Communities for Equity v. Michigan High Sch. Athl.

• Citation: 80 F.Supp.2d 729
• Decision Date: 21 January 2000
• Docket Number: No. 1:98-CV-479.,1:98-CV-479.
• Parties: COMMUNITIES FOR EQUITY, et al., Plaintiffs, v. MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

80 F.Supp.2d 729

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

No. 1:98-CV-479.

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

January 21, 2000.

H. Rhett Pinsky, Pinsky, Smith, Fayette & Hulswit, Grand Rapids, MI, Marcia D. Greenberger, Washington, DC, Kristen Galles, Equity Legal, Alexandria, VA, Neena Chaudhry, Barbara A. Burr, Washington, DC, for Communities for Equity, Diane Madsen, Jay Roberts-Eveland.

Edmund J. Sikorski, Ann Arbor, MI, for Michigan High School Athletic Association.

William M. Azkoul, Azkoul & Azkoul, Grand Rapids, MI, for John Roberts Keith Alto, Geraldine David, Keith Eldred, Paul Ellinger, Eric Federico, Dan Flynn, Margra Grillo, Robert Grimes, Norm Johnson, Dewayne Jones, Dennis Kniola, William Newkirk, Thomas Rashid, Robert Riemersma, Randy Salisbury, Joyce Seals, Michael Shibler, Unknown Does 1-50, Christi Brilinski, Eunice Moore.

Charles R. Gross, U.S. Attorney's Office, Grand Rapids, MI, for U.S.

OPINION

ENSLEN, Chief Judge.

Introduction

On June 26, 1998, Plaintiffs, consisting of the parents of two female student-athletes and an organization named Communities for Equity ("CFE"), filed a class action lawsuit alleging that the Michigan High School Athletic Association ("MHSAA") discriminated against female athletes. Plaintiffs allege that the discrimination took a variety of forms including: (1) providing more participation opportunities to boys than girls; (2) requiring girls to play in "non-traditional" seasons; (3) operating shorter seasons for girls than boys; (4) scheduling female athletes to compete on less desirable dates than their male counterparts; (5) providing inferior athletic facilities for girls athletic tournaments in comparison to boys athletic tournaments; (6) requiring girls to play in some sports under rules that differ from the rules of the National Collegiate Athletic Association ("NCAA"); and (7) allocating more resources to support and promote boys athletic programs.¹

At this point in the litigation, Plaintiffs assert claims against the MHSAA and the individual members of the MHSAA Representative Council in their official capacity. Claims One and Two arise under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq., ("Title IX"). Claim Three arises under the Equal Protection Clause of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983. Claims Four and Five arise under Michigan's Elliott-Larsen Civil Rights Act, Mich. Comp. Laws §§ 37.3101 et. seq. Plaintiffs seek declaratory, injunctive and monetary relief.

There are three motions currently before the Court. The first motion is Defendants' Renewed Motion for Summary Judgment for Lack of Standing. The second is the Individual Defendants' Renewed Motion for Summary Judgment. The third is Defendant MHSAA's Supplemental Motion for Summary Judgment Pursuant to FRCP 56(c) as to the First and Second Claim of Plaintiffs and Motion Pursuant to FRCP 12(b)(6) as to Plaintiffs' Third Claim of Relief.

These motions raise four distinct issues. First, are Defendants properly subject to Title IX's requirements if they do not receive federal financial assistance? Second, are Defendants "state actors?" Third, do Plaintiffs have standing to sue? Fourth, even if Defendant MHSAA is subject to Title IX, may the Individual Defendants be sued in their official capacities?

Discussion

Summary judgment requires that the Court determine whether the Plaintiffs have presented enough evidence so that a jury could reasonably find for them. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c); LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir.1993). Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of the judge. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. In addition, when considering a summary judgment motion, the evidence of the nonmovant is to be believed and all justifiable inferences are to be drawn in his favor. Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-159, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

I. TITLE IX

Section 901(a) of Title IX of the Education Amendments of 1972 provides that "no person in the United States shall on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). A "program or activity" includes "all the operations of ... a college, university, or other post-secondary institution, or a public system of higher education .. any part of which is extended Federal financial assistance." 20 U.S.C. § 1687(2)(A).

In most Title IX cases, the plaintiff attempts to demonstrate that the defendant is either a direct or indirect recipient of federal funds. See generally NCAA v. Smith, 525 U.S. 459, 119 S.Ct. 924, 142 L.Ed.2d 929 (1999); U.S. Dept. of Transp. v. Paralyzed Veterans, 477 U.S. 597, 106 S.Ct. 2705, 91 L.Ed.2d 494 (1986); Grove City College v. Bell, 465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984). In this case, however, there is no evidence that the MHSAA is either a direct or indirect recipient of federal funds. First, the MHSAA does not receive any direct assistance from the federal government. Second, the MHSAA receives the bulk of its funding from gate receipts generated at MHSAA-sponsored tournaments. Based upon this evidence, the MHSAA is neither a direct nor indirect recipient of federal funds. See generally Smith, 119 S.Ct. at 929-930 (holding that NCAA was not an indirect recipient of federal funds even though it received dues from schools that received federal funds); Horner v. Kentucky High School Athletic Ass'n, 43 F.3d 265 (6th Cir.1994) (holding that Kentucky High School Athletic Association was an indirect recipient of federal funds because it was created by state law, its functions were determined by the Kentucky Board of Education, and it received dues from member schools who received federal funds); Yellow Springs, etc. v. Ohio High Sch. Ath. Ass'n, 647 F.2d 651 (6th Cir. 1981) (holding that Ohio High School Athletic Association was not a recipient of federal funds because it did not receive direct federal assistance, and it did not receive money from local schools who were recipients of federal assistance).

Although this might ordinarily end the Court's inquiry and justify a decision to grant Defendants' Motion for Summary Judgment, both Plaintiffs and the United States as amicus curiae argue that even though the MHSAA is not a federal aid recipient, it is nonetheless subject to Title IX. The premise of this argument is that because local Michigan school districts have "ceded control" over interscholastic athletics to the MHSAA, and because interscholastic athletic programs receive federal financial assistance, MHSAA has control over a federally funded activity and should be subject to Title IX. This precise issue was left unresolved by the recent Supreme Court decision in Smith which explicitly declined to consider whether, "when a recipient cedes controlling authority over a federally funded program to another entity, the controlling entity is covered by Title IX regardless [of] whether it is itself a recipient." Id. at 930.

Given that the Supreme Court has left this issue unresolved, the Court believes that it must analyze two questions to resolve Defendants' motions relating to Title IX. First, as a matter of law, is the exercise of controlling authority over a federally funded program sufficient to trigger Title IX? Second, is there a genuine issue of material fact as to whether local Michigan school districts have ceded controlling authority over interscholastic athletics to the MHSAA, such that the MHSAA effectively controls those athletic programs? Each of these issues will be addressed in turn.

A. Legal Question

Turning first to the legal question, few courts have considered whether exercising "controlling authority" over a federally funded activity is sufficient to subject an entity to Title IX. See generally Cureton v. NCAA, 37 F.Supp.2d 687 (E.D.Pa.1999) (holding, in part, that the NCAA was subject to Title VI because it exercised controlling authority over athletic programs receiving federal financial assistance) rev'd Cureton v. NCAA, 198 F.3d 107 (3rd Cir. 1999) (holding that the NCAA did not exercise "controlling authority" over school athletic programs). See also Kemether v. Penn. Interscholastic Athletic Assoc., 1999 WL 1012948 (E.D.Pa. Nov.8, 1999) (holding that Title IX subjects state athletic association to suit under the theory that association controls athletic programs receiving federal aid). For the reasons stated below, the Court does not find the reasoning in these non-controlling cases to be persuasive.

This Court's analysis begins with Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). In Cannon, the Supreme Court was asked to determine whether Title IX implied a private right of action. In deciding this question, the Supreme Court engaged in an analysis of the history, subject matter, and purpose of Title IX. That analysis led the Supreme Court to two related conclusions. First, the Supreme Court concluded that the wording and purpose of Title IX indicated that it was enacted for the benefit of a particular class of people — those discriminated against on the basis of sex. Id. at 689-91, 99 S.Ct. 1946. In reaching this conclusion, the Supreme Court explicitly rejected the proposition that Title IX was enacted "as...