Communities for Equity v. Michigan High School Athletic Ass'n, 377 F.3d 504

377 F.3d 504 | 6th Cir. | 2004

Before: KENNEDY and GILMAN, Circuit Judges;

SHADUR, District Judge. ^[*] FOR THE SIXTH CIRCUIT _________________ _________________ COUNSEL C OMMUNITIES FOR E QUITY , (cid:88) (cid:45) on behalf of itself, its ARGUED: Edmund J. Sikorski, Jr., Ann Arbor, Michigan, (cid:45) members and all those for Appellant. Kristen Galles, EQUITY LEGAL, Alexandria, (cid:45) No. 02-1127 similarly situated; D IANE Virginia, for Appellees. ON BRIEF: Edmund J. Sikorski, (cid:45) > M ADSEN , on behalf of her Jr., Ann Arbor, Michigan, William M. Azkoul, AZKOUL & (cid:44) AZKOUL, Grand Rapids, Michigan, for Appellant. Kristen minor daughters and all those (cid:45) Galles, EQUITY LEGAL, Alexandria, Virginia, H. Rhett similarly situated; and J AY (cid:45) Pinsky, PINSKY, SMITH, FAYETTE & HULSWIT, Grand R OBERTS -E VELAND , on behalf (cid:45) Rapids, Michigan, Neena K. Chaudhry, Marcia D. (cid:45) of her minor daughter and all Greenberger, NATIONAL WOMEN’S LAW CENTER, (cid:45) those similarly situated, Washington, D.C., for Appellees. Teresa Kwong, Dennis J. (cid:45) Plaintiffs-Appellees, Dimsey, UNITED STATES DEPARTMENT OF JUSTICE, (cid:45) Washington, D.C., for Amicus Curiae. (cid:45) v. (cid:45) _________________ (cid:45) (cid:45)

M ICHIGAN H IGH S CHOOL OPINION (cid:45) _________________ A THLETIC A SSOCIATION , I NC ., (cid:45) on behalf of itself and its (cid:45) RONALD LEE GILMAN, Circuit Judge. Communities for members, (cid:45) Equity—an organization of parents and high school athletes Defendant-Appellant. (cid:45) that advocates on behalf of Title IX compliance and gender (cid:45) equity in athletics— and the individual plaintiffs (collectively, (cid:78) CFE) brought a class action lawsuit against the Michigan High School Athletic Association (MHSAA), arguing that

Appeal from the United States District Court MHSAA’s scheduling of high school sports seasons in for the Western District of Michigan at Marquette. No. 98-00479—Richard A. Enslen, District Judge.

Argued: June 17, 2004 ^[*] The Honorable Milton I. Shadur, United States District Judge for the

Northern District of Illinois, sitting by designation. 1 No. 02-1127 Communities for Equity, et al. v. 3 4 Communities for Equity, et al. v. No. 02-1127 Mich. High Sch. Athletic Ass’n Mich. High Sch. Athletic Ass’n Michigan discriminated against female athletes on the basis In its findings of fact, the district court painstakingly of gender. The district court concluded that MHSAA’s discussed each sport at issue and analyzed why play in the actions violated the Equal Protection Clause of the Fourteenth nontraditional season (or, in the case of golf, in the traditional Amendment to the United States Constitution, Title IX of the season) harmed female athletes. Id . at 817-36. Among the Educational Amendments of 1972, and Michigan’s Elliott- harms found by the district court are the following: Larsen Civil Rights Act. For the reasons set forth below, we [G]irls’ basketball [is played] in the fall. Forty-eight AFFIRM the judgment of the district court with regard to the states schedule girls’ basketball in the winter. . . . plaintiffs’ Equal Protection claim, thus finding no need to Michigan’s female high school basketball players do reach the Title IX and state-law issues.

not get to participate in “March Madness” or the I. BACKGROUND excitement and publicity surrounding this time period when the rest of the country’s high schools and colleges A. Factual background are participating in championship basketball tournaments. . . .

