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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN

COMMUNITIES FOR EQUITY, et al.,
Plaintiffs;
v.
MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION, et al.,
Defendants
Hon. Richard A. Enslen, Chief Judge
Case No. 1:98-CV-479

BRIEF OF THE UNITED STATES AS AMICUS CURIAE
IN OPPOSITION TO DEFENDANTS' MOTIONS FOR
SUMMARY JUDGMENT

INTEREST OF THE UNITED STATES

Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., prohibits gender-based discrimination by recipients of federal financial assistance, including such discrimination in athletic programs. Pub. L. No. 93-380, 88 Stat. 484, 612 (1974). The United States has major responsibility for the enforcement of Title IX. Federal departments and agencies are charged with the responsibility for promulgating regulations implementing Title IX, and for ensuring that recipients of federal funds comply with the statute and regulations. See 20 U.S.C. § 1682. The Department of Education ("ED") has issued regulations pursuant to Title IX, 34 C.F.R. § 106.41, and a 1996 Clarification Memorandum, while its predecessor agency, the Department of Health, Education and Welfare, has issued a policy interpretation governing interscholastic and intercollegiate athletics. 44 Fed. Reg. 71,413 (Dec. 11, 1979).

The Department of Justice, through its Civil Rights Division, coordinates the implementation and enforcement of Title IX by ED and other executive agencies. Exec. Order No. 12,250, 45 Fed. Reg. 72,995 (1980); 28 C.F.R. § 0.51 (1998). The Department of Justice also has authority to enforce Title IX in federal court in cases referred to it by ED. It is therefore critical to the enforcement of Title IX and its implementing regulations that proper legal standards be applied consistently in all Title IX litigation.

STATEMENT OF FACTS

I. Procedural Background

In June 1998, plaintiffs, consisting of female student-athletes, their parents and Communities for Equity ("CFE"), filed a class action complaint, since amended, alleging that the Michigan High School Athletic Association ("MHSAA") discriminates against female athletes and curtails their opportunities to participate in athletics by, inter alia, requiring girls to play sports in non-traditional seasons, failing to provide participation opportunities to girls in sports for which there is interest, and setting shorter athletic seasons for some girls' sports than for boys' sports. The defendants are MHSAA, its executive director and the members of MHSAA's Representative Council. Plaintiffs assert claims under Title IX, the Equal Protection Clause of the Fourteenth Amendment, and 42 U.S.C. § 1983, and seek declaratory, injunctive and monetary relief.(1)

In September 1998, defendants sought to dismiss the complaint, alleging, inter alia, that (1) MHSAA is not subject to Title IX because it does not receive federal funds; (2) MHSAA is not a state actor subject to the Equal Protection Clause; (3) the individual defendants are not subject to Title IX; and (4) plaintiffs lacked standing to bring this case.

The Court denied defendants' motions in all respects except for CFE's standing. CFE v. MHSAA, 26 F. Supp.2d 1001 (W.D. Mich. 1998). With respect to MHSAA's status, the Court granted plaintiffs' request to conduct discovery to determine whether MHSAA is subject to Title IX and is a state actor. Id. at 1008, 1009. With respect to the individual defendants, the Court found that "individual liability . . . is not available under Title IX," but that the individual defendants might be liable in their official capacities if they "exercise administrative control over MHSAA." Id. at 1009. With respect to the individual plaintiffs' standing, the Court found that they had "adequately alleged injuries to their interest, as student-athletes, in the freedom from discrimination guaranteed by Title IX and the Constitution," and that their allegations met the causation and redressability requirements for standing. Id. at 1007-08. With respect to CFE, the Court found that it lacked standing because it had "failed to show with specificity that a member has suffered an injury." Id. at 1008. On reconsideration, however, the Court accepted from CFE "specific information regarding members who have suffered injury" and ordered that CFE "may continue as a plaintiff in this case." 1/5/99 Order at 2.

