UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

COMMUNITIES FOR EQUITY, et al.,
Plaintiffs,
MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION,
Defendant. 1

Case No. 1:98-CV-479 HON. RICHARD ALAN ENSLEN
OPINION

"Change is the only constant. Hanging on is the only sin." -Denise McCluggage, U.S. race car driver,
as quoted in WomenSportsmagazine, 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 organizationnamed Communitiesfor 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 Council1discriminated against female athletes.

MHSAA's executive director and members of the Representative Council have been referred to throughout the litigation as the "Individual Defendants." Plaintiffs' claims remain against only Defendant MHSAA, and not the Individual Defendants, who were dismissed fiom the lawsuit on a motion made pursuant to Fed. R. Civ. P. 52(c). (10/2/01 Order, Dkt. No. 507.)

Plaintiffs alleged that the discrimination against high school female athletes took a variety of forms, specificallynaming seven areas of discrimination againstfemale athletes. Oncethis case wound its way to bench trial before the Court, onlyone 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 fa1L2 Specifically, Plaintiffk 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 fiom 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 golfs traditional season ofspring, but Plaintiffs claim that in the case of golf in Michigan, the non-traditional season of fall is far superiorto the spring season, and fall is when Lower Peninsula Michigan boys play golf.
Plaintiffs' federal claims arise under the Equal Protection Clause ofthe Fourteenth Amendment
to the United States Constitution, pursuant to 42 U.S.C. 5 1983; and Title IX of the Education Amendments of 1972,20 U.S.C. 5 5 1681 et seq., (Title IX). Plaintiffs' state law claim arises under Michigan's Elliott-Larsen Civil Rights Act, Mich. Comp. Laws $5 37.2101 et. seq, specifically those
In the Upper Peninsula of Michigan, boys' and girls' golf are both played in the spring, and boys' and girls' swimming and diving are both held in the winter, so only the Lower Peninsula scheduling of these two sports is at issue in this lawsuit.
2

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 declaratoryand injunctiverelief and attorneys' fees. In terms of injunctiverelief,

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 adequatejustification 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 Stateswas grantedamicus curiae statusto brief the Court and participate inthe trial

I

on the issues of federal law presented. (917100 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 fiom those facts. During this time, the Court heard fiom 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 fmdings of fact separately fiom 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 "nontraditional" 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 MHSAAYsseasons 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 Transcript (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 ajunior at Northview High School,plays basketball and volleyball. (Tr. at 15:716:2, 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 l6:7-19:7.) Ms. Madsen and other parents
Citations are to the transcript prepared daily by the Court's Official Court Reporter Kathleen S. Thomas for the parties during trial.

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 Jay-Roberts Eveland has filed suit on behalf of her daughters, Kele and Breanna, who were both minors at the time this lawsuit was filed. (Tr. at 372:19-22, Kele Eveland Testimony; Tr. at 633:14-17, Breanna Eveland Testimony; Stip. Fact No. 30.) Ms. Eveland is also vice-president of CFE. (Tr. at 24:9-15, D. Madsen.) The Eveland daughters have participated or currently participate in high school sports at East Kentwood High School, a MHSAA member school. (Stip. Fact No. 15.) Kele, currently attending Georgia Tech University on an athletic scholarship for volleyball, played volleyball and basketball in high school. (Tr. at 374:17-21, K. Eveland.) Breanna, currently a senior at East Kentwood High School, plays basketball and volleyball and runs track. (Tr. at 634:15-23, B. Eveland.)
This lawsuit has been certified as a class action. Madsen, Eveland, and CFE represent a class of all present and future female students enrolled in MHSAA member schools participating in
6 


interscholastic athletics or deterred fiom participating because of Defendant MHSAA's allegedly
discriminatory conduct, and who are adversely affected by that conduct. Communitiesfor Equity v.
Michigan High Sch. Athletic Ass 'n, 192 F.R.D. 568, 570 (W.D. Mich. 1999).
B. Defendant Michigan High School Athletic Association
Defendant Michigan High SchoolAthletic Association (MHSAA) acts as the governing body
for interscholastic sports in the State of Michigan. The MHSAA is an incorporated membership
organization. (Tr. Exh. 28 (MHSAA Articles of Incorporation).) Its Articles of Incorporation describe
the MHSAA's purpose as follows:
To create, establish and provide for, supervise and conduct interscholastic athletic programs throughout the state consistentwith the educational values of the high school curriculums, the interest in physical welfare and fitness of the students participating therein by giving the opportunity to participate in athletics designed to meet the needs and abilities of all and to make and adopt such rules and regulations and interpretation thereof to carry out the foregoing and to further provide for the training and registering of officials and to publish and distribute such information consistent therewith and to do any and all acts and services necessary to carry out the intent hereof.
(Tr. Exh. 28; Stip. Fact 1.)
The MHSAA membership is comprised of over 700 Michigan high schools, over 80 percent
of which are public. (Tr. Exh. 9(a) at 13 (2000-01 MHSAA Handbook); MHSAA's Answers to
Plaintiffs' First Request for Admissions, Response No. 5 (served 7/28/99).) Put another way, all of
Michigan's public high schools with qualifying interscholastic athletic programs, with the exception
of some charter schools, are MHSAA members. (Compare Tr. Exh. 12 (1999-00 MHSAA Member
School Directory) with Tr. Exh.26 (MichiganDepartment of Education's list of public high schools).)
Nearly all of MHSAA' s member schools are recipients of Federal financial assistance. (Compare Tr.
Exh. 12 with Tr. Exh. 25 (Michigan Public School District Directory).)

The MHSAA was founded in 1924 "to exercise control over the interscholastic athletic activities of all schools of the state through agreement with the Superintendent of Public Instruction." (Tr. Exh. 116 at 3 (1978-79 MHSAA Handbook Foreword).) Historically, the interscholastic athletic . programs of all Michigan public schools were supervised and controlled by either the Michigan Superintendent for Public Instruction or by the State Board of Education. See School Code of 1955,
1955 P.A. 269, 5 784; Mich. Comp. Laws 5 388.1014 (2001). The MHSAA was housed within the
Michigan Department of Education, and its Executive Director was known as the "State Director of Athletics." (Tr. Exhs. 115, 117.) The MHSAA's handbook, rules, and regulations were part of the Administrative Code of the State of Michigan. (Tr. Exh. 118.)
In 1972, the Michigan Legislature amended the School Code to move the authority for interscholastic athletics fi-omthe State Board ofEducation to the boards of individual school districts, permitting the districts to join the MHSAA as long as a representative of the State was a member of
the MHSAA's governing body. 1972 P.A. 2, § 379 (repealed 1976); Mich. Comp. Laws 5 380.1289
(1976) (amended 1995). Also, the Michigan Legislature designated the MHSAA as the "official association of the state for the purpose of organizing and conducting athletic events, contests, and tournaments among schoolsand [decreedthat it] shallbe responsible forthe adoption and enforcement of rules relating to eligibility of athletes in schools for participation in interschool athletic events, contests and tournaments." Id.
The MHSAA incorporated itself in 1972 "to create, establish and provide for, supervise and conduct interscholastic athleticprograms throughout the state consistent with educational values of the high school curriculum." (Tr. Exh. 28 at 2 (Articles of Incorporation); Stip. Fact No. 1.) Membership in the MHSAA is open to all secondary schools in Michigan. (Tr. Exh. 9(a) at 15 (2000-01 MHSAA

Handbook, Constitution, art. 11, 5 I).) To join the MHSAA, a school's board of education must agree
to adopt MHSAA rules and regulations "as its own and agree[] to primary enforcement of such rules
as to its own schools." (Id. at 15 (Constitution, art. 11, 5 2).) Membership may be denied or delayed to schools who engage in "practices and behaviors .. .that are in oppositionto [MHSAA' s] regulations
and principles for interscholastic athletics." (Id. at 14 (('How to Join the MHSAA").) In 1995, the Michigan Legislature amended the School Code again, removing the MHSAA' s
official designation, but confirming that school districts were still authorized to "join organizations [such as the MHSAA] as part of performing the functions ofthe school district." Mich. Comp. Laws § 380.1la(4) (2001). The 1995 amendment resulted in no substantive changes in the structure or operation of the MHSAA or in its relationships with its member schools.
The MHSAA regulates interscholastic athletic competition between member schools and sets standards for school membership and eligibility of students to participate in interscholastic athletics. For example, the MHSAA has adopted playing rules and regulations for each MHSAA-sanctioned
sport. (Tr. Exh. 9(a) at 50 (Regulation 11, 5 8).) These regulations "apply in sub-varsity, as well as
varsity, interscholastic scrimmage as well as games, and regular season as well as MHSAA tournaments." (Id. at 26; Tr. Exh. 14at 7 (1999-00 MHSAA Coaches Guidebook, p. 5) ("Schools shall adhere to the playing rules adopted by the MHSAA to govern games and meets in baseball, basketball, competitive cheer, cross country, football, golf, gymnastics, ice hockey, soccer, softball, skiing, swimming and diving, tennis, track and field, volleyball and wrestling.").) Further, the MHSAA must approve any meet or tournament held in Michigan involving three or more teams sponsored by a nonmember school, and if such an event is approved, it must be conductedpursuant to MHSAA rules. (Tr.
Exh. 9(a) at 47-48 (Regulation 11, 5 5(A) and Interpretation No. 157).)

MHSAA rules state that any person coaching an interscholastic team "SHOULD be a member
of the regular teaching staff or the school district." (Tr. Exh. 9(a) at 46 (Regulation 11, 5 3)
(capitalization in original).) Non-faculty member coaches must register with the MHSAA prior to assuming any coaching duties. (Id.;Tr. Exh. 21(f) (MHSAANon-Faculty Coach Registration Form).)
In all MHSAA-sanctioned sports except tennis and golf, the MHSAA requires its member schoolsto use only MHSAA-registeredgame officialsto officiate athletic contests in which teams fi-om
those schools participate. (Tr. Exh. 9(a) at 49 (Regulation 11, 5 7).) To register as an official, a person
must complete an application form indicating which sports he or she will officiate, pass a written examination on MHSAA rules and regulations, and pay a registration fee to the MHSAA. (Tr. Exh. 20(a) (MHSAA memorandum to "Prospective MHSAA Officials"); Tr. Exh. 2003) (MHSAA Officials Registration Application).)
The MHSAA limits participation in interscholastic athletics to "eligible" students. (Tr. Exh.
9(a) at 46 (Regulation 11, 5 I).) To be eligible to play, a student must, among other things, be younger
than age 19, have passed at least four full credit courses during the previous semester, be currently passing four full credit courses, and have passed a physical examination. (See id. at 27-45 (Regulation
I - "Essential Eligibility Requirements for Senior High School Students"); Tr. Exh. 18 (MHSAA
pamphlet summarizing eligibility rules).) Member schools who violate any of the MHSAAYsrules are subject to a wide range of
penalties, including censure, probation, bans fi-om regular season competition and MHSAA
tournaments, forfeiture, and expulsion. (Tr. Exh. 9(a) at 78 (Regulation V, 5 4).) MHSAA has adopted
a "due process procedure" for investigating alleged violations and assessing penalties, which includes adequate notice to the party being investigated, written findings, and the right of appeal. (Id. at 21-23

(Due Process Procedure).) MHSAA actively enforces its rules and regulations. (MHSAAYsAnswers to Plaintiffs' Second Request for Admissions, Response No. 37 (served 7/29/99).)
"[Gleneral control of interscholastic athletic policies" is vested in the Representative Council,
accordingto the h4HSAAYsConstitution. (Tr. Exh. 9(a) at 18(Constitution, art. VI, 5 I).) The Council
is composedof nineteen voting members, of which fourteenindividuals are elected bymember schools, four individuals are appointed by the Representative Council, and one is a representative of the state
superintendent of education. (Id. at 15 (Constitution, art. IVY5 I).) Except for the state representative,
membership in the Representative Council is limited to faculty and board of education members of each member school. (Tr. Exh. 9(a) at 16.) Council members must resign their positions if they end their position at member schools. (Tr. Exh. 9(a) at 13, 15-17.)
The fourteen elected members of the ~e~resentatiCvoeuncil are electedby vote of the member schools. (Tr. Exh. 9(a) at 13.) In 2000-01, seventeen of the nineteen members of the h4HSAA Representative Council were employees or representatives of public schools or school districts. (See Tr. Exh. 9(a) at 6-7 compared with Tr. Exh. 25 (Michigan Public School District Directory).)
TheMHSAA has anExecutiveCommittee, comprisedof five Representative Councilmembers, three elected officers and two members appointed by the president. (Stip. Fact 6.) One of the Executive Committee's powers is to "[mlake all rules necessary for the effective control and government of interschool activities consonant with the legislation enacted by the Representative
Council and with this Constitution... ." (Tr. Exh. 9(a) at 18.)
The Executive Director of the MHSAA is "the executive officer in control of Senior High School and Junior HighIMiddle School interscholasticathletics." (Tr. Exh. 9(a) at 19.) The Executive Director is also responsible for investigating, deciding, and penalizing violations of the MHSAAYs

rules and regulations. (Id.) Decisions of the Executive Director are "subject to review by the Executive Committee and/or the Representative Council, upon appeal by the Administration of the Member School or Schools involved." (Id.)
Most of the MHSAA's revenue is derived fiom state championship tournaments. Approximately 86 percent of the MHSAA's budget comes from the sale of tickets to its tournament
events. (Tr. Exh. 16at 2 (Flyer - "This is the MHSAA").) Member schools remit a substantialportion
of the gate receipts from their participation in the state championship tournaments to the MHSAA. (See Tr. Exhs. 37(a)-(h) (MHSAA Financial Report Forms from MHSAA Tournaments).) For example, in 1997, Rockford High School hosted a regional football playoffwhich grossed $14,948 in admissions; $12,208 (82 percent) was remitted to the MHSAA. (Tr. Exh. 37(a).) The remainder of the MHSAA's revenue comes from tournament concessions, fees for the registration of officials, advertising in tournament programs, corporate sponsorship, and royalties fiom radio and television broadcasts of MHSAA tournament events. (Tr. Exhs. 3 5-37.)
The MHSAA issues broadcast policies on radio and television coverage for both regular season
and post-season tournaments. "The Representative Council . . .passed a regulation effective August
1, 1989, prohibiting live television originations of regular-season athletic events involving member schools." (Tr. Exh. 21(a) at 3.) MHSAA rules also state that "[nlo school may televise live -or may grant on a complimentary or fee basis to either a profit or nonprofit entity the rights to televise live on commercial, subscription or independent stations or networks -any interscholastic event in which any MHSAA member school is a participant in any MHSAA Tournament sport." (Tr. Exh. 9(a) at 59 (Regulation 11, Section 14(B)).) Schools participating in broadcast events do not receive any portion of the broadcast royalties. (Tr. Ex. 20(a)). Finally, member schools host many of the tournament

games and provide employeesto manage those game sites. (See MHSAA' s Answers toPlaintiffsYFirst Request for Admissions, Response No. 7 (served July 28, 1999).)
Until January 1,1988,MHSAA employeeswith stateteaching certificateswere consideredstate
employees eligible to participate in the state retirement system. Mich. Comp. Laws 5 38.1347(1)
(1987). Employees who began with the MHSAA before that date still have membership in the state
employees' retirement system. Mich. Comp. Laws 5 38.1347(1)-(2) (2001).
TheRepresentative Councilappoints committeeswhich make recommendationsto the Council on seasons and other issues, recommendations which are rejected or approved by the Council. (Id. at 944:13-945:l.) Further, as a condition of membership, schools are obligated to follow all of the MHSAA rules; put simply, "it's a take it or leave it proposition." (Tr. at 867:ll-15, K. McGee.)
Many member schools belong to leagues or conferences which also regulate interscholastic athletics to some degree. (Tr. at 785:16-788:5,K. McGee.) But all conference rules must complywith MHSAA rules, since the schools are also MHSAA members. (Id. at 863:14-864:l; Tr. at 164:4-10, L. Kostreva; Tr. Exh. 222, at 2, 6-9.) The Big Nine Athletic Conference Constitution, for example, prescribes that "failure to join MHSAA will result in automatic exclusion from membership in the league." (Tr. Exh. 222 at 6 (Big Nine Athletic Conference Constitution).)
The MHSAA determines when seasons occur. The MHSAA prescribes when practice may begin, when competition may begin, when competition must end, and the maximum number of games
that may be played. (Tr. Exh. 9(a) at 54-55 (Regulation II,5 1l(A)).) Member schools are prohibited
from practicing outside of the dates set by the MHSAA calendar. (Tr. Exh. 9(a), at 54-61, 109-110; Tr. Exhs. 63, 83.) Member schools may not participate in any competition beyond the end of the
MHSAA season or state championship tournament in any sport. (Id. at 59 (Regulation II, 5 12).) For

example, for the 2000-0 1 school year, the MHSAA prohibited girls' basketball teams from practicing before the week of August 15, limited teams to 20 games and four scrimmages for the season, and required teams "to terminate practice and competition on or before the final date of the MHSAA
sponsored . . . tournament." (Tr. Exh. 9(a) at 54-55 (Regulation 11, $ 5 11(A), ll(B), and 12).)
Schools, with the assistance of conferences and leagues if they are a part of one, set only the practice schedule and game dates within a season. In addition, MHSAA rules prohibit member school athletes from participating in both interscholastic sports and amateur club sports in the same sport in the same season. (Tr. Exh. 14, at 4; Tr. Exh. 9(a) at 43-44.)
The MHSAA also limits the scope of permissible activities "outside of the MHSAA-defined
season for a sport." (Tr. Exh. 9(a) at 55 (Regulation 11, 5 1l(G)).) Sports activities during that time
cannot use school transportation, school uniforms, or school district funds; hold mandatory practices or games; or involve more than three players from the same school team if the coach is also present.
(Id..>
TheMHSAA sponsors state championshiptournamentsin twelve boys' sports and twelve girls'
sports. (Tr. Exh. 16 at 3 (Flyer - "This is the MHSAA").) These state-wide tournaments are open only
to MHSAA member schools who comply with MHSAA' s rules and regulations. (Stip. Fact No. 14; MHSAAYsAnswers to plaintiffs' First Request for Admissions, Response No. 12 (served July 28, 1999);Tr. Exh. 9(a) at 76 (Regulation V).) "[Olnly those teams playing a sport during a current season will be eligible to enter the MHSAA meet or tournament in that sport. For example: Girls golfteams playing in the fall season will not be eligible to enter the Girls Regional Golf Tournament in the spring." (Tr. Exh. 9(a) at 60 (Regulation 11, $ 15, Interpretation No. 214).)

The very nature of interscholastic athletics necessitates a controlling entity like the MHSAA. (Tr. Exhs. 22,115.) The structure provided by the MHSAA as Michigan's governing body is necessary for appropriate organization of interscholastic athletics. "[Ilt would be chaos" with "a system of high
school sports where there is not a level playing field . . . by when [schools] compete against each
other." (Tr. at 869:s-14, KathleenMcGee Testimony; Tr. Exh. 22 at 3 (MHS'AA document explaining that in contrast to non-athletic activities such as music and drama, central control and a "statewide regulatory bodyyyis necessary to the success of interscholastic athletics).) Indeed, 90 percent of high schools in the state of Michigan and 60 percent of the junior highlmiddle schools are members of MHSAA. (Tr. Exh. 16 at 2.) 11. THE SCHEDULING HISTORY OF GIRLS' SPORTS
John Roberts, the MHSAA's current executive director, has written, "Boys' sports were in [MHSAAmember] schools first and girls' sports,which came later, were fitted around the pre-existing boys program. While this allowed for the best use of facilities, faculty and officials, it also led to an imbalance of girls' athletic opportunities across the three seasons of the school year." (Tr. Exh. 81 at 1 (John Roberts, "Sports and Their Seasons," 1990-91 MHSAA Bulletin).)
Until the early 1970s, before it was an MHSAA-sanctioned sport, girls played high school basketball in the winter at the same time boys' teams played. (Tr. at 576:l-15, 577:20-25, Catherine Dritsas4 Testimony.) In December 1970, the MHSAA received requests from certain schools for permission to start girls' basketball practice "before the establishedwinter'starting dates," to run girls' basketball in fall. (Tr. Exh. 33 at 2 ("Girls Basketball in Michigan," Sept. 1983 MHSAA Bulletin).)
Ms. Dritsas coached girls' basketball at the Academy of Sacred Heart in the Detroit area from 1969 to 1997. (Tr. at 575:l-5, C. Dritsas.) She was inducted into the Michigan High School Coaches Hall of Fame in 1993. (Id.at 575:13-17.) She was called to testify by the United States.

The reasons given for the request included "better use of the physical plants." (Id; Tr. at 578:1-8, C. Dritsas.) After a hearing held on October 11,1971to discuss the topic, it was recommended that a rule permitting competition in girls' basketball at any time during the school year be adopted. (Tr. Exh. 33 at 2.) There is no indication whether this rule was adopted. (See id.) Presumably the rule was adopted, however, since an unknown number of girls' teams mayhave also been playing in the fall at some point before the h4HSAA sponsored a tournament for girls' basketball. (CJ:Tr. at 772:6-10, K. McGee.)
The MHSAA held the first MHSAA girls' basketball tournament in fall 1973. (Tr. Exh. 27 at 6 (1972-73 MHSAA Bulletin, vol. XLLX [sic], at 422).) Surveys were submitted to schools to determine when they wanted the tournament held. (Tr. Exh. 33 at 2.) In 1976, the MHSAA's Girls' Basketball Committee recommended that the "Girls Basketball season move to the Winter and Girls Volleyball be played in the fall." (Tr. Exh. 78 at 1 (Minutes of 5/22/76 Girls Basketball Committee Meeting).)
The following year, the MHSAA merged the Girls' Basketball Committee into a single committee of boys' and girls' basketball coaches. (Tr. Exh. 78 at 3 (Minutes of 5/5/77 Basketball Coaches Committee Meeting).) By a vote of 11-2, the newly-constituted Basketball Coaches Committee voted to keep boys' basketball in the winter and girls' basketball in the fall. (Id)
Some schools attempted to continue playing girls' basketball in the winter. (Tr. at 580:5-14, C. Dritsas.) Within a couple of years, however, these schools had to move girls' basketball to the fall because they "didn't have anybodyto compete against and the girls were denied the opportunityof any state tournament competition." (Id.)
The MHSAA noted in 1983, in "Girls Basketball in Michigan," that "[ilt is alleged that girls and boys are not treated equally because of the split seasons; but it is quite obvious, based on the

surveys, that school administrators believe a split season in boys and girls basketball is the very best way to meet the needs of interscholastic athletic competition for both boys and girls." (Tr. Exh. 33 at 2.)
Prior to 1971-72, the MHSAA scheduled boys' golf in the spring. The MHSAA moved the boys' season to the fall to obtain "the use of better courses on Saturdays." (Tr. Exh. 29 at 2 (1973-74 MHSAA Bulletin, vol. L, p. 5). In 1976, the Representative Council decided to conduct the girls' tournament on Mondays instead of Saturdays "since Saturdays are days in which it is extremely difficult to acquire courses for participation." (Tr. Exh. 10(b)at 3 (1976 MHSAA Bulletin, at 6).) The following year, the Sports Season Committee reconsidered recommending to the Representative Council that it switch girls' golf from the spring to the fall, but the vote was defeated within the committee by a narrow margin. (Tr. Exh. 87 (514177 Sports Season Committee Meeting Minutes at 16)J
In 1981, the Representative Council decided to schedule boys' and girls' soccer together in the fall, "based on the survey of schools, as well as the financial advantage to schools in conducting the sport during the same season for boys and girls." (Tr. Exh. 47 at 3 (Minutes of 12/9/81Representative Council Meeting at 393).) In fact, sixty member schools voted for separate seasons for the sexes in
soccer, but eighteen schools voted for a combined season. (Tr. Exh. 229 (1981 Survey - Soccer).)
However, most schools (507) expressed no preference, and many apparently did not vote. (Id.) After being asked by several school administrators to reconsider its decision, the Representative Council "determined that, beginning with the 1982-83 school year, a Boys Soccer Tournament would be scheduled in the fall and a Girls Soccer Tournament would be scheduled for the spring." (Tr. Exh. 10(d) at 5 (Minutes of 3/28/82 Representative Council Meeting).)