At issue in this case is whether MHSAA’s scheduling of Kristi Madsen said that not being able, as a high school athletic seasons and tournaments for six girls’ basketball player, to participate in the “March Madness” sports—basketball, volleyball, soccer, Lower Peninsula golf, hype made her feel “[a]ngry. I didn’t like it. Again, the Lower Peninsula swimming and diving, and tennis— violates guys get a ton of special perks or attention because it’s the law. With the exception of golf, all of these sports are ‘March Madness’ and because they are playing in March, scheduled during the nontraditional season (meaning a season during ‘March Madness.’” . . . of the year that differs from when the sport is typically Michigan girls have decreased ability to be nationally played). Cmtys. for Equity v. Michigan High Sch. Athletic ranked or obtain All-American honors because they play Ass’n. , 178 F. Supp. 2d 805, 807 (W.D. Mich. 2001). basketball during the non-traditional fall season. . . . Although Lower Peninsula girls’ golf is played in the [I]t is undisputed that if Michigan girls played spring—the traditional season for golf—the fall season, when basketball during the winter season, they would, at the the boys play, is more advantageous. Id. No boys’ sports are very least, be on ‘equal footing’ with Michigan boys and scheduled in nonadvantageous seasons. Id. at 838. with girls in the rest of the country with respect to collegiate recruiting. . . .

Girls have historically played in the less advantageous seasons because of the way that high school athletics In volleyball, the non-traditional season is the developed in Michigan. MHSAA’s executive director, John disadvantageous season for girls. . . . Michigan high Roberts, explained in a 1990 article titled Sports and Their school girls’ volleyball is played in the winter season. Seasons , published in MHSAA’s Bulletin, that “[b]oys’ sports The traditional playing season for women’s volleyball were in [MHSAA member] schools first and girls’ sports, is the fall. Forty-eight states play high school girls’ which came later, were fitted around the pre-existing boys volleyball in the fall. The NCAA schedules women’s program.” Id. at 815. volleyball in the fall. Although the MHSAA does not currently sponsor boys’ volleyball, the MHSAA’s executive staff and volleyball committee have

No. 02-1127 Communities for Equity, et al. v. 5 6 Communities for Equity, et al. v. No. 02-1127 Mich. High Sch. Athletic Ass’n Mich. High Sch. Athletic Ass’n recommended that once the sport is adopted, it be played The NCAA schedules women’s soccer in the fall. . . . in the spring when the NCAA schedules men’s The MHSAA schedules the boys’ soccer state volleyball. championship tournament in the fall, at the same time

College volleyball recruiting focuses on the amateur, that the NCAA schedules men’s soccer. . . . private club programs, like those sponsored by an The MHSAA’s scheduling of girls’ soccer in the organization called the United States Volleyball spring in Michigan disadvantages girls in several ways. Association (USAV), rather than the high school Soccer fields in Michigan are often still frozen or snow- programs . . . covered when the girls’ season starts in the spring, so

The USAV and AAU, another private club program, girls are forced inside for practice and tryouts. Thus, the seasons for high school age players to play in their regular season starts later than scheduled. As a result, amateur programs are from January through June or July. Michigan girls must play three games a week over the MHSAA rules prohibit athletes from participating in course of the season to make up postponed games USAV or AAU club volleyball during their December whereas Michigan boys play two games per week over through March high school season. the course of their season.

Michigan girls who participate in high school The increased number of games per week causes a volleyball are not able to participate in USAV club greater risk of injury for girls that Michigan boys do not volleyball until April, after the MHSAA season has face. . . . ended, while players in other states have been playing Girls’ opportunities for collegiate recruitment are club volleyball since January. The MHSAA prohibits decreased because college scholarships for soccer are students from playing on any team other than a school awarded in November and April. Recruiters will not have team during the MHSAA-defined season in that sport. had an opportunity to see female soccer players in By the end of the MHSAA season, most of the regional Michigan in their senior year of high school before and national USAV tournaments have been filled by non- awarding first-round November scholarships because Michigan teams. When there are openings, Michigan girls start their competitive season in late March. club teams are placed “at the very bottom of the Michigan boys play during the fall season and are able to tournament where they do not get a chance to compete at have four years of high school competition for college the high levels because they haven’t been competing recruiters to consider. . . . . . . .” Michigan club teams have difficulty excelling at these tournaments because they are becoming The court finds that in Michigan, fall is the more accustomed to playing with new teammates and a new advantageous season for playing high school golf. . . . coach while their competitors have already been playing Lower Peninsula girls’ golf [is played] in the spring together for four months. It is therefore more difficult season. . . . for recruiters to evaluate Michigan players at these Lower Peninsula boys’ golf used to be in the spring, tournaments. . . . but the MHSAA moved it to the fall season in the 1970s

so that boys’ golf teams would have better access to golf [T]he Court finds that the spring season is the inferior courses. The MHSAA scheduled Lower Peninsula girls’ season, as compared to fall, for playing soccer in golf in the spring, which was the season it had previously Michigan. . . .