Following a period of discovery, defendants have filed three motions for summary judgment. MHSAA and the individual defendants move for summary judgment on the federal law claims, arguing that the evidence shows that they are not subject to

Title IX and are not state actors. See MHSAA Supplementary Brief in Support of Motion for Summary Judgment ("MHSAA Supp. Br."); Brief in Support of Individual Defendants' Renewed Motion for Summary Judgment ("Ind. Defs. Br."). Additionally, the defendants seek to reopen the standing question, arguing that the individual plaintiffs' deposition testimony contradicts their affidavit descriptions of how they have been injured by defendants' allegedly discriminatory practices. See Brief in Support of Defendants' Renewed Motion for Summary Judgment for Lack of Standing ("Defs. Standing Br.").

II. MHSAA's Structure and Governance

The regulation of interscholastic athletics in Michigan originated as a state function. See 1927 Mich. Public Acts 319, ch. 20, § 5. MHSAA was founded in 1924 "to exercise control over the interscholastic athletic activities of all schools of the state through agreement with the Superintendent of Public Instruction." 1978-79 MHSAA Handbook, Foreword (Tab 1). In 1972, the state legislature designated MHSAA as the "official association of the state for the purpose of organizing and conducting athletic events, contests, and tournaments among schools and [decreed that it] shall be responsible for the adoption and enforcement of rules relating to eligibility of athletes in schools for participation in interschool athletic events, contests and tournaments." Mich. Comp. Laws § 380.1292(2). As part of its statutory authorization, MHSAA's governing body was required to have as a member a representative of the state board of education. Id., § 380.1292(1). In 1995, the state legislature removed MHSAA's official designation, but permitted each school district in Michigan to "join organizations as part of performing the functions of the school district." Mich. Comp. Laws § 380.11a(4). Throughout these various incarnations, MHSAA "has served in the supervision and control of the interscholastic athletic activities of all schools of the state." 1975-76 MHSAA Handbook at 15 (Tab 2); 1972-73 MHSAA Handbook at 15 (Tab 3).

MHSAA incorporated itself in 1972 "to create, establish and provide for, supervise and conduct interscholastic athletic programs throughout the state consistent with educational values of the high school curriculums." MHSAA Articles of Incorporation (Apr. 18, 1972) (Tab 4). MHSAA has promulgated comprehensive rules and rule interpretations governing interscholastic athletics in Michigan. Most pertinent here, MHSAA has adopted rules governing the conduct of interscholastic athletic events. For instance, MHSAA has adopted playing rules for each MHSAA-sanctioned sport. 1999-2000 MHSAA Handbook ("Handbook"), Regulation II ("Rules Governing Contests Involving Senior High Schools"), § 8 (Tab 5). MHSAA must approve any meet or tournament held in Michigan that is sponsored by a non-member school; and if such an event is approved, it must be conducted pursuant to MHSAA's rules. Id., § 5(A), Interpretation No. 151. Sponsors of competition for member schools must use MHSAA-approved game officials. Id., § 7. Regulation II also prescribes for each sport when practice may begin, the length of the playing season, and the maximum number of games that may be played. Id., § 11. Furthermore, MHSAA conducts post-season tournaments in all MHSAA-sanctioned sports to determine state champions. These tournaments are open only to member schools. The decision to add or discontinue a post-season tournament lies within MHSAA's discretion. Id., § 15, Interpretation No. 214 (MHSAA "will consider sponsoring tournament competition in a sport when at least 70 schools sponsor the sport for three consecutive years" and "will consider terminating sponsorship of a tournament competition when less than 70 schools sponsor a sport for three consecutive years"). Member schools may not participate in any competition beyond the end of the MHSAA season or state championship tournament in any sport. Id., § 12.(2)

Member schools who violate any of these rules are subject to a wide range of penalties, including censure, probation, bans from competition, including MHSAA state championship tournaments, forfeiture, and expulsion. See Handbook, Regulation V ("Violations by Senior and Junior High/Middle Schools"), § 4. MHSAA has adopted a "due process procedure" for investigating alleged violations and assessing penalties, which includes adequate notice to the party being investigated, written findings, and the right to appeal. See id., Due Process Procedure, Rules of Procedure.