InMay 1990,the MHSAArecognized that girls' participation opportunities in the winter season were lacking. "[G]irl'sYathletic opportunities in the winter are in almost everyMichigan high school, inadequate compared to boys' opportunities in the winter and girls' opportunities in the fall and spring." (Tr. Exh. 81 at 1 (John Roberts, "Sports and Their Seasons," 1990-91 MHSAA Bulletin).) Consequently,the MHSAA took the "first step" to remedythis inequity "by changing Lower Peninsula girls swimming and diving fiom the fall season to the winter." (Id) Thirteen years earlier, in 1977, the MHSAAYsSports Season Committee had recommended to the Representative Council that it "change the girls swimming season to coincide with the boys season in the winter." (Tr. Exh. 87 at 1 (514177 Sports Season Committee Minutes).)
In November 1990,the MHSAA reversed the decision to move girls' swimming and diving to the winter and decided to study, among other things, "the most opportune placement of the girls and boys swimming seasons in the Lower Peninsula" and' "the most opportune placement of other sports currently regulated by MHSAA (volleyball, basketball and golf for girls and soccer for boys are frequently discussed)." (Tr. Exh. 81at 1(John Roberts, "Sports and Their Seasons," 1990-91MHSAA Bulletin).) This reversal was due to opposition, at least in part, by fifty schools and the Michigan Interscholastic Swim CoachesAssociation (MISCA). (Tr. Exh. 45 at 236; Tr. at 1196:2-24, GregPhil1 Testimony.)
Following its reversal, the Representative Council "reaffirmed the need to continue discussing sports seasons." (Tr. Exh. 95 at 9-11 (4123191 Memorandum Regarding "Pro-Active Approach to Expanding Athletic Opportunities for Girls in the Winter Season").) This discussion led to a proposal that the MHSAA move "slowly and deliberately to examine the placement of several existing programs" while at the same time considering whether to sponsor new winter activities for girls. (Id.)

The MHSAA was aware that it could be held legally liable if girls' sports seasons were found legally inequitable. The proposal to study seasons was "made mostly to do what is needed for girls, but also in part to keep the MHSAA in a position of choosing its future voluntarily rather than being forced to fight legislated or court-ordered changes in the future if something is not done soon." (Tr. Exh. 95 at 9.)
Of the three winter activities that it considered, bowling, indoor track and competitive cheerleading, MHSAA decided to adopt cheerleading for girls in 1994. (Tr. Exh. 95 at 10; Tr. Exh. 9(a) at 26; Tr. Exh. 98.)5 With respect to moving existing seasons, the Representative Council was informed by the author of an MHSAA document that "it is important for the long term that the MHSAA conduct without fanfare a comprehensive study of sports seasons," including (1) "switching girls and boys Lower Peninsula swimming seasons by the year 2000;" (2) "combining boys and girls golf into a single coed program by the year 2000 (and possibly doing the same for tennis);" and (3) "switching girls volleyball and basketball seasons by the year 2000." (Tr. Exh. 95 at 11.)
Thatmemo, ofApril 23,199 1,also "proposed that the Representative Council givethe directive to the MHSAA staff in May to work quietly but steadily through the state 's athletic and educational communitiesfor however long is necessary tofind and/orforge consensus regarding these and other ideas." (Id. (unclear whether emphasis in original).) There is no evidence that the MHSAA studied
John Roberts, MHSAA Executive Director, said in his column "Sports and Their Seasons" in a 1990-91 MHSAA Bulletin, "No one sport can solve all the historical inequities, and no sport can be above consideration as a part of the hture solution. Cheerleading cannot be considered in the solution. While cheerleading is certainly a part of the total experience available to boys and girls in the winter, merely defining cheerleading as a sport and counting it toward athletic opportunities for girls in the winter does not satisfy Federal regulations when analyzing opportunities for boys vs. girls in interscholastic sports." (Tr. Exh. 81.)

the sports season issue as recommended, and MHSAA has implemented none of the proposed changes detailed above.
Finally,the MHSAA does not currentlysponsorboys' volleyball. Butthe MHSAA' s executive staff and volleyball committee have recommended that once the sport is adopted, it be played in the spring when the NCAA schedules men's volleyball. (Tr. Exh. 79 at 2 (Excerpts from Spring 1997 MHSAA Representative Council Meeting Agenda).) 111. SPORT-SPECIFICFACTS A. Girls' Basketball
The Court determines that there are a number of specific disadvantages to playing basketball in the fall. After hearing the evidence, the only potential advantage is the possibility that the opportunity for recruitment to play collegiate basketball may be increased because college women's coaches may be able to see teams that play in the fall more often and with fewer NCAA recruiting restrictions. However, the MHSAA did not offer any evidence to prove that this translated into more scholarships or spots on collegiate basketball teams than Michigan girls would otherwise receive.
Regardless, moving girls' basketball to the traditional winter season would still give girls exactly equal opportunity to be recruited for collegiate play as boys' basketball players. Moreover, there is only circumstantial evidence that Michigan girls playing in the winter would not be recruited at the same level that the MHSAA asserts that they are in fall. Finally, the Court finds that girls were originally scheduled to play basketball in the fall to avoid inconveniencing the boys' basketball team, and that kind of historical stigma should be erased. 1. General Disadvantages to Playing in Fall

In 1999-2000,19,760 girls played basketball for MHSAA member schools. (Tr. Exh. 99 at 42-
43.) The MHSAAschedules the girls' basketball state championshiptournament in the fall. (Stip. Fact
No. 41.) For 2001-02, the MHSAA set the first practice date for August 13, the first contest date for
August 27, and the end of the season as December 1. (Tr. Exh. 9(a) at 113.) This places the girls'
basketball season in the fall. Forty-eight states schedule girls' basketball in the winter. (Tr. Exh. 256.)6
The National Collegiate Athletic Association (NCAA) also schedules college women's basketball in
the winter. (Tr. Exh. 40 at 2.)7
The MHSAA schedules the boys' basketball state championshiptournament in the winter. (Tr.
Exh. 9(a) at 113). For 2001-02, the MHSAA set the first practice date for boys as November 12, the
first contest date for December 3, and the end of the season as March 23. (Id.) Winter is the season
when high schools in the rest of the country play boys' basketball and when the NCAA schedules
men's basketball. (Tr. Exh. 256; Tr. Exh. 40 at 2.) The traditional playing season for basketball is the
winter. .(Tr. at 497:l-4, D. Lopiano).'
Until recently, 44 states scheduled girls' volleyball in the fall and girls' basketball in the winter. As a result of litigation, three additional states will also be switching seasons to this format. Pederson v. South Dakota High Sch. Athletic Ass 'n, No. 00-4113 (D. S.D.) (consent decree);Alston v. Virginia High Sch. League, No. C.A. No. 97-0095-C (W.D. Va.) (settlement agreement following jury verdict in plaintiffs' favor); Ries v. Montana High Sch. Ass 'n, Case No. 9904008792, slip op. w o n t . Dep't of Labor & Indus. Aug. 11,2000). A fourth state, North Dakota, has voluntarily agreed to switch the seasons. Jane Bos, Michigan Soon Will StandAlone; Four States Moving Girls Hoops to Winter, The Grand Rapids Press, Aug. 26,2001, at D10, available at 2001 WL 25385084 (reporting on North Dakota).
As explained earlier, the traditional playing season for a sport is one hallmark that the season is an advantageous time to play the sport, but tradition is not dispositive. In the same manner, the season in which the NCAA sponsors a particular sport is a hallmark of a traditional, and thus advantageous, season, but it is only one, non-dispositive factor.
'Dr. Lopiano is executive director of the Women's Sports Foundation, whose mission is to
expand and enhance'opportunities for girls and women to participate in sports and leadership
opportunities. (Id. at 485:1-11.) Dr. Lopiano, who testified as an expert witness for Plaintiffs, has

Plaintiffs presented very credible evidence that the MHSAA' s scheduling of girls' basketball
in the fall disadvantages girls in several ways. Because Michigan girls play basketball in the fall
season, they cannot participate in special events for professional or semi-professional teams, such as
playing before or at half-time of a professional game, that take place during the traditional winter
season. (Tr. at 99:8-100:8, Kristi Madsen Testimony.) Michigan's female high school basketball
players do not get to participate in "March Madness" or the excitement and publicity surrounding this
time period when the rest of the country's high schools and colleges are participating in championship
basketball tournaments. (Tr. at 98:1-23' Kristi Madseng;Tr. at 114:20-115:21, Kelsey Madsen.'')
"March Madness" isthe season ofthe year when basketball is the featured sporting event in the
news media because ofNCAA tournaments, and a number of promotional events promote basketball
and basketball players. Kelsey Madsen testified that "for boys' basketball, it means tournaments and
publicity for it and everyone is watching boys' basketball. It's a big hype for the season." (Tr. at
114:23-25, Kelsey Madsen.) High school girls' basketball in Michigan cannot similarly capitalize on
the excitement that "March Madness" promotions create in the general public because they are not
playing in March. Kelsey Madsen said, "I would love [playing girls' basketball during "March
a Ph.D. in athletic administration with a subspecialization in gender equity in sport. (Id. at 490:710.) She served as director of women's athletics at the University of Texas, and served on the NCAA committee that produced the first gender equity study for the NCAA. (Id. at 491: 13-492:3.) At MHSAA's invitation, she has also spoken at MHSAA's Women in Sports Leadership Conference. (Id. at 492:4- 13.) Further, she provided input in the drafting of the U.S. Department of Education's athletics regulations promulgated under Title IX. (Id. at 493 :24-494:7.)
Kristi Madsen testified for Plaintiffs. (Tr. at 90: 1-4, Kristi Madsen.) Among the many sports she played at various points in high school, Ms. Madsen played four years of both volleyball and softball and three years of basketball. (Id. at 90:15-91:14.)
lo Kelsey Madsen, a Northview High Schooljunior, testified for Plaintiffs. She played basketball, volleyball and softball her first two years of high school, and planned to play volleyball and softball her junior year. (Tr. at 111:3-20, Kelsey Madsen.)

Madness."] It would be awesome, just to know that you're part of something like that, to have an opportunity to play and be known in the season as like 'March Madness.' It's just everyone knows what it is. It would be good." (Id, at 115:16-21.) Kristi Madsen said that not being able, as a high school basketball player, to participate in the "March Madness" hype made her feel "[alngry. I didn't like it. Again, the guys get a ton of special perks or attention because it's 'March Madness' and because they are playing in March, during 'March Madness."' (Id. at 98: 19-23.) Moreover, attention is on the sport of football and the state football tournament in the fall, which is when girls play basketball. (Id. at 99:1-7, Kristi Madsen.)
Because Michigan girls do not play basketball in the winter and because Friday nights are dedicatedto boys' football in the fall, girlsoften must,play basketball duringschool nights on Tuesdays and Thursdays. (Tr. at 29:18-32:6, D. Madsen; Tr. at 93:16-94:9, Kristi Madsen (testifying that she and her teammates "had to bring homework to do at the games or on the bus because we had school the next day on both Tuesday and Thursday nightsyy).)On the other hand, ~ i c h i ~baonys are able to play basketball on Tuesday and Friday nights in the winter. Ifthe girls played basketball during the traditional winter basketball season like the boys, girls would also have the opportunity to play games on Tuesday and Friday nights. (Tr. at 94:2-9, Kristi Madsen; Tr. at 518:1-7, D. Lopiano.)
Moreover, Michigangirlshave decreased abilityto be nationally ranked or obtainAll-American honors because they play basketball during the non-traditional fall season. (Tr. at 501:l7-502:2, D. Lopiano.) Dr. Linda Bunker" testified that Parade All-American team selections for high school
" Dr. Linda Bunker has a Ph.D. in kinesiology and sports psychology and is a tenured
professor at the University of Virginia. (Tr. at 651:9-10, L. Bunker.) She was an expert witness for Plaintiffs. Dr. Bunker's research and scholarship focuses on the psychological aspects of sport and the way in which sport contributes to the lives of young boys and girls and men and women in contemporary society. (Id. at 651:14-18.) Besides being a member of several prominent professional sport psychology associations, Dr. Bunker has also received several distinguished

basketball players are made in March. She further testified that "[ilf you play your high school basketball season in the fall, you're not even really eligible to be considered. I mean, you can be legally considered, but everybody's forgotten about you. It's a tremendous disadvantage." (Tr. at 706:1-6, Linda Bunker Testimony.) Not being able to participate in national team rankings and AllAmerican honors "affects [Michigan girls'] visibility to recruiters in terms of college athletic scholarship opportunities." (Tr. at 501:25-5O2:2, D. Lopiano.) Ms. McGee counters that Michigan girls still can be and are nationally ranked in rankings like the USA Today National Poll and Parade All-American Team. (Tr. at 878:16-21>K. McGee.12) The MHSAA did not, however, provide any evidence that suggested that the ability to be ranked was not influenced by the fall playing season.
Girls also lose opportunities to participate in national shoot-outs such as the Nike and Blue Star shoot-outs. These shoot-outs occur in the fall when girls are participating in their high school basketball seasons. In fall 2001, there were eighteen Blue Star shoot-outs between September 16 and October 21that Michigan girls could not attend because ofthe scheduling of their high school seasons in the fall. (Tr. at 911:l8-913:5, S. Guevara.)
The boys' high school basketball season is approximately three weeks longer than the girls' season, giving boys a greater opportunity to practice and play. (Tr. at 499:23-500:5, D. Lopiano; Tr. Exh. 63 (1998-99 MHSAA Quick ReferenceCalendar).) Michigan girls, unlike Michigan boys, cannot compete against teams in neighboring states because girls in those states play basketball in the traditional winter season. (Tr. at 503:10-18, D. Lopiano; Tr. at 175:12-22,L. Kostreva (testifymgthat
awards. (Id. at 662:18-663:s.) l2 MS.McGee is athletic director and head girls' basketball coach at Flint Powers Catholic
High School. (Tr. at 768:ll-14, K. McGee.) She testified on behalf of the MHSAA. She has coached girls' basketball for twenty-nine years and been an athletic administrator for nine years. (Id.\at 769:2-6.)

Menominee boys play basketball against Wisconsin high schools during the MHSAA regular season).) Playing against teams in neighboring states can also lessen travel burdens. (See id. at 171:25-172:8, 175:12-22, 198:7- 14 (testifying that Menominee boys need only travel five minutes to play certain Wisconsin schools whereas girls must travel an average of 90 minutes to play other Michigan schools).) 2. Recruiting
The testimony regarding the effect that the placement of the girls' basketball season in the fall has on college athletic recruitment opportunities conflicted. The MHSAA argued that Michigan girls have special advantagesin being recruitedto play on collegiateteams by playing high school basketball in the fall, which are discussed infra. Even if this were true, however, it is undisputed that if Michigan girls played basketball during the winter season, they would, at the very least, be on "equal footing" with Michigan boys and with girls in the rest of the country with respect to collegiate recruiting. (Tr. at 85l:21-852:4, K. McGee; Tr. at 910:12-16, Sue Guevara Testimony).
: Ms. McGee testified that "it's very easy to get [the] kids [she coaches] evaluated in the fall."
(Tr. at 795:9-14, K. McGee.) While the Court places a good deal of weight on Ms. McGeeYs impression given her experience in coaching girls' basketball, her testimony must also be considered in light of Flint Powers' status as "one of the most successful" girls' basketball teams in Michigan whose "experiences [might be] different fiom the run-of-the-mill programs in the state." (Id. at 825: 14-23.)
Another MHSAA witness on this issue, head University of Michigan (U of M) women's basketball coach Sue Guevara, testified that recruiting in basketball begins long before an athlete's senior year and can, in some cases, start as early as before the ninth grade. (Tr. at 887:19-888:6,

899:17-900:1, S. Guevara.) Ms. Guevara testified that she sees many other women's basketball
coaches from around the country, including fiom prestigious women's basketball programs, at the top
girls' games in Michigan, since before the beginning of October, attending high school games does not
count against the forty "contact" limit placed on coaches by the NCAA.I3 (Tr. at 886:7-17, S.
Guevara.) In addition, it is more convenient for college coaches to attend high school games during
this time since the women's college practices have not started yet. (Tr. at 886:22-887:1, S. Guevara).
Ms. Guevara indicated that these factors result in more visibility for Michigan's girls to be recruited,
and that she believed that she and her staff would not have the same opportunities to watch and
evaluate Michigan girls if they play in the winter season. (CJ:Tr. 885:18-20; 891:17-892:19, S.
Guevara.)14
l3 For purposes of recruiting for collegiate basketball, a "contact period" is when a college coach may contact the athlete and her parents, and coaches are allowed three of those contacts after the period begins. (Tr. at 888:17-19, S. Guevara.) An ccevaluation"is when the coach watches the athlete play or asks the athlete's high school for the athlete's transcript. (Id. at 888:20-24.)
l4 Ms. Guevara also testified that of the forty evaluation days given to women's basketball programs, U of Mys program has used between twenty and twenty-five of its annual evaluation days on Michigan girls. (Tr. at 891:5-16, S. Guevara.) It is unclear to the Court, however, whether that number of days would still be used on Michigan girls if the season of play was switched to winter, since U of M women's basketball would obviously continue to use all forty allowed days to evaluate players. The change to winter would not necessarily mean that fewer days than are used now would go to Michigan girls, since they would be playing at the same time that almost every other girls' team in the nation is. Presumably, U of M also has some level of commitment to recruiting Michigan girls since U of M is a public university. But the Court is clear on Ms. Guevara's general point that she believes that Michigan girls would not be at the same recruiting advantage by playing in the winter.
The MHSAA also provided circumstantial evidence of its recruiting advantages argument by asserting that fifteen female recipients of the Miss Basketball title, given to the top player in the state annually, have played collegiate basketball at out-of-state colleges and universities, whereas only six Mr. Basketballs have done so. (Tr. at 777:4-778:6, K. McGee; Tr. Exh. 285.) The Court places very limited weight on this evidence, and certainly much, much less weight than the testimony of Ms. Guevara. These lists of where the single best player in Michigan was recruited do not prove that recruitment is increased for girls playing in the fall, but is only weak circumstantial evidence of that conclusion. If recruitment were increased, the list does not explain if the fall

Onthe otherhand, Plaintiffs point outthat to the extent that college basketball recruiting occurs at club tournaments in the fall, Michigan girls cannot play at such tournaments, and therefore cannot be seen by out-of-state recruiters at those events. (Tr. at 911:18-913:5, S. Guevara (testifyingthat 18 Blue Chip tournaments occur in the fall at which she evaluates and recruits players).) Ms. Guevara7s response to Michigan girls' inability to attend these fall tournaments was that "they don't need to." (Id. at 913:3-5.) Michigan college coaches are also still able to attend summer AAU basketball tournaments, where every women's college basketball program is in attendance. (Tr. at 905:9-14, 909:4-7, S. Guevara.)
Plaintiffs also argued that if Michigan girls played in the winter, college coaches would still be able to recruit them just as they recruit girls outside of Michigan. For example, the University of Michigan's women's basketball team plays on Thursdays and Sundays in the winter. (Tr. at 892:1-8, S. Guevara.) If Michigan girls played in the winter on Tuesdays and Fridays - as Michigan boys do - U of M's coaching staff would be able to attend Michigan girls' high school games on those days, even if they conflict with U of M7spractice times.
NCAA recruiting restrictions prevent college coachesfromwatchingand evaluatingbasketball players during "quiet periods" and "dead periods," as defined in the NCAA Manual. (Tr. Exhs. 5, 7, 65-66.) During the winter season, however, the NCAA does not set any quiet periods. Instead, the "evaluation period," when players can be observed off-campus, runs October 8-February28, and the "contact period," when off-campus, in-person recruiting contacts can be made, runs March 1-26. (Tr.
season alone is the reason or if other factors are present, to what extent all other female basketball players in Michigan are recruited besides the single best player, or what effect moving the season to the winter would have.

Exh. 5 at 3-4; Tr. Exh. 7 at 9.)15 Thus, the period when recruiters can observe high school players runs through the fall and winter seasons. The period when recruiters can contact players off-campus is during the winter season.
Plaintiffs also argue that Michigan girls face some recruiting restrictions because of the fall basketball season. In 2001-02, for Division I schools, the NCAA has set "quiet periods" when inperson recruiting contacts are limited to campus visits, for August l-September 8 and September 30October 7. (Tr. Exh. 5 at 3-4 (Excerpts from 1999-00 NCAA Recruiting Manual, pages 88-89); Tr. Exh. 7 at 9 (2001-02 NCAA Guide for the College-Bound Student-Athlete).) TheNCAA has also set a "dead period," when no contacts are permitted, for November 12-15. Id. In 2001-02, practice and the regular season for Michigan girls began during the first quiet period. (Tr. Exh. 9(a) at 113.) During these quiet periods, Michigan girls are playing high school games, presumably making on-campus visits more difficult. B. Girls' Volleyball
The Court finds that the MHSAAYsscheduling of girls' volleyball in the winter, not a traditional season for girls' volleyball,disadvantages girls in severalremarkable ways described in this section. Other scheduling decisions have forced girls' volleyball into a non-traditional season, unlike the other sports with only boys' teams. In volleyball, the non-traditional season is the disadvantageous season for girls.
In 1999-2000,20,934 girls played volleyball for MHSAA member schools, the largest number of participants in a MHSAA girls' sport. (Tr. Exh. 99 at 42-43 (1999-2000 Athletics Participation
l5 The NCAA limits Division I colleges to forty evaluation days during the evaluation period and sixteen contact days during the contact period. Those days not designated by the college as an evaluation day or contact day are treated as quiet period days. (Tr. Exh. 7 at 9.)

