975) (declining to consider an issue raised for the

first time in the petition for certiorari and on which petitioner

took a contrary position below).

Second, as shown with regard to the equal protection issue,

this Court should also decline review of the exclusivity issue

because the answer to the question presented will not deter-

mine the outcome of this case. See Monrosa, 359 U.S. at

183. Deciding the exclusivity question presented by MHSAA

would be similarly inconclusive because the district court

held, and the court of appeals has affirmed, that MHSAA

violated Title IX and Michigan state law. See supra at 2, 12-

14.

Practices that deny equal opportunities in athletics to one

gender violate Title [X, without regard to whether animus

towards the disadvantaged gender is shown. See supra at 2,

13; see also Pederson v. Louisiana State Univ., 213 F.3d 858,

881 (Sth Cir. 2000) (“[the university] need not have intended

to violate Title IX, but need only have intended to treat women

2

differently”)'°. The analysis in athletics cases thus focuses

on whether males and females have been provided with equal

participation opportunities, benefits, and services. Cf Policy

Interpretation, 44 Fed. Reg. at 71413 (describing multiple

components involved in assessing Title IX compliance, one

of which is scheduling, and stating that “[i]nstitutions will be

in compliance if the compared program components are

equivalent”). Therefore, even assuming MHSAA were cor-

rect that animus is required for violation of the Equal Protec-

tion Clause, there is no such requirement under Title [X.

This case is not a suitable vehicle to address whether Title

IX is plaintiffs’ exclusive remedy.

B. Title IX Does Not Provide the Exclusive

Remedy for Plaintiffs’ Claims.

MHSAA’s argument that Title IX displaces plaintiffs’ con-

stitutional claim is, in any event, without merit.

This Court has made it clear that § 1983 is available as a

remedy except in very narrow circumstances, none of which

applies to Title IX. The Sixth Circuit reached the correct

result using the analysis required by this Court in Rancho

Palos and the cases upon which it relies, Middlesex County

Sewerage Authority v. National Sea Clammers, 453 U.S. 1

(1981), and Smith v. Robinson, 468 U.S. 992 (1984), super-

seded by statute, Handicapped Children’s Protection Act, 20

U.S.C. § 1415(e)(4)(B) (1985). As Rancho Palos explains,

federal rights are presumptively enforceable under § 1983;

this presumption may be defeated only in exceptional cases

by showing that Congress intended to preclude § 1983 enforce-

'S Contrary to MHSAA’s argument, the “intentional discrimination”

discussed in Pederson is not the “animus” that is required to show a

violation of the Equal Protection Clause for a neutral classification. That

court’s discussion of the archaic views of the university were not essential

to its holding that the university had violated Title [X by not accommodat-

ing the interests of its female students in having more athletic teams.

26

ment. Evidence of 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.’” Rancho Palos, 544 U.S. at 120 (quoting Blessing v.

Freestone, 520 U.S. 329, 341 (1997)). But Rancho Palos

instructs that a § 1983 action is foreclosed only where there is

clear congressional intent to restrict plaintiffs to the set of

remedies that are available under the violated statute itself.

This is a demanding standard. In Rancho Palos, the Court

barred reliance on § 1983 to enforce the Telecommunications

Act of 1996 (“TCA”) based on the detailed “scheme of expe-

dited judicial review and limited remedies created by [the

TCA itself].” 544 U.S. at 122-23, 127. That scheme man-

dates that judicial review be sought within 30 days of agency

action and requires that the case be heard and decided on an

expedited basis; it likely excludes cormpensatory damages and

excludes attorneys’ fees and costs; and the legislative history

suggests that Congress intended the TCA to be an exclusive

remedy. /d. at 129-30 (Stevens,_J., concurring); See also

Smith, 468 U.S. at 1011-1012 (foreclosing-§.1983 action

because it would “render superfluous” detailed procedural

protections in statute and would frustrate Congress’ view that

needs of handicapped children are best met through parents

and local education agency working together); Sea Clammers,

453 U.S. at 20 (foreclosing § 1983 action because statutes

“contain unusually elaborate enforcement provisions, confer-

ring authority to sue... both on government officials and

private citizens”).

The Sixth Circuit correctly applied Rancho Palos to con-

clude that Title 1X does not provide the exclusive remedy for

plaintiffs’ claims. First, Title 1X contains no express private

remedies at all, and certainly has no restrictive remedies sug-

gesting that Congress intended to preclude § 1983 enforce-

ment. See Rancho Palos, 544 U.S. at 121 (“[w]e have found

27

§ 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 reme-

dies provided in the violated statute itself.”) (emphasis

added); Pet. App. 22a (Rancho Palos “extend{s] only to

statutes that contain an explicit private remedy that is suffi-

ciently comprehensive . . . to infer that Congress intended the

remedy to be exclusive”) (emphasis added). Indeed, it was

the absence of either a private remedy or a comprehensive

enforcement scheme that led the Supreme Court to imply a

private right of action to enforce Title IX. See Cannon v.

University of Chi., 441 U.S. 677, 705-706 (1979); see also

Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 76

(1992) (finding private right of action for money damages

under Title IX because administrative process would leave

complainant “remediless”).

Second, the availability of a private judicial remedy does

not establish congressional intent to preclude § 1983 relief in

any event. See Rancho Palos, 544 U.S. at 122 (refusing to

adopt United States’ position that availability of private

judicial remedy conclusively establishes intent to preclude

§ 1983 relief); ASW v. Oregon, 424 F.3d 970, 977-78 (9th

Cir. 2005) (citing Rancho Palos in holding that statute’s

provision of private judicial remedy does not establish intent

to preclude § 1983 action and relying instead on statute’s lack

of comprehensive enforcement scheme), cert. denied, 127 S.