MHSAA is comprised of over 700 secondary schools in Michigan, id. (Facts About MHSAA), and includes virtually all public secondary schools in the state. See 7/20/99 Deposition of John E. Roberts (MHSAA's Executive Director) at 147:21-148:3 (Tab 6). To join MHSAA, a school's board of education is required to adopt MHSAA's rules as its own and to be the "primary enforcement" of those rules as to the school. Id., MHSAA Const., art. II, § 2. MHSAA conditions participation in state championship tournaments on member schools' compliance with MHSAA's rules, its determinations concerning rule violations, and the penalties imposed for rule violations. Id., Regulation V.

MHSAA is governed by a Representative Council, consisting of 14 elected members, all of whom are employed by member schools or boards of education. Id., MHSAA Const., art. IV, § 6. The Council "has general control of interscholastic athletic policies," including promulgating eligibility and competition rules, and disciplining member schools for rule violations. Id., art. VI. Until January 1, 1988, MHSAA employees holding state teaching certificates were considered state employees eligible to participate in the state retirement system. Mich. Comp. Laws § 38.1347(1). Continued employment with MHSAA after that date is credited for purposes of determining such employees' eligibility for state retirement benefits. Id., § 38.1347(2).

SUMMARY OF ARGUMENT

MHSAA member schools, who receive federal financial assistance, have ceded control over interscholastic athletics to MSHAA, thereby subjecting it to Title IX coverage. MHSAA is also a state actor subject to the Equal Protection Clause and Section 1983. In Michigan, the regulation of interscholastic athletics is traditionally the state's responsibility. By accepting this public function, MHSAA becomes a state actor.

The individual defendants are properly sued in this case in their official capacities. Official capacity suits are permitted where individuals exercise administrative control over an entity. The individual defendants here are MHSAA's Executive Director and members of MHSAA's Representative Council. These defendants exercise administrative control over MHSAA because they are authorized to, inter alia, make rules governing eligibility and competition, investigate allegations of rule violations, and issue penalties for rule violations.

Finally, as the Court has previously held, plaintiffs have standing to bring this case. Defendants' renewed objection to standing, based solely on challenging plaintiffs' credibility, is an inappropriate use of summary judgment. Moreover, the testimony cited by defendants simply shows that some plaintiffs are not entirely familiar with MHSAA's nature and authority -- a a level of knowledge not required for standing.

ARGUMENT

I. MHSAA Is Subject To Title IX Even If It Is Not A Recipient Of Federal Funds Because Member Schools Have Ceded Controlling Authority Over Interscholastic Athletics To MHSAA.

MHSAA contends that it is not subject to Title IX because although "some member schools receive federal funds," MHSAA does not, either directly or indirectly. MHSAA Supp. Br. at 3; Ind. Defs. Br. at 16-18. But MHSAA, by virtue of its control over interscholastic athletics in Michigan, is subject to Title IX regardless of whether MHSAA is itself a recipient. See Cureton v. National Collegiate Athletic Ass'n ("NCAA"), 37 F. Supp.2d 687, 694 (E.D. Pa.), appeal docketed, No. 99-1222 (3rd Cir. Mar. 18, 1999)(holding that NCAA was subject to Title VI "irrespective of whether it receives federal funds . . . because member schools . . . have conceded controlling authority over federally funded programs to the NCAA"); see also NCAA v. Smith, 119 S. Ct. 924, 930 (1999)(raising, without deciding, question of whether an organization that assumes control over a federally funded program is thereby subject to Title IX).

Cureton involved a race-based challenge under Title VI of the Civil Rights Act of 1964 to the NCAA's use of a standardized test minimum score to determine college freshmen athletic eligibility.(3) In finding for the plaintiffs, the court addressed the threshold issue of whether the NCAA was subject to Title VI. Cureton, 37 F. Supp.2d at 692. It was, the court held, because the NCAA played a "pivotal role" in maintaining intercollegiate athletics as part of the educational program, because the NCAA had adopted rules governing member schools' conduct of intercollegiate athletic programs, and because member schools agreed to abide by and enforce those rules. Id. at 695.(4)

The features making the NCAA a controlling authority over intercollegiate athletics are shared by MHSAA with respect to interscholastic athletics in Michigan. MHSAA "create[s], establish[es] and provide[s] for, supervise[s] and conduct[s] interscholastic athletic programs throughout the state consistent with educational values of the high school curriculums." MHSAA Articles of Incorporation.(5) MHSAA has promulgated comprehensive rules governing member schools' conduct of interscholastic athletic programs. See Handbook, Regulations I-V.(6) And MHSAA requires all member schools to adopt and enforce these rules as their own. Handbook, MHSAA Const., art. II, § 2.(7)

Moreover, the MHSAA features that defendants argue defeat Title IX coverage were cited by the Cureton court in finding the NCAA subject to Title VI. For instance, MHSAA points out that "individual school districts make and enforce rules for the governance of interscholastic athletics and the student competitors," and "adopt rules and regulations as their own." Supp. Br. at 3-4; Ind. Defs. Br. at 5-6. The court in Cureton, however, found that the same relationship between the NCAA and its member schools

merely reinforce[d] . . . that the schools exercise control over their intercollegiate athletics programs to the extent permitted by the constitution and bylaws of the NCAA. Once legislation affecting membership . . . is adopted by the NCAA, it becomes enforceable and binding on the member schools. As in any relationship in which authority is transferred, a school is always free to choose not to abide by the legislation, but it will then either suffer sanctions at the hands of the NCAA or be forced to renounce its membership in the association, a decision that would have grave consequences for its intercollegiate athletics program.

37 F. Supp.2d at 695-96. MHSAA's relationship with its member schools is no different. Member schools are required to adopt all rules promulgated by MHSAA. Handbook, MHSAA Const., art. II, § 2. Member schools are similarly "free" to disregard these rules but doing so subjects them to a range of possible penalties, including expulsion. See generally id., Regulation V.

MHSAA next points out that schools "voluntarily elect to join [MHSAA] on an annual basis." Supp. Br. at 4.

But membership in the NCAA is similarly voluntary. Cureton, 37 F. Supp. at 690. Eligibility to compete for a state championship in a MHSAA-sanctioned sport -- or to compete for a national championship in an NCAA-sanctioned sport -- is limited to member schools. Handbook, Regulation V, § 15.

Finally, MHSAA argues that member schools "are free to and in fact often do make more stringent rules for athletic governance than those promulgated by [MHSAA]." Supp. Br. at 4. The NCAA, however, also promulgates minimum standards; member schools can, and do, adopt more stringent requirements. See, e.g., NCAA Guide for the College-Bound Student Athlete, <http://www.ncaa.org/eligibility/cbsa/academic.html> (the freshman eligibility rule "sets a minimum standard only for athletics eligibility. It's not a guide to your qualifications for admissions to college.").

At bottom, the "controlling authority" doctrine articulated by the Cureton court is firmly rooted in Title IX's text. Title IX provides in relevant 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." 20 U.S.C. § 1681(a). As that statutory text makes clear, Title IX was not drafted "simply as a ban on discriminatory conduct by recipients of federal funds." Cannon, 441 U.S. at 691-92. Instead, the "unmistakable focus" of the statutory text is on the protection of "the benefitted class." Id. at 691. The text itself does not specifically identify the class of potential violators. But given the text's focus on

protection for the individual, and the absence of any language limiting the class of violators to recipients, Title IX is most naturally read as prohibiting any entity that has governing authority over a program from subjecting an individual to gender-based discrimination under it.(8)

Recipients are the principal class of entities that may not subject an individual to discrimination under a federally assisted program, but they are not the only ones. When a recipient cedes controlling authority over a program receiving assistance to another entity, and that entity subjects an individual to discrimination under the program, that entity violates Title IX, regardless of whether it is a recipient itself. That common sense reading of Title IX furthers its central purposes -- "to avoid the use of federal resources to support discriminatory practices" and to "provide individual citizens effective protection against those practices." Cannon, 441 U.S. at 704. Several considerations support that conclusion.

First, as discussed above, MHSAA has the power to establish playing seasons, sanction additional sports, and adopt other competition rules for its member schools. Member schools are bound by the decisions made by MHSAA. Because MHSAA has effective control over these areas of interscholastic athletics, it is the entity most responsible for any discrimination resulting from administering these areas.(9)

Second, if there is discrimination in MHSAA's rules, a member school may attempt to persuade MHSAA to change its rules, but if it is unsuccessful, its only option is to withdraw from MHSAA. Since MHSAA has a virtual monopoly on interscholastic athletics in Michigan,(10) a school that has withdrawn from MHSAA in order to satisfy its own Title IX obligations would have to substantially reduce interscholastic athletic activities to its students. That would leave victims of discrimination without an effective remedy and deprive innocent third parties of participation opportunities as well. Those harsh consequences may be avoided if victims of MHSAA's discrimination may seek relief against MHSAA directly.

Finally, because of its unique power over interscholastic athletics, discrimination by MHSAA in administering its rules may result in discrimination at numerous member schools simultaneously. Permitting a direct right of action against MHSAA provides a mechanism for stopping discrimination at its source before its becomes entrenched at member schools.(11)

In sum, "member [schools] have granted to [MHSAA] the authority to promulgate rules affecting inter[scholastic] athletics that the members are obligated to abide by and enforce. Under these facts, [MHSAA] comes sufficiently within the scope of Title [IX] irrespective of its receipt of federal funds." Cureton, 37 F. Supp.2d at 696.

II. MHSAA Is A State Actor Because It Performs A Traditional State Function.

A private entity may be found to be a state actor if it exercises control over a state function, acts under state compulsion, or has a symbiotic relationship with the state. Brentwood Academy v. Tennessee Secondary Sch. Athletic Ass'n, 180 F.3d 758, 763-64 (6th Cir. 1999), petition for rehearing en banc denied, --- F.3d ---, 1999 WL 694512 (Aug. 30, 1999).(12)

MHSAA is a state actor because it regulates interscholastic athletics, which in Michigan is a public function. The public function test asks whether an entity "exercise[s] powers which are traditionally exclusively reserved to the state." Brentwood, 180 F.3d at 763 (citing Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992)). In Brentwood, the Sixth Circuit found that, at least in Tennessee, "neither the conduct nor coordination of amateur sports has been a traditional government function." Id. In Michigan, on the other hand, the regulation of interscholastic athletics began with the state, and MHSAA has been a full partner in this regulatory process.

Michigan law originally provided that the "superintendent of public instruction shall have supervision and may exercise control over the interscholastic athletic activities of the

state." 1927 Public Laws 319, ch. 20, § 5; Mich. Comp. Laws, ch. 20, § 7566 (1929); Mich. Comp. Laws § 340.784 (1955). Through agreement with the state, MHSAA in 1924 assumed "control over the interscholastic athletic activities of all schools" in Michigan. 1978-79 MHSAA Handbook, Foreword. Notwithstanding this agreement, state officials have viewed the regulation of interscholastic sports as a governmental function. See, e.g., 1977-78 Mich. Op. Att'y Gen. 5346 ("supervision and control of interscholastic athletics is the responsibility of the board of education of each local school district"); 1957-58 Mich. Op. Att'y Gen. 3175 ("there appears to be no question that the [Michigan] Superintendent of Public Instruction has authority to supervise and control interscholastic athletic activities and that such authority extends to the entire operation of [MHSAA]"). Consistent with this history, Michigan courts have likewise found that "high school sports as part of the secondary education process is a governmental function." Jones v. Williams, 172 Mich. App. 167, 173, 431 N.W.2d 419, 423 (1988)(citing Richards v. Birmingham Sch. Dist., 348 Mich. 490, 83 N.W.2d 643 (1957), overruled on other grounds, Williams v. Detroit, 364 Mich. 231, 111 N.W.2d 1 (1961)); Watson v. School Dist. of Bay City, 324 Mich. 1, 7-8, 36 N.W.2d 195, 198 (1949)(holding that school district could be sued for negligence in performing "governmental function" of conducting high school football game). And, consistent with its relationship to the state, MHSAA employees were considered state employees eligible to participate in the state retirement system before January 1988. Continued employment after that date is still credited for eligibility for state retirement benefits. Mich. Comp. Laws § 38.1347(1), (2).

Defendants argue that the state legislature's 1995 repeal of MHSAA's designation as the official regulator of interscholastic athletics stripped MHSAA of any state actor status it may have had. MHSAA Supp. Br. at 10; Ind Defs. Br. at 22. Defendants, however, offer no evidence showing how MHSAA's role changed or diminished following the repeal. To the contrary, MHSAA has maintained the same level of control over interscholastic athletics in Michigan as before the repeal. Thus, at most, the repeal resulted in MHSAA becoming de facto rather than de jure regulator of interscholastic athletics in Michigan.

In sum, responsibility for regulating interscholastic athletics in Michigan originated and ultimately remains with the state. MHSAA, by assuming the role of regulator, is a state actor.

III. The Individual Defendants Are Proper Defendants Because They Exercise Administrative Control Over MHSAA.

In ruling on the individual defendants' original motion for summary judgment, the Court stated that they could be held liable in their official capacities if they "exercise[d] administrative control over MHSAA." CFE, 26 F. Supp.2d at 1009. The Court thus permitted the official capacity claims to proceed, stating that the individual defendants had "submit[ted] no evidence . . . which goes to the issue of administrative control." Id. In their renewed motion, the individual defendants again fail to offer any evidence showing lack of administrative control. Nor can they for MHSAA's constitution clearly articulates the individual defendants' authority to conduct MHSAA's business. The Representative Council has "general control of interscholastic athletic policies," makes "rules of eligibility for players," makes "regulations for the conduct of interscholastic contests," and "may discipline member schools and contest officials for violations of rules and regulations." See Handbook, MHSAA Const., art. VI. The Executive Director, in addition to being MHSAA's top non-elected official, is authorized to initiate investigations of member schools alleged to have violated MHSAA rules. Id., Rules of Procedure. In short, the individual defendants "exercise administrative control over MHSAA."

Permitting claims against the individual defendants in their official capacities is consistent with the principle that official capacity suits generally represent another way of pleading an action against the entity represented by the individuals. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989); see also Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)(citing Brandon v. Holt, 469 U.S. 464, 471-72 (1985))("as long as the government entity receives notice and an opportunity to respond, an official capacity suit is, in all respects other than name, to be treated as a suit against the entity"). Thus, in a proceeding against the individual defendants in their official capacities, plaintiffs are in effect suing MHSAA, thereby ensuring that complete relief will be available if plaintiffs prevail on the merits.(13)

The cases cited by the individual defendants add nothing to the discussion. Smith v. Metropolitan Sch. Dist., 128 F.3d 1014 (7th Cir. 1997) and Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir. 1988) do not preclude official capacity suits under Title IX; they instead address the circumstances under which official capacity suits are permitted.(14) In Smith, which involved a student's sexual harassment claim against her teacher, the court found that the school district and school board, rather than the principal, had institutional control over the school. 128 F.3d at 1020-21. Lipsett, which involved a sexual harassment claim by a female surgery resident against fellow residents and faculty members, addressed an issue not relevant here: when could a supervisory official be held liable for his subordinates' conduct. 864 F.2d at 901-02. Finally, although the Sixth Circuit in Lillard v. Shelby County Bd. of Educ., 76 F.3d 716 (6th Cir. 1996) expressed "strong skepticism" that individual defendants can be held liable under Title IX, it nevertheless declined to address the issue because of the absence of any record. Id. at 728. Here, the record amply demonstrates the individual defendants' authority to "exercise administrative control" over MHSAA.

Finally, unable to refute its constitution, defendants argue that "no individual(s) in their individual or official capacity exert any administrative control whatsoever" over MHSAA. Ind. Defs. Br. at 20. Accepting arguendo defendants' contention, they are right only in the most formal sense. The plaintiffs have sued all of the members of the Representative Council because it acts as a body in making rules for athletic eligibility and competition, and meting out penalties for violations of these rules. As defendants themselves concede, "the administrative authority of the MHSAA is vested in the bodies of the Representative Council and Executive Committee." Ind. Defs. Br. at 20.(15) As a result, the Council's members are properly sued in their official capacities.

IV. Plaintiffs Have Standing.

The Court has held that the individual plaintiffs and CFE have standing to bring this case. 26 F. Supp.2d at 1006-08. Defendants now seek to dismiss the case for lack of standing because of purported contradictions between plaintiffs' affidavits and their deposition testimony. See Defs. Standing Br. Defendants' argument essentially challenges the credibility of plaintiffs's claims that they have been injured by MHSAA's conduct, an issue not properly resolved by summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)("credibility determinations, the weighing of evidence, and the drawing of legitimate inferences are jury functions, not those of a judge").

At bottom, defendants's objection to standing is that plaintiffs do not know enough about MHSAA's structure, how it formulates rules for interscholastic athletics, MHSAA rules in general, or the precise nature of MHSAA's relationship with member schools. But such a level of knowledge is not a prerequisite to standing, see Allen v. Wright, 468 U.S. 737, 751 (1984)(plaintiffs need only allege personal injury fairly traceable to the defendant's allegedly unlawful conduct); otherwise, many suits against organizations, government entities and corporations would be precluded.

CONCLUSION

For the foregoing reasons, the United States, as amicus curiae, respectfully urges this Court to deny defendants' motions for summary judgment.

Respectfully submitted,

MICHAEL H. DETTMER
United States Attorney
Chief, Civil Division

CHARLES R. GROSS Assistant U.S. Attorney

BILL LANN LEE
Acting Assistant Attorney General

HELEN NORTON
Deputy Assistant Attorney General

MICHAEL S. MAURER
JAVIER M. GUZMAN
VALERIE SIMONS
U.S. Department of Justice
Civil Rights Division
Educational Opportunities
Litigation Section
Post Office Box 65958
Washington, DC 20035-5958
(202) 514-4092

Dated: September 30, 1999.

CERTIFICATE OF SERVICE

I hereby certify that on September 30, 1999, I served copies of the foregoing pleading to counsel of record by Federal Express, next business day delivery, addressed to:

H. Rhett Pinsky, Esq.
Pinsky, Smith, Faith & Hulswit
1515 McKay Tower
Grand Rapids, MI 49503

Marcia D. Greenberger, Esq.
Barbara A. Burr, Esq.
Neena K. Chaudhry, Esq.
National Women's Law Center
11 Dupont Circle, Suite 800
Washington, DC 20036

Kristin Galles, Esq.
Equity Legal
10 Rosecrest Avenue
Alexandria, VA 22301

Edmund J. Sikorski, Esq.
3200 Washtenaw Avenue, Suite 240
Ann Arbor, MI 48104

William M. Azkoul, Esq.
William M. Azkoul, P.C.
161 Ottawa Avenue, NW, Suite 111-A
Grand Rapids, MI 49503
__________________________
Valerie Simons

1. Plaintiffs also assert claims under Michigan's Elliott-Larsen Civil Rights Act. Mich. Comp. Laws §§ 37.2101, et seq.

2. MHSAA has also adopted comprehensive rules governing student athletic eligibility. See id., Regulation I ("Essential Eligibility Requirements for Senior High School Students").

3. Title VI, codified at 42 U.S.C. § 2000d, bars recipients of federal funds from discriminating on the basis of race, color or national origin, and was the model for Title IX. Cannon v. University of Chicago, 441 U.S. 677, 694 & n.16 (1979).

4. As an independent basis for Title VI liability, the court found that the NCAA in fact indirectly received federal funds by virtue of a grant to a separate program established and controlled by the NCAA. Id. at 694.

5. See NCAA v. Tarkanian, 488 U.S. 179, 183 (1988)("[o]ne of the NCAA's fundamental policies is to maintain intercollegiate athletics as an integral part of the educational program").

6. See Tarkanian, 488 U.S. at 183 ("NCAA legislation applies to a variety of issues, such as academic standards for eligibility, admissions, financial aid, and the recruiting of student athletes").

7. See NCAA Const., art. I, rule 1.3.2 ("member institutions shall be obligated to apply and enforce this legislation")(cited in Cureton, 37 F.Supp. at 695 n. 6).

8. Congress has constitutional authority to reach the conduct of anyone who threatens "the integrity and proper operation of [a] federal program." See Salinas v. United States, 118 S. Ct. 469, 475 (1997)(upholding the constitutionality of a statute prohibiting the acceptance of bribes by employees of state and local agencies that receive federal funds, as applied to a case in which county received funds for the operation of a jail, and sheriff and deputy sheriff at the jail accepted bribes in violation of the statute). Since MHSAA's actions, if discriminatory, pose a threat to the integrity and proper operation of the federally assisted programs at member schools, Congress had constitutional authority to subject MHSAA to liability for such discrimination.

9. MHSAA argues that in setting playing seasons and sanctioning sports, it merely follows the preferences of its member schools. See Ind. Defs. Br. at 10, 13-14. Plaintiffs dispute whether that is truly the case. Plaintiffs' Opposition to MHSAA's Supplementary Motion for Summary Judgment and to the Individual Defendants' Renewed Motion for Summary Judgment ("Plaintiffs' Opp.") at 12 n.8. In any event, discriminatory conduct by MHSAA cannot be made non-discriminatory simply because it is taken with member schools' approval. Compare Dodson v. Arkansas Activities Ass'n, 468 F. Supp. 394, 398 (E.D. Ark. 1979)(finding equal protection violation against state athletic association although majority of member schools had voted to keep half-court basketball for girls); see also Force v. Pierce City R-VI Sch. Dist., 570 F. Supp. 1020, 1025 (W.D. Mo. 1983)("[a] school can hardly validate an otherwise unconstitutional

act . . . by noting that it has agreed with other schools to commit that act").

10. MHSAA must pre-approve any competition sponsored by a non-member school in which member schools participate, and limits participation in its state championship tournaments to member schools. Handbook, Regulation II, §§ 5(A), 15.

11. A member school, of course, remains liable for any discriminatory decision of MHSAA's that it implements. See 34 C.F.R. § 106.6(c)(recipient's duty to comply with Title IX is not "obviated or alleviated by any rule or regulation of * * * any athletic or other league"). For the reasons discussed above, however, if MHSAA is the source of the discrimination and uses its power over member schools to implement that discrimination, a remedy against MHSAA is more appropriate and efficacious than a remedy against member schools.

12. Defendants argue that under Brentwood's holding, MHSAA is not a state actor subject to the Equal Protection Clause and to Section 1983. In their opposition brief, plaintiffs explain that Brentwood is not controlling here; that, unlike the Tennessee association, MHSAA's symbiotic relationship with the state school system makes it a state actor; and that Michigan courts have found MHSAA to be a state actor. See Plaintiffs' Opp. at 22-29.

13. If the individual defendants were to leave office before this case ended, "their successors [would] automatically assume their roles in the litigation." Hafer v. Melo, 502 U.S. 21, 25 (1991); see also Graham, 473 U.S. at 166 n.11; Brandon, 469 U.S. at 470-71 & n.18.

14. Indeed, this Court relied on Smith in permitting plaintiffs to proceed with their official capacity claims. 26 F. Supp.2d at 1009.

15. The Executive Committee comprises the elected officers of the Representative Council plus two members appointed by the Council's president. Handbook, MHSAA Const., art. VII, § VII, § 3.

General Information Educational Opportunities Section
 
Leadership
Anurima Bhargava
Chief
Contact
How to file a complaint.
Educational
Opportunities Section
(202) 514-4092
1-877-292-3804 (toll-free)
(202) 514-8337 (Fax)
Email: education@usdoj.gov
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