Lead Opinion
GILMAN, J., delivered the opinion of the court, in which COLE, J., joined.
KENNEDY, J. (pp. 699-704), delivered a separate opinion concurring in part and dissenting in part.
OPINION
Communities for Equity (CFE), a group comprised of parents and high school athletes that advocates on behalf of Title IX compliance and gender equity in athletics, brought a class action lawsuit against the Michigan High School Athletic Association (MHSAA), arguing that MHSAA’s scheduling of sports seasons discriminates against female athletes on the basis of gender. The district court concluded that MHSAA’s actions violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, Title IX of the Civil Rights Act of 1964, and Michigan’s Ellioth-Larsen Civil Rights Act. In 2004, this court affirmed the judgment of the district court on the ground that MHSAA’s actions violate the Equal Protection Clause. Cmtys. for Equity v. Mich. High School Athletic Ass’n (CFE I),
Following a petition for certiorari filed by MHSAA, the United States Supreme Court vacated the CFE I decision and remanded the case for further consideration. The order, commonly referred to as a grant/vacate/remand order (GVR), directed this court to reconsider the case in light of Rancho Palos Verdes v. Abrams,
I. BACKGROUND
The background of this case is thoroughly discussed in the findings of fact of the district court, Communities for Equity v. Michigan High School Athletic Association,
On remand, MHSAA argues that, based on the Supreme Court’s decision in Ranc-hos Palos Verdes, Title IX provides the exclusive remedy for the alleged violations that bars CFE from seeking additional
II. ANALYSIS
A. Standard of review
Constitutional and statutory interpretation questions are issues of law, which we review de novo. Ammex, Inc. v. United States,
B. The Effect of Rancho Palos Verdes 1. Implications of the GVR
MHSAA relies on the following description of the GVR procedure to argue that the result in CFE I must be altered:
Where intervening developments, or recent developments that we have reason to believe the court below did not fully consider, reveal a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration, and where it appears that such a redetermination may determine the ultimate outcome of the litigation, a GVR order is ... potentially appropriate.
Lawrence v. Chafer,
In Stutson v. United States,
Other courts have also opined that a GVR does not necessarily indicate that the Supreme Court desires a different result. In Gonzalez v. Justices of the Municipal Court of Boston,
It is important to remember, however, that a GVR order is neither an outright reversal nor an invitation to reverse; it is merely a device that allows a lower court that had rendered its decision without the benefit of an intervening clarification to have an opportunity to reconsider that decision and, if warranted, to revise or correct it.... Consequently, we do not treat the Court’s GVR order as a thinly-veiled direction to alter our course; rather, the order recognizes — as do we — that the Smith decision is pertinent and requires us to determine whether anything that the*681 Smith Court said demands a different result.
Id. at 7-8; see also United States v. Norman,
2. Summary of the Sea Clam-mers/Rancho Palos Verdes doctrine
In order to analyze the issue highlighted by the GVR, a brief summary of § 1983 and the line of cases on which Rancho Palos Verdes relied is essential. The key language of 42 U.S.C. § 1983 provides in relevant part as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be hable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....
For plaintiffs, then, § 1983 serves as a vehicle to obtain damages for violations of both the Constitution and of federal statutes.
Middlesex County Seiverage Authority v. National Sea Clammers,
The substantive statutes at issue in Sea Clammers — the FWPCA and the MPRSA — authorize the Administrator of the Environmental Protection Agency (EPA) to seek civil and criminal penalties for violations of the acts, and permitted “any interested person[ ]” to seek judicial review of the Administrator’s actions regarding the issuance of pollutant discharge permits and the establishment of pollution standards. Id. at 13-14,
The Sea Clammers Court focused on Congress’s intent, and held that the plaintiffs could not use § 1983 as a vehicle to enforce federal statutory laws where the acts themselves contained “unusually elaborate enforcement provisions.” Id. at 13,
The Court interpreted the Sea Clammers doctrine a few years later in Smith v. Robinson,
The Court then engaged in a thorough analysis of the EHA’s provisions and legislative history in order to answer this question. Id. at 1009-12,
In light of the comprehensive nature of the procedures and guarantees set out in the EHA and Congress’ express efforts to place on local and state education agencies the primary responsibility for developing a plan to accommodate the needs of each individual handicapped child, we find it difficult to believe that Congress also meant to leave undisturbed the ability of a handicapped child to go directly to court with an equal protection claim to a free appropriate public education---- [W]e think Congress’ intent is clear. Allowing a plaintiff to circumvent the EHA administrative remedies would be inconsistent with Congress’ carefully tailored scheme.
Id. at 1011-12,
Finally, the Court decided Rancho Palos Verdes in 2005 and remanded the present case in light of that decision. In Rancho Palos Verdes, plaintiff Abrams brought suit against the Rancho Palos Verdes municipal government after he was denied a permit to build a radio tower on his property.