Ct. 51 (2006). Rather, the question is whether the statutory

scheme is “unusually comprehensive and exclusive” such

that congressional intent to foreclose a § 1983 remedy can

be inferred. Rancho Palos, 544 U.S. at 131 (Stevens, J.,

concurring).

Title IX does not meet this rigorous standard. The sole

enforcement mechanism expressly authorized in the statute is

the withdrawal of federal funds. 20 U.S.C. § 1682. While

individuals may file administrative complaints, they are not

28

allowed to activate or participate in the investigation and are

not entitled to individual relief. Cannon, 441 U.S. at 706-08

& n.41. This is not the kind of comprehensive enforcement

scheme that this Court has held sufficient to foreclose a

§ 1983 action. Nor does Title IX’s legislative history indicate

that Congress intended to establish Title [IX as an exclusive

remedy for sex discrimination. See Smith, 468 U.S. at 1009-

1012 (relying in part on statute’s legislative history in fore-

closing § 1983 action); Blessing v. Freestone, 520 U.S. 329,

346 (1997) (defendants must show congressional intent to

preclude § 1983 claim).

Equally to the point, Rancho Palos and Sea Clammers are

distinguishable from the instant case because they involved

plaintiffs seeking to enforce federal statutory rights through

§ 1983. Plaintiffs here invoke § 1983 to enforce independent

constitutional rights to equal protection. Although the plain-

tiffs in Smith sought to enforce their constitutional rights

under § 1983, this Court found it critical that their § 1983

claims were “virtually identical” to their statutory claims (in

addition to finding that Congress established a comprehensive

enforcement scheme in the statute at issue). Smith, 468 U.S.

at 1009. By contrast, plaintiffs’ constitutional and statutory

claims here are not identical for many reasons, including:

(1) Title LX covers only entities receiving federal funds, while

§ 1983 covers all state actors; (2) conditions that violate the

Constitution may not violate Title [X, see, e.g., Mississippi

Univ. for Women, 458 U.S. at 732-733 (striking down female-

only nursing school policy under Equal Protection Clause,

while noting that it might not violate Title IX); and (3) § 1983

‘allows recovery against individuals, see Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982), while most courts have held that

Title IX does not. See, e.g., Lipsett v. Univ. of P.R., 864 F.2d

881, 901 (ist Cir. 1998) (damages under Title IX may be

available only from educational institutions, not individuals).

Moreover, in Smith, this Court was concerned that allowing a

§ 1983 action would provide plaintiffs with access to attor-

29

neys’ fees, which were specifically omitted from the detailed

remedial provisions of the statute at issue. '° No such

concern is present here.

Three circuits have held that Title 1X precludes recovery

under § 1983, but it is these courts, not this Court, that should

revisit their precedent. Those decisions preceded, and do not

reflect, the directive of Rancho Palos—that § 1983 claims are

to be foreclosed only where there is compelling evidence of

congressional intent to restrict plaintiffs to the remedies

provided in the violated statute. For the reasons set forth

above, Congress has manifested no such intent with regard to

Title IX. Moreover, no court of appeals has relied on Rancho

Palos to foreclose a § 1983 claim. The only circuit to address

Rancho Palos authorized the § 1983 action to proceed. See

ASW v. Oregon, 424 F.3d at 977-78 (availability of admin-

istrative review mechanisms and private judicial remedy does

not preclude §1983 action because statute lacks

comprehensive enforcement scheme).

lil. IN LIGHT OF THE DECISIONS BELOW, THE

PETITION DOES NOT PRESENT ANY LEGAL

ISSUE OF NATIONAL IMPORTANCE.

Given the factual findings of the decisions below, which

simply apply this Court’s established equal protection juris-

prudence, MHSAA’s petition does not present for this

(ourt’s review any issue of national importance. In fact, the

only issue actually presented involves the application of VM/

to the facts of this case—facts that are unique and unlikely

to recur. Indeed, the underlying substance of the case is no

longer of national importance, because, to plaintiffs’ knowl-

edge, MHSAA is the only state high school athletic associa-

'© Congress promptly responded to the ruling by amending the statute

to more expressly state that it did not intend the statute at issue to displace

any other remedies. See supra at 25.

30

tion in the nation that still schedules girls but not boys in

disadvantageous athletic seasons.’

~ CONCLUSION

For the reasons stated above, the petition for a writ of

certiorari should be denied.

Of Counsel

MARCIA D. GREENBERGER

JOCELYN F. SAMUELS

DINA K. LASSOW

NEENA K. CHAUDHRY

NATIONAL WOMEN’S LAW

CENTER

1! Dupont Circle, N.W.

Suite 800

Washington, D.C. 20036

(202) 588-5180

Respectfully submitted,

KRISTEN GALLES

Counsel of Record

EQUITY LEGAL

10 Rosecrest Avenue

Alexandria, VA 22301

(703) 683-4491

H. RHETT PINSKY

PINSKY, SMITH, FAYETTE

& KENNEDY

1515 McKay Tower

Grand Rapids, MI 49503

(616) 451-8496

Counsel for Respondents

February 28, 2007

'? MHSAA claims, without citations, that girls” participation dropped

when other states changed their athletics seasons. Just as the Court should

not rely on the statement that MHSAA’s scheduling of girls’ sports in

nontraditional seasons increased participation when that claim was ex-

pressly rejected by the district court, see Pet. App. 127a-131a, the Court

also should not rely on MHSAA’s claims about participation rates in other

states when it cites nothing in support of its claims, let alone any record

evidence or factual finding of the court below.