No. 02-1127 Communities for Equity, et al. v. 7 8 Communities for Equity, et al. v. No. 02-1127 Mich. High Sch. Athletic Ass’n Mich. High Sch. Athletic Ass’n determined was less advantageous when it moved boys’ Id. at 817-36. golf.

In addition to sport-specific harms, the district court found In addition, because the NCAA letter of intent signing that the scheduling of seasons harmed Michigan girls in ways date is in early November, Michigan boys have four that could be generalized across all sports. For example, years of golf experience and scores on which to be “[w]hen girls are treated unequally as compared to boys, girls evaluated. Michigan girls only have three years because receive the psychological message that they are ‘second-class’ their season occurs after the letter of intent signing or that their athletic role is of less value than that of boys.” Id. date. . . .

at 837. The Court finds that the winter season for swimming The above-quoted findings are only a fraction of the harms has advantages that outweigh advantages to swimming in that the district court found are experienced by female athletes fall. . . . in Michigan because of MHSAA’s scheduling their seasons [T]he Lower Peninsula girls’ swimming and diving of play at disadvantageous times. A full recounting takes up season [is] in the fall. 30 pages of the district court’s opinion. Id. at 809-39. [The] Lower Peninsula boys’ swimming and diving season [is] in the winter. MHSAA was founded in 1924 “to exercise control over the [T]he winter season is more advantageous than fall for interscholastic athletic activities of all schools of the state swimming. For one reason, Michigan boys are able to go through agreement with the Superintendent of Public straight from the high school swimming season to the Instruction.” Id. at 810 (quotation marks omitted). MHSAA’s club tournaments, whereas Michigan girls have a gap in Articles of Incorporation further illuminate that the purpose competition because their season has ended in of MHSAA is November. Sectional and regional swim meets for U.S. Swimming take place in March. The Phillips 66 national

to create, establish and provide for, supervise and swim championships are in March/April of each year. In conduct interscholastic athletic programs throughout the diving, junior nationals are in March, so girls face a gap state consistent with [the] educational values of the high in competition between the end of their fall school curriculums . . . interscholastic season and open amateur competition. . . . Id. at 811 (quotation marks omitted). Membership in [T]he Court finds that spring is the more advantageous MHSAA is open to all secondary schools in Michigan. To playing season for tennis. . . . join MHSAA, a school district’s board of education must [Michigan] girls’ tennis [is played] in the fall. agree to adopt MHSAA’s rules and regulations “as its own Boys’ high school tennis immediately precedes the and agree[] to primary enforcement of such rules as to its own United States Tennis Association (USTA) summer tennis schools.” Id. (quotation marks omitted). Over 700 Michigan tournament circuit, so boys have the advantage of high schools constitute the membership of MHSAA, more than school practice, competition, and coaching before 80% of which are public. Id. at 810. participating in the circuit and are better prepared for the summer circuit, where college coaches watch play. . . .

No. 02-1127 Communities for Equity, et al. v. 9 10 Communities for Equity, et al. v. No. 02-1127 Mich. High Sch. Athletic Ass’n Mich. High Sch. Athletic Ass’n Ticket sales to the state championship tournaments State championship tournaments are sponsored by MHSAA represent 86% of MHSAA’s budget. Id. at 813. MHSAA in twelve boys’ sports and twelve girls’ sports. Id. Only member schools remit substantial portions of the gate receipts MHSAA-member schools who comply with MHSAA’s rules from their participation in the tournament events to MHSAA. and regulations may participate in these tournaments. Id. Id. Other sources of revenue include tournament concessions, B. Procedural background fees from the registration of game officials, advertising in tournament programs, corporate sponsorship, and royalties

