McPherson v. Michigan High School Athletic Ass'n, Inc.

Citation119 F.3d 453
Decision Date23 July 1997
Docket NumberNo. 95-1079,95-1079
Parties120 Ed. Law Rep. 96, 7 A.D. Cases 77, 23 A.D.D. 687 Dion R. McPHERSON, Plaintiff-Appellee, v. MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION, INC., Defendant-Appellant, Board of Education of the Public Schools of the City of Ann Arbor, Defendant.
CourtU.S. Court of Appeals — Sixth Circuit

Lore A. Rogers (argued), Cramer, Minock & Gallagher, Ann Arbor, MI, for Plaintiff-Appellee.

Edmund J. Sikorski, Jr. (argued), Ann Arbor, MI, for Defendant-Appellant.

J. Kingsley Cotton, III, Drolet, Freeman, Preston & Cotton, Bloomfield Hills, MI, for amicus curiae Basketball Coaches Association of Michigan.

Stewart R. Hakola, Marquette, MI, for amicus curiae Michigan Protection and Advocacy Service, Inc.


RYAN, J., delivered the opinion of the Court, in which MARTIN, C.J., KENNEDY, NELSON, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, DAUGHTREY, and COLE, JJ., joined. MERRITT, J. (pp. 464), delivered a separate dissenting opinion, in which MOORE, J., joined, with MOORE, J. (pp. 464-468), also delivering a separate dissenting opinion, in which MERRITT, J., joined.


RYAN, Circuit Judge.

The Michigan High School Athletic Association appeals the district court's entry of a preliminary injunction forbidding the MHSAA from enforcing its eight-semester eligibility rule against the plaintiff, Dion R. McPherson, and further forbidding the MHSAA from invoking any penalty against the school district for which McPherson played basketball. The district court entered the injunction after concluding that enforcement of the rule in this case violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. We conclude that, although McPherson has now graduated from high school, the case is not moot. We also conclude that the district court abused its discretion in entering the preliminary injunction, and therefore reverse.


Dion McPherson attended Huron High School in the Ann Arbor Public School District. Huron, like virtually all private and public secondary schools in Michigan, is a member of the Michigan High School Athletic Association. The principal function of the MHSAA is to promulgate regulations for its member schools that will promote fair athletic competition; the regulations are formulated by consensus of the member schools. As a member of the MHSAA, the Ann Arbor school district has adopted the regulations and has agreed to abide by them.

The MHSAA Handbook makes any student who has completed eight semesters of high school ineligible for interscholastic sports competition:

A student shall not compete in any branch of athletics who has been enrolled in grades nine to twelve, inclusive, for more than eight semesters.

Regulation I, § 4. The Constitution of the MHSAA provides, however, that the so-called eight-semester rule may be waived:

Except for the eligibility rule in regard to age, the Executive Committee shall have the authority to set aside the effect of any regulation governing eligibility of students or the competition between schools when in its opinion the rule fails to accomplish the purpose for which it is intended, or when the rule works an undue hardship upon the student or school.

MHSAA Constitution, Art. VII, § 4(E) (emphasis added).

The Handbook provides for certain penalties for member schools that violate the eight-semester rule and specifically contemplates the situation at issue here, where an ineligible student participates in athletic competition by virtue of a court-ordered injunction:

SECTION 4(B)-Accidental, intentional or other use of ineligible players by a junior high/middle school or senior high school shall require that team victories are forfeited to opponents; and any one or more of these additional actions may be taken: (1) that individual or team records and performances achieved during participation by such ineligibles be vacated or stricken; and (2) that team or individual awards earned by such ineligibles be returned to the MHSAA.

SECTION 4(C)-If a student is ineligible according to MHSAA rules but is permitted to participate in interscholastic competition contrary to such MHSAA rules but in accordance with the terms of a court restraining order or injunction against his/her school and/or the MHSAA, and that injunction is subsequently voluntarily vacated, stayed, reversed or finally determined by the courts that injunctive relief is not or was not justified or expires without further judicial determination those actions in SECTION 4(B) shall be taken.

Regulation V, § 4(B) & (C) (emphasis added).

There are a number of purposes for the eight-semester rule. As a member of the MHSAA's Executive Committee testified below, "[t]he eight-semester rule creates a fair sense of competition" by limiting the level of athletic experience and skill of the players in order to create a more even playing field for the competitors. The member further testified that the absence of such a rule would lead, as it has in other states, to red-shirting of players, in which a player is deliberately held back for a year in order to allow the student to gain greater physical and athletic maturity, leading in turn, presumably, to greater athletic ability. The assistant director of the MHSAA testified that the rule was "essential to preserving the philosophy that students attend school primarily for the classroom education and only secondarily to participate in interscholastic athletics," thus encouraging student-athletes to graduate in four years. He, too, opined that red-shirting abuses would become common in the absence of the eight-semester rule. The Executive Committee member testified that the rule was "essential" to the functioning of the MHSAA, and that it was "basic ... to the administration of the athletics in keeping the playing field level." Acknowledging, however, that waivers had been granted in the past, the member testified that the circumstances were narrow; they had been limited to cases in which the waiver was applied for, prior to the expiration of the eight semesters, and to cases in which students had been physically unable to attend school for a medical reason, or had been limited to taking a small number of courses, which limitations would result in attending high school more than eight semesters.

McPherson was not a high academic achiever during high school. He originally entered the eleventh grade in 1992, but had to repeat that grade during the 1993-94 school year. Thus, the 1993-94 school year represented McPherson's seventh and eighth semesters in high school. It was while repeating the eleventh grade that McPherson participated in varsity basketball for the first time. Before that time, he was ineligible to participate in sports because he failed to meet a grade point average requirement of the Ann Arbor school district-a requirement separate and apart from requirements of the MHSAA. His grades improved, however, while repeating the eleventh grade, making him eligible to play under Ann Arbor standards.

In September 1994, McPherson was diagnosed as having Attention Deficit Hyperactivity Disorder, and later was diagnosed as also having a seizure disorder. Both diagnoses were made at the beginning of his ninth semester in high school and after he had exhausted his athletic eligibility under the eight-semester rule. As a result, McPherson was classified under state law as having a "specific learning disability." McPherson had never been referred for special education testing prior to the 1994-95 school year.

McPherson wanted to participate in basketball during the 1994-95 school year, but the eight-semester rule barred his participation. He filed a request with the MHSAA for a waiver. The MHSAA initially considered the waiver request in November 1994. The Executive Committee noted that it "was provided no information regarding this student's physical stature or his athletic experience or ability in comparison to teammates or opponents." It further noted additional reasons for its reluctance to grant the waiver:

[I]f eligibility were allowed in this case, it would provide this student with opportunities that exceed the maximum opportunities allowed other students. Furthermore, granting eligibility in this case might provide the Ann Arbor Public Schools an unfair competitive advantage for its school over others as a result of the district's own admitted failure to refer this student for special education services in earlier years, and/or by the school district's applying a higher academic standard for eligibility for the student in his earlier semesters and a lower academic standard for eligibility in the later and additional semesters when he would be more mature, experienced and skilled.

The MHSAA therefore instructed the school district to demonstrate a variety of factors prior to further consideration by the MHSAA of the waiver request.

The following month, in anticipation of its further consideration of McPherson's request, the MHSAA met with Jane Bennett, the Athletic Director of Huron High School in Ann Arbor. Bennett attempted to provide "some of th[e] information" that MHSAA had requested, including information that McPherson "was less than average height and lower than average weight compared to not only members of [the Huron] team but a good sample of [Huron] opponents." It was her opinion that McPherson was "not a safety risk to his teammates in practice or to his opponents in games," and that he was not "the best player on the team," but rather was "somewhere in the middle of the pack."

The MHSAA thoroughly considered the information it received from Bennett, and rejected McPherson's request. It first noted that

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