Although the TCA expressly provides a private judicial remedy, the Court explicitly rejected the notion that the availability of a private remedy under the substantive statute necessarily forecloses an action under § 1983. Id. at 1459; see also ASW v. Oregon,
Sea Clammers and the other cases on which the Supreme Court relied operate under the assumption that limitations placed by Congress upon statutory remedies are not to be evaded through § 1983. See ASW,
3. Application of the Sea Clam-mers/Rancho Palos Verdes doctrine to Title IX
As a result of the decision in Rancho Palos Verdes and the GVR, MHSAA argues that Title IX precludes CFE’s claims under § 1983. CFE, however, contends that the Sea Clammers line of cases does not control the result here, and urges us to reach the merits of both the Title IX claim and the constitutional claims brought pursuant to § 1983. For the reasons set forth below, we agree with CFE that Title IX does not preclude recovery under § 1983.
Both Sea Clammers and Rancho Palos Verdes dealt with plaintiffs who attempted to enforce federal statutory rights through the “and laws” language of § 1983. The Sea Clammers plaintiffs based their action on several federal statutes, but sought recovery pursuant to § 1983 because of the additional remedies available through that statute that were not available under the substantive waterpollution statutes. Similarly, the plaintiff in Rancho Palos Verdes sought money damages and attorney’s fees pursuant to § 1983 because the TCA failed to authorize that type of recovery. In
This litigation strategy was explicitly disapproved of by the Supreme Court in both cases and forms the bedrock for the Sea Clammers principle. The key inquiry is whether Congress intended the remedies in the substantive statute to be exclusive. See Sea Clammers,
Unlike the plaintiffs in Sea Clammers and Rancho Palos Verdes, CFE invoked § 1983 not as a vehicle to enforce the substantive federal law found in Title IX, but as a vehicle to recover for alleged violations of the Equal Protection Clause of the Fourteenth Amendment. This is a critical distinction. The Court’s analysis both in Sea Clammers and Rancho Palos Verdes hinges on the fact that when Congress created the particular rights through statute, it also created particular remedies for those statutory violations. See Rancho Palos Verdes,
In the present case, however, CFE asserts violations of Title IX and of the Fourteenth Amendment, meaning that CFE’s allegations would be actionable even if Congress had never enacted Title IX. The question of what Congress intended, then, concerns not only which remedies Congress sought to provide for Title IX violations, but whether Congress intended to abandon the rights and remedies set forth in Fourteenth Amendment equal protection jurisprudence when it enacted Title IX in 1972.
Because Sea Clammers and Rancho Pa-los Verdes concerned plaintiffs who attempted to recover only for violations of federal statutory law (as opposed to constitutional law) through the enforcement mechanism of § 1983, those cases are distinguishable from the present case. Although not on all fours, the Smith case provides the closest fit to the situation here because the § 1983 claims in Smith were based on Fourteenth Amendment violations rather than the violations of “other laws.”
Applying Smith to the case before us, the necessary factors to consider in order to determine if Title IX precludes resort to § 1983 are (1) whether CFE’s Title IX claims are “virtually identical” to its constitutional claims, and (2) whether the remedies provided in Title IX indicate that Congress intended to preclude reliance on § 1983. Id. Recovery under § 1983 is precluded by Smith only if both factors are satisfied. See Smith,
A comprehensive discussion of both factors is not necessary so long as one factor is clearly not satisfied, which is the case here. See Lillard v. Shelby County Board of Education,
Our dissenting colleague correctly notes that the Smith inquiry contains two prongs: (1) whether the constitutional claim pursuant to § 1983 is virtually identical to the claim under Title IX, and (2) whether Title IX provides a remedy comprehensive enough to be exclusive. After articulating the inquiry, however, the dissent appears to conflate the two prongs by stating that once a court determines that the constitutional claim pursuant to § 1983 is virtually identical to the statutory claim, we have reason to “assume that Congress intended to preclude use of § 1983 to enforce those claims.” Dissenting Op. at 702. This purported presumption finds no support in the caselaw, and we respectfully disagree that such a presumption exists. We instead believe that the two prongs set forth in Smith are intended to be independently evaluated. Neither the Supreme Court nor any of our sister circuits has suggested that the second prong is a more difficult obstacle for a plaintiff to overcome once the first prong is satisfied.
This court in Lillard has already addressed the second prong of the Smith inquiry — whether Title IX provides a remedy comprehensive enough to be exclusive. Id. Several plaintiffs in Lillard sought relief under both Title IX and under the First and Fourteenth Amendments (as remedied through § 1983). The Lillard court was faced with the issue of “whether Title IX’s statutory remedy precludes the plaintiffs from bringing a substantive due process claim under section 1983,” id. at 718, and it began its analysis by distinguishing Sea Clammers:
[Wjhile in National Sea Clammers, allowing the section 1983 action to enforce the rights at issue would have effectively circumvented the implicit congressional intention to foreclose the private rights of action, here, the plaintiffs’ section 1983 action does not attempt either to circumvent Title IX procedures, or to gain remedies not available under Title IX.... Plainly, National Sea Clammers •does not, on its face, stand for the proposition that a federal statutory scheme*686 can preempt independently existing constitutional rights, which have contours distinct from the statutory claim, thus prohibiting a section 1983 action grounded in substantive due process. Instead, that case speaks only to whether federal statutory rights can be enforced both through the statute itself and through section 1983.