In June of 1998, CFE filed the present lawsuit, alleging that from television and radio broadcasts of MHSAA tournament MHSAA discriminated against female athletes. The district events. Id. court denied two successive motions for summary judgment filed by MHSAA. MHSAA then filed a motion to dismiss, General control over interscholastic athletic policies is which was granted in part, dismissing all of CFE’s vested in the Representative Council. Id. at 812. Nineteen disparate-impact claims. voting members constitute the Council, fourteen of whom are elected by member schools, four of whom are appointed by

From September 24 through October 4, 2001, the district the Council, and one of whom is a representative of the State court conducted a bench trial on the remaining claims. The Superintendent of Education. Id. All members of the Council, court handed down its decision on December 17, 2001, with the exception of the representative of the State holding that MHSAA’s scheduling of female sports seasons Superintendent, must be either members of the faculty or violated the Equal Protection Clause of the Fourteenth board of education of MHSAA-member schools. Id. Amendment, Title IX (20 U.S.C. §§ 1681-1688), and Seventeen of the nineteen members of the Council in 2000- Michigan’s Elliott-Larsen Civil Rights Act (Mich. Comp. 2001 were either employees or representatives of public Laws Ann. §§ 37.2101-37.2804). Cmtys. for Equity , 178 F. schools or public school districts. Id. Supp. 2d at 862. The district court found that high school athletic seasons in As part of its ruling, the district court enjoined MHSAA Michigan are determined by MHSAA. Id. at 814. MHSAA from continuing its current scheduling of interscholastic prescribes when practice and competition may start, when athletics seasons in Michigan. The court retained jurisdiction competition ends, and the maximum number of games that over the case, ordering MHSAA to submit a Compliance Plan may be played. Practice outside of the dates set by MHSAA so that an appropriate remedy could be implemented. Id. is prohibited. Member schools are not permitted to engage in MHSAA’s initial Compliance Plan was rejected by the court, any competition after the end of the MHSAA season or the but a revised plan was filed by MHSAA in October of 2002 end of the state championship tournament in any sport, and subsequently approved. whichever is last. According to MHSAA rules, athletes may not participate in both interscholastic and amateur club sports in the same sport during the same season. Within the MHSAA-determined seasons, member schools set their own practice schedules and game dates. Id. No. 02-1127 Communities for Equity, et al. v. 11 12 Communities for Equity, et al. v. No. 02-1127

Mich. High Sch. Athletic Ass’n Mich. High Sch. Athletic Ass’n II. ANALYSIS actor intentionally discriminated against the plaintiff because of membership in a protected class.”) (quotation marks and A. Standard of review citation omitted). As a threshold issue, therefore, we must determine whether MHSAA is a state actor.

Questions of constitutional interpretation are issues of law, which we review de novo. Ammex, Inc. v. United States , 367 In determining that MHSAA is a state actor, the district F.3d 530, 533 (6th Cir. 2004). The district court’s findings of court relied upon the United States Supreme Court’s decision fact, on the other hand, will not be set aside unless they are in Brentwood Academy v. Tennessee Secondary School determined to be clearly erroneous. Berger v. Medina City Athletic Association , 531 U.S. 288 (2001). Cmtys. for Equity , Sch. Dist. , 348 F.3d 513, 519 (6th Cir. 2003). 178 F. Supp. 2d at 846-848. The Brentwood Academy case

addressed the issue of whether the Tennessee Secondary B. Equal Protection School Athletic Association (TSSAA), which was “incorporated to regulate interscholastic athletic competition

1. State action among public and private secondary schools,” engaged in state action when it enforced one of its rules against a member

The Fourteenth Amendment to the United States school. Id. at 290. Because of “the pervasive entwinement of Constitution provides that “[n]o State shall make or enforce state school officials in the structure of the association,” the any law which shall abridge the privileges or immunities of Court held that TSSAA’s regulatory activity constituted state citizens of the United States; nor shall any State deprive any action. Id. at 291. The Court acknowledged that the analysis person of life, liberty, or property, without due process of law; of whether state action existed was a “necessarily fact-bound nor deny to any person within its jurisdiction the equal inquiry,” id. at 298 (quotation marks omitted), and noted that protection of the laws.” Pursuant to 42 U.S.C. § 1983, state action may be found only where there is “such a close nexus between the State and the challenged action that

[e]very person who, under color of any statute, seemingly private behavior may be fairly treated as that of the ordinance, regulation, custom, or usage, of any State or State itself.” Id. at 295 (quotation marks omitted). Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other

Public schools constituted 84% of TSSAA’s membership, person within the jurisdiction thereof to the deprivation the Court noted, and school faculty and administrators of any rights, privileges, or immunities secured by the provided TSSAA’s leadership. Id. at 298. The Court was also Constitution and laws, shall be liable to the party injured influenced by the fact that TSSAA’s primary revenue source in an action at law, suit in equity, or other proper was gate receipts from tournaments between TSSAA-member proceeding for redress . . . . schools. Id. at 299. In conclusion, the Court stated that, An entity or individual charged under § 1983 with a to the extent of 84% of its membership, the Association Fourteenth Amendment violation must be a “state actor.” is an organization of public schools represented by their LRL Props. v. Portage Metro Hous. Auth. , 55 F.3d 1097, officials acting in their official capacity to provide an 1111 (6th Cir. 1995) (“To state a claim under the Equal integral element of secondary public schooling. There Protection Clause, a § 1983 plaintiff must allege that a state would be no recognizable Association, legal or tangible, No. 02-1127 Communities for Equity, et al. v. 13 14 Communities for Equity, et al. v. No. 02-1127 Mich. High Sch. Athletic Ass’n Mich. High Sch. Athletic Ass’n without the public school officials, who do not merely argument to distinguish itself from TSSAA. We therefore control but overwhelmingly perform all but the purely affirm the determination of the district court that MHSAA is ministerial acts by which the Association exists and a state actor. functions in practical terms.

2. Denial of Equal Protection Id. at 299-300. The Court also found significant that TSSAA The Supreme Court has held that “[p]arties who seek to ministerial employees were treated like state employees by defend gender-based government action must demonstrate an virtue of their eligibility for membership in the state ‘exceedingly persuasive justification’ for that action.” United retirement system. Id. at 300.

States v. Virginia , 518 U.S. 515, 531 (1996) (dealing with the MHSAA’s stated purpose, “[t]o create, establish and admission of women to the Virginia Military Institute, provide for, supervise and conduct interscholastic athletic hereafter referred to as VMI ). In VMI , the Court further programs throughout the state,” is virtually identical to that of explained the State’s burden under the heightened standard its Tennessee counterpart. See id. at 290. Like TSSAA, for gender-based classifications: MHSAA’s membership is composed primarily of public

To summarize the Court’s current directions for cases of schools. And, similar to TSSAA, public school teachers, official classification based on gender: Focusing on the administrators, and officials dominate MHSAA’s leadership. differential treatment or denial of opportunity for which Another common feature is that the bulk of MHSAA’s relief is sought, the reviewing court must determine revenue comes from ticket sales for state championship whether the proffered justification is “exceedingly tournaments. Finally, MHSAA employees who had state persuasive.” The burden of justification is demanding teaching certificates were, until January of 1988, considered and it rests entirely on the State. The State must show at state employees and were therefore eligible to participate in

least that the challenged classification serves important the state’s retirement system. Employees who started governmental objectives and that the discriminatory working for MHSAA before January of 1988 continue to be means employed are substantially related to the members of the state employees’ retirement system. Cmtys. achievement of those objectives. The justification must for Equity , 178 F. Supp. 2d at 813.

be genuine, not hypothesized or invented post hoc in We therefore conclude that MHSAA is so entwined with response to litigation. And it must not rely on overbroad the public schools and the state of Michigan, and that there is generalizations about the different talents, capacities, or “such a close nexus between the State and the challenged preferences of males and females. action,” Brentwood Academy , 531 U.S. at 295 (quotation Id. at 532-33 (quotation marks and citations omitted). marks omitted), that MHSAA should be considered a state actor. Tellingly, MHSAA argued earlier in this litigation,

The district court analyzed the scheduling of the Michigan before the Supreme Court reversed this court’s opinion in athletic seasons under VMI ’s standard, determining that Brentwood Academy , 180 F.3d 758 (6th Cir. 1999), that “the MHSAA had to show that scheduling team sports in different nature and function of the MHSAA is virtually identical to seasons based on gender “serves important governmental that of the TSSAA.” Cmtys. for Equity, 178 F. Supp. 2d at objectives and that this scheduling is substantially related to 847. MHSAA, in sum, has failed to present any compelling No. 02-1127 Communities for Equity, et al. v. 15 16 Communities for Equity, et al. v. No. 02-1127

