Communities for Equity v. Michigan High School

• Citation: 178 F.Supp.2d 805
• Decision Date: 17 December 2001
• Docket Number: No. 1:98CV479.,1:98CV479.
• Parties: COMMUNITIES FOR EQUITY, et al., Plaintiffs, v. MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION, Defendant.
• Court: United States District Courts. 6th Circuit. United States District Court (Western District Michigan)

178 F.Supp.2d 805

COMMUNITIES FOR EQUITY, et al., Plaintiffs, v. MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION, Defendant.

No. 1:98CV479.

United States District Court, W.D. Michigan, Southern Division.

December 17, 2001.

As Corrected December 21, 2001.

H. Rhett Pinsky, Smith, Fayette & Hulswit, Grand Rapids, MI, Robin K. Bohnenstengel, Piper, Marbury, Rudnick & Wolfe, LLP, Baltimore, MD, Marcia D. Greenberger, Washington, DC, Kristen Galles, Alexandria VA, Neena Chaudhry, Barbara A. Burr, Philip L. Cohan, Piper, Marbury, Rudnick & Wolfe, LLP, Washington, DC, for Plaintiffs.

Carole D. Bos, Bos & Glazier, William M. Azkoul, Azkoul & Azkoul, Grand Rapids, MI, Edmund J. Sikorski, Ann Arbor, MI, for Defendant.

Charles R. Gross, U.S. Attorney's Office, Grand Rapids, MI, Sarah A. Dunne, U.S. Department of Justice, Washington, DC, for Amicus.

OPINION

ENSLEN, District Judge.

"Change is the only constant. Hanging on is the only sin." -Denise McCluggage, U.S. race car driver, as quoted in WomenSports magazine, June 1977, at 18.

After a three and one-half year legal struggle, this case is finally ready for resolution. It began on June 26, 1998, when Plaintiffs, an organization named Communities for Equity and two mothers of female student-athletes suing on behalf of their minor daughters, filed a class action lawsuit alleging that the Michigan High School Athletic Association (MHSAA), MHSAA's executive director, and members of the MHSAA Representative Council¹ discriminated against female athletes.

Plaintiffs alleged that the discrimination against high school female athletes took a variety of forms, specifically naming seven areas of discrimination against female athletes. Once this case wound its way to bench trial before the Court, only one area of alleged discrimination remained for the Court's decision. The sole remaining area of alleged discrimination is the allegation that Defendant MHSAA schedules athletic seasons and tournaments for six girls' sports during less advantageous times of the academic year than boys' athletic seasons and tournaments, and that this scheduling of girls' athletic seasons constitutes legally inequitable treatment.

The scheduling of the girls' sports at issue involves volleyball in the winter, basketball in the fall, soccer in the spring, Lower Peninsula golf in the spring, Lower Peninsula swimming and diving in the fall, and tennis in the fall.² Specifically, Plaintiffs claim that all of these girls' sports, with the exception of girls' golf, are played in a non-traditional season, i.e., a season of the year different from when the sport is typically played, and that the non-traditional season is a disadvantageous time of the year to play the sport, causing inequities for girls. Lower Peninsula girls' golf is played in golf's traditional season of spring, but Plaintiffs claim that in the case of golf in Michigan, the non-traditional season of fall is far superior to the spring season, and fall is when Lower Peninsula Michigan boys play golf.

Plaintiffs' federal claims arise under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, pursuant to 42 U.S.C. § 1983; and Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq., (Title IX). Plaintiffs' state law claim arises under Michigan's Elliott-Larsen Civil Rights Act, Mich. Comp. Laws §§ 37.2101 et. seq, specifically those sections barring discrimination in schools and in public accommodations and services. The Court has jurisdiction over Plaintiffs' state law claim through its supplemental jurisdiction.

Plaintiffs seek declaratory and injunctive relief and attorneys' fees. In terms of injunctive relief, Plaintiffs ask that the District Court require that male and female teams of the same sport be scheduled to play in the same season and that girls' volleyball be scheduled to play in the fall. In the alternative, if the Court finds adequate justification for scheduling female and male seasons differently, Plaintiffs ask this Court to require Defendant MHSAA to schedule the same number of male and female sports in non-traditional seasons, "so as to allocate the benefits and burdens of playing in different seasons equally between females and males."

Defendant MHSAA argues that its placement of the girls' sports seasons at issue is advantageous for female athletes and thus not discriminatory. The MHSAA also asserts that legitimate reasons exist for scheduling some male and female teams of the same sports in different seasons, reasons which mostly encompass asserted logistical difficulties in putting more students in one season.

The United States was granted amicus curiae status to brief the Court and participate in the trial on the issues of federal law presented. (9/7/00 Order, Dkt. No. 255.) The United States argues in favor of Plaintiffs' position in this matter.

A bench trial over eight days was held to allow the Court to hear from witnesses and to receive documentary exhibits in order to determine what the facts are and what legal conclusions are to be drawn from those facts. During this time, the Court heard from twenty-five witnesses and received 103 exhibits.

Federal Rule of Civil Procedure 52 requires that in cases tried without a jury, the Court shall make findings of fact separately from its conclusions of law. Fed. R.Civ.P. 52(a). Findings of fact shall not be set aside unless clearly erroneous. Id.

Much has been said in this case about what a "traditional" season is and what a "non-traditional" season is. For most sports, it is common knowledge when tradition dictates that a sport will be played. Ask almost any woman or man on the street when organized football, on any level, is played, and that person is sure to know that football is a fall sport.

In this case, the Court cares about traditional sports seasons only to the extent that a traditional season, or the season when the sport is usually played at most levels, happens to be the most advantageous playing season for the high school sports at issue in this case. So if girls play sports in non-traditional seasons when boys play in traditional seasons, that does not necessarily break the law, if girls and boys are equally advantaged by the season in which they play a sport.

But a tradition does not become a tradition simply because of random coincidence. A particular playing season often becomes the traditional season for a particular sport in the first place because certain advantages accrue to playing a sport in a certain season. For example, there is a reason why outdoor organized sports like soccer, tennis and football are not played in the winter in Michigan. Similarly, there are other reasons, perhaps less obvious to the casual observer than Michigan weather, why certain sports are not generally played in certain seasons.

The question for this Court is not whether the process through which the MHSAA came to the decisions that it has to schedule girls' sports where it does was fair. The question for this Court is also not whether this Court believes that the scheduling decisions of the MHSAA were wise. The question for this Court is whether the scheduling decisions made by the MHSAA are legally permissible, and the Court has come to the conclusion that they are not. The MHSAA's seasons decisions are not permitted under the Fourteenth Amendment to the United States Constitution, Title IX, or Michigan's Elliott-Larsen Civil Rights Act.

The Court finds in favor of Plaintiffs and will order appropriate remedies as described herein.

FINDINGS OF FACT

I. THE PARTIES

A. Plaintiffs, Diane Madsen, Jay Roberts-Eveland, and Communities for Equity

Plaintiff Diane Madsen is a teacher for Kentwood Public Schools in the Grand Rapids area. (Trial Transcript³ (Tr.) at 14:12-19, Diane Madsen Testimony.) Ms. Madsen filed suit on behalf of her three daughters, Katie, Kristi and Kelsey Madsen, who were all minors at the time the suit was filed. (Id. at 14:24-15:6; Stipulated (Stip.) Fact No. 28.) The Madsen daughters have participated in or are currently participating in high school sports at Grand Rapids Northview High School, a MHSAA member school. (Stip. Fact No. 15.) Katie, currently attending Aquinas College in Grand Rapids, played basketball and volleyball; Kristi, currently attending Cornerstone University, also in Grand Rapids, played softball, basketball, volleyball, tennis and was a member of the swim and dive team; and Kelsey, currently a junior at Northview High School, plays basketball and volleyball. (Tr. at 15:7-16:2, D. Madsen; Tr. at 90:15-22, Kristi Madsen.)

Ms. Madsen is also president of Plaintiff Communities for Equity (CFE). (Tr. at 23:22-24:12, D. Madsen.) Ms. Madsen testified that she viewed a number of areas in her children's school's girls' sports programs as highly inequitable, compared to boys' sports programs, and she subsequently became interested in changing the situation. (See, e.g., id. at 16:7-19:7.) Ms. Madsen and other parents with similar concerns at other schools began to meet to discuss the issue, and CFE was formed. (Id. at 23:6-21.)

CFE was founded by parents and student-athletes in 1997 "to educate people about the compliance of Title IX, about gender equity in general in athletics, and to advocate for the compliance of Title IX." (Tr. at 23:3-28:25, D. Madsen.) CFE works toward this goal by distributing a "parental tool kit" for parents and students to learn about Title IX, and by speaking to groups throughout Michigan. (Id. at 25:14-20, 26:14-27:2; Trial Exhibit (Tr. Exh.) 51 (CFE Tool Kit: "A Parental Guide to Title IX and Gender Equity in High School Athletics").) In addition, CFE advocates its position with various parties, including the MHSAA, to whom CFE complained about the current scheduling of seasons for girls, including sending CFE's position papers and examples of harms that CFE feels result for girls under the status quo. (See Tr. Exhs. 57-59.)

Plaintiff ...