Id. at 723.
After distinguishing Sea Clammers, the Lillard court went on to characterize Smith as standing for the proposition that Congress can create a statutory vehicle as an alternative to enforcing constitutional rights pursuant to § 1983. Id. As highlighted by the second factor of the Smith inquiry, however, Congress’s intent to do so must be clear. Id.
The Lillard court concluded that, in contrast to the statutes at issue in Sea Clammers and Smith, Title IX contains no comprehensive enforcement scheme indicating that Congress intended to preclude recovery under § 1983. Id. Although the Supreme Court found an implied private right of action for Title IX violations in Cannon v. University of Chicago,
One can only conclude, therefore, that National Sea Clammers does not speak to Title IX, since there is no evidence in Title IX that ‘Congress intended to foreclose [a § 1983] action by providing an exclusive remedy within’ Title IX. Thus, even if the defendants’ argument had been directed at an attempt by the plaintiffs to enforce their Title IX rights, rather than their constitutional rights, through section 1983, National Sea Clammers would have provided no support.
Lillard,
Whereas the Supreme Court in Sea Clammers and Smith was able to highlight specific statutory remedies as evidence of Congress’s intent for the substantive statutes to provide the exclusive means of relief, the Lillard court found no similar examples of congressional intent in Title IX. Title IX, after all, contains no express private remedy at all. Id.; see also Rancho Palos Verdes,
4. The precedential value and vitality of Lillard
Our dissenting colleague argues that we are not bound by Lillard because its discussion regarding the extent of the Title IX remedy was dicta. See Dissenting Op. at 702. We respectfully disagree. Rather than focusing on the first Smith factor— whether the constitutional and statutory claims are virtually identical — the Lillard court held that “neither [Smith] factor ap
The dissent’s emphasis on one line of Lillard to the effect that Sea Clammers would not have required preemption “even if the defendants’ argument had been directed at an attempt by the plaintiffs to enforce their Title IX rights,” Dissenting Op. at 701-702, does not persuade us that Lillard’s conclusion as to the extent of the Title IX remedy was dicta. In Lillard, the court articulated two “important distinctions” that rendered the Sea Clammers analysis inapposite: (1) the plaintiffs in Lillard were seeking to enforce constitutional rights rather than statutory rights, and (2) Title IX, unlike the statutes at issue in Sea Clammers, did not provide a comprehensive and exclusive remedy.
We also acknowledge our dissenting colleague’s argument that Lillard should not control our decision in the present case because Lillard dealt with a substantive due process claim pursuant to § 1983 rather than an equal protection claim. See Dissenting Op. at 700-704. Contrary to our dissenting colleague’s view, however, we see no consequence to this distinction. As discussed above, regardless of whether CFE’s equal protection claim is “virtually identical” to its Title IX claim, we still must consider whether Title IX provides the exclusive and comprehensive remedy for MHSAA’s alleged violations. Lillard answered this latter inquiry in the negative, and we remain bound by its holding despite the dissent’s suggestion that “[w]hen ascertaining Congress’ intent, ... we have to do so with the precise rights in mind.” Op. at 701.
Although the Lillard court noted that the plaintiffs were seeking to enforce substantive due process rights that were “wholly independent” and “totally distinct” from the rights granted in Title IX, its discussion of the extent of the remedies contained in Title IX focused on the provisions of Title IX generally, not on whether Title IX’s enforcement scheme was comprehensive with regard to the substantive due process claim. We have found no decision, either by the Supreme Court or our sister circuits, holding that Congress intended Title IX to be the exclusive remedy for one claim but not another, and we fail to understand how this could possibly be the case considering that Congress provided no express remedies at all in the statute.
The dissent also relies on Smith,
Lillard’s analysis, however, was based on the fact that “Title IX contains no comprehensive enforcement scheme.”
Two of our sister circuits, moreover, have relied on Lillard to hold that Title IX is not comprehensive enough to be exclusive even though the plaintiffs in those cases sought relief under § 1983 for equal protection violations rather than substantive due process violations. See Crawford v. Davis,
The bottom-line argument of both our dissenting colleague and MHSAA is that we should not follow Lillard. MHSAA contends that the GVR commands us to reconsider, and thus overturn, that decision. The dissent likewise articulates its disagreement with the reasoning of Lil-lard, arguing that the second prong of the Smith inquiry must include consideration of not only the express remedies in Title IX, but also the remedies implied by the Supreme Court. We will address these arguments in turn.
MHSAA argues that “the clear implication of the Supreme Court’s remand order is that it would like this Court to reconsider Lillard.” The Supreme Court, of course, did not mention Lillard in the GVR. Nor did the Court address Title IX in either the GVR or in Rancho Palos Verdes, the case on which the GVR is based. Although MHSAA argues that Rancho Palos Verdes demands that we revisit Lillard, it fails to support its contention with any reasoned analysis. Instead, MHSAA simply recites the holding of Sea Clammers, acknowledges this court’s holding in Lillard, and concludes that because Rancho Palos Verdes falls within the Sea Clammers line of cases, Lillard must be revisited.
MHSAA’s own characterization of the Sea Clammers holding — “that specific stat
Rancho Palos Verdes did not alter the premise on which Sea Clammers was based and thus did not alter the vitality of Lillard. In Rancho Palos Verdes, as in the Sea Clammers and Smith cases, the primary question was whether Congress intended to foreclose reliance on § 1983. The Court in each of these cases focused on the extent of the rights and remedies provided in the statutory scheme. In those cases, the statutes at issue provided detailed means by which the private parties could seek redress, either through judicial or administrative channels. And in each of those cases, Congress neglected to explicitly authorize the types of remedies available under § 1983. The lodestar, in all cases, is what Congress intended. This court in Lillard addressed that precise inquiry as it related to Title IX and held that Congress did not intend to preclude recovery under § 1983.
We see nothing in Rancho Palos Verdes that requires modification of Lillard or its reasoning, even though, as MHSAA notes, three other circuits have held that Congress intended Title IX to be exclusive. See Bruneau v. South Kortright Cent. Sch. Dist.,
On the other hand, MHSAA fails to recognize the cases from the Eighth and Tenth Circuits that have agreed with this court’s holding in Lillard. See Crawford,
Although the Supreme Court read an implied remedy into Title IX in Cannon,
Our cases have explained that evidence of such congressional intent may be found directly in the statute creating the right, or inferred from the statute’s creation of a “comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.... The provision of an express, private means of redress in the statute itself is ordinarily an indication that Congress did not intend to leave open a more expansive remedy under § 1983.”
Title IX does not satisfy this standard. The fact that the Supreme Court implied a private remedy in Cannon gives strength to the argument that Congress did not intend for the termination of federal funds — the only remedy explicitly authorized by Title IX — to serve as a comprehensive or exclusive remedy. See Michael A. Zwiebelman, Why Title IX Does Not Preclude Section 1983 Claims, 65 U. Chi. L.Rev. 1465, 1481-82 (1998). Rather, the Supreme Court held that an implied private right of action — in addition to the explicit remedy of termination of federal funds — was necessary to achieve the fundamental purpose of Title IX. Cannon,
The Supreme Court’s decision in Franklin,
Justice Stevens’s concurrence in Rancho Palos Verdes supports our determination that the Smith inquiry is distinct from the question of whether the Supreme Court may imply a private judicial remedy:
Sometimes the question is whether, despite its silence, Congress intended us to recognize an implied cause of action, [citing Cannon,441 U.S. 677 ,99 S.Ct. 1946 ]. Sometimes we ask whether, despite its silence, Congress intended us to enforce the pre-existing remedy provided in [42 U.S.C. § 1983]. And still other times, despite Congress’ inclusion of specific clauses designed specifically to preserve pre-existing remedies, we have nevertheless concluded that Congress impliedly foreclosed the § 1983 remedy, [citing Sea Clammers,453 U.S. at 13 ,101 S.Ct. 2615 ].
Rancho Palos Verdes,
In short, we cannot agree with our dissenting colleague that Title IX precludes relief under § 1983 simply because the Supreme Court has implied a private right of action. The Supreme Court has never held that an implied judicial remedy is enough to preclude relief under § 1983, and the caselaw does not support such a conclusion in the present case. The rationale on which Lillard was based, therefore, remains persuasive. Because we conclude that Lillard remains good law and is unaffected by Rancho Palos Verdes, CFE may seek remedies under § 1983 as well as under Title IX.
C. Equal Protection Clause
1. State action
The Fourteenth Amendment to the United States Constitution provides that “[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” An entity or individual charged under § 1983 with a Fourteenth Amendment violation must be a “state actor.” LRL Props, v. Portage Metro Hous. Auth.,
In determining that MHSAA was a state actor, the district court relied upon the United States Supreme Court’s decision in Brentwood Academy v. Tennessee Secondary School Athletic Association,
Public schools constituted 84% of TSSAA’s membership, the Court noted, and public school faculty and administrators provided TSSAA’s leadership. Id. at 298,
to the extent of 84% of its membership, the Association is an organization of public schools represented by their officials acting in their official capacity to provide an integral element of secondary public schooling. There would be no recognizable Association, legal or tangible, without the public school officials, who do not merely control but overwhelmingly perform all but the purely ministerial acts by which the Association exists and functions in practical terms.
Id. at 299-300,
MHSAA, like TSSAA, is comprised primarily of public schools, and MHSAA’s leadership is dominated by public school teachers, administrators, and officials. Students at MHSAA-member schools, like Tennessee students, may satisfy physical education requirements for high school by participating in MHSAA-sanctioned interscholastic sports. Because MHSAA, like TSSAA, is so entwined with the public schools and the state of Michigan, and because there is “such a close nexus between the State and the challenged action,” MHSAA is a state actor. Tellingly, MHSAA argued earlier in this litigation, before the Supreme Court reversed the Sixth Circuit’s opinion in Brentwood Academy, that “the nature and function of the MHSAA is virtually identical to that of the TSSAA.” Cmtys. for Equity,
2. Denial of equal protection
The Supreme Court has held that “[p]arties who seek to defend gender-
To summarize the Court’s current directions for cases of official classification based on gender: Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is “exceedingly persuasive.” The burden of justification is demanding and it rests entirely on the State. The State must show at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives. The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.
Id. at 532-33,
The district court analyzed the scheduling of the Michigan athletic seasons under V.M.I.’s standard, determining that MHSAA had to show that scheduling team sports in different seasons based on gender “serves important governmental objectives and that this scheduling is substantially related to the achievement of those objectives.” Cmtys. for Equity,
Conceding that MHSAA’s logistical concerns were important, the district court concluded that MHSAA had failed to demonstrate, pursuant to the standards set forth in V.M.I., that discriminatory scheduling was “ ‘substantially related’ to the achievement of those asserted objectives.” Id. at 850-51. MHSAA’s reliance upon anecdotal and “weak circumstantial” evidence was found insufficient to carry MSHAA’s burden. The district court also pointed out that even if MHSAA had sufficiently proven their point about athletic participation opportunities, “that would not justify forcing girls to bear all of the disadvantageous playing seasons alone to solve the logistical problems.” Id. at 851.
On appeal, MHSAA reiterates its argument made below that the purpose of separate athletic seasons for boys and girls is to maximize opportunities for athletic participation. MHSAA asserts that statistics showing that Michigan has a higher number of female participants in high school athletics than most states satisfies the requirements of V.M.I. It also argues that the “unavoidable consequence of separate teams was accommodation of twice the number of teams, games and participants.” Although we acknowledge that schools in Michigan may have limited facilities, MHSAA’s claim that the inadequate facilities require the female athletes to always play in the disadvantageous seasons is without merit. MHSAA could, after all, rearrange the schedules and require some of the male sports to play in disadvanta
The evidence offered by MHSAA, moreover, does not establish that separate seasons for boys and girls — let alone scheduling that results in the girls bearing all of the burden of playing during disadvantageous seasons — maximizes opportunities for participation. MHSAA simply states that bare participation statistics “are the link showing that separate seasons are substantially related to maximum participation.” But a large gross-participation number alone does not demonstrate that discriminatory scheduling of boys’ and girls’ athletic seasons is substantially related to the achievement of important government objectives.
MHSAA also argues that it cannot be liable under the Equal Protection Clause because there is no evidence that MHSAA acted with discriminatory intent. It points out that “[tjhere is no evidence that MHSAA [] scheduled [] sports seasons because of ‘sexual stereotypes’ or as a result of any discriminatory purpose or intent.” This argument appears to confuse intentional discrimination — i.e., an intent to treat two groups differently — with an intent to harm. As stated above, equal protection analysis requires MHSAA to show that its disparate treatment of male and female athletes “serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.’ ” V.M.I.,
Disparate treatment based upon facially gender-based classifications evidences an intent to treat the two groups differently. V.M.I. imposes no requirement upon CFE to show that an evil, discriminatory motive animated MHSAA’s scheduling of different athletic seasons for boys and girls. The cases that MHSAA cites to the contrary, such as Hernandez v. New York,
MHSAA asserts, however, that the “only facial classification at work in this case was the original decision to have separate high school sports teams for boys and girls.” Once the legality of separate programs has been conceded, MHSAA argues, issues regarding the implementation of those programs do not classify the players by gender. Conceding that separating boys and girls sports is a facial classification, MHSAA claims that other issues (scheduling, uniforms, coaches, etc.) are not prohibited facial classifications. If we were to find that any such difference between girls and boys sports is a facial classification, MHSAA argues, this would lead to absurd results. Facial classifications engender a presumption of discriminatory purpose, and MHSAA asserts that this is because there is typically a reason to infer antipathy — a reason, it claims, not present here.
MHSAA’s characterization of the issue, however, misses the point. The issue is not whether any difference between male and female high school sports is deserving of being classified as a case of disparate treatment. Rather, the issue is whether
In sum, MHSAA has failed to satisfy its burden of justifying its discriminatory scheduling practices under V.M.I. We therefore uphold the district court’s grant of relief to CFE on the equal protection claim.
D. Title IX
1. Applicability of Title IX
Title IX, enacted as part of the Education Amendments of 1972, proscribes gender discrimination (with certain exceptions not applicable here) in educational programs receiving federal financial assistance. 20 U.S.C. § 1681(a). The statute provides, in pertinent part, that
[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance
Before Title IX was amended by the Civil Rights Restoration Act in 1987, the statute was construed by the Supreme Court in Grove City College v. Bell,
For the purposes of this chapter, the term “program or activity” and “program” mean all of the operations of—
(2)(B) a local educational agency, system of vocational education, or other school system; ... any part of icihich is extended Federal financial assistance.
Horner,
The legislative history concerning this amendment explains that Congress sought “to restore the broad scope of coverage and to clarify the application of title IX of the Education Amendments of 1972 ....” S.Rep. No. 64, 100th Cong., 2d Sess. 4, reprinted in 1988 U.S.C.C.A.N. 3, 6. As stated in Horner, “the definitions of ‘program or activity’ and ‘program’ make clear that discrimination is prohibited throughout entire agencies or institutions if any part receives Federal financial assistance.”