Survey).)16The MHSAA schedulesthe volleyball state championship tournament in the winter. (Stip. Fact No. 42.) For 2001-02, the h4HSA.A set the first practice date as November 15, the first contest date as December 8, and the end of the season as March 16. (Tr. Exh. 9(a) at 113 (2001-02 MHSAA Quick Reference Calendar).) This means that Michigan high school girls' volleyball is played in the winter season.
The traditional playing season for women's volleyball is the fall. (Tr. at 497:21-498:1,Donna Lopiano.) Forty-eight states play high school girls' volleyball in the fall. (Tr. Exh. 256 (National Federal Sport Season Surveys).17TheNCAA scheduleswomen'svolleyball in the fall. (Tr. at 246:s-9, Bette Norman-Nakamura18Testimony.) Although the MHSAA does not currently sponsor boys' volleyball, the h4HSAAYsexecutive staff and volleyball committee have recommended that once the sport is adopted, it be played in the spring when the NCAA schedules men's volleyball. (Tr. Exh. 79 at 2 (Excerpts fiom Spring 1997 MHSAA Representative Council Meeting Agenda).)
College volleyball recruiting focuses on the amateur, private club programs, like those sponsored by an organization called the United States Volleyball Association (USAV),19rather than the high school programs because of recruiters' ability to see a far larger number of players in a single
"'he 1999-2000 participation data is found at the last two pages of Trial Exhibit 99. l7 AS a result of litigation, three states will soon be switching their girls' volleyball to fall and girls' basketball to winter, and one state is voluntarily doing so, bringing the total to forty-eight states who schedule those girls' sports that way. l8 MS.Norman-Nakamura, who testified on behalf of Plaintiffs, is a teacher with Warren Consolidated Schools in the Detroit area, and a past president of the Michigan Interscholastic Volleyball Coaches Association. (Tr. at 200:17-21,226:5-21, B. Norman-Nakamura.) She has been coaching volleyball at various levels and in various programs since the 1960s. (Id. at 202:315.) l9 This was the acronym used by witnesses to refer to this organization.

setting than at a high school contest or tournament. (Tr. at 326:20-327:6, Charles Erbe20Testimony) (testifying that a recruiter can only see twenty-four players at a high school match or 100 players at a high school tournament compared to as many as 5,000 players at a USA Volleyball tournament held over a two to three-day period). The recruiting that occurs in Michigan during the high school girls' volleyball season is mostly limited to smaller in-state schools. (Tr. at 330:8-21, C. Erbe; Tr. at 383:716, K. Eveland; Tr. at 427512, Sharon SchatzZ1Testimony.)
The USAV and AAU, another private club program, seasons for high school age players to play in their amateur programs are from January through June or July. (Tr. at 206:3-2075, B. NormanNakamura.) MHSAA rules prohibit athletes from participating in USAV or AAU club volleyball during their December through March high school season. (Id. at 221:21-24; Tr. Exh. 9.)
The most competitive club volleyball programs are sponsored by USAV, the sport's national governing body. (Tr. at 327:3-7, C. Erbe; Tr. at 382:15-383:3, Kele Eveland; Tr. at 1066:7-10, Phil
20 Mr. Erbe is head women's volleyball coach at Michigan State University and testified on behalf of Plaintiffs. (Tr. at 321:22-23, C. Erbe.) He began his coaching career working with girls' high school programs in California. (Id. at 323:4-13.) He founded the United States Junior National Volleyball Program, which provided most of the players to the 1980 and 1984 USA Olympic women's volleyball teams. (Id. at 323:24-324:17). He also coached the University of Southern California's women's volleyball team to four national championships. (Id.at 324:19325:10). His teams at Michigan State have perennially finished near the top of the Big 10 Conference standings and participated in the NCAA tournament. (Id. at 325:21-326:6.)
21 MS. Schatz is president of the Michigan Junior Volleyball Association and coached women's volleyball at Aquinas College, a National Association of Intercollegiate Athletics (NAIA) school, for 15 years. (Tr. at 411:8-13, S. Schatz). She testified on behalf of Plaintiffs.

Wilson2' Testimony.) Outside of Michigan, the USAV club season for high school age girls begins in early January and continues through early July. (Tr. at 206:8-14, B. Norman-Nakamura.)
Michigan girls who participate in high school volleyball are not able to participate in USAV club volleyball until April, after the MHSAA season has ended, while players in other states have been playing club volleyball since January. (Tr.at 328: 1-22,C. Erbe.) The MHSAAprohibits students fiom playing on any team other than a school team during the MHSAA-defined season in that sport. (Tr.
Exh.9(a) at 43 (Regulation I, 5 13); Tr. at 453:10-19, Jack Magelssen Te~tirnony.)~~
By the end of the MHSAA season, most ofthe regional and national USAV tournaments have been filled by non-Michigan teams. When there are openings, Michigan club teams are placed "at the very bottom of the tournament where they do not get a chance to compete at the high levels because they haven't been competing, they don't have a power rating, [and] they don't have the ranking that other teams do when they do the [seeding]." (Tr. at 328:4-12, C. Erbe; Tr. at 441:7-15, J. Magelssen.)
Michigan club teams have difficulty excelling at these tournaments because they are becoming accustomedto playingwith new teammates and a new coach while their competitors have alreadybeen
I
22 Mr. 'wilson, a teacher at Kalamazoo Valley Community College and the head volleyball coach at Kalamazoo Central High School, testified on Defendant MHSAA's behalf. (Tr. at 1045:11-17, P. Wilson.) He has coached volleyball at Kalamazoo Central for ten years, and his team won the Class "A" state championship in 1996. (Id. at 1047:8-13.)
23 Mr. Magelssen is a teacher and head volleyball coach at Portage Northern High School, where his teams have won ten state championships. (Tr. at 435:6-9, 436:2-9, J. Magelssen.) Mr. Magelssen has been named MHSAA Class A coach of the year ten times, was a finalist for national coach of the year in 1987, and was national coach of the year in 1994. (Id. at 439:13-20, 440:2-9.) He has also coached USAV and AAU club volleyball since 1984. (Id. at 437:23-438:18.) He testified on behalf of Plaintiffs.

playing together for four months. (Tr. at 446:4-14, J. Magle~sen.)'~It is therefore more difficult for recruiters to evaluate Michigan players at these tournaments. (Id. at 446:15-19.)
Playing high school volleyball in the winter rather than the fall affects Michigan girls' ability to be recruited in two ways. First, they are not seen by college coaches who go to the USAV club tournaments to recruit. (Tr. at 328:23-329:3, C. Erbe; Tr. at 386:3-22, K. Eveland.) Second,they miss out on "the experience of competing against a broad base of competition." (Id. at 329:3-14, C. Erbe.) This experience is instrumental in forging a player's psychological framework and confidence that she can "compete against anybody at any level." (Id)
Because of the shortened club season for Michigan girls, over a four-year high school career, they will have 16months less of competitivetraining and experience comparedto girls in the 48 states that play high school volleyball in the fall. (Tr. at 330:22-33 1:8, C. Erbe.) This shortened experience disadvantages Michigan girls because recruiters are looking for players "with the most experience." (Id. at 331:9-19, 4 4 1 5 7 , J. Magelssen.) This limited experience affects even those girls who are eventually successfully recruited to play in college volleyball programs. (Tr. at 342:l-7, C. Erbe (observing that his Michigan recruits come into college "less confident," "scared," and "afraid to make mistakes" compared to his out-of-state recruits).)
24 When the Michigan club teams are formed they are essentially new teams because MHSAA rules prohibit more than three players from a single school team from playing for their school coach "outside of the MHSAA-defined season for [that] sport." Tr. Exh. 9(a) at 55
(Regulation 11, 5 11(G)1.e.).

For example, Kele E ~ e l a n d ?an~All-Statevolleyball player as ajunior and senior, received only one handwritten l e ~ e ?fr~om smaller Division I1 schools during the MHSAA volleyball season. (Tr. at 387: 18-23, K. Eveland.) Similarly, Breanna Eveland, a first-team All-State volleyball player as a sophomore andjunior, has thus far received only one scholarship offer from a small Division I college and was not currently being recruited by any other schools at the time of triaLZ7(Tr. at 635:2-637:7, B. Eveland.)
In addition, the limits placed on the experience gained by Michigan high school female volleyball players as a result of playing school volleyball in the winter are increasing. "[E]xperience is becoming an overwhelming factor in the recruiting process, and therejust aren't Michigan girls that are at that level." (Tr. at 333:15-20, C. Erbe.) Michigan State's women's volleyball team has no recruited Michigan players as freshmen. Nor will Michigan State have any Michigan players among the incoming freshman recruits in 2002-03. (Id. at 333:12-14.)
The MHSAA high school season also disadvantages Michigan girls seeking college athletic scholarships because it occurs after the NCAA' s early signing date. Under NCAA rules, high school athletes can first commit to a college program during the second week of November. While there is a subsequent signing date in the spring, the majority of players sign on the first date. (Tr. at 331:20332:5, C. Erbe.) As a result, a Michigan player is placed at a "severe disadvantage to her counterparts
25 In addition to her on-the-court succcess, Ms. Eveland graduated fiom high school with a 4.0 .grade point average and was valedictorian. (Tr. at 378:8-10, Kele Eveland.) At Georgia Tech, Ms. Eveland made the dean's list both semesters of her freshman year. (Id. at 37:12-16.)
26 A handwritten letter is a personalized letter to the recruit and indicates a higher level of interest from the college than a typewritten form letter. (Tr. at 388:4-10, K. Eveland.)
27 In addition to playing numerous varsity sports, Breanna Eveland has maintained a 3.4 grade point average. (Tr. at 636:4-5, B. Eveland.)

around the nation who are playing high school volleyball in the fall," and whose season is completed or nearly complete by the first signing date. (Id. at 332:14-18.) As Mr. Erbe testified:
[Llet's say I have one scholarship left and I'm looking at a young lady from Illinois and I'm looking at a young lady from Michigan. Because the high school season is in the fall in Illinois, I can go watch that young lady compete to get a final evaluation before I make a decision. I cannot watch the Michigan player because her high school season does not start until after the signing date. (Id. at 332:6-14.) These recruiting disadvantages affect not only Michigan's elite volleyball players but also Michigan girls with a broad range of ability who could be recruited by smaller Division I programs, Division I1and Division IIIprograms, andNAIA programs.' (Tr. at 329:19-330:7,332:19-23, C. Erbe.) Thesedisadvantagesnot o d y cost girls opportunities to participate in college athleticsbut furtherharm those girls who, without athletic scholarships or related financial assistance, would be unable to afford
to attend college or to attend the college of their choosing. (See Tr. at 380:6-16, K. Eveland; Tr. at
562:s-15, Breanne Hall Testimony.) The average Michigan high school volleyball player is two to . ' three years behind players in other states. (Tr. at 369:3-6, C. Erbe.)
Michigan girls cannot be named to All-American teams and their teams cannot participate in national rankings and polls. (Tr. at 444:9-445:1, 447:5-12, J. Magelssen.) This lack of recognition
further hinders girls' ability to be recruited nationally. (SeeTr. at 501:25-502:2, D. Lopiano.)
In addition to reducing college athletic opportunities,Michigan girls' inabilityto participate in club volleyball programs is itself harmful. -Girlsmiss opportunitiesto further develop technical skills, as well as the opportunity simply to play. Over the course of a high school career, girls will play sixteen months fewer of volleyball than they otherwise could if volleyball were scheduled in the fall

because ofthe conflict between the club and high school playing seasons. (Tr. at 330:22-331:8,331:919, C. Erbe; Tr. at 441:5-7, J. Magelssen.)
Club volleyball benefits not only the elite player but the "grass roots" player who wants to develop her skills in order to make her high school team. (Tr. at 4149-12,429:l-5, S. Schatz ("the players in Michigan are at a disadvantage,whether they are elite or whether they are the kid just trying to make the "A" team in high school because they have restricted amount of time that they can practice out of season, [and] attend clinics").)
In addition, this limits opportunities for girls who live at or near Michigan's borders to participate in volleyball clubs that are close in distance to them. Lynn Kostreva, a teacher and head volleyball coach at Menominee High School,testified that her daughtershave been invited to compete on club volleyball teams in Wisconsin but are unable to do so because the Wisconsin club season conflicts with the MHSAA season. (Tr. at 160:l-5, 178:ll-23, L. Kostreva.) Menominee is in Michigan's Upper Peninsula, which borders Wisconsin.
Michigan girls are not able to attend college volleyball matches as a team with their coach because MHSAA prohibits such a gathering from occurring out-of-season. (Tr. Exh. 9(a) at 55
(Regulation 11,5 11(G)l .e.);see Tr. at 180:14-181:8, L. Kostreva (testifymgthat, becausethe collegiate
season and clinics occur outside of the MHSAA season, she cannot organize and accompany her volleyball team to these events).) Again, such experiences provide "inspirational and aspirational images" to girls. (Tr. at 5O2:3-lOYD. Lopiano.)
As a result ofthe MHSAA winter season for high school play, Michigan club teams must travel to tournaments as far away as California, Texas and Colorado rather than playing in tournaments in neighboring states, like Indiana, because these later tournaments occur during the MHSAA season or

immediately thereafter. (Tr. at 451:18-452:9, J. Magelssen.) Travel greatly increases the cost to play club volleyball, thereby limiting the number of players who can afford to play. (Id. at 452:22-453:3 (testifying that playing in annual Indianapolistournament would cut club expenses by 50 per~ent).)~' This kind of travel would also have an effect on academics and other activities of students involved and could make participating in club opportunities impossible.
High school volleyball teams locatednear Michigan's bordering states are not able to compete against teams in those states. (Tr. at 1705-10, 175:12-22, L. Kostreva.) For example, Menominee High School is located within 50 miles of numerous Wisconsin high schools that would require shorter travel time for contests. (Id. at 175:3-11.) Because of the MHSAA season, however, Menominee is limited to competing against Michigan schools. Contests at schools in Menominee's conference require an average travel time of 90 minutes each way, with the longest trip lasting three hours each way. (Id. at 171:25-172%) Contests at non-conference schools require even longer travel. (Id. at 172:9-15.) In order to arrive on time for an away contest at a non-conference school, Menominee's volleyball team leaves in the middle of the school day and does not return until approximately midnight. (Id. at 172:16-173:8.) Because Menominee plays most of its games on Monday and Thursday nights, most of this travel occurs during school days and school nights. (Id. at 173:9-13.) In addition, winter weather concerns for travel in the Upper Peninsula, or for locations in Michigan located near any state border, make shorter distances favorable for sports played in the winter season.
Menominee's boys' sports teams, however, are able to play teams from other states. (Tr. at 175:12-22,L. Kostreva(statingthat Menomineeboys compete against Wisconsin schools inbasketball,
28 TOpay for club expenses, players, in addition to parental assistance, seek sponsors, work part-time jobs, and hold fund-raisers. (Tr. at 380:22-381:6, K. Eveland; Tr. at 453:4-8, J. Magelssen.)

football and wrestling).) Thus, Menominee's boys can travel as little as five minutes to play a game.
(Id. at 198:7-14.)
Michigan volleyball players also have difficulty in obtaining specialized volleyball equipment,
particularlyshoes,because inventorieshave been depletedby college and high schoolteamsthroughout
the country before the MHSAA volleyball season begins. (Tr. at 35:7-37:11, D. Madsen; Tr. at 97:5-
17, Kristi Madsen Testimony; Tr. at 1l4:6- 17, Kelsey Madsen Testimony.)
The MHSAAYsvolleyball witness, Mr. Wilson, testified that girls benefit from playing both
basketball and volleyball because the skills possessed by most volleyball players -jumping ability and
lateral quickness-are valuable in both sports. (Tr. at 1050:11-18, P. Wilson.) There was no evidence,
however, showing that girls who play both sports would be denied these skill-related benefits if
MHSAA switched the volleyball and basketball seasons. Also, if the girls' volleyball and basketball
seasons were switched, volleyball players who desired to play on the basketball team, too, would still
have the choice to do so and not participate in club volleyball. The MHSAA also presented no
evidence to indicate why facilities problems would prohibit rescheduling of girls' volleyball fiom the
winter to the fall, particularly if it were to be switched with girls' basketbalL2'
The MHSAA is correct that Michigan girls and their high school coaches have had success in
volleyball in which the entire state can take pride. (See, e.g., Tr. Exh. 275; Tr. at 456:5-457:11, J.
Magelssen (discussing the &eat success of 1994 Kalamazoo Dead Frogs in USA Volleyball).)
''Defendant MHSAA also asserted that the winter volleyball season provides Michigan
girls with the ability to play two to three times the number of matches than those competing in states with a fall volleyball season. However, the MHSAA could only provide inadmissible hearsay testimony to support this assertion, which the Court may not consider. (Tr. at 1051:10-12, 1064:3-19, P. Wilson.) In addition, unless Mr. Wilson counts tournament matches or some other special circumstances, this assertion does not make logical sense, assuming that the fali'and winter seasons are approximately the same length. Certainly the winter season is not two to three times as long as fall, although sometimes it may feel that way in Michigan.

However, the MHSAA failed to prove whether this indicates that the winter, non-traditional volleyball season is not a disadvantage, or whether this merely indicates that the season is a disadvantage that Michigan girls have worked to overcome. The testimony offered by Plaintiffs convinced this Court that the latter is the correct conclusion. C. Girls' Soccer
After hearing the evidence, the Court finds that the spring season is the inferior season, as compared to fall, for playing soccer in Michigan. Besides the evidence presented on this point, which was more than sufficient standing alone, the fact that the MHSAA originally scheduled both teams to play in fall, for reasons including the financial advantage to conducting both programs at the same time, is additional circumstantial evidence that fall is a superior soccer-playing season in Michigan. Some anecdotal evidence was presented that logistical problems would occur if both sexes played soccer in the fall or in one season generally, but that evidence was insufficient for the Court to make a finding that logistical problems, if they exist, are insurmountable now or ever.
In l999-2OOOY11,921girls played soccer for MHSAA member schools. (Tr. Exh. 99 at 42-43.) MHSAA schedules the girls' soccer state championshiptournament in the spring. (Stip. Fact No. 21.) For 2001-02, MHSAA set the first practice date as March 11, the first contest date as March 22, and the end of the season as June 15. (Tr. Exh. 9(a) at 113.) This places Michigan girls' soccer in the spring season.
The NCAA scheduleswomen's soccer in the spring. (Tr. Exh.40 at 2.) There does not appear
to be one clear season in which high school girls play in soccer across the nation, but a number of states employ a number of different scheduling mechanisms for soccer.30
30 According to the Court's review of Trial Exhibit 256, twenty-seven states schedule girls' high school soccer in the fall. (Tr. Exh. 256.) Twenty-two states schedule high school soccer in

The MHSAA schedulesthe boys' soccer state championshiptournament in the fall, atthe same
time that the NCAA schedules men's soccer. (Stip. Fact No. 21; Tr. Exh. 40 at 2.) In 2001-02 boys'
soccer, the first practice date was August 13, the first contest date was August 24, and the end of the
season was November 10. This places Michigan boys' soccer in the fall season. Plaintiffs' expert Ms.
Lopiano testified that the traditional playing season for soccer is the fall. (Tr. at 497:8-10.)
The MHSAA's scheduling of girls' soccer in the spring in Michigan disadvantages girls in
several ways. Soccer fields in Michigan are often still frozen or snow-covered when the girls' season
starts in the spring, so girls are forced inside for practice and tryouts. (Tr. at 598:17-601:17, D.
Adrianse; Tr. at 622:14-623:1, AngieAdrianse3'Testimony; Tr. at 1163:13-1164:2,T. Miller.) Thus,
the regular season starts later than scheduled. (Id. at 602:7-12, Daniel A d r i a n ~ Te e~s~timony.) As a
the spring. (Id) Three southern states, Texas, Louisiana, and Mississippi sponsor girls' and boys' soccer in the winter. (Id.) These numbers do not add up to fifty-one (counting the District of Columbia), though, because thirty-six states schedule both sexes to play soccer in the same season, which varies between a single fall or single spring season. (Id.) Trial Exhibit 256 does not indicate whether those states sponsoring both sexes in the same season have separate-sex teams or if they sponsor co-ed soccer. (Id.) The Court also has no indication of how many schools in Michigan may sponsor co-ed soccer teams.
In addition, states using different seasons for male and female soccer sometimes scheduled boys in spring and girls in fall. A couple of states also sponsored multiple seasons, either both fall and spring or'all three seasons, for both girls and boys. (Id.) This might mean that there is some arrangement where boys' and girls' junior varsity plays together in one season, and the varsity teams of both sexes play in another. Two states do not sponsor soccer at all, and one state did not report seasons for girls' sports. (Id.)
31 Angie Adrianse currently attends Michigan State University and graduated from Caledonia High School in 2000. (Tr. at 621:11-18, A. Adrianse.) She testified on behalf of Plaintiffs. During high school, she participated in basketball, volleyball, soccer and cross-country, including playing four years of varsity soccer. (Id. at 622:l-8.) She received numerous soccer honors, including All Conference, All District and All Region her junior year. (Id. at 622:10-13.) She now plays club soccer for MSU. (Id. at 621:24-25.)
32 Daniel Adrianse is the father of two daughters who played high school sports while attending high school. (Tr. at 593:6-8, 19-24.D. Adrianse.) He is also a member of Communities for Equity and testified on behalf of Plaintiffs. (Id. at 9-10.) His younger daughter, Angie

result, Michigan girls must play three games a week over the course of the season to make up postponed games whereas Michigan boys play two games per week over the course of their season. (Id. at 601:22-602:15.)
The increased number of games per week causes a greater risk of injury for girls that Michigan boys do not face. (Tr. at 602:18-603:17, D. Adrianse) (testifying that his daughter Angie's teams and teams she competed against suffered "a lot of injuries" as a result of playing three days a week); Tr. at 623:2-6, A. Adrianse (testifjbg that playing three days a week is "really hard on your body" and "practices can't even be much because you're exhausted").)
Girls playing soccer in springhave some post-season tournament dates that occur after the end of the school year, so because there is no ability for contemporaneous in-school promotion of these games, it is less likely that there will be as much student or other fan support as there is for boys' soccer games. (Tr. at 604:11-607:3, D. Adrianse; Tr. at 623:15-624:25, A. Adrianse.)
Girls' opportunities for collegiate recruitment are decreased because college scholarships for soccer are awarded in November and April. (Tr. Exh. 5 at 19-20.) Recruiters will not have had an opportunity to see female soccer players in Michigan in their senior year of high school before awarding first-roundNovember scholarshipsbecause girls starttheir competitive season in late March. (Tr. at 504:6-14, D. Lopiano.) Michigan boys play during the fall season and are able to have four years ofhigh school competition for college recruiters to consider.
The MHSAA's soccer witness was Thomas Miller, a retired teacher who coaches boys' and girls' soccer at Midland Dow High School and former president of the Michigan High School Soccer Coaches Association. (Tr. at ll35:9-19, 1137:3-6, Thomas Miller Testimony.) Asked by MHSAA
Adrianse, also testified on behalf of Plaintiffs. 40

whether the fall or the spring is advantageous for recruiting, Mr. Miller responded only that "most of the top level players are recruited before their senior year."33 (Id. at 1153:10-15.) Nor was Mr. Miller able to identify when the NCAA letter of intent signing date is for soccer. (Id. at 1164:7-9.)
The United States Soccer Federation (USSF) and the American Youth Soccer Organization (AYSO) club soccer seasons for high school age players take place in the spring. The Olympic Development Program (ODP) for soccer takes place during spring and summer for high school age soccer players. Because MHSAA rules prohibit athletes from playing high school sports and club sports during the same season, girls but not boys lose opportunities to participate in USSF, AYSO, and ODP programs. (Tr. at 626:ll-629:8, A. Adrianse; Tr. at 504:15-24, D. Lopiano; Tr. at 1168:2-16, T. Miller.) There is some private club soccer in the fall for girls, so in the event that Michigan girls played high school soccer in the fall, girls would have to choose between those programs. (Tr. at 630:18-631:10, A. Adrianse.)
Again, Michigan girls cannot play against schools in the bordering states of Ohio and Indiana because these states conduct girls' soccer in the fall, whereas Michigan boys could compete in both states. (Tr. Exh. 256 at 15,36.) But two ofMichiganysborder states, Illinois and Wisconsin, schedule soccer in separate seasons as Michigan does, with their girls and boys playing in the same seasons as
Michigan. (Tr. at 1170:13-1l7l:7, T. Miller; Tr. Exh.256 at 14,23, 50.)
33 Of course, that conclusion begs the question. If girls are playing in the spring, it is obvious that recruiting would be forced to take place before the senior year for female players. That does not answer whether this is a detriment particular to playing in a spring soccer season, or if recruiting would still take place prior to the senior year even if girls played in fall. It also does not provide any information with respect to players who are not "top level" but who, if they were provided with equal opportunities in high school programs, might still be able to obtain nonscholarship spots on collegiate teams, scholarships in less prestigious collegiate soccer programs, or partial scholarships at better collegiate soccer programs.