Mich. High Sch. Athletic Ass’n Mich. High Sch. Athletic Ass’n the achievement of those objectives.” Cmtys. for Equity , 178 opportunities for participation. MHSAA argues that bare F.Supp.2d at 850. In addition, the district court noted that participation statistics “ are the link showing that separate MHSAA’s justifications must be “exceedingly persuasive.” seasons are substantially related to maximum participation.” Id. (quotation marks omitted) . MHSAA asserted that the (Emphasis added.) But a large gross participation number scheduling decisions were designed to maximize girls’ and alone does not demonstrate that discriminatory scheduling of boys’ participation in athletics, arguing that the scheduling boys’ and girls’ athletic seasons is substantially related to the system maximizes opportunities for participation “by creating achievement of important government objectives. optimal use of existing facilities, officials and coaches, MHSAA also contends that it cannot be liable under the thereby permitting more teams in a sport or more spots on a Equal Protection Clause because there is no evidence that team.” Id.

MHSAA acted with discriminatory intent. It points out that Conceding that MHSAA’s logistical concerns were “[t]here is no evidence that MHSAA [] scheduled [] sports important, the district court concluded that MHSAA had seasons because of ‘sexual stereotypes’ or as a result of any failed to demonstrate, pursuant to the standards set forth in discriminatory purpose or intent.” This argument appears to VMI , that discriminatory scheduling was “‘substantially confuse intentional discrimination—i.e., an intent to treat two related’ to the achievement of those asserted objectives.” Id. groups differently—with an intent to harm. As stated above, at 850-51. MHSAA’s reliance upon anecdotal and “weak Equal Protection analysis requires MHSAA to show that its circumstantial” evidence was found insufficient to carry its disparate treatment of boys and girls “serves ‘important burden. The district court also pointed out that even if governmental objectives and that the discriminatory means MHSAA had sufficiently proven the point about athletic- employed’ are ‘substantially related to the achievement of participation opportunities, “that would not justify forcing those objectives.’ ” VMI , 518 U.S. at 533. girls to bear all of the disadvantageous playing seasons alone Disparate treatment based upon facially gender-based to solve the logistical problems.” Id. at 851.

classifications evidences an intent to treat the two groups On appeal, MHSAA reiterates its argument made below differently. VMI imposes no requirement upon CFE to show that the purpose of separate athletic seasons for boys and girls that an evil, discriminatory motive animated MHSAA’s is to maximize opportunities for athletic participation. scheduling of different athletic seasons for boys and girls. MHSAA asserts that statistics showing that Michigan has a The cases that MHSAA cites to the contrary, such as higher number of female participants in high school athletics Hernandez v. New York , 500 U.S. 352 (1991), are inapposite than most states satisfies the requirements of VMI . An because they involve facially neutral classifications, rather “unavoidable consequence of separate teams,” according to than facially gender-based classifications. In Hernandez , for MHSAA, “was accommodation of twice the number of teams, example, the Court analyzed a racially-neutral explanation for games and participants.” a prosecutor’s exercise of peremptory strikes in picking a

jury, noting that “[u]nless a discriminatory intent is inherent The evidence offered by MHSAA, however, does not in the prosecutor’s explanation, the reason offered will be establish that separate seasons for boys and girls—let alone deemed race neutral.” Id. at 360. The facts of the present case scheduling that results in the girls bearing all of the burden of are quite different from those of Hernandez . playing during disadvantageous seasons—maximizes No. 02-1127 Communities for Equity, et al. v. 17 18 Communities for Equity, et al. v. No. 02-1127

Mich. High Sch. Athletic Ass’n Mich. High Sch. Athletic Ass’n In sum, we do not find that MHSAA’s justification for its reverse two girls’ seasons with two boys’ seasons from scheduling practices is “exceedingly persuasive” in meeting among golf, tennis, swimming, and soccer; and in the the heightened standard required by VMI for the gender-based Upper Peninsula, keep combined seasons in golf and classifications. See VMI , 518 U.S. at 532-33. We therefore swimming and reverse seasons in either tennis or soccer; affirm the district court’s grant of relief to CFE on the Equal or otherwise treat the Upper Peninsula the same as the Protection claim. Lower Peninsula; or (3) reverse girls’ basketball and

volleyball; and in both peninsulas, combine seasons in C. Compliance Plan two sports, and reverse seasons in one of the two remaining sports at issue. Upon finding that MHSAA’s scheduling of high school athletic seasons violated the Equal Protection Clause of the MHSAA selected the second option in the amended Fourteenth Amendment, Title IX, and Michigan’s Elliott- Compliance Plan that it filed with the district court in October Larsen Civil Rights Act, the district court ordered MHSAA to

of 2002. The amended plan was approved by the court the “bring its scheduling of the seasons of high school sports into following month. compliance with the law by the 2003-2004 school year.” Cmtys. for Equity , 178 F. Supp. 2d at 862. MHSAA was MHSAA contends that the district court erred in rejecting required to submit a Compliance Plan to the court by June 24, MHSAA’s initial Compliance Plan. Before we can address 2002. Id . the merits of this argument, however, we must determine

whether appellate jurisdiction exists to hear the issue. After MHSAA filed its proposed Compliance Plan, CFE and the Department of Justice filed responses, arguing that CFE argues that MHSAA failed to appeal the Compliance MHSAA’s plan failed to remedy the inequities that existed in Plan order, pointing out that MHSAA’s January 2002 Notice the scheduling of Michigan’s high school athletics seasons. of Appeal references only the opinion, judgment, and The Department of Justice noted that “the proposed injunctive order entered in December of 2001. MHSAA did Compliance Plan would perpetuate sex discrimination by not file an amended Notice of Appeal following the district requiring more than three times as many girls as boys to play court’s rejection of its initial Compliance Plan in August of in disadvantageous seasons and by addressing only sports, 2002. with the exception of boys’ golf, offered by less than half of The appellate courts lack jurisdiction over issues that are MHSAA’s member schools.”

the subject of post-judgment motions, such as a motion for a In August of 2002, the district court rejected MHSAA’s new trial, when arguments in those motions are not included proposed plan as not achieving equality. The court offered in a Notice of Appeal. In United States v. Warner , 10 F.3d MHSAA three options: 1236 (6th Cir. 1993), for example, this court held that “by

being a distinct appealable order from which a separate appeal (1) combine all sports seasons so both sexes’ teams play must be taken,” a denial of a motion for new trial in the same season . . . and move girls’ volleyball to its advantageous season of fall; or (2) reverse girls’ is subject to the requirement that the appeal be taken basketball and volleyball; and in the Lower Peninsula, within ten days from the docketing of the district court’s

No. 02-1127 Communities for Equity, et al. v. 19 20 Communities for Equity, et al. v. No. 02-1127 Mich. High Sch. Athletic Ass’n Mich. High Sch. Athletic Ass’n order. Absent an appeal within this time, or an extension See Person v. General Motors Corp. , 730 F. Supp. 516, 518- from the district court for filing the notice of appeal, this 19 (W.D.N.Y. 1990) (stating that recusal in a prior case court, being without authority to extend the time for involving a party is not alone sufficient for disqualification in filing a notice of appeal, will lack the jurisdiction to hear a later case involving that same party). the appeal.

III. CONCLUSION

Id. at 1240. For all of the reasons set forth above, we AFFIRM the MHSAA did not file an amended Notice of Appeal judgment of the district court on the basis that MHSAA’s following the district court’s rejection of the initial actions regarding the scheduling of girls’ sports seasons in Compliance Plan. We therefore conclude that this court lacks Michigan violated the Equal Protection Clause of the jurisdiction to consider MHSAA’s argument concerning the Fourteenth Amendment. rejection. D. Judge Enslen’s refusal to recuse himself

The final issue raised by MHSAA relates to the involvement of the district judge in the present case, Judge Enslen, in a case filed by MHSAA over twenty years ago. In 1983, MHSAA filed suit in the Western District of Michigan 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. Judge Enslen 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 record before us does not explain why Judge Enslen recused himself from the 1983 case, but, in denying MHSAA’s motion for disqualification, Judge Enslen stated that he could think of no reason why he would be unable to remain impartial. Judge Enslen also noted that “only one of the 21 Defendants in the current case was a party to the 1983 case, and none of the class Plaintiffs in the current case was involved in the 1983 case.” Because MHSAA failed to provide any valid basis for Judge Enslen’s recusal, we affirm the ruling of the district court in denying MHSAA’s motion.