MSHAA’s brief on remand concedes that it is subject to Title IX. (“[MHSAA] represented to the Supreme Court that it would waive its argument that Title IX does not apply if the Court granted review of the preclusion issue. As a consequence, MHSAA does not now contest that it is subject to Title IX for purposes of this
2. Intentional discrimination under Title IX
MHSAA contends that the district court erred in finding that MHSAA violated Title IX because, according to MHSAA, CFE had to offer proof of discriminatory animus on MHSAA’s part. But this argument lacks merit for the same reasons that MHSAA’s analogous argument regarding equal protection, discussed above, lacks merit. The district court noted that a Title IX violation, like an equal protection violation,
does not require proof that the MHSAA intended to hurt girls and chose the scheduling system as a way to do that. The Court’s task is to analyze the resulting athletic opportunities for girls and boys from the different treatment that they experience by being placed in different athletic seasons, and if girls receive unequal opportunities, Title IX has been violated.
Cmtys. for Equity,
E. Michigan’s Elliott-Larsen Civil Rights Act
MHSAA’s next argument addresses Michigan’s Elliott-Larsen Civil Rights Act, M.C.L.A. §§ 37.2101-37.2804, which, among other things, proscribes gender discrimination in the provision of public services and public accommodations. M.C.L.A. § 37.2302(a). Section 37.2302(a) provides in pertinent part as follows:
Except where permitted by law, a person shall not:
(a) Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of ... sex
The district court determined that MHSAA constitutes a “person” under the statute, defined as “[a]n individual, agent, association, corporation, ... unincorporated association, the state or a political subdivision of the state, or any agency of the state, or any other legal or commercial entity.” M.C.L.A. § 37.2103(g). MHSAA does not contest the conclusion of the district court on this point.
“Place of public accommodation” is defined in the statute as
a business, or an educational, refreshment, entertainment, recreation, health, or transportation facility, or institution of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the public.
M.C.L.A. § 37.2301(a).
And “public service” is defined as
a public facility, department, agency, board, or commission, owned, operated, or managed by or on behalf of the state, a political subdivision, or an agency thereof or a tax exempt private agency*697 established to provide service to the public ....
M.C.L.A. § 37.2301(b).
MHSAA argues that the district court erred in finding that MHSAA serves as a “public accommodation” and provides a “public service.” The case most directly on point on these issues is Rogers v. International Association of Lions Clubs,
The district court in Rogers further considered whether the Lions Club provided a “public service.”
We conclude that the district court did not err in finding that MHSAA, like the Lions Club discussed in Rogers, qualifies as “providing a public service” and as a “place of public accomodation.” MHSAA’s unsupported contentions to the contrary are not persuasive. It cites Sandison v. Michigan High School Athletic Association,
F. Compliance plan
After finding that MHSAA’s scheduling of high school athletic seasons violated the Equal Protection Clause of the Fourteenth Amendment, Title IX, and Michigan’s Elliott-Larsen Civil Rights Act, the district court ordered MHSAA to “bring its scheduling of the seasons of high school sports into compliance with the law by the 2003-2004 school year.” Cmtys. for Equity,
After MHSAA filed its proposed compliance plan, CFE and the Department of Justice filed responses, arguing that MHSAA’s plan failed to remedy the inequities that existed in the scheduling of Michigan’s high school athletics seasons.
In August of 2002, the district court rejected MHSAA’s proposed plan as not achieving equality and offered MHSAA three options:
(1) combine all sports seasons so both sexes’ teams play in the same season ... and move girls’ volleyball to its advantageous season of fall; or (2) reverse girls’ basketball and volleyball; and in the Lower Peninsula, reverse two girls’ seasons with two boys’ seasons from among golf, tennis, swimming, and soccer; and in the Upper Peninsula, keep combined seasons in golf and swimming and reverse seasons in either tennis or soccer; or otherwise treat the Upper Peninsula the same as the Lower Peninsula; or (3) reverse girls’ basketball and volleyball; and in both peninsulas, combine seasons in two sports, and reverse seasons in one of the two remaining sports at issue.
MHSAA selected the second option in the amended compliance plan that it filed with the district court in October of 2002.
Although MHSAA argues that the district court erred in rejecting its initial compliance plan, we must determine whether appellate jurisdiction exists to hear the issue before we can address the merits of this argument. CFE contends that MHSAA failed to appeal the compliance-plan order because MHSAA’s January 2002 notice of appeal references only the opinion, judgment, and injunctive order entered in December of 2001. MHSAA did not file an amended notice of appeal following the district court’s rejection of MHSAA’s initial compliance plan in August of 2002.
We lack jurisdiction over issues that are the subject of post-judgment motions when those issues are not included in a notice of appeal. In United States v. Warner,
is subject to the requirement that the appeal be taken within ten days from the docketing of the district court’s order. Absent an appeal within this time, or an extension from the district court for filing the notice of appeal, this court, being without authority to extend the time for filing a notice of appeal, will lack the jurisdiction to hear the appeal.
Id. at 1240. Because MHSAA did not file an amended notice of appeal following the district court’s rejection of the initial compliance plan, we have no jurisdiction to consider MHSAA’s argument concerning the same.
G. Judge Enslen’s refusal to recuse himself
In 1983, MHSAA filed suit against the United States Department of Education and the Office of Civil Rights in the case of Michigan High School Athletic Association v. Bell, No. 83-CV-6250-AA (E.D.Mich.1983), seeking a declaratory judgment and injunctive relief. Judge En-slen, the district court judge in the present case, recused himself from the 1983 case for reasons that no one, including Judge Enslen, can presently recall. MHSAA nevertheless argues that because Judge Enslen recused himself then, he should have recused himself now.
The evidence of record does not explain why Judge Enslen recused himself from the 1983 case. And in denying MHSAA’s
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.
Concurrence Opinion
concurring in part and dissenting in part.
I agree with the majority’s holding that MHSAA’s scheduling of high school athletic seasons violates Title IX and the Elliot— Larsen Civil Rights Act. I write separately because I do not believe we are bound by the holding in Lillard and thus, the question of whether Title IX supplants equal protection claims brought pursuant to § 1983 is one of first impression in this circuit. After applying the test in Smith v. Robinson, and having due regard for the Supreme Court’s direction that this case was to be “remanded.. .for further consideration in light of Rancho Palos Verdes v. Abrams ” (“Rancho ”), I conclude that Title IX supplants plaintiffs’ gender-based equal protection claims brought pursuant to § 1983.
I. The Effect of Lillard
The majority finds that Lillard v. Shelby County,
Lillard was a sexual harassment case. This case is one of sexual discrimination. In Lillard the issue was whether Title IX precluded substantive due process claims brought pursuant to § 1983. In this case, the issue is whether Title IX precludes equal protection claims brought pursuant to § 1983. This is a key difference and one deserving of a separate analysis. As explained by one scholar:
A victim of sexual harassment by a teacher would have several constitutional Section 1983 claims against the teacher and the school district. She might bring claims based on: (1) the Fourteenth Amendment right to due process, alleging a denial of a fair hearing in which to bring her complaint; (2) the liberty interest in bodily integrity under the substantive due process right in the Fourteenth Amendment; and (3) the right under the Equal Protection Clause of the Fourteenth Amendment to be free from discrimination on the basis of sex. Because Title IX confers on plaintiffs a right to be free from discrimination on the basis of sex, the plaintiffs third Constitution-based Section 1983 claim is “virtually identical” to the right conferred by Title IX...
A court confronted with these remaining Constitution-based Section 1983 claims must determine whether either claim is virtually identical to the right under Title IX against discrimination on the ba*700 sis of sex.. .[Njeither procedural nor substantive due process rights are identical to, or even virtually identical to, rights under Title IX, which affords protection against discrimination on the basis of sex. Consequently, if a plaintiff brings procedural and substantive due process claims under Section 1983, those claims would not be precluded by Title IX, for they do not satisfy the first prong of the Smith test.
Zwibelman, Michael, WHY TITLE IX DOES NOT PRECLUDE SECTION 1983 CLAIMS, 65 U. Chi. L.Rev. 1465, 1479 (Fall 1998); see also Burke, Beth, TO PRECLUDE OR NOT TO PRECLUDE, 78 Wash. U. L.Q. 1487, 1512 (noting that some courts fail to apply properly the “virtually identical” prong of the Smith test by “combin[ ing] all the alleged constitutional violations without analyzing each claim separately under the Smith test”). While this is just one scholar’s view regarding which type of constitutional claims should be precluded, it demonstrates the problem: this circuit has previously determined that due process claims are not “virtually identical” to Title IX claims, but we have not yet held that equal protection claims are not “virtually identical” to Title IX claims.
I believe we are required to do such a separate analysis under the Supreme Court’s decision in Smith v. Robinson,
Even though Lillard addressed the preclusion of different right, the majority holds we are bound by it. I see several problems with not addressing the precise issue before us. First, it contradicts the procedure set forth by the Court in Smith. For, if finding what Congress intended with respect to one constitutional claim— say equal protection — is enough to find what Congress intended with respect to all constitutional claims, then why was the Court prepared to do two separate analy-ses?
Secondly, to say that what Congress intended with respect to one type of constitutional claim is what Congress meant with respect to all, is an overly-simplistic justification for the majority’s decision. When ascertaining Congress’ intent, I believe we have to do so with the precise rights in mind. I do not think one can assume that simply because Congress did not intend to preclude substantive due process claims, it did not intend to preclude equal protection claims. It seems clear to me that Congress could intend to preclude one type of constitutional claim, by providing a statutory remedy for it, but not others.
In Lillard this court found the claims at issue were not “virtually identical” to those provided in Title IX. Lillard,
Third, it is important to point out that the court in Lillard did not indicate its holding was to be extended to the preclusion of rights other than substantive due process. The court in Lillard concluded that the rights were not “virtually identical” but then went on to discuss, at length, congressional intent. The court reasoned that because the private right of action found in Title IX was implied, rather than express, Congress did not intend to preclude due process claims when it enacted Title IX. There was no indication that this logic regarding implied rights was meant to extend to other constitutional rights beyond substantive due process. The court limited its finding, stating, “the National Sea Clammers doctrine presents no impediment to the plaintiffs’ pursuit of remedies for alleged violations of substantive due process.” Lillard,
For the foregoing reasons, I believe that we need to engage in a separate analysis as required by the Supreme Court in Smith and that we must address this issue as one of first impression in this circuit.