Plaintiffs' witness testified that Michigan girls cannot participate in national rankings or AllAmerican individual rankings because their interscholastic season takes place after the fall traditional season. (Tr. at 504:2-5, D. Lopiano.) Of course, reduced visibility would negatively affect ability to be recruited and produces the general disadvantage of less recognition. (Id.) Mr. Miller indicatedthat Michigan girls still have the opportunity to be nationally ranked, but did not indicate the extent to which they have been ranked or if that opportunity is at all impacted by the spring season. (Tr. at 1150:19-1152:19.) The Court therefore does not know whetherthe ranking takes place duringthe fall, and thus it is more difficult for girls to be ranked because they are relying on their distant spring season performance, or if there are special spring rankings for high school girls' teams.
There are a few advantages to playing in the spring that girls currently reap. Girls' soccer games are frequently scheduled on Friday nights in the spring season; boys' soccer games are not or are infrequently scheduled on Friday nights in the fall because of the conflict with boys' football games. (Tr. at 1148:19-1149:7, T. Miller; see also Tr. at 144:13-147:3, C. Engel.)
In addition, it is more difficult to obtain and provide experienced high school soccer officials during the fall season because colleges also compete in the fall. (Tr. at 1144: 13-21, T. Miller.) High schools obtain better officials in the spring during the girls' season. (Id,at 1144:22-23.) Even though it appears that sufficient numbers of people are registered to officiate soccer, registration of soccer officials with the MHSAA does not suggest that officials are either available to work, competent or experienced. (Tr. at 1158:1-4, 1172:13-17, T. Miller.)
Mr. Miller's concerns about changing seasons, however, were all in terms ofpotential logistical problems that would occur if the seasons were combined, and not if boys' and girls' seasons switched with each other. Approximately one-third of Michigan high school soccer coaches coach both boys'
42 


and girls' soccer at their respective schools. (Tr. at 1140:14-19, T. Miller.) It would be difficult to coach both teams during the same season, so some existing coaches would lose one of their coaching positions, and new coaches would have to be hired. (Id. at 1141:8-13,1156:23-1157:l.) The quality of the surfaces of soccer fields will also decline with twice as many players on them. (Tr. at 1147:221148:4, T. Miller.)
Mr. Miller testified that he believes that if boys and girls play soccer in the same season, participation opportunities will decline because schools will have to cut team offerings as a result of logistical problems like finding sufficient officials, coaches, and fields. (Tr. at 1153:24-115423, T. Miller.) However, because of the lack of more specific evidence on these points, the Court is not convinced that either alternatives to these problems could absolutely not be found or that these problems would not be able to be resolved after a period of adjustment. D. Lower Peninsula Girls' Golf
The Court finds that in Michigan, fall is the more advantageous season for playing high school golf. Again, there was plenty of direct evidence to support this finding, but the fact that the boys' golf program, which was in existence first,was moved from springto fall also lendscircumstantial evidence to the Court's conclusion. Moreover, there was no evidence that logistical difficulties would pose a problem in scheduling boys'.and girls' golf at the same time.
In 1999-2000, 3,564 girls played golf for MHSAA member schools. (Tr. Exh. 99 at 42-43.) The MHSAA schedules the Lower Peninsula girls' golf state championshiptournament in the spring,
\
at the same time that the NCAA schedules women's golf. (Stip. Fact No. 38; Tr. Exh. 40 at 2.) The MHSAA schedules the golf state championship tournament in the spring for Upper Peninsula boys and girls. (Stip Fact No. 39.) For 2001-02, MHSAA set the first practice date for Lower Peninsula girls'

golf as March 11,the first contest date as March 14, and the end of the season as June 1. (Tr. Exh. 9(a) at 113.) This places Lower Peninsula girls' golf in the spring season.
The MHSAA schedules the Lower Peninsula boys' golf state championship tournament in the fall, while the NCAA schedules men's golf in the spring. (Stip Fact No. 37; Tr. Exh. 40 at 2.) For 2001-02, MHSAA set the first practice date for Lower Peninsula boys' golf as August 9, the first contest date as August 13, and the end ofthe season as October 20. (Tr. Exh. 9(a) at 113.) This places the Lower Peninsula boys' golf season in the fall.
Lower Peninsula boys' golfused to be in the spring, but the MHSAA moved it to the fall season in the 1970s so that boys' golf teams would have better access to golf courses. (Tr. Exh. 10(a)at 6.) The MHSAA scheduled Lower Peninsula girls' golf in the spring, which was the season it had previously determined was less advantageous when it moved boys' golf. (Tr. Exh. 10(a) at 29.)
The traditional playing season for golf is the spring. (Tr. at 497:14-16, D. Lopiano.) But Breanne Hall, who played high school golf for East Kenhvood High School and now plays college golf for University of Toledo, testified that fall is the better season for golf in Michigan for a number of reasons.34 (Tr. at 565:6-569:4.)
In Michigan, it is easier to obtain tee times in the fall rather than the spring, and it is easier to obtain "the use of better courses." (Tr. at 567:8-14, B. Hall; Tr. Exh. 29 at 2 (1973-74 MHSAA Bulletin, vol. L, p. 6).) It is easier to obtain tee times in fall because "[a] lot of people have had all summer to play. By the time when the fall rolls around, a lot of people have put their clubs away. And when the weather starts to get nice [in the spring], everyone [in the general public] is ready to get out
34 MS.Hall has earned academic honors as well. She graduated with a 3.8 grade point average from high school and has earned a 3.7 grade point average thus far in college. (Id. at 562~2-7,563~10-12.)

there and start playing." (Tr. at 567:ll-14, B. Hall.) Thus, girls' teams must compete more with members of the general public for tee times than they would in fall.
In Michigan, the golf courses are in better condition during the fall season. (Id. at 565:12-18.) Girls are more likelyto face cold, icy weather and frozen or muddy golf course greens in the spring and do not have the advantage of startingthe season on a course which has been groomed all summer. (Id. at 565:12-21; Tr. at 511:5-15,D. Lopiano.) Michigan boys in the Lower Peninsula enjoythese course conditions and availability while Michigan girls do not.
In addition, because the NCAA letter of intent signing date is in early November, Michigan boys have four years of golf experience and scores on which to be evaluated. (Tr. at 564:19-565:1, B. Hall.) Michigan girls only have three years because their season occurs after the letter of intent signing date. (Id.)
For example, Ms. Hall, an All-State golfer as a junior and senior, was ranked among the top eight female high school golfers in the state and finished third in the state championship tournament. (Tr. at 561:13-17.) Notwithstanding her outstandingsenior season,Ms. Hall only received a 50percent scholarship to Northern Kentucky University, a Division I1college, to play golf. (Id. at 558:24-559:7, 561:13-17.) After having a successful freshman year at Northern Kentucky and competing in a tournament against Division I teams, Ms. Hall received a 75 percent scholarship to play golf at the University of Toledo, a Division I college, where she currently attends. (Id. at 558:17-19, 559:s-13, 559:24-560:4.)
Moreover, Michigan boys go straight from summer play to their high school fall season, allowing them to maintain their peak condition and low scores. (Tr. at 565:24-566:8, B. Hall.) Weather conditions do not allow golf coursesto stayopen during the winter months. (Id. at 565:19-21,

B. Hall.) As a result, Michigan girls begin their spring high school season without the benefit of playing during the winter and score more poorly. (Id. at 565:22-566:8.) This affects the recruiting opportunities for Michigan girls because "obviously the coaches want the players with the lower [better] scores." (Id. at 566:14-18.)
The MHSAA pointed out that the spring season has the advantage of being the time when daylight hours are longer, so it is easier to play eighteen holes of golf without missing school than it is in the fall. (Tr. at 571:11-17, B. Hall.) However, this advantage hardly makes up for the other disadvantages of the spring golfing season.
No significant evidence was introduced to assert that logistics would make maintaining both the girls' team and the boys' team in the same Lower Peninsula golf season difficult or impossible. In addition, Plaintiffs' expert opined that boys and girls golfing together would gain psycho-social benefits from co-ed training and could play mixed tournaments or matches. (Tr. at 668:12-669:11, 706:20-709:17, L. Bunker.)
\
E. Lower Peninsula Girls' Swimming and Diving The Court finds that the fall season for swimminghas advantages that outweigh advantages to
swimming in winter. The parties presented reasons why they each believe that the fall or winter swimming season is more advantageous than the other season.
All other testimony presented objected to moving the girls' season because of concerns that both sexes in one season would create logistical problems. The Court finds that the opposition to moving girls' swimmingto the same season as boys' swimmingismostly motivated by a desireto keep them in separate seasons for administrative convenience in utilizing facilities and coaches, and not particularly because there is a belief that the girls' swimming season is superior or equal to the boys'

season. The Court also finds that the anecdotal evidence presented ofpotential logistical problems was

insufficient to prove logistical problems would occur if both sexes swam in the same season. If

logistical problems would exist, there was also insufficient evidence that those problems would not

have solutions.

In 1999-2000,6,652 girls participated in swimming and diving for MHSAA member schools.

(Tr. Exh. 99 at 42-43.) The MHSAA schedules the Lower Peninsula girls' swimming and diving state

championship tournament in the fall. (Stip. Fact No. 46.) For 2001-02, the MHSAA set the first

practice date for Lower Peninsula girls as August 13, the first contest date as August 25, and the end

of the season as November 17. (Tr. Exh. 9(a) at 113.) The setting of these dates puts the Lower

Peninsula girls' swimming and diving season in the

The MHSAA schedules the swimming and

diving state championship tournaments in the winter for Upper Peninsula boys and girls. (Stip. Fact

No. 47.) The entire season for both boys and girls in the Upper Peninsula is placed by the MHSAA

in the winter because of the starting and ending dates.

MHSAA schedules the Lower Peninsula boys' swimming and diving state championship

tournament in the winter. (Stip. Fact No. 45.) For 2001-02, MHSAA set the first practice date for

Lower Peninsula boys as November 19, the first contest date as December 1, and the end of the season

as March 9. (Tr. Exh. 9(a) at 113.) This places the Lower Peninsula boys' swimming and diving

season in the winter. 2 The MHSAA rescheduled the girls' swimming season from fall to winter, as Plaintiffs request

here, in 1990 because "[tlhere had been ten years of effort to expand girls' opportunities in the winter

35 There was some indication that the NCAA schedules men's and women's swimming in the winter. (Tr. Exh. 40 at 2.) Ms. Lopiano also testified that the traditional season for swimming and diving is the winter. (Tr. at 497:17-20.) But Mr. Phil1 testified that college men's and women's teams swim from September and continue through the end of March. (Tr. at 1192:19-23.)
47 


or at least equalize girls' opportunities in the fall, winter, and spring seasons. The Council had
statistical information from the Department of Education showing unequal opportunities for girls in
the winter compared to boys and compared to girls' opportunities in the fall and spring seasons." (Tr.
Exh. 44.) In response to this change of seasons, the Michigan Interscholastic Swim Coaches
Association (MISCA) hired an attorney to advocate its opposition to this move to the MHSAA's
Representative Council. (Tr. at 1196:2-24, Greg Phill T e ~ t i m o n y . ~M~r). Phill testified that MISCA
hired the attorney to express the group's displeasure because "[the coaches] did not want the boys and
girls together [in the same season] and we felt that that would be detrimental to the sport." Fifty ofthe
250 schools offering swimming also complained, and the MHSAA moved the girls' swimming season
back to the fall.37(Tr. Exh. 45 at 236.)
Plaintiffs argue that the winter season is more advantageous than fall for swimming. For one
reason, Michigan boys are able to go straight from the high school swimming season to the club
tournaments, whereas Michigan girls have a gap in competition because their season has ended in
November. (Tr. at 505:4-506:1, D. Lopiano.) Sectional and regional swim meets for U.S. Swimming
take place in M a r ~ h . ~(T' r. at 1202:7-12, G. Phill.) The Phillips 66 national swim championships are
36 Greg Phill, who testified on behalf of Defendant MHSAA, is a swim coach for Livonia Stevenson High School and for Clarenceville Swim Club, a U.S. Swimming program. (Tr. at 1175:23-1176:6, G. Phill.) He coaches the girls' team, has been at Livonia Stevenson for sixteen years, and has been coaching swimming for twenty-five years. (Id.at 1176:14-15.) He has also coached and continues to coach an Olympic swimmer, Sheila Taormina, who won a gold medal in 1996 in a relay event. (Id. at 1176:16-1l77:12.)
37 After Lower Peninsula girls' swimming was moved back to fall, the MHSAA sponsored a competitive cheerleading tournament for girls in the winter to add an athletic opportunity. (Tr. Exh. 52.)
38 Mr. Phill testified, upon questioning by one of the MHSAA's attorneys, that in Michigan, the highest level of regular-season competition is found in high school swimming, as opposed to U.S. Swimming club-level swimming. (Tr. at 1192:8-12.) Presumably, this was in response to the

in MarchIApril of each year. (Tr. at 1202:13-24, G. Phill; Tr. at 505:4-506:18,D. Lopiano.) In diving,
junior nationals are in March, so girls face a gap in competition between the end of their fall
interscholastic season and open amateur competition. (Tr. at 506:l9-507:4., D. lo pi an^.)^'
Finally, the boys' swimming season is nearly two weeks longer than the girls' season, giving
the boys a greater opportunity to practice and compete. (Tr. at 500:25-501:1, D. Lopiano; Tr. Exh. 63
(1998-99 MHSAA Quick Reference Calendar).)40
fact that girls miss U.S. Swimming club competition because of the season in which they swim. This does not prove that missing U.S. Swimming competitions is not a detriment, however. Even if it is true that high school competition is higher level, girls who seek additional swimming . opportunities through club participation are denied participation in this particular club program or in these particular competitions.
While girls' amateur participation opportunities are affected by missing amateur competitions, the Court finds that recruiting opportunities are not affected one way or the other. Collegiate recruiting is not dependent on seeing the swimmer, since "[b]asically swimming is a black and white sport. You're either this fast or you are not that fast, and that's what they look at. Most college recruiting is done fkom [an] office." (Tr. at 1190:18-1191:2, G. Phill.) In addition, girls would be able to rely on their final, senior year season performance to attempt to obtain a scholarship or the opportunity for a non-scholarship spot on a collegiate swim team.
39 Plaintiffs' expert testified that this is particularly crucial because Michigan boys are able to do a single "taper," whereas Michigan girls must do a double "taper" to compete in the state championship in the fall and the national championships in the winter. (Tr. at 505:4-506:1, D. Lopiano.) A taper is designed to have a swimmer peak in time for a championship event. It involves intense training over a period of time, usually at the season's beginning, followed by a gradual decline in practice workload so that the swimmer can physically recover and can be primed to swim his or her fastest times. (Id. at 506:2-18.) It is extremely difficult to do tapers in close proximity to each other because of the time and physical exertion required. (Id at 505:12-16.)
Michigan boys are able to focus on a single taper because the national tournaments are usually the week after the MHSAA state championship tournament. (Tr. at 505:16-506:1, D. Lopiano.) Michigan girls do not have that benefit because their high school season has concluded in late November. Michigan boys who dive are able to go straight from their winter season to the national open amateur tournament in March, whereas girls have a competition gap unless they are able to afford a private diving club and continue their training in preparation for the national tournaments. (Id. at 506:19-507:4.)
40 One of Plaintiffs' experts argued that putting Lower Peninsula swimming and diving into the same season would allow teams to share travel, promotion, coaching, and facility rental time. In addition, she argued that they could swim mixed relay events together and have a swimming

The MHSAA offeredtestimony onthe reasons whythe fall season couldbe consideredsuperior or equal to the winter season for swimming. Mr. Phill said that high school swimming programs in Michigan are flourishing for girls, but declining for boys. (Tr. at 1184:22-1185: 17, G. Phill.) He believes that this is because the fall season for girls allows them to transition from summer swimming and clubs to the high school program in the fall, but boys do not have the same incentive to return to winter high school competition after taking the fall season off. ( I d )There could well be other reasons for a decline in boys' programs, like the rise of other sports offered for boys in fall, particularly soccer, for example. In addition, Mr. Phill testified that he and other girls' swimming coaches feel that fall is superior to winter for the swimming season because there are not the distractions of the winter season, like exams, the winter break for the holidays, or spring break. (Tr. at 1181:12-17, G. Phill.)
The rest ofthe MHSAA' s evidence about swimming centered on its assertion that participation opportunitiek for both girls and boys would decrease ifboth swam in the same season. Approximately one-third or more of Michigan's high school swimming coaches coach both girls' and boys' programs for their respective schools. (Tr. at 1l88:22-1189: 1, G. Phill.) Mr. Phill testified that coaches could not coach both teams at the same time. (Id. at 1189:2-24.) Clearly, this means that some unknown number of new coaches would have to be hired if boys and girls swam in the same season. There was no testimony regarding how difficult or easy hiring these coaches would be.
program even if there are not enough athletes for a single-sex team. There was simply no empirical evidence presented to enable the Court to make a finding on those assertions. However, the Court believes Plaintiffs' expert's assertion that there can be attendant psycho-social benefits when young males and females train and compete together, in certain circumstances. (See Tr. at 668:12-669:11, 706:20-709:17, L. Bunker.)

Joining the seasons would also cause a decline in club programs that rent pool space from schools. (Tr. at 1187:25-1188:4,G. Phill.) Presumably, this would onlyoccur in the combined season, not in the season when no high school teams would be swimming.
Mr. Phill asserted that the dimensions of swimming pools to which he has been in states where boys and girls swim in the same season are often 50 meters by 25 yards. (Tr. at 1183:ll-13.) There are no high school pools in Michigan with dimensions of that size. (Tr. at 1183:15-17, G. Phill.) There was no testimony regarding how well Upper Peninsula schools manage, in terms of having sufficient pool space, in offering swimming to both sexes in the winter. Mr. Phill further testified that at LivoniaStevenson High School, where he coaches, the girls' "B" team would have to be eliminated if the seasons were joined.41 (Tr. at 1186:13-20.) F. Girls' Tennis
After reviewing the evidence, the Court finds that spring is the more advantageous playing season for tennis. In addition,the MHSAA presented no evidence that both sexesplaying tennis in the same season would create logistical problems.
In 1999-2000,8,759 girls played tennis for MHSAA member schools. (Tr. Exh. 99 at 42-43.) MHSAA schedules the girls' tennis state championship tournament in the fall. (Stip. Fact No. 36.) For 2001-02, MHSAA set the first practice date as August 13, the first contest date as anytime after
the first practice, and the end of the season as October 20. (Tr. Exh.9(a) at 113.) These decisions
place girls' tennis in the fall. MHSAA schedules the boys' tennis state championship tournament in the spring, at the same
time that the NCAA schedules women's and men's tennis. (Stip. Fact No. 35; Tr. Exh. 40 at 2.) For
41 Mr. Phill testified that the Livonia-Stevenson girls' team currently has sixty-four girls, whereas he expects the boys' team to have eighteen in this winter's season. (Tr. at 1183:18-24.)
51 


2001-02, MHSAA set the first practice and contest dates for boys' tennis as March 11 and the end of the season as June 1. (Tr. Exh. 9(a) at 113.) This places the boys' tennis season in the spring. The traditional playing season for tennis is the spring. (Tr. at 497:ll-13, D. Lopiano.)
Boys' high school tennis immediately precedes the United States Tennis Association (USTA) summer tennis tournament circuit, so boys have the advantage of high school practice, competition, and coaching before participating in the circuit and are better prepared for the summer circuit, where college coaches watch play. (Tr. at 508:4-509:3, D. Lopiano; Tr. at 700:21-701:13, L. Bunker.) In addition, the girls' high school tennis season is approximately 20 days shorter than boys' tennis. (Tr. at 500:20-24, D. Lopiano; Tr. Exh. 63.)42 IV. PSYCHOLOGICAL AND GENERALIZED HARMS TO MICHIGAN GIRLS
The current scheduling of seasons harms Michigan girls in a number of ways that can be generalized across all of the sports at issue in this case. First, the practice of scheduling only girls' sports, but not boys' sports, in disadvantageous and/or non-traditional seasons sends the clear message that female athletes are subordinate to their male counterparts, and that girls' sports take a backseat to boys' sports in Michigan. (See Tr. Exh. 81 at 1.) It also deprives girls of contemporaneous role models, skills development, and team-building opportunities.
These scheduling practices also have a negative effect on the gender role socialization of Michigan's girls.43Treating boys and girls differently and inequitably in athletics can contributeto or
42 Putting girls' and boys' tennis into the same season would allow teams to share travel, promotion, coaching, and facility rental time. They could play mixed doubles matches together and have a tennis program even if there are not enough athletes for a single-sex team. Moreover, there are psycho-social benefits from young males and females training and competing together. (Tr. at 668:12-669:11,706:20-709: 17, L. Bunker.)
43 Gender role socialization is the psychological term used to explain how an individual learns what is expected of him or her based on his or her sex. (Tr. at 665:24-666:03, L. Bunker.)

cause girls and boys to have dramaticallydifferent perceptions of self-worth and to cause girls to have lower expectations for themselves. (Id. at 676:13-19.)
When girls are treated unequally as compared to boys, girls receive the psychological message that they are ccsecond-class"or that their athletic role is of less value than that of boys. (Tr. at 494:9556:1, D. Lopiano; Tr. at 673:3-15,679: 11-680:13,L. Bunker.) Being scheduled in a non-traditional season, or in a season that is clearly disadvantageous while boys are scheduled in the clearly advantageous season, gives girls this "second-classyystatus message. (Tr. at 638:25-639:6, B. Eveland; Tr. at 340:17-344:22, C. Erbe; Tr. at 450:19-451:5, J. Magelssen; Tr. at 137:2-137:11, C. Engel.)
This message stayswith girlsthroughout adulthood and can extendto careers and interpersonal relationships. (Tr. at 673:16-674:12,L. Bunker.) When girls receive separate and unequal treatment, this teaches them to expect discrimination, so that they may not even recognize discrimination when it occurs. (Id. at 714:1-715:8.) In addition, girls may be wary of change because they do not know

what to expect or fear that the situation could become even worse for them.44 (Id. at 679:ll-683:19,
715:9-21; see also Tr. Exh. 254.45)
Differential and unequal treatment of boys and girls in the scheduling of seasons can
psychologicallyaffect girls in negative ways. (Tr. at 679:11-680:13,L. Bunker.) Ifgirls recognize that
boys alwaysplay in the traditional seasonswhile girlsplay in the non-traditional seasons, coupled with
other unequal treatment such as prime time game scheduling, girls may develop unhealthy coping
mechanisms to rationalize away the unfair treatment. (Id. at 680:2-13.)
One of these mechanisms might be to establish lower expectations. That is, a girl will
recognize she is being discriminated against but expect that this will continue for the rest of her life
44 Dr. Bunker examined a study conducted by the Office for Sex Equity and Education of the Michigan State Department of Education on the perception of boys and girls and their interactions in the school environment. (Tr. at 670:10-20, L. Bunker; Tr. Exh. 105 (4192 Report: "The Influence of Gender-Role Socialization on Student Perceptions").) While the Court gives this study very little weight in its consideration of the evidence, it is interesting to note that the results of this study done in Michigan tend to confirm the expert opinions of Dr. Bunker.
This study asked Michigan high school boys and girls to imagine their reaction if they woke up the next morning as a member of the opposite sex. (Tr. at 671:4-8, L. Bunker.) Twenty-two percent of the female respondents indicated that they had at some point wanted to change gender. (Tr. Exh. 105 at 3, 11-12; Tr. at 671:8-11, L. Bunker.)
In contrast, only three percent of the male respondents said they had ever considered wanting to be a girl. (Tr. Exh. 105 at 3.) "More than any other item," girls who wanted to change gender believed they would receive better athletic opportunities. (Tr. Exh. 105 at 11-12; Tr. at 671:8-11, L. Bunker.) Boys, on the other hand, perceived that if they were a girl they would receive second-class treatment. (Tr. at 676:17-19, L. Bunker.)
45 In a survey conducted by Western Michigan University and commissioned by the MHSAA for this lawsuit, girls who were asked to comment on the possibility of changing their sports seasons indicated some concern that if seasons changed or combined with boys' seasons, girls would end up with worse practice or playing times or other disadvantages. For example, one
girl said, " ... Putting sports like basketball or tennis into the same season for both boys and girls is
probably a disadvantage to the girls. This is because many schools will treat the girls teams as if they aren't important. The girls will not get as good practice or coaching in many cases." (Tr. Exh. 254 at 43.)

and assume she must adjust to the discrimination rather than seek to change it. (Tr. at 680: 17-22, L. Bunker.)
For example, Kristi Madsen, a former high school athlete, testified that she felt that it "hurts" girls' self-esteem "[wlhen you look to your counterparts, the males, and they are playing in the right seasons, they get all the benefits that come along playing in the right season, and then you look at where you are, I think it hurts [self-esteem]." (Tr. at 109:8-17, Kristi Madsen; Tr. at 16:7-17:10, D. Madsen (testifling that her daughter believed that she has to be "good enough to play on a boys' team" in order to receive equal benefits in athletics).)
Discriminatorytreatment ofgirls also has an effect on boys. Boys receive the message that girls are inferior and are harmed by that message. (Tr. at l35:24-137: 16, 141:18-142:2, Connie Engeld6 Testimony; Tr. at 671:22-25, L. Bunker.) As parent Connie Engel said, "This is creating a situation
where [my son] believes that girls are second-class ... . My children, my son and my daughters, don't
get to experience [basketball's "March Madness"] together and they know that they are treated differently." (Tr. at l37:2-137: 11, C. Engel.)
In addition, there are other harms, which could seem minor to some, but in the aggregate act to reinforce the inconvenience and unfairness of playing in a disadvantageous season. For example, girls playing sports outside of their traditional seasons have difficulties obtaining current season equipment for the sport. ((Tr. at 35:7-37:11,D. Madsen; Tr. at 97:5-17, Kristi MadsenTestimony; Tr. at 114:6-17, Kelsey Madsen Testimony; Tr. at 494:9-556:1, D. Lopiano.) Girls also have diminished opportunities for recognition in national athletic publicity and rankings, like USA Today's weekly Top
46 Connie Engel is the mother of three children, two daughters and one son, who attended or currently attend Forest Hills Central High School and who all participated in or currently participate in interscholastic athletics there. (Tr. at 126:17-127:12, C. Engel.) She is also a founding member of CFE. (Id. at 134:19-20.)

25 high school rankings, or all-America honors, like from Parade All-America or McDonald's AllAmerican teams. (Tr. at 494:9-556:1, D. Lopiano.) In addition, Michigan girls are denied the experience of participating in promotional events like basketball's "March Madness," national shootouts, three-on-three tournaments, and similar competitions. (Id.)
Furthermore, Michigan's seasons differ fiom a majority of other states, or many other states, depending on the sport. Girls transferring in or out of Michigan schools mid-year can be prevented from playing a season of interscholastic athletics because they have missed the season. Playing out of a traditional season also limits one's choice of opponents, as well, including the ability to play teams in neighboring states. In addition, girls who end up playing in college must adjust to different collegiate seasons. (Tr. at 7l2:20-713:10, L. Bunker.)
Because the MHSAA schedules some girls' sports, but no boys' sports, in non-traditional seasons, girls, but not boys, must choose among sports they already play when they enter high school. (Tr. at 32:9-34, D. Madsen.) For example, girls who play sports in community recreation programs before high school often play with boys in the same, traditional andlor more advantageous seasons. (Id.) But when girls enter high school, they must choose between sports when some of those sports are scheduled in different seasons and create conflicts, and boys do not face this choice. (Id.)
Finally, participation opportunities for girls in the winter are limited, perhaps as a result of this scheduling. The MHSAA schedules five sports for boys in the winter, basketball, wrestling, ice hockey, skiing, and swimming and diving. (Tr. Exh. 63.) Three winter sports are scheduled for girls: volleyball, gymnastics, and skiing. Very few MHSAA member schools have girls' gymnastics or skiing teams, (Tr. Exh. 99), so most Michigan girls have the opportunity to participate in one winter sport, whereas boys would.have three or four, depending on the availability of boys' skiing and ice

hockey. "The vast majority of Michigan high schools conduct only one sport for girls in the winter. Fewer than 20% sponsor two sports. Fewer than 2% sponsor three sports. The addition of girls swimming in the winter schedule at more than 200 schools fills a desperate need for many MHSAA member schools and their female athletes." (Tr.Exh. 44 (Editorialby MHSAA executive directorJohn E. Roberts, 1990-91 MHSAA Bulletin).) Girls' swimming was later moved back to fall, however. V. DEFENDANT MHSAA'S JUSTIFICATIONS FOR CURRENT SEASONS
The MHSAA has argued that the girls' sports at issue in this lawsuit are scheduled in superior or equal playing seasons. This is an argument that this Court wholly rejects after reviewing the facts presented at trial for the reasons described in the previous sections.
In addition, the MHSAA has presented a set ofjustifications for scheduling girls' seasons as it has that fall into the categories of available facilities, coaches and officials, i.e., concerns that logistical limitations require putting the sexes in separate seasons in order to maximize participation slots in every sport. These concerns, while legitimate, would at most permit the MHSAA to schedule girls' and boys' teams in separate seasons, but the two sexes would have to split advantageous and disadvantageous sports equally. It is clearly not equitable for girls to play in all of the disadvantageous seasons and for boys to play in none of them. Nonetheless, for reasons discussed both in the previous section and in this section, Defendant MHSAA presented insufficient evidence in all of the sports at issue that logistical concerns could not be resolved if both sexes played in the same season.
Finally, the MHSAA presented arguments that absolutely do not legally justify providing Michigan girls with different and unequal treatment. These arguments were that Michigan girls prefer seasons as they are, which, among other problems, the Court found to be a dubious conclusion; that member schools prefer the current seasons; and that girls' programs need an "independent identity"

from boys' programs, which is allegedly provided by putting girls in a different season. These are discussed below. A. Logistical Concerns 1. Facilities
Ensuringthe greatestnumber of participationopportunities for children in interscholasticsports is a legally legitimate goal, as well as wise policy. To this end, being able to sponsor freshman and junior varsity teams, larger squads, and maximum playing time for the most young people are also legally legitimate goals. (See Tr. Exh. 106.) Nonetheless, the Court is not convinced that the MHSAAYsscheduling system maximizes participation or is the only method by which to maximize participation because insufficient evidence on these points was presented. Moreover, the Court finds that administrative convenience against a historicalbackground of treating girls' athletics inequitably, and not actual empirical evidence, is a major cause of existing scheduling.
The MHSAA argues that it cannot schedule basketball, soccer and swimming concurrently for boys and girls because there are insufficient gymnasiums, soccer fields and pools in Michigan. (Tr. at 1l39:18-19, T. Miller Testimony; Tr. at 1183:1-17, G. Phill; Tr. at 799:11-23>K. McGee.) To combineseasons in some or all separately-scheduledsports,the MHSAA argues, would have the effect of reducing participation opportunities for both boys and girls by forcing schools to cut team size or cut freshman or junior varsity teams.
However, considering that the MHSAA bore the burden of production and persuasion on this point, the evidence presented was insufficient to convince the Court. The evidence was almost exclusively anecdotal. For instance, the MHSAA did not present enough evidence at trial to demonstrate how many schools have inadequate facilities to allow girls and boys to swim or play

soccer in the same season. In terms of pool space, thirty ofthe forty-three states sponsoring boys' and
girls' swimming schedule the seasons concurrently. (Tr. at 1200:lS-22, G. Phill; Tr. Exh.256; Tr.
Exh. 62.) The boys' and girls' swimming teams in Michigan's Upper Peninsula also swim in the same season. (Stip. Fact No. 47.) In addition to boys' teams, MHSAA member schools accommodate other teams in the winter by renting their pools to swimming club teams. (Tr. at 1187:21-1188:4, G. Phill.) Even assuming that Mr. Phill's assertion that the size of the Livonia-Stevenson pool would force him to cut participation on the Livonia-Stevenson girls' team is true, that says nothing about what alternativeshave been considered, like communitypools, or what the situation is in the rest ofthe state.
In terms of soccer field space, thirty-seven of the forty-eight states sponsoring boys' and girls' high school soccer schedule the seasons concurrently. (Tr. at 1162:16-20, T. Miller; Tr. Exh. 256 (1999-2000National Federation Sport Season Survey).) Moreover, soccer fields in Michigan are now being used concurrently by boys and girls because girls' club teams are playing in the fall (when boys' high school teams are playing) and boys' club teams are playing in the spring (when girls' high school teams are playing). (Tr. at 1164:24-25, T. Miller.) The soccer situation is similarly unclear to this Court to make a finding that logistical problems would exist in the event that girls and boys played in the same season.
Assertions have been made that some schools may have difficulties accommodating both girls and boys in the same season in swimming andlor soccer, but it does not suggest to what extent this would be a problem. More importantly, there was no indication whether any facility alternatives are possible and have been considered, or if the position that facilities are simply inadequate to accommodate girls and boys at the same time throughout Michigan has been adopted without further study because that is the conventional wisdom.

The MHSAA did not present any evidence that boys and girls cannot play tennis or golf in the same season. Moreover, there was evidence at trial, which the MHSAA did not refute, that girls and boys can play basketball in the same season with little difficulty, if any, if girls' volleyball is moved to the fall season.
In terms of gymnasium space, a school with a single gym can accommodate boys' and girls' basketball teams practicing and playing concurrently. (Tr. at 459:22-460: 12, J. Magelssen (testifying
that most Michigan schools in ClassesA, ByC and D have one gym that accommodates various indoor
sports simultaneously); Tr. at 941:1-8, James Glazier4' Testimony (testifying that there would be no problem at his current school and previous school if volleyball and girls' basketball facilities were switched).) For instance, Michigan high school gyms already have boys' basketball and girls' volleyball teams practicing and playing concurrently.
Practice times can be alternated weekly or each season so that boys practice right after school one week or season and the girls practice right after school the next. (Tr. at 517:20-25, D. Lopiano.) Boys' and girls' basketball games can likewise be played in the same season through "normal scheduling mechanisms" used in the 48 states in which boys and girls play basketball at the same time. (Id. at 517:17-518:11.) For example, boys' and girls' games can be scheduled so that one team or the other is playing at home, or they can play doubleheaders and flip-flop times in a doubleheader so that girls and boys have an equal opportunity for prime time. (Id.) Girls' basketball teams currently do not have to share gym space with volleyball or boys' basketball teams. But "having the gym to yourself [is not] a justifiable reason for treating boys different from girls." (Tr. at 833:15-834:4, K. McGee.) In addition, playing in the fall, with no other teams needing gym space then, has not given at least some
47 Mr. Glazier is former athletic director at Grandville High School and is currently assistant principal at Caledonia High School. (Tr. at 916:6-12, J. Glazier.)
6 0

girls' basketball teams the ability to play games on Friday nights, since boys' football plays that night. (Tr. at 93: 16-94:9, Kristi Madsen.)
It is true as the MHSAA points out that if girls' volleyball and basketball were switched, and girls' volleyball players had increased opportunity to play club volleyball, they would have to make a choice between club volleyball and high school basketball. (Tr. at 1O50:25-1051:9,1062:14-1063:4, P. Wilson.) Nonetheless, this is a choice for a youngwoman and her family to make, not the MHSAA. Girls are entitled to equal opportunities to be able to make these choices.
The MHSAA points to the high ranking of Michigan among the states for numbers of boys and girls participating in various sports as evidence that the current scheduling of seasons maximizes participation opportunities and arguesthat schedulingisthe reason whyparticipation numbers arewhat they currently are. (See Tr. Exh. 219(1999-00 National Federation Sports Participation Survey).) The argument is that other states, who in many sports schedule both sexes in the same season or schedule girls in a different season than Michigan does, have lower participation numbers than Michigan becausethose states' schedulingcreatesproblemsthat decrease participationopportunitiesfor students. This is circumstantial evidence that simply proves little, in that the comparison between Michigan's participation numbers and other states' participation numbers is not apt.
First, one would expect Michigan to rank at least eighth in the nation in numbers of participants in each sport, since Michigan has the eighth highest population in the country. See 19992000 Census. So ranking among the top ten states in a sport's participation numbers is not particularly instructive. Even where Michigan ranks higher than eighth, there are an unlimited number of other factorsthat influenceparticipation numbersbesides seasons, like school funding in generaland athletic program funding in particular, the number of schools in a state sponsoring a particular sport, cultural

attitudes in a state, the influence of weather on outside sports, etc. Without more, the Court cannot draw the conclusions from this data that the MHSAA asks be drawn. 2. Officials and Coaches
The MHSAA argues that it cannot schedule soccer and swimming for boys and girls concurrently because there are insufficient numbers of coaches in Michigan. (Id. at 1139:20-23, T. Miller; Tr. at 1189:14-24, G. Phill.) Similarly,the empirical evidence on this point was too sparse to make a finding that this is true. The circumstantialevidencethat logistical problems could be resolved or would not exist in the first place was just as strong.
The MHSAA further argues that it cannot schedule soccer for boys and girls concurrently because there are insufficient numbers of officials in Michigan. (Tr. at 1140:8-13, T. Miller.) There are no special qualifications to officiate soccer matches between MHSAA member schools. A prospective official need only register with the MHSAA, which involves passing an open-book examination on MHSAAYsrules and regulations, and pay a registration fee to the MHSAA. (Tr. at 1158:17-20,T. Miller.) The MHSAA asserted, but did not demonstrate,that some schools could have trouble finding "qualified" MHSAA-registered game officials, but there was little evidence that MHSAA-registered game officials would be unqualified if more were needed in a single season or if the existing officials were needed for more games during a single season."*
48 In addition, Ms. Norman-Nakamura, who testified on behalf of Plaintiffs, agreed on cross-examination that she is aware that some volleyball coaches oppose changing the girls' season because they believe that volleyball officials would not be as available during the fall season when college teams compete. (Tr. at 278-283, B. Norman-Nakamura.) However, the MHSAA did not offer the testimony of coaches holding these beliefs, nor any other evidence to support this claim.

Thirty-seven states, as well as Upper Peninsula schools, are able to schedule boys' and girls'
soccer concurrently. (Tr. Exh.256; Stip Fact No. 47.) Presumably, the Upper Peninsula4' and those
other states have enough officials and coaches. Thirty states are able to schedule boys' and girls'
swimming concurrently and presumably provide an adequate number of coaches. Upper Peninsula
schools likewise have boys and girls swim in the same season with a presumably adequate number of
coaches. (Stip. Fact No. 47.)"
B. Michigan Girls Prefer the Current Seasons
The MHSAA asserts that, based on a survey that it commissioned Western Michigan
University's Evaluation Center to conduct after this lawsuit was filed, Michigan girls prefer to play in
the current seasons. (Tr. at 10l4:22-lO l6:9, 1020:21-23, Daniel StufflebeamslTestimony; Tr. Exh.
254 (4115199 Sports Seasons Survey Final Report).) The Court reads the results of that survey
differentlythan the MHSAA does, as discussed below. Moreover, the Court notes that while anumber
of accomplished high school and college student-athletes testified about the disadvantages of the
current seasons, the MHSAA did not offer the testimony of any girl or parent who was in favor of
keeping the current seasons.
49 Clearly, the Upper Peninsula has a much smaller population than most states and the Lower Peninsula of Michigan, but the Upper Peninsula's experience is comparable in that while the number ofteams, and thus the number of officials and coaches needed, would be smaller, so would the total population from which those officials and coaches could be drawn.
Moreover, there was only some discussion of whether it would be possible for boys and girls to be coached by the same individual and/or practice together to save resources like coaches and facility usage. If such an arrangement were logistically possible and outweighed other disadvantages, Plaintiffs' experts also testified that there is psycho-social benefit to boys and girls training together where appropriate.
Dr. Daniel Stufflebeam is director of the Evaluation Center at Western Michigan University, which conducted the survey for the MHSAA. (Tr. at 986:13-17' 998:21-999:9, D. Stufflebeam.)

In addition, the survey suffers from design flaws and bias, some of which the Court will review here. Dr. Stufflebeam testified that the survey form listed potential negative consequences of moving the girls' seasons at issue inthis case and asked girlshow objectionablethey found those consequences. (Tr. at 1036:ll-1037:6, D. Stufflebeam; Tr. Exh. 254 at 18.) No benefits of changing the seasonswere presented to the surveyed girls. (See Tr. Exh. 254.) Further, Dr. Stufflebeam testified that the potential negative consequences identified in the survey were provided by the MHSAAYsattorneys. (Id. at 1037:7-1038:23.) No consultation was done with Plaintiffs' attorneys for suggestions of positive benefits to changing seasons to ask girls about in the survey, nor was any independent analysis conducted to determine the potential benefits and detriments of moving any seasons. This was likely because of the time pressures involved in conducting this survey under the parameters placed on the Evaluation Center by the MHSAAYsattorneys, based on when it was needed for this litigation. (Id at 1020:21-1023:23, 1031:7-20.)
Sixty of MHSAA's 729 member schools participated in the student survey. (Tr. at 1026:6-13, D. Stufflebeam.) Only one-third of the girls in these 60 schools were surveyed, and nearly one-third of respondents participated in sports that are not played in disadvantageousseasons. (Id. at 1O26:6-13, 1029:3-6.)
In addition, the original, written survey responses were destroyed after the data from them was entered into a database, but before Plaintiffs or their expert couldreview them. (Tr. at 1029:16-1030:5, D. Stufflebeam.) Thus, it is impossible to tell what subjective answers where girls could write comments match to what objective responses to the objective questions, and therefore, it is impossible to ascertain why girls with certain opinions may have held those opinions.

Even setting aside these flaws, the Court is not at all convinced that the survey results themselves support the MHSAA's position that Michigan girls largely prefer current scheduling. In responding to the question of whether "all high school sports seasons should be the same as college," for example, 31.4 percent of the respondents said no, 31.3 percent said yes, and over 37 percent had no opinion. (Tr. at 1030:13-22, D. Stufflebeam; Tr. Exh. 254 at 26.) This is hardly overwhelming support for maintainingcurrent, non-traditional seasons employedby most of the girls' seasons at issue in this lawsuit.
Moreover, some ofthe surveyresponses ofthe female athletesthat indicated that some ofthose who opposed changing seasons did so because they feared boys would receive better treatment and practice times if the girls moved to the same playing seasons as boys. (Tr. Exh. 254 at 39 et seq.; Tr. at 1031:7-1035:9, D. Stufflebeam.) If girls and boys play a sport in the same season, however, individual schools are under legal obligation to give girls and boys equal treatment in practice and game times, for example.
In addition, the Court has some concern that girls would indicate a desire not to change simply in order to avoid being branded troublemakers or because they have come to believe that an inequitable situation is their lot in life. For example, one respondent said, "I think sports seasons are good the way
they are - I would like girls' sports to be a bigger deal, but I don't want to put up a stink." (Tr. Exh.
254 at 43.) In sum, the collection of opinions of girls presented from the WMU Survey does not show that the current seasons are equitable or even that Michigan girls believe that they are equitable.

C. Member Schools Prefer the Current Seasons TheMHSAA arguesthat the majorityof member schools, most recently in 1998,have indicated
that they preferthe current seasons. (Tr. Exh. 39 (1998 SurveyForm); Tr. Exh. 229 (1973,1979,1981, 1985 & 1994 School Surveys).) The Court notes first that if, after applying the facts to the law, the seasons as they have been currently set by the MHSAA violate the law, they violate the law regardless of the preferences of the member schools.
To the extent that the Court has considered preferences of the member schools, as the Court could ascertain those through the available evidence, it has only been in the context of assuming that member schools may have had actual non-discriminatory reasons based on empirical facts for preferring certain seasons for certain sports over others.
It is also possible, however, that school representatives may prefer seasons the way they are simply for administrative convenience, since school representatives have a great deal else to do every day besides consider this one issue. The Court has also considered this possibility and has thus given very little weight, if any, to the member schools' preferences, as expressed on the MHSAA surveys, as an indication of whether the current sports seasons are legally equitable. A comprehensive study of the possibilities of changing seasons, as well as the advantages and disadvantages of various seasons, should have been the task of the MHSAA. The Court has instead relied much more heavily on the facts presented in this litigation regarding the benefits and disadvantages of different seasons for different sports.
In addition, the form of the MHSAAYssurveys over the years made them of very little use to this Court. For example, the MHSAA prepared two draft survey forms for its 1998 survey. (See Tr. Exh. 40.) One form asked the schools for their position on each separate sport (so that a school could

indicate whether, for instance, it would favor moving basketball and volleyball but not swimming). The second form, which MHSAA actually sent the schools, asked the schools for their position on whether all sports should be moved with no option to vote in favor of moving certain sports but not others. (Id. at 2.) The straight, "up or down" vote approach, which is the one that was used, has obvious limitations, since there are a number of ways in which seasons scheduling could be changed. In addition, the survey form used provided information only on potential coaching conflicts based on current coaching arrangements, but does not provide any other information as to whether additional coaches could be hired. (Id.) Finally, the survey provided no look at schools' other reasons for desiring the status quo. (Id.)
Finally,the MHSAA has placed sports seasonswithout regardto surveyresults ormoved sports seasons without first surveying member schools, including boys' golf, girls' soccer and girls' swimming. (Tr. Exh. 29 at 2; Tr. Exh. lO(d) at 5; Tr. Exh. 81 at 1.) More member schools (sixty) voted to schedulethe soccer seasons separatelythan those who wanted the seasons together (eighteen), but most schools expressed no preference (507) or otherwise did not vote on this issue or at all. (Tr.
Exh. 229 (1981 Survey - Soccer).) After the MHSAA placed both soccer seasons together in the fall,
several school administrators complained, and girls' soccer was moved to spring. (Tr. Exh. 47 at 3; Tr. Exh. 10(d) at 5.) The MHSAA originally placed girls' basketball in the fall even though girls' basketball coaches and many schools originally wanted to stay in winter, where it was before it was sanctioned by the MHSAA, and ignoredthe initial vote of girls' basketball coaches to move the season back to winter. (Tr. Exh. 78.) The MHSAA unilaterally moved girls' swimming in 1990-91from fall to winter "as a matter of fairness, a matter of trying to do the most good for the most number of girls," before it was moved back to fall. (Tr. Exh. 44.)

D. Giving Girls an "Independent Identity" The MHSAA asserted attrial that playingbasketballin the fall rather than the traditionalwinter
season benefits girls because they do not have to compete with boys' basketball for attention of many kinds, and thus receive increased recruiting opportunities and media coverage. (See Tr. at 794:3-22, 796:14-16, K. McGee.) Ms. McGee, the MHSAA witness who offered the assertion, said she felt that putting girls in a separate basketball season demonstratedthat girls could bring fans out to their games and be successful in basketball without a contemporaneouscompanion boys' team in the same season. (Id. at 794:3-17.) But Ms. McGee also acknowledged that it is true that if MHSAA moved the girls' basketball season to the winter, Michigan girls would be placed on an "equal footing" with Michigan boys and girls in the rest of the country. (Id. at 851:18-852:4.)
The concept of having an "independent identity" is also based on the premise that boys will "overshadow" girls in fan support and media coverage if boys and girls play basketball in the same season. (Tr. at 829:23-830:1, 846:3-7, 849:4-850:6, K. McGee.) This conflicts with giving girls a separate season so they can prove that their program stands on its own. With all due respect to Ms. McGee, who obviously cares a great deal about coaching and the girls that she coaches and onlywants the best for female players, the Court finds that separate basketball seasons sends a message that the girls' basketball programs cannot be "fitted in" to the "regular" basketball season of winter. Girls' basketball programs, however, arejust as important as boys' programs, and girls deserve to play in the "regular" season, too.
In addition, to achieve this "independence," girls, among other things, play basketball on two school nights because "football is on Fridaynights" in the fall. (Tr. at 825:24-828:11.K. McGee.) The

winter season makes it feasible for boys to play basketball on Tuesdays and Fridays. (CJ:Tr. at 94:2-6,

Kristi Madsen.)

Ms. McGee7sassertionthat girls' basketball inthe fallreceives more media coverage than boys'

football in the fall is based on girls playing twice a week, and therefore receiving post-game coverage

twice a week, and boys playing football once a week, and therefore receiving post-game coverage once

a week. (Tr. at 832:9-25, K. McGee.) Ms. McGee, however, provided no documentation supporting

her assertion that girls receive more media coverage in the fall compared to boys7football. (Id.) In

addition, Ms. McGee coaches one of the most successfid girls' basketball programs in Michigan. Other

girls' basketball programs may very well not receive the same quantity and quality of media coverage

that Flint Powers' program does, even if playing in the fall season has some effect on the quality and

quantity of media coverage received generally.

Moreover, Dr. Linda Bunker testified that if girls were in fact to receive less media coverage

compared to boys by playing basketball in the winter, it is better preparation for adulthood for girls to

recognize this and decide for themselves how they will handle situations that they view as inequitable.

(Tr. at 738:10-25, L. Bunker.) If girls "ha[ve] the opportunityto visually see they are not being given

the same amount of press coverage, then they have an opportunity to do something about it, whether

1

it's they or the newspapers or the parents or the community, have a chance head on to address the issue

1

of inequities." (Id.)

CONCLUSIONS OF LAW I. PLAINTIFFS' FOURTEENTH AMENDMENT CLAIM A. Defendant MHSAA is a State Actor

The Fourteenth Amendmentto the United States Constitutionprovides, ". ..No State shallmake
or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive anyperson oflife, liberty, or property, without due process of law; nor deny
to any person within itsjurisdiction the equal protection of the laws." U.S. Const., amend. XIV, 9 1. To be liable under 42 U.S.C. 5 1983 for violating the Fourteenth Amendment, an entity such as
Defendant must be considered a "state actor." The United States Supreme Court found recently that another state's high school athletic
association, the Tennessee SecondarySchool Athletic Association (TSSAA), was a "state actor" after considering facts regarding the TSSAA's make-up and role in the administration of high school athletics in Tennessee. See Brentwood Academy v. Tennessee Secondary School Athletic Ass 'n, 53 1 U.S. 288 (2001). The Supreme Court noted that, "The nominally private character of the [TSSAA] is overborne by the pervasive entwinement of public institutions and public officials in its composition and workings, and there is no substantialreason to claimunfairnessin applying constitutional standards to it." Id. at 298. Among the facts that the Supreme Court found relevant to reaching this determination were a TSSAA membership of predominantly public schools; revenue coming from membership dues and gate receipts from tournaments held at member schools; state officials given ex officio status on the legislative council; and eligibility of TSSAA employees for the state employees retirement system. Id. at 298-300. The Supreme Court noted that a mechanism is required to implement interscholastic sports schedules and competition rules governing Tennessee's schools, and that mechanism took the form of public school officials acting together under the auspices of the TSSAA. Id. at 299.
When the Sixth Circuit held that the TSSAA was not a state actor, the MHSAA was adamant that it was very similar in structure to the TSSAA. See Brentwood Academy v. Tennessee Secondary

SchoolAthleticAss 'n, 180 F.3d 758 (6th Cir. 1999); (Supplementary Motion by Defendant MHSAA, 9/1/99, Dkt. No. 183; Renewed Motion by Individual Defendants, 9/1/99, Dkt. No. 182 ("the nature and hnction of the MHSAA is virtually identical to that of the TSSAA") (emphasis added).) This Court, however, felt that other decisions of the Supreme Court and other federal circuits necessitated the conclusion that the TSSAA was a state actor. Communitiesfor Equity, 80 F. Supp. 2d at 298. Thus, there was still an open factual question for trial whether the MHSAA was a state actor, even though based on the facts presented at that time, this Court agreedwith the MHSAA that it was nearly identical to the TSSAA. Id.; (Order, 8/31/01, Dkt. No. 452.)
The Supreme Court eventuallyreversedthe SixthCircuit, finding that the factual inquiryproved the TSSAA to be a state actor. BrentwoodAcademy, 531 U.S. at 298. Similarly, this Court finds that the facts presented at trial clearly necessitate a finding that the MHSAA is a state actor.
The purpose of the MHSAA - to create, establish and provide for, supervise and conduct interscholastic athletic programs throughout the state - is virtually the same as its Tennessee counterpart. The MHSAA has a membership of predominantly public schools and almost every eligible public school belongs. Its revenue is derived fiom gate receipts from tournaments held at member schools and broadcast fees, among other items, revenues to which schools would otherwise be entitled. The membership of the MHSAA's Representative Council includes a representative of the state superintendent of education and is comprised of mostly public school employees acting as representatives for their schools. Some MHSAA employees continue to be eligible for participation in the state employee retirement system. Moreover, the MHSAA exercises adjudicative power over the schools with its ability to investigate and determine rules violations and resultant sanctions.

Just asthe SupremeCourt recognized that amechanism is required to implement interscholastic
sports schedules and competition rules governing Tennessee's schools, that mechanism in the State of
Michigan takes the form of public school officials acting together under the auspices ofthe MHSAA.
This is clearly correct and strongly supported by the.evidencepresented in this case. For example, Ms.
McGee, now a member of the Representative Council, said, "[Ilt would be chaos" with "a system of
high school sports where there is not a level playing field . . . by when [schools] compete against each
other." (Tr. at 869:8-14.) In addition, the MHSAA's own position paper on school choice notes that,
Over the years, responsibility for regulating interscholastic athletics changed hands and organizations changed names, but always there have been provisions for statewide governance of interscholastic athletics. The MHSAA has been the serving and
controlling organization for 67 years. ... [Tlhe need for coordination of rules between
districts [in non-athletic activities] has never risen to a level that a statewide regulatory body has been created to enforce a statewide code of rules and penalties [like in athletics].
(Tr. Exh. 22 at 3.) Finally, the MHSAA's developmental history is evidence of the fact that the State
of Michigan felt that such a body was needed. Its legal status and official designation may have
changed over the years, but as this Court has said before, the crucial question of its relationship with
Michigan schools has not.
Being found to be a "state actor" is not a punishment, as Defendant suggests. (See Defendant's
Proposed Findings of Fact and Conclusions of Law, 10/24/01, Dkt. No. 515 ("How long must the
MHSAA pay for its historical relationshipwith the Statethat was endedthrough the legislative process
in 1971?').) To the extent that it is a burden to ensure compliance with the Fourteenth Amendment
to the United States Constitution, it is the honorable burden and duty of all entities and individuals
acting with the power entrusted to them by their fellow citizens to ensure that they treat all American
citizens fairly and with due regard for their rights. The role that the MHSAA has assumed, and

particularly the power that it has been given to fulfill that role, leaves this Court with the firm conclusion that "there is no substantial reason to claim unfairness in applying constitutional standards to it." See BrentwoodAcademy, 531 U.S. at 298. B. Michigan Girls Have Been Denied Equal Protection By Current Seasons
To state a Fourteenth Amendment claim, Plaintiffs must also allege that Defendant treats high school boys differently from girls. See Unitedstates v. Virginia, 518U.S. 515, 532-33 (1996). Once Plaintiffs have established a gender classification, the burden ofjustifying the classification shifts to Defendant, and the justification must be "exceedingly persuasive." Id. Defendant
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 hoe 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 533 (citations omitted). It is undisputed that Defendant intentionally treats boys and girls differently by scheduling their interscholastic sports seasons at different times of the year. Girls are treated differently from boys in two ways. First, some of the sports that girls are offered that are the same as offered to boys, e.g., basketball and golf, are played in a different season than the boys play. Second, volleyball, the only sport at issue with only a girls' team, is played in a season different from the "traditional" volleyball season, whereas no sport with only a boys' team, e.g., football or wrestling, is offered in a "non-traditional" season. Thus, the remaining question for this Court to decide is whether Defendant meets its burden of establishing an ccexceedinglypersuasive"justification for treating girls and boys differently. In other words, this Court must determine if Defendant's classification of boys and girls via their sportsteams' placement in the current seasons "serves important governmental objectives," and the chosen

scheduling is ccsubstantiallyrelated to the achievement of those objectives." See id. at 533. The Supreme Court, while discussing the "exceedingly persuasive" standard for sufficient justification, noted that its current direction in cases of classificationby gender focused on the differentialtreatment or denial of opportunity for which relief is sought. Id. at 532-33.
Animus on the part of Defendant is not required for a finding of a Fourteenth Amendment violation where a rule or classification treats males differently from females on its face. Here, the classification of the MHSAA mandates that, for example, boys will play tennis in the spring, but girls will play tennis in the fall. That is a classificationthat on its face treats boys and girls differently. In another case involving a sex classification, United States v. Virginia, Virginia was found to have denied women equal educational opportunity on the basis of sex by refusing to allow any woman to attend Virginia Military Institute (VMI). See 518 U.S. at 530-534 (citing other cases of facial classification by sex creating unlawful discrimination, like Reed v. Reed, 404 U.S. 71 (1971) (holding unconstitutional an Idaho law requiring that when several persons are equally entitled to administer a decedent's estate, males must be preferred to females); Stanton v. Stanton, 421 U.S. 7 (1975) (holding unconstitutional a Utah law that parents supportmale children until age 21,but support female children only until age 18)).
Virginia was not, however, found to have displayed animus toward women in excluding them from VMI. 518 U.S. at 532-34. Such a finding must be made in cases of discrimination shown through disparate impact, where a rule or classification treats males and females the same by its terms, but the effect of the law is different on males and females. In those cases, intentional discrimination must be proven by showing that the body adopting the law or classification did so with the intent of discriminating against one sex or other protected group, i.e. some kind of animus. Washington v.

Davis, 426 U.S. 229, 241-242 (1976) (where the District of Columbia required all police officer applicants to pass exam, and fewer black applicants passed than white applicants, test did not deny equal protection unless exam was used for invidious, discriminatory purposes instead of legitimate purposes). For example, where the Kentucky High School Athletic Association had a rule requiring that 25 percent of its member schools indicate a willingness to sanction a new sport before that sport would be sanctioned, female athletes claimed that the rule disproportionately served to deny them sports opportunities. Horner v. Kentucky High Sch. Athletic Ass 'n, 43 F.3d 265,269 (6th Cir. 1994) (Horner I). Because the rule did not treat females differently from males in its requirements, the athletes had the burden of proving intentional discrimination by showing that thefacially neutral "25 percent rule" was adopted for the purpose of denying them opportunities, and not for a legitimate purpose. Id. at 272.
It is common sense that it is not necessary to find animus, i.e., a discriminatory purpose, for a Fourteenth Amendment violation to be present in the case of a classification that on its face differentiates between males and females. If a class of persons is treated differently because of an immutable characteristic like sex, and that different treatment harms that class of persons for reasons not justified by an "exceedingly persuasive" justification, the affected class of persons is no more or less harmed by the unjustified discriminatory treatment merely because Defendant does or does not have animus toward them. A Fourteenth Amendment violation can exist even if it was perpetrated by those who believe that they have honorable intentions.
Therefore, motive plays only a limited role in the case before this Court. If the scheduling of seasons harms female athletes, Plaintiffs need not prove that Defendant MHSAA scheduled male and female seasons differently with invidious intent to harm female athletes. But the MHSAAYs"benign"

justifications for different treatment are not to be accepted automatically, since tenable justifications must describe actual purposes of Defendant, not rationalizations for actions that were, in fact, differentlygrounded. See Virginia, 518U.S. at 536-37 (citing Weinbergerv. Wiesenfeld, 420 U.S. 636, 648 & n. 16 (1975); Calfano v. Goldfarb, 430 U.S. 199,212-13 (1977). See also Mississippi Univ.for Women v. Hogan, 458 U.S. 718,727 (1982) (finding no resemblance between the "alleged objective" of excluding men fiom nursing school in orderto engagein "educational affirmative action" benefitting women and the "actual purpose underlying the discriminatory classification," and thus rejecting the state's justification for the intentional discrimination on the face of the admissions rule) (cited in Virginia, 518 U.S. at 536).
In addition, Defendant MHSAA cannot prevail by attempting to demonstrate that its intentwas to help or protect girls by scheduling their sports when they have been if that "help" actually harms them or is based on paternalistic notions. C . Frontiero v. Richardson, 411 U.S. 677,684-85 (1973) (finding that stereotyped distinctions between the sexes in law and official action at issue were made because of paternalistic notions where male military officers could automatically claim wives as dependents for extra benefits, but female military officers had to prove that husbands were financially dependent to claim them as dependents).
As an initial matter, DefendantMHSAA is clearlyresponsible for the current placement of the sports seasons. Having the ability to set the beginning and closing dates of a season, to schedule the championship tournament, and to punish those who play the sport outside of the MHSAAdesignated dates is obviously the ability to schedule a season. The fact that individual schools, conferences, and leagues decide competition dates within the parameters of the season is of no consequence. It is the parameters that determine what time of year a sport is played.

Defendant MHSAA must show that its classification between the sexes in scheduling sports' seasons serves important governmental objectives and that this scheduling is substantially related to the achievement of those objectives. The MHSAAYsjustification or justifications must be "exceedingly persuasive." The Court finds that the MHSAA has not met this burden.
The Court has concluded that none of the girls' sports at issue are scheduled in the advantageous season, for reasons fully explained in the Findings of Fact. The MHSAAYsonly other legitimate asserted objective for the separate scheduling, and in the case of volleyball, non-traditional scheduling, is to maximize athletic participation opportunities for both boys and girls. The MHSAA argues that its current scheduling system maximizes high school athletic participation opportunities by creating optimal use of existing facilities, officials and coaches, thereby permitting more teams in a sport or more spots on a team. The MHSAA also argues that the quality of the programs are maximized by the current scheduling, as well, as a result ofthe better officials and coaches being able to work over two separate seasons with both boys and girls, instead of splittingtheir time in one season between boys and girls or forcing schools to broaden the pool of officials and coaches, opening up positions to people the MHSAA asserts would be less qualified individuals.
While these logistics-based objectives are ccimportant,"the Court concludes that the discriminatory schedulingis not "substantially related" to the achievementofthose asserted objectives. The empirical evidence was wholly insufficient. The MHSAA chose to rely on anecdotal and weak circumstantial evidence instead,which is not enough. Even assumingthat the MHSAA had sufficiently proven this point, that would notjustify forcing girls to bear all ofthe disadvantageousplaying seasons alone to solve the logistical problems. Moreover, the logistics justification smacks of post hoc rationalization for a systemthat only in the relatively recent past decided that girls were entitledto play

sports and be treated fairly in athletics. As a result, this Court comes to the conclusion that Defendant MHSAA violated and continuesto violatethe FourteenthAmendment ofthe United StatesConstitution by its current scheduling of seasons for the sports at issue. 11. PLAINTIFFS' TITLE IX CLAIM
A. Defendant MHSAA is Subject to Title M by Virtue of Its Controlling Authority Over
Interscholastic Athletics in Michigan Section 901(a) of Title IX oftheEducationAmendments of 1972provides, with exceptionsnot applicable here, that "[nlo person in the United States shall on the basis of sex, be excluded fiom 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. 5 1681(a) (2001). For
Plaintiffs to prevail on their Title I .claim, they must first establish that Defendant MHSAA is subject to Title IX.
This Court held earlier during the course of this litigation that "any entity that exercises controlling authority over a federally funded program is subject to Title IX, regardless of whether that entity is itself a recipient of federal aid." Communitiesfor Equity v. Michigan High Sch.AthleticAss 'n, 80 F. Supp. 2d 729,735 (W.D. Mich. 2000). Based on the findings of fact, the Court must decide the extent to which Defendant MHSAA exerts control over interscholastic athletic programs of Michigan high schools, which are almost all federal funding recipients, to determine if Title IX applies to Defendant. Id. at 738. If Defendant exerts controlling authority over the scheduling of interscholastic sports seasons in Michigan, Defendant will be subjectto Title IXYsnon-discrimination requirement in its scheduling ofthe seasons.

In NCAA v. Smith, the Supreme Court expressly declined to consider whether cccontrolling authorityyyis a basis on which an entity can be subject to Title IX. NCAA v. Smith, 525 U.S. 459,470 (1999). The Sixth Circuit Court of Appeals also has not considered the cccontrollingauthority" question. This Court extensively outlined its reasons for finding that Congress intended to applyTitle IX to those entities exercising controlling authorityover a federal program or programs, whether or not the entity itself is a recipient of federal funding, in its previously published opinion in this case on this topic. See Communitiesfor Equity, 80 F. Supp.2d at 733-35. Defendant MHSAA urges the Court to reconsider this position on this issue, but the Court declines to do so.
Defendant cites to an opinion by another federal district court taking the opposite position of this Court and holding that entities not receiving federal funds may not be held liable under Title IX. See Johnny's Icehouse, Inc. v. Amateur Hockey Ass 'n of Illinois, 134 F. Supp. 2d 965, 970 (N.D. Ill. 2001).52 This Court, in previously discussing this issue, noted that the Supreme Court has previously
held that Title IX has "two related, but nevertheless somewhat different objectives...Congresswanted
to avoid the use of federal resources to support discriminatory practices; [and] it wanted to provide individual citizens effective protection against those [discriminatory] practices." Communitiesfor Equity, 80 F. Supp. 2d at 733 (quoting Cannon v. University of Chicago, 441 U.S. 677, 704 (1979)). This Court then found that:
"Presumably because most Federal Circuit Courts, as well as the Supreme Court, have not taken up the issue, the court in Johnny's Icehouse recognized that its decision faced the "undeniable potential for a contrary ruling," as this Court recognizes that its decision does. See Johnny's Icehouse, 134 F. Supp. 2d at 971.

Not only is defendant^'^^ suggested interpretation of Title IX unsupported by the plain meaning of Title IX and the Cannon decision, it is empty formalism. If Defendants' interpretation prevailed, Title IX would prohibit "recipients" of federal funds from discriminating on the basis of sex, but would allow entities that controlled those funds to discriminate so long as those entities were not themselves "recipients." Such a scheme would not only encourage "recipients" of federal funds to transfer control over those funds to others (because both parties could thereby avoid Title IX liability), it would allow federal h n d s to promote gender discrimination so long as the recipients of those funds empowered someone else to promulgate the discriminatory policies. In this Court's view, such a formalistic interpretation is not warranted by the meaning or purpose of the statute.
Communitiesfor Equity, 80 F. Supp. 2d at 734. The federal district court in Johnny's Icehouse
criticized the above reasoning of this Court with the argument that a funding recipient, like a school,
may be liable if it fails to respond appropriately to discriminatory acts of non-agent third parties.
Johnny's Icehouse, 134 F. Supp. 2d at 970 (citations omitted). Therefore, "controlling authorityyy
liability under Title IX is not necessary to achieve the purposes'of Title K. Further, the Johnny's
Icehouse Court reasoned that "controlling authority" liability is not authorized by Title IX.
This court, however, respectfully disagrees with that reasoning. It is true that the Supreme
Court has held fimdingrecipients not liable for the discriminatoryactions of their "agents" under Title
IX, pursuant to a respondeat superior theory, where there is no evidence that a funding recipient knew
or should have known about the discrimination. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274,
283 (1998) (citedin Johnny 'sIcehouse, 134F. Supp. 2d at 970). In Gebser, a case where a school was
sued for its failureto prevent sexualharassment by a teacher against a student, the Supreme Court held that "a damages remedy will not lie under Title IX unless an ofJicial who at a minimum has authority to address the allegeddiscrimination andto institute corrective measures on the recipient's behalfhas
53 At the time of that opinion, the MHSAA and a number of individuals were Defendants in this suit, but the individuals have since been dismissed.

actual knowledge of discrimination in the recipient's programs and fails adequately to respond." Gebser, 524 U.S. at 290 (emphasis added).
However, an entity with cccontrollingauthority" over a recipient is not an agent of the recipient by the very nature of their relationship; instead, the recipient becomes like an agent and the controlling entity like a principal in the relationship. In situations likethe one in this case, the nature ofwhat needs to be accomplished by a group ofrecipients (here, controlling and regulating athletics) requires that the funding recipient-schools cede their own ability to control many aspects of their schools' athletic programs to the controlling entity-athleticassociation. Thus, after the recipient schools cede authority, if a recipient school believes that an athletic association is illegally discriminating, that one school alone has no authority or ability to stop the athletic association, unless it can convince a sufficient number of other schools and those schools together would be able to change the association's action.
A school's only immediate recourse to stop its own "participation" in the discrimination is to discontinue offering an athletic program to its students, since the school cannot realistically offer a program without belonging to the association. In effect, one individual school cannot, in fact, be held liable for the association's Title IX violation because the recipient-school no longer has the "authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf." See Gebser, 524 U.S. at 290. It is true that "a funding recipient may be liable if it fails to respond appropriately to the discriminatoryacts of nonagent third parties," Johnny's Icehouse, 134F. Supp. 2d at 971, but the law must fill the gap where the recipient has no effective way of responding appropriately because of its relationship with the third party. "Controlling authority" theory is needed to address this deficiency and effectuate the intent of Congress when it passed Title IX.
Moreover, contrary to Defendant MHSAA's other argument, cccontrollingauthority" theory is
consistent with what has been called the cccontractual"character of Title IX.Title IX is legislation
enacted under the Spending Clause, or in other words, is an exercise of Congressional power to fix the

terms upon which federal funds will be disbursed. CJ: Guardians Ass 'n v. Civil Service Comm 'n of City ofNew York, 463 U.S. 582,598-99 (1983) (White, J.) (discussing Title Vo; see also Department of Transp. v. Paralyzed Veterans ofAm., 477 U.S. 597, 605 (1986) ("Under the program-specific
statutes, Title VI, Title IX, and 5 504, Congress enters into an arrangement in the nature of a contract
with the recipients of the funds: the recipient's acceptance of the funds triggers coverage under the nondiscrimination provision.").
Against this background, Johnny's Icehouse found that imposing Title IX obligations on "any
...entity not in contractual privity with the federal government or without the power to decide whether
or not to accept federal financial assistance--wouldnot fit into the Spending Clause foundation for the statute." Johnny's Icehouse, 134F. Supp.2d at 970.54However, the Third Circuit case that Johnny's Icehouse cited for that proposition specifically did "not suggest that an absence of privity means that in no circumstances may a controlling authority argument be viable; we note that those who truly assume control of federally-funded programs are in a position to accept or reject that control as part of a decision whether or not to receive federal funds indirectly." Cureton v. NCAA, 198F.3d 107, 118 (3d Cir. 1999). The Third Circuit instead suggested that an absence of contractual privitybetween the entity sued and the federal funding source should give a court caution in imposing Title VI, or Title IX, obligations on the entity sued. See id.
54 Johnny S' Icehouse cited to an opinion discussing Title VI, but courts have generally drawn analogies between Title IX, Title VI, and § 504 of the Rehabilitation Act of 1973 because of the similarities in these laws. See NCAA v. Smith, 525 U.S. 459,467-69 (1999) (looking at case
law interpreting 5 504 of the ~ehsbilitationAct to interpret Title IX); Department of Transp. v.
Paralyzed Veterans ofAm., 477 U.S. 597,600 n.4 (1986) (Title VI case law can generally be relied on to interpret later statutes, like Title IX). This Court will draw the same analogies where case law
concerns Title VI or 5 504.

This Court has heeded the persuasive warning of caution fiom the Third Circuit, and after
consideration, believes that ''contro11ing authority" theory is consistent with the contractual nature of liability under Title IX. Normally, contractual privity between the entity sued and the federal funding
source should be required to hold the entity liable under Title IX, and this is the situation covered when
indirect recipients of federal aid are subject to the requirements of Title VI, Title IX or § 504. See
Grove City College v. Bell, 465 U.S. 555,563-64 (1984) (holding that college was subject to Title IX, even where students directly received the federal aid in loans and grants, but college was the indirect
recipient of that aid).55 In another case, the Supreme Court held that airlines could not be subjected to a program-
specific statute, § 504 there, because they were mere "beneficiaries" of federal funds, but not indirect
recipients of airports' federal funding. Paralyzed Veterans, 477 U.S. at 607 (citing Grove City College
v. Bell, 465 U.S. 555 (1984)). The Supreme Court there distinguished between colleges and airlines
in these two cases by noting that an "intended recipient" of federal funds was liable under the program-
specificstatutes like Title IX, so collegeswere liablebecause Congressmeant to deliver moneyto them
using college students as conduits, but airlines were not liable because Congress was not trying to aid
them and they were mere beneficiaries of the hnding. See id. at 606-07.
In that vein, holding entities with "controlling authority" power over recipients liable under
Title IX is consistent with the contract-like nature of Congress' power under the Spending Clause to
55 Grove City College continues to be good law on the point for which this Court cites it. Part of Grove City College was subsequently superceded by Congressional action, however. The Supreme Court also held in Grove City College that Title IX was only intended to apply to the particular program or activity receiving the indirect assistance. Grove City College, 465 U.S. at 570-74. Congress later enacted the Civil Rights Restoration Act of 1988 to clarify that the Supreme Court misinterpreted its intent in the coverage of Title IX and the other program-specific statutes, legislating instead that the coverage was broader than the specific program receiving assistance. See Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28 (1988).

set conditions for the use of federal money. A "controlling authority" over a funding recipient is more than a mere beneficiary of federal funds and is instead more like a recipient of the funds through its control of important parts of the funding recipient's program. Congress grants federal money to states and school districts to help pay for educational programs generally, making non-discrimination conditions on the funds. When an educational program like interscholastic athletics requires a governing body like the MHSAA - a body having "controlling authority" over member schools in certain aspects of the educational program - the MHSAA accepts the conditions in which member schools must operate when it implicitly contracts with the federal government to become responsible for organization of interscholastic athletic programs funded in part by federal resources.
The MHSAA is not an indirect recipient of federal funds, because it does not receive dues from the coffers of member schools, which has been the basis of Title IX liability for other state high school athletic associations. See Horner, 43 F.3d at 272 n.5 (finding the Kentucky High School Athletic Association to be subject to Title IX as an indirect recipient of federal funds). But the MHSAA receives revenues to which member schools would otherwise be entitled, like tournament receipts, souvenir sales, andbroadcast fees, and it operatestournaments largelyusing public facilities and public employees. Moreover, the MHSAA's legislative functions are conducted by mostly public school employeesrepresenting their schools. Finally, the MHSAA understands its function as controlling and regulating certain parts of member schools' athletic programs and has thus implicitly contracted with the federal government and had notice to obey the conditions under which member schools receive federal funding, funding which helps schools run athletic programs in the first place.
Defendant MHSAA clearly is the "controlling authority" over schools when it comes to scheduling of the sports seasons. Again, the MHSAAYspower to declare beginning and closing dates

of a season and dates of championship tournaments, as well as to punish those who play the sport outside of the MHSAA-designated dates, is the power to schedule a season. No member school alone or even in concert with many other schools has the power to do this. A single school or consortium of schools, no matter how large, would still have to seek action within the MHSAA to change seasons. Therefore, Plaintiffs' evidence has firmly proved that Defendant MHSAA exerts "controlling authority" over the scheduling of interscholastic sports in the State of Michigan suchthat the MHSAA
must comply with the mandate of Title IX. B. Defendant MHSAA Has Violated Title IX With Its Current Seasons Scheduling
Plaintiffs must next establish that Defendant MHSAA's current scheduling of interscholastic sports seasons violates Title IX. The Court finds that Plaintiffs have established a Title IX violation. The United States Department of Education, as a federal department empowered to extend federal financial assistance to any education program or activity, has been directed to promulgate rules and
regulations consistent with the objectives of Title IX. 20 U.S.C. 5 1682 (2001).
As applied to interscholastic athletics, the Department of Education has promulgated the following regulation:
No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such activities separately on such basis.
34 C.F.R. 5 106.41(a). To the extent that Plaintiffs have demonstrated that female high school athletes
are denied the benefits of school athletic programs as a result of the scheduling system of Defendant

MHSAA that they would otherwise enjoy if they were male, Plaintiffs have proved a Title IX
In addition,the federalagencyoriginallychargedwith interpreting regulations and investigating
alleged violations of Title IX has noted that elements of a program's structure like seasons of play can
constitute a violation. Practices such as employing disadvantageous playing seasons for only one sex
violate Title IX when the resulting harms are substantial enough to deny equal participation
opportunities and benefits in athletics to students of one sex. See Department of Health, Education,
and Welfare, Office for Civil Rights (OCR) Policy Interpretation, 44 Fed. Reg. 71413, 71416-71418
(1979). OCR also considers "[wlhether disparities in individual segments ofthe program with respect
to benefits, treatment, services, or opportunities are substantial enough in and of themselves to deny
equality of athletic opportunity." Id. at 71418.
Finally,Defendant MHSAA continuesto make the erroneous argument that it does with respect
to Plaintiffs' Fourteenth Amendment claim that a claim under Title IX requires proofthat the MHSAA
had animus toward girls. It does not. "Intentional discrimination" in the context of a Fourteenth
Amendment violation means only that the MHSAA needs to have intended to treat girls differently
56 Title IX claims in the area of athletics often fall into two categories corresponding to the
regulations promulgated under Title IX:equal treatment claims, which this case presents, or
effective accommodation claims. Boucher v. Syracuse Univ., 164 F.3d 113, 115 n. 1 (2d Cir.1999) (cited in Pederson v. Louisiana State Univ., 213 F.3d 858, 865 n.4 (5th Cir. 2000)). Equal
treatment claims derive from Title IXregulations calling for equal provision of athletic benefits and
opportunities among the sexes. Boucher, 164 F.3d at 115 n.2 (cited in Pederson, 213 F.3d at 865 n.4).
The MHSAA agrees that Title IX assesses the athletic program of a liable party, but it also
argues that Title IX does not assess the impact that "outside, business interests," like amateur
athletic clubs and colleges and universities, have on these programs. That twists the issue. If discriminatory operation of the state's athletic programs through placement of seasons "denie[s]
[girls] the benefits of, or ... subject[s] [girls] to discrimination" in interscholastic athletics such that
girls' amateur and collegiate opportunities are limited in a way that boys' opportunities are not, Title IX is implicated.

from boys by intentionally scheduling them in different seasons than those in which boys play, which it clearly did, or by scheduling the girls-only sport of volleyball in a ccnon-traditional"season when boys-only sports are always played in "traditional" seasons, which it clearly did. As explained supra, that kind of "intentional discrimination" can bejustified under certain circumstances, even though the Court has found that in this case it is not.
A Title IX violation similarly does not require proofthat 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. Different treatment can still result in equal opportunities for boys and girls, but it also may not, which is the reason for analyzing and comparing the benefits and the burdens of the differential treatment.
Language in a Fifth Circuit case is relied on by Defendant MHSAA who asserts that Title IX requires Plaintiffs to show that Defendant intendedto harm girls in the scheduling of their seasons.See Pederson v. Louisiana State University, 213 F.3d 858 (5th Cir. 2000). In that case, it was clear that Louisiana StateUniversity (LSU) was providing unequal athleticopportunities for its female students, for example, by only sponsoring new sports for women that administrators considered "more feminine" sportsor by refusingto sponsor fast-pitch softball because "the women might get hurt." Pederson, 213 F.3d at 881. The federal district court there found that LSU was violating Title IX, but for the purposes of deciding whether monetary relief was due to Plaintiffs in addition to injunctive relief, the district court determined that the discrimination was unintentional and thus Plaintiffs could not obtain monetary relief. Pederson, 912 F. Supp. 892, 917 (M.D. La. 1996). The district court still ordered

injunctive relief, however, on the basis of the Title IX violation. Id. at 921. That is the only kind of relief requested in this lawsuit.
After reviewing the facts, the Fifth Circuit reversed the district court's finding that the LSU discrimination was unintentional, held that LSU was intentionally discriminating between women and men, and held that the district court erroneously dismissed the monetary damages claims. Pederson, 213 F.3d at 884. But in determining whether an "effective accommodation" violation of Title IX was present, which is unlike the "equal treatment" violation alleged here, the Fifth Circuit affirmed the district court's finding that LSU was not effectively accommodating the sports interests of its female students. Id. at 879.
Pederson held that regulations promulgated under Title 1X guide a court's analysis as to whether a violation has occurred. Pederson, 213 F.3d at 879. This is the analysis that this Court has articulated: in an "equal treatment" violation under Title IX, the question iswhether female high school athletes are denied the benefits of school athletic programs as a result of the scheduling system of Defendant MHSAA that they would otherwise enjoy if they were male.
In the Findings of Fact, the Court found that all of the girls' sports at issue where a counterpart boys' team exists are subject to disadvantages to which they would not otherwise be subject if they played in the seasons that the boys do. Moreover, the Court found that girls who play volleyball in the non-traditional season in which it is now scheduled suffer disadvantages that they would not otherwise suffer if they were male and participated in a boys-only sport that was scheduled in its traditional season. As a result, this Court comesto the conclusionthat Defendant MHSAA violated and continues to violate Title IX by scheduling seasons of the sports at issue in the manner in which it has. 111. PLAINTIFFS' ELLIOTT-LARSEN CIVIL RIGHTS ACT CLAIM

There are two provisions of the Elliott-Larsen Civil Rights Act (ELCRA), Mich. Comp. Laws
5 37.2101, et seq., Michigan's civil rights statute, at issue in this litigation. One applies to the acts of
cceducational institutions." The other applies to discrimination in the provision of public accommodation and/or public services. Under the ELCRA provision prohibiting discrimination in Michigan in the provision of a public service or public accommodation, this Court finds that Defendant MHSAA violated Plaintiffs' rights under the ELCRA.
A. Mich. Comp. Laws 5 37.2402
First, "educational institutions" are prohibited from discriminating against individuals in their benefit from the institution, or services, activities, or programs provided by the institution, on the basis
of an individual's sex. Mich. Comp. Laws 5 37.2402 (2001). The definition of "educational
institutions" includes "an agent of an educational institution." Mich. Comp. Laws fj37.2401 (2001). Therefore, if Defendant qualifies as an agent of the schools that comprise its membership, Defendant is subject to the ELCRA under this provision of the ELCRA.
"Agent" is not defined in the ELCRA. This Court's research turned upno Michigan cases, nor any federal cases interpreting Michigan law, defining what an "agent" of an "educational institution" is for purposes of the ELCRA. Under Michigan law generally, in determining "[wlhether an agency has been created," a court is to consider "the relations of the parties as they in fact exist under their agreements or acts." St. Clair Intermed. Sch. Dist. v. Intermediate Educ. Ass WMichigan Educ. Ass 'n, 458 Mich. 540,557 (1998) (quoting Saums v. Parfit, 270 Mich. 165,170-171 (1935)). The Michigan Supreme Court has noted that in its broadest sense agency "includes every relation in which one person acts for or represents another by his authority." Id. An agent is a business representative whose function it is to bring about, modify, affect, accept performance of, or terminate contractual obligations between the agent's principal and third persons. Id. at 557-58. Also fundamental to the existence of

an agency relationship is the right to control the conduct of the agent with respect to the matters entrusted to the agent. Id. at 558.(citations omitted).
The Court finds that the MHSAA cannot be liable to ELCRA claims under this section because it cannot be considered its member schools' agent. The Michigan Supreme Court has said that it is "fundamental" to finding that one party in a relationship is an agent that the principal be able to control the conduct of the agent with respect to the matters entrusted to the agent. One member school alone cannot control the actions of the MHSAA, so the MHSAA is not the "agent" of any one member school.
Moreover,the member schoolstogether cannotbe considereda "principal" because theycannot together be one "educational institution" under the statute, as they in fact constitute many educational institutions. Additionally, the member schools have come together in the form of the MHSAA largely to make contracts among themselves, regarding eligibility rules, etc., which is an associational relationship, but not an agency.
B. Mich. Comp. Laws €3j7.2302 The ELCRA also covers those entities providing public accommodation or public services.
"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 services because of ...sex... ." Mich. Comp. Laws 3 37.2302 (2001). A "person" is defined as "an 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." Mich. Comp. Laws § 37.2103(g) (2001). Surely, Defendant MHSAA is a "person" for these purposes since it has incorporated itself with the State of Michigan. (Tr. Exh. 28

(MHSAA Articles of Incorporation).) It could also aptly be described as an ccassociation"given its
structure, and while it is not dispositive, the fact that the word ccassociation"also appears in its name
lends support to this conclusion.
In addition, this Court finds that the MHSAA provides both a "public service" and a "public
accommodation." A "public service" includes "a tax exempt private agency established to provide a
service to the public." Mich. Comp. Laws 5 37.2301(b) (2001). Lions clubs were held liable under
this section ofthe ELCRA and foundto be both providing a "public serviceyaynd constituting a "public
accommodation." Rogers v. InternationalAss 'n ofLions Clubs, 636 F. Supp. 1476,1479 (E.D. Mich.
1986). The Court held that Lions clubs provided a "public servicey7because the volunteer efforts by
its members were made available to the public. Id. The Court also found it important that the Lions
were tax exempt. Id. To some degree that the Court could not fully determine, the MHSAA is also
tax exempt. (See Tr. Exh. 36 (copies of MHSAA tax returns)). It certainly was established to provide
a service to the public, the organization of interscholastic athletics in the state's schools, and it is still
in existence for that purpose. Thus, the MHSAA qualifies as a "public service.'"'
The MHSAA qualifies as providing a "public accommodation" as well. An event open to the
public held in apublic place is a place of "public accommodation." Rogers, 636 F. Supp. at 1479. For
one, the MHSAA sponsors championship tournament events, held in public places and open to
members ofthe general public. Additionally,the MHSAA facilitates the scheduling of interscholastic
57 Moreover, a c'publicservice" also encompasses "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 ... ." Mich. Comp. Laws 5 37.2301(b) (2001). It is likely that the
MHSAA could also qualify under this definition as well, since the political subdivisions for whom it acts as an agency or commission to control interscholastic athletics are local school boards and schools. These local school boards would otherwise have responsibility for organizing interscholastic athletics or would have to find another vehicle beside the MHSAA to do so. See Findings of Fact on Defendant MHSAA.

athletics generally with its activities, and athletic programs hold competitions in public places that are open to the general public on a regular basis. Similarly, the Michigan Supreme Court found that a township's athletic program offered to elementary school children is a "public accommodation" or "public service" under the ELCRA. CJ: Department of Civil Rights ex rel. Forton v. Waterford Twp. Dep 't of P a r b andRec., 425 Mich. 173,202 (1986) (Forton) (apparently assuming that the program
at issue qualified under Mich. Comp. Laws 5 37.2302 and remanding for retrial and for application of
the constitutional standard enunciated in the opinion). The Michigan Supreme Court determinedthat the goal of the Michigan Legislature in adopting
this provision of the ELCRA was to broaden the scope of those parties to whom civil rights legislation would apply in the State of Michigan, in contrastto comparable federal provisions. Forton, 425 Mich. at 188-89. Most notably, the ELCRA covers non-governmental conduct in the handling of public accommodations and services that federal provisions do not. Id. at 186. C. Standard to Find Discrimination Under Mich. Comp. Laws tJ 37.2302
But the Michigan Supreme Court held that the goal of ELCRA was not to broaden the standard of equal protection, i.e., not to require stricter scrutiny of laws that classify on the basis of protected characteristics than federal law would, but instead to provide the same level of scrutiny of discriminatory classifications. Forton, 425 Mich. at 188-89. Forton, which also involved a claim strikingly similar to this case, involved a challenge to a township's practice of assigning different seasonal schedules to township league teams for elementary school students on the basis of sex in its township athletic program. Forton, 425 Mich. at 190. The Michigan Supreme Court held that the applicable standard to determine whether unlawful discrimination has occurred because of a discriminatory classification is the same standard used under the Equal Protection Clause of the

Fourteenth Amendment of the United States Constitution. Forton, 425 Mich. at 190 (applying to
"public accommodation" claims). See alsoAlspaugh v. Comm 'n on Law Enforcement Standards, 246
Mich. App. 547, 555-56 (2001) (using intermediate scrutiny in ELCRA challenge by males to state
police's different passing standards for males and females); Garrett v. Board of Educ. of Sch. Dist. of
City of Detroit, 775 F. Supp. 1004, 1010 (E.D. Mich. 1991) (citing Forton, 425 Mich. at 1
58 Garrett involved a challenge by girls and their parents to the establishment of all-male public school academies in Detroit. Garrett, 775 F. Supp. at 1005. Like the instant case, Garrett presented an intentional discrimination claim because the school system had a rule that on its face differentiated between males and females, i.e., female children were not permitted to attend an allmale, public academy. See id. at 1006 (proceeding to consider whether the claim serves "important governmental objectives" and that the discriminatory classification involved was ccsubstantially related to the achievement of those objectives" because of the rule treating girls and boys differently in admission).
Another federal court in Michigan has stated that plaintiffs bringing an ELCRA claim under either an intentional discrimination or disparate impact theory must produce facts from which the finder of fact could reasonably infer unlawful motivation. Sanders v. Southwest Airlines Co., 86 F. Supp. 2d 739,744 (E.D. Mich. 2000). This Court respectfully finds that to be an erroneous interpretation of Michigan law.
The Michigan Supreme Court is the highest authority on the meaning of Michigan law. As explained in this opinion, the Michigan Supreme Court has held that ELCRA claims are evaluated under the same standards as federal Equal Protection claims are. Forton, 425 Mich. at 190. Under federal law, an intentional discrimination claim does not require proof of discriminatory motivation because the challenged law or rule has already discriminated against a protected class on its face. CJ: Virginia, 518 U.S. at 532-34 (compare Washington v. Davis, 426 U.S. at 241-242). Forton, as an intentional discrimination case, employed the intermediate scrutiny standard for sex-based classifications that the U S . Supreme Court still employs.
Sanders cites cases fi-omthe Michigan Court of Appeals for its proposition requiring discriminatory motivation in cases presenting a facial classification. See Reisman v. Regents of Wayne State Univ., 188 Mich. App. 526,538 (1991);Meagher v. Wayne State Univ., 222 Mich. App. 700,708-09 (1997); Fonseca v. Michigan State Univ., 214 Mich. App. 28,3 1 (1995) (cited in Sanders, 86 F. Supp. 2d at 744). But cases to which Sanders cites are all disparate impact cases, so those type of cases do require proof of discriminatory motivation in addition to proof that a member or members of a protected class have been disparately impacted by a law, rule or decision otherwise neutral on its face. In turn, these Michigan Court of Appeals cases all cite to other disparate impact cases, all employment discrimination cases with the exception of Fonseca, containing a summary statement with the proposition that both intentional discrimination and disparate impact claims require proof of discriminatory motivation behind the decision, but none of them cite Forton. After Forton, that proposition was implicitly rejected by the Michigan Supreme Court. CJ: Forton, 425 Mich. at 190.

Thus, the standard for decision under Plaintiffs' ELCRA claim is the same as under their
Fourteenth Amendment claim. As stated in the above discussion of why Plaintiffs' rights under the
Equal Protection Clause of the Fourteenth Amendment have been violated, the Court similarly finds
that Defendant MHSAA has violated the ELCRA.
CONCLUSION
"Parents, athletes and spectators should insist on equality for women's athletics.
It's nothing less than the law, and nothing less than women athletes deserve."
-Editorial, You Go, Girls,
St. Louis Post-Dispatch,July 13,1999, at B16.
For citation history of Reisman, see Singal v. General Motors Corp., 179 Mich. App. 497, 502-03 (1989) (cited in Reisman, 188 Mich. App. at 538); Dixon v. WWGrainger, Inc., 168 Mich. App. 107, 114 (1987) (cited in Singal, 179 Mich. App. at 503); Jenkins v. Southeastern Michigan Chapter, Amer. Red Cross, 141 Mich. App. 785,793-94 (1985) (cited in Dixon, 168 Mich. App. at 114); Michigan Civil Rights Comm 'n ex rel. Boyd v. Chrysler Corp., 80 Mich. App. 368, 373 n.3 (1977) (cited in Jenkins, 141 Mich. App. at 794) (discussing the pleading requirements for a disparate treatment, employment discrimination case).
For citation history ofMeagher, see Reisman, 188 Mich. App. at 538-39 (cited in Meagher, 222 Mich. App. 708-09); Lytle v. Malady, 209 Mich. App. 179, 185 n.1 (finding, without citation, that intentional discrimination and disparate impact are the same theory) (cited in Meagher, 222 Mich. App. at 709) (Lytle rev'd on other grounds, 456 Mich. 1 (1997)) (partially vacated on other grounds, 458 Mich. 153 (1998)); Brewster v. Martin Marietta Aluminum Sales, Inc., 145 Mich. App. 641, 654 (1985) (cited in Meagher, 222 Mich. App. at 709); Boyd, 80 Mich. App. at 373 n.3 (cited in Brewster, 145 Mich. App. at 654; Schipani, 102 Mich. App. at 617); Jenkins, 141 Mich. App. 785 (cited in Brewster, 145 Mich. App. at 654); Schipani v. FordMotor Co., 102 Mich. App. 606,617 (1981) (cited in Brewster, 145 Mich. App. at 654) (Schipani recognized by Kostello v. Rockwell Intern. Corp., 189 Mich. App. 241,245 (1991) as routinely rejected by other panels on other grounds).
Fonseca was a claim by a student not accepted to an MSU graduate program that her rejection was for discriminatory reasons, similar to employment discrimination cases where an individual is fired or denied promotion for allegedly discriminatory reasons. Fonseca, 2 14 Mich. App. at 29. In Fonseca, the Court of Appeals made no statements with respect to claims proven through intentional discrimination shown through a rule or classification discriminatory on its face, but only concerned decisions allegedly made for discriminatory reasons, which must be proved to state a disparate impact claim. See id. at 3 1.

Unfortunately, the insistence required in this case took the form of legal action. The history of girls' sports lends a belief that girls' seasons were originally put in the seasons that they were for impermissible reasons, and they simply have not been moved because of inertia or out of concern for the inconveniences that boys' programs would face. Continued administrative convenience of being able to find facilities, coaches or officials more easily if girls and boys are in separate seasons also does not justify such a system where the separate seasons are not equal for girls. If lack of resources is indeed a reality that requires single-sex seasons in some sports, which was not proved to the Court's satisfaction, then that is a reality that boys must also share.
The MHSAA has provided examples to this Court where it has been pro-active in promoting gender equity in sports. While the Court applauds the MHSAA on these efforts, the fact that the MHSAA may have been or continues to be pro-active in promoting gender equity in some areas of interscholastic sports in Michigan is not relevant to the fact that the MHSAA has acted contraryto law requiring gender equity in the particular situation before this Court. Frankly, conducting an unbiased examination of the facts and listening to dissenters, instead of merely surveying, would have told the MHSAA a long time ago what this Court is now telling it.
The Court will declare that the MHSAA's current scheduling of high school girls' sports in Michigan violates the EqualProtection Clause ofthe Fourteenth Amendment, Title IX, and Michigan's Elliott-Larsen Civil Rights Act. The Court will enjoin Defendant MHSAA from continuing its current scheduling of interscholastic athletics seasons in Michigan. As a result, the Court will retain jurisdiction over this case to order that an appropriate remedy be adopted in a Compliance Plan to be submitted by Defendant MHSAA.

The Court will order that Defendant MHSAA bring its scheduling of the seasons of high school sportsinto compliancewith the law by the2003-2004 schoolyear. Defendant MHSAA will be ordered to submit a Compliance Plan consistent with this Opinion by June 24,2002, detailing a new schedule for sports seasons that complies with the law.
The parties are reminded that Defendant MHSAA may design the new schedule in a number of different ways, and as long as girls and boys share the advantages and disadvantages of the new seasons equitably, this Court will approve the Compliance Plan. For example, Defendant MHSAA is not required to combine seasons of girls' teams and boys' teams in any particular sport, but any remaining single-sex seasons must as a group advantage and disadvantage girls and boys equally. In addition, nothing prevents Defendant MHSAA from utilizing various other scheduling mechanisms designed to treat males and females alike, such as putting freshmanand/orjunior varsity teams of both sexes into the disadvantageous season while putting varsity teams of both sexes into the advantageous season.
After Defendant MHSAA submits its Compliance Plan proposing how it will reschedule interscholastic sports seasons to comply with applicable law, Plaintiffs and the United States will be given the opportunity to respond to the MHSAA's proposed Compliance Plan. Plaintiffs and the United States will be ordered to respond to Defendant MHSAA's Compliance Plan by July 15,2002 or within fourteen days of service of the plan on Plaintiffs and the United States, whichever is earlier.
At that time, the Court will decide whether the Compliance Plan of new seasons scheduling complies with the applicable law and is an appropriateremedy. The Court will also order briefing from
the parties on the issue ofwhether Plaintiffs are entitled, under 42 U.S.C. 5 1988, to payment of their
attorneys' fees by Defendant MHSAA and the appropriateamount. Finally, the Court will approvethe

partial settlement reached by Plaintiffs and Defendant MHSAA on other issues originally part of this litigation and will enter the Consent Decree at the same time as this Opinion.
A Judgment and Injunctive Order consistent with this Opinion will follow

DATED in Kalamazoo, MI:

RICHARD ALAN ENSLEN United States District Judge

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

COMMUNITIES FOR EQUITY, et al.,
Plaintiffs,

Case No. 1:98-CV-479 HON. RICHARD ALAN ENSLEN

MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION,

Defendant.

JUDGMENT AND INJUNCTIVE ORDER 1

In accordance with an Opinion filed this day,

IT IS HEREBY ORDERED that Defendant Michigan High School Athletic Association's

scheduling of the interscholastic athletic seasons of girls' sports in Michigan at issue in this lawsuit is

hereby declared to be in violation of the Equal Protection Clause of the Fourteenth Amendment of the

United States Constitution.

IT IS FURTHER ORDERED that Defendant Michigan High School Athletic Association's

schedulingof the interscholastic athletic seasons of girls' sports in Michigan at issue in this lawsuit is
hereby declared to be in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. $ 5

1681 et seq.

IT IS FURTHER ORDERED that Defendant Michigan High School Athletic Association's

scheduling of the interscholastic athletic seasons of girls' sports in Michigan at issue in this lawsuit is

hereby declared to be in violation of Michigan's Elliott-Larsen Civil Rights Act, Mich. Comp. Laws
$ 5 37.2101 et. seq.

IT IS FURTHER ORDERED that Defendant Michigan High School Athletic Association bring its scheduling ofthe seasons ofhigh school sports into compliancewith the law by the 2003-2004 school year.
IT IS FURTHER ORDERED that Defendant MHSAA submit a Compliance Plan consistent with this Opinion by May 24,2002, detailing a new schedule for sports seasons that complies with the law.
IT IS FURTHER ORDERED that Plaintiffs and the United States respond to Defendant MHSAA's Compliance Plan by June 14, 2002 or within fourteen days of Defendant's service of the plan on Plaintiffs and the United States, whichever is earlier.
IT IS FURTHER ORDEREDthat Defendant MHSAA may reply to the responses ofplaintiff and the United States and must do so by July 8,2002 or within fourteen days of Plaintiffs' service of a response on Defendant MHSAA, whichever is earlier.
IT IS FURTHER ORDERED that a hearing will be held at 9 a.m., Thursday, July 18,2002, in Kalamazoo to allow the parties to present argument with respect to the proposed Compliance Plan. If the parties wish to present witnesses, proposed witnesses and the subject of their testimony must be fully identified in the briefing. Prior to the hearing, the Court will notify parties of the hearing schedule and applicable time limits.
IT IS FURTHER ORDERED that Plaintiffs brief, pursuant to Fed. R. Civ. Pro. 54(d)(2)(B), whether they are entitled to attorneys' fees. Defendant must respond to Plaintiffs' briefwithin 14days of service. Any Bill of Costs must be filed in accordance with L. Civ. R. 54.

DATED in Kalamazoo, MI:

RICHARD ALAN ENSLEN United States District Judge

 
 Case 1:98-cv-00479-PLM ECF No. 770 filed 04/01/09 PageID.1963 Page 5 of 19
SETTLEMENT AGREEMENT
This Settlement Agreement (“Agreement”) is entered into as of December 19, 2008. The parties to this Agreement are the parties to the litigation styled Communities for Equity et al. v. Michigan High School Athletic Association, U.S. District Court, Western District of Michigan Case. No. 98-CV-479 (the “Litigation”). The plaintiff parties are Communities for Equity (on behalf of itself, its members, and the class certified by the District Court in the Litigation), Diane Madsen, and Jay Roberts-Eveland (collectively referred to throughout as “CFE” or “Plaintiffs”). The defendant party is the Michigan High School Athletic Association, Inc. (“MHSAA”). CFE and MHSAA are at times referenced collectively herein as the “Parties” and individually as a “Party.” Each Party affirms that it has the authority to enter into this Agreement and that all parties to this litigation will be bound by the Agreement.
RECITALS
A. On June 26, 1998, Plaintiffs filed a class action complaint commencing the Litigation against MHSAA in the United States District Court for the Western District of Michigan (“District Court”), alleging that various MHSAA policies and actions constituted sex discrimination in violation of Title IX of the Education Amendments of 1972, the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution (as enforced through 42 U.S.C.§1983), and Michigan’s Elliott-Larsen Civil Rights Act.
B. In August, 2001, the MHSAA and Plaintiffs entered into a consent decree that settled most of the contested issues in the Litigation, except whether the MHSAA’s scheduling of sports seasons constituted sex discrimination. The consent decree awarded no attorneys’ fees or expenses but provided that Plaintiffs could recover attorneys’ fees and expenses on all issues in the Litigation if they prevailed at trial on the sports season issue.
C. On September 24, 2001, the MHSAA and Plaintiffs went to trial on the sports season issue . On December 17, 2001, the District Court ruled for Plaintiffs, holding that the MHSAA’s scheduling of sports seasons violated Title IX, the Equal Protection Clause, and the Elliott-Larsen Civil Rights Act.
D. On January 30, 2002, Plaintiffs filed a Fee Petition pursuant to the consent decree, 42 U.S.C. §1988, and Michigan Compiled Laws Annotated §§37.2801 & 37.2802. The Fee Petition sought $2,683,976.90 in attorneys’ fees and expenses. On September 4, 2007, after the exhaustion of all MHSAA appeals, Plaintiffs filed an updated, supplemental petition seeking additional fees and expenses for the post trial work entailed in defending the judgment on the merits and presenting the fee petition, for a revised total of $5,024,610 in fees and $131,144.80 in expenses.
E. On March 31, 2008, the District Court awarded attorneys’ fees and expenses to Plaintiffs’ counsel in the amount of $4,560,261.93 which represented $4,429,117.13 in attorneys’ fees and $131,144.80 in expenses (“Fees Judgment”). The District Court further ordered that the award bear pre-judgment interest from the June 26, 1998, filing date of the complaint and postjudgment interest from the March 31, 2008 entry of the Fees Judgment. The Parties estimate that

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with interest, the total award, as of March 31, 2008, exceeded $7.8 million. On May 8, 2008, Plaintiffs filed a judicial lien to secure the Fees Judgment.
F. On April 29, 2008 the MHSAA appealed the Fees Judgment to the United States Court of Appeals for the Sixth Circuit (the “Appeal”).
G. On or about April 14, 2008, Plaintiffs filed a second supplemental petition seeking fees and expenses relating to the reply filed in response to the MHSAA’s opposition to the first supplemental fee petition. On August 14, 2008, the District Court granted the petition and awarded Plaintiffs’ counsel an additional $94,309.78 in fees and expenses. The MHSAA did not appeal this award. The March 31, 2008 and August 14, 2008, fee awards are collectively referenced herein as the “Fees Judgments.”
H. Since entry of the Fees Judgments, the Parties have engaged in settlement negotiations in an attempt to settle the Fees Judgment and the issues presented in the Appeal.
AGREEMENT
1. Settlement Payment. The MHSAA will pay Plaintiffs a total of $6 million (“Settlement Amount”) in full and complete resolution of any and all claims that Plaintiffs may have against the MSHAA arising out of, or relating to, the Litigation, the Fees Judgments, or any other fact, transaction, or occurrence as of the date of this Agreement. The MHSAA shall pay such Settlement Amount over time as follows:
A. MHSAA shall pay $2.5 million in immediately available funds via wire transfer to the trust account for Plaintiffs’ counsel Steptoe and Johnson (“Down Payment”) before December 31, 2008. The Down Payment will be escrowed in the Steptoe & Johnson IOLTA account pending (i) entry of final orders as set forth in Paragraph 6 herein; and (ii) execution of the acknowledgement, assurance, waiver and subordination described in Section 3 infra. The Parties shall confirm completion of these items in writing to Steptoe and Johnson at which time the Down Payment will be released from escrow. In the event the conditions for release of the escrow are not satisfied by March 30, 2009, the funds held in escrow shall, unless the Parties hereto agree to the contrary, be returned to the MHSAA and this Agreement shall be terminated and of no further force and effect. Wire transfer instructions for such payment are as follows:
Account Name: STEPTOE & JOHNSON LLP IOLTA ATTORNEY TRUST ACCOUNT
Bank Name: WACHOVIA BANK 1300 I STREET NW WASHINGTON, DC 2005
ABA No.: 054001220 Account No. 2000026604268
Notify: Patricia Holmes, pholmes@steptoe.com or 202-429-3053

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B. Subject to the Payment Deferral provision defined below, the MHSAA shall pay the remaining $3.5 million balance of the Settlement Amount (the “Remaining Balance”) to Plaintiffs in annual Interim Payments as follows:
1. $550,000 on or before May 1, 2009 2. $550,000 on or before May 1, 2010 3. $550,000 on or before May 1, 2011 4. $550,000 on or before May 1, 2012 5. $550,000 on or before May 1, 2013 6. $550,000 on or before May 1, 2014 7. $200,000 on or before May 1, 2015
The MHSAA shall wire these Interim Payments to Plaintiffs’ counsel as outlined above unless and until informed otherwise in writing by Steptoe & Johnson.
C. On or before May 1, 2015 the MHSAA shall also pay CFE any amounts due as a result of its election to defer any payments as provided in the Payment Deferral section of this Agreement.
D. In the event the MHSAA chooses to prepay the entire Remaining Balance due Plaintiffs early, then such Remaining Balance shall be reduced by 5% if paid at least 6 months early or by 10% if paid 12 months or more early.
2. Payment Deferral. The MHSAA may, in its sole and absolute discretion, choose to defer payment of up to $100,000 of each of the first three Interim Payments (“Payment Deferral”). However, the total Payment Deferral shall not exceed $250,000. Any and all Payment Deferrals shall bear interest at the rate of 10%. The MHSAA may pay the Payment Deferral amounts (plus interest) at any time, but in no event later than May 1, 2015. Notwithstanding the foregoing, the MHSAA may elect to defer the payment to be made on May 1, 2009 until October 1, 2009 without the imposition of interest on such payment and the amount so deferred shall not be included in determining the total Payment Deferral.
3. Repayment Security.
The Parties understand that National City Bank (the “Bank”) has a first priority lien on the real property owned by the MHSAA, which is described in Exhibit A hereto and is commonly known as 1661 Ramblewood Drive, East Lansing, Michigan 48664 (the “Real Property”). This first priority lien arises out of a loan to the MHSAA by the Economic Development Corporation of the City of East Lansing, guaranteed by the Bank in exchange for a mortgage, recorded July 29, 1996, on the property described above (the “Bank Loan”). The amount of the Bank’s lien as of the date of this Agreement is approximately $472,000.
The Parties further understand that Plaintiffs retain a judicial lien against the MHSAA’S real property, including the Real Property. In order to prevent any MHSAA default to the Bank under the Bank Loan, the Parties agree that:

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A. The Bank will be permitted to review this Agreement and state in writing that it is satisfied with its terms and conditions.
B. Plaintiffs acknowledge that their judicial lien on the Real Property is a second and junior priority to that held by the Bank under the Bank Loan. Accordingly, upon written request from the Bank, Plaintiffs will deliver written acknowledgment that the Bank’s lien on the Real Property is superior to that of Plaintiffs to the extent of MHSAA’s indebtedness to the Bank and the Bank’s security therein under the Bank Loan.
C. Upon written request from the Bank, Plaintiffs will provide the Bank with written assurance that they will not attempt to enforce their judgment so long as the MHSAA performs its obligations under this Agreement. Plaintiffs will notify the Bank in the event that MHSAA fails to perform under the terms of the Agreement. Such notice will be provided to:
National City Bank Michigan/Illinois 120 N. Washington Fifth Floor Lansing, MI 48933 Att: Mr. Chris Conner
D. Intentionally Omitted.
E. This Agreement shall not go into effect until the Bank provides written confirmation to both MHSAA and CFE that it waives any default caused by the recording of CFE’s judgment lien so long as MHSAA performs under this Agreement.
F. Notwithstanding the foregoing, the Parties agree that the MHSAA may obtain a working capital line of credit (“Working Capital Loan”) from the Bank prior to payment in full of the Settlement Amount. The Parties anticipate that the Bank will require that such line of credit be secured in whole or in part by a lien that is senior and prior to the judicial lien held by the Plaintiffs on the Real Property. Plaintiffs agree to subordinate their judicial lien on the Real Property to a Working Capital Loan up to a maximum amount of $750,000, which subordination shall be in addition to the subordination to the Bank Loan described above. In the event the MHSAA grants the Bank a security interest in, or lien upon, any assets other than the existing lien in favor of the Bank on the Real Property to secure the Working Capital Loan, the Plaintiffs shall be granted a similar security interest or lien subject to the same subordination provisions as set forth herein with respect to the Plaintiff’s lien upon the Real Property. The MHSAA agrees that it will utilize disbursements from the Working Capital Loan only to pay amounts due under this Agreement or to pay obligations incurred in the ordinary

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course of the business of the MHSAA. The Plaintiffs agree to execute such agreements as the Bank may reasonably require to evidence this subordination of the Plaintiffs’ lien.
G. The Plaintiffs agree that they will, on May 1, 2009 (or October 1, 2009 in the event the Payment Deferral to such date set forth in Section 2 is exercised) and on the same day each year thereafter during the term of this Agreement, at the request of the MHSAA, negotiate in good faith higher amounts for the maximum amount of the Working Capital Loan if the financial condition of the MHSAA, including, but not limited to, its gross revenues and operating income for the 12 prior months ending on the date negotiation is sought, has deteriorated from the prior 12 month period.
H. Upon payment in full of the Bank Loan, the Plaintiffs agree to negotiate in good faith a new maximum amount of the Working Capital Loan to which the judicial lien will be subordinate.
4. No Impairment of Payments or Security.
A.The MHSAA shall not sell, transfer, assign, mortgage, pledge, lease, grant a security interest in, or encumber any of its assets without Plaintiffs’ prior written consent (which consent shall not be unreasonably withheld) other than purchase money security interests or leases entered into in the ordinary course of business.
B. In the event MHSAA files a case under any chapter of the United States Bankruptcy Code prior to full payment of the Settlement Amount, the MHSAA agrees that any plan of reorganization shall provide for full payment of the then unpaid amount of the Settlement Amount. In the event the plan of reorganization does not provide for full payment of the Settlement Amount, then, and in such event, at the option of the Plaintiffs the full amount of the Fees Judgments (including interest) shall be reinstated (less any payments made) as the claim of the Plaintiffs in the bankruptcy case.
C. In the event the MHSAA chooses to refinance the Real Property, Plaintiffs will agree to consent to such refinancing so long as (i) the proceeds received therefrom are first used to pay the entire Remaining Balