IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
COMMUNITIES FOR EQUITY, et al.,
MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION, et al.,
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
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.
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 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
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,
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
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
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
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.
For the foregoing reasons, the United States, as amicus
curiae, respectfully urges this Court to deny defendants' motions
for summary judgment.
MICHAEL H. DETTMER
United States Attorney
Chief, Civil Division
CHARLES R. GROSS
Assistant U.S. Attorney
BILL LANN LEE
Acting Assistant Attorney General
Deputy Assistant Attorney General
MICHAEL S. MAURER
JAVIER M. GUZMAN
U.S. Department of Justice
Civil Rights Division
Post Office Box 65958
Washington, DC 20035-5958
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.
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
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
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, §