II. Applying Smith v. Robinson’s Two-Prong Test
In Smith, the Supreme Court established a two-prong test for determining whether § 1983 claims predicated on constitutional rights are precluded by statute: first, courts must address whether the rights underlying the § 1983 claim are “virtually identical” to the rights in the relevant statute; second, courts must address whether Congress intended the statute to be the “exclusive avenue” for asserting those rights.
As a preliminary matter, I want to express my disagreement with the rationale behind one holding in Lillard that Title IX does not supplant due process claims brought pursuant to § 1983. The court reasoned that because the private right of action was implied rather than express, Congress did not intend it to be the exclusive avenue for bringing constitutional claims. I find this reasoning unpersuasive for two reasons. First, I believe it undermines the Supreme Court’s decision in Cannon v. University of Chicago,
In seeking to correct what it considered to be an unacceptable decision on our part in Grove City College v. Bell, Congress made no effort to restrict the right of action recognized in Cannon and ratified in the 1986 Act or to alter the traditional presumption in favor of any appropriate relief for violation of a federal right. We cannot say, therefore, that Congress has limited the remedies available to a complainant in a suit brought under Title IX.
Id. at 73,
In ascertaining Congress’ intent in this case, I believe we should first look to the decision the Supreme Court asked us to consider on remand, Rancho Palos Verdes,
Prior to Rancho, courts applied no inference regarding congressional intent. The Court in Rancho changed that and, where a judicial remedy exists in a statute, made it much easier to infer that Congress intended to preclude reliance on § 1983. While the Court declined to hold that the “availability of a private judicial remedy.. .conclusively establishes a congressional intent to preclude § 1983 relief,” id. at 1459, the Court did state that the availability of such a remedy in the statute would give rise to an, “ordinary inference that the remedy provided in the statute is exclusive,” but such an inference, “can surely be overcome by textual indication, express or implicit, that the remedy is to complement, rather than supplant, § 1983” id. at 1459 (emphasis added). Again, I recognize that factually Rancho is analogous to Sea Clammers in that it involved two statutes. However, worth mentioning, is the fact that the reasoning behind this inference was not limited to Sea Clammers cases. Rather, the Court spoke at length about both Sea Clammers and Smith in articulating this rule:
We have found § 1983 unavailable to remedy violations of federal statutory rights in two cases: Sea Clammers and Smith. Both of those decisions rested upon the existence of more restrictive remedies provided in the violated statute itself...
The Government as amicus, joined by the City, urges us to hold that the availability of a private judicial remedy is not merely indicative of, but conclusively es*704 tablishes, a congressional intent to preclude § 1983 relief. We decline to do so.
Rancho Palos Verdes,
Again, under the test in Smith, we must ask whether Congress intended Title IX to be the “exclusive avenue” through which a plaintiff may assert an equal protection claim. I believe we must address this question with the relevant Supreme Court decisions in mind. In Cannon, the Supreme Court applied the four-factor test of Cort v. Ash,
[I]n all of the cases in which we have held that § 1983 is available for a violation of a federal statute, we have emphasized that the statute at issue, in contrast to those in Sea Clammers and Smith, did not provide a private judicial remedy (or, in most cases, even a private administrative remedy) for the rights violated.
Rancho,
Notes
. The majority answers this question by acknowledging that the Smith Court "did in fact contemplate two separate analyses,” but by reasoning that a separate analysis was warranted in Smith — and not in this case — because there was a "clear textual indication” in the EHA that Congress intended for that statute to preclude equal protection claims brought pursuant to § 1983. Op. at 687. By distinguishing Smith in this way, the majority is treating implied rights as second-class rights as they are undeserving of a separate analysis. The Court has not indicated in either Smith or Sea Clammers that implied rights are to be treated differently than express and I decline to do so here. For, as I explain later, once we include the implied rights to bring individual actions, including
. The defendants in Lillard argued that due process claims brought pursuant to § 1983 should be precluded by Title IX under the Sea Clammers doctrine. The Lillard court pointed out that Sea Clammers did not apply to the preclusion of constitutional claims, only the preclusion of statutory claims, stating:
There are two important distinctions that make the National Sea Clammers doctrine inapposite here. First, and most crucial, is the fact that in National Sea Clammers, the plaintiffs’ section 1983 action sought to enforce the rights created by federal statutes which did not provide for a private right of action, while here, the plaintiffs’ section 1983 claims are premised on alleged constitutional violations. Thus, while in National Sea Clammers, allowing the section 1983 action to enforce the rights at issue would have effectively circumvented the implicit congressional intention to foreclose private rights of action, here, the plaintiffs’ section 1983 action does not attempt either to circumvent Title IX procedures, or to gain remedies not available under Title IX.. .Instead, the plaintiffs seek to enforce wholly independent, and totally distinct, substantive due process rights.
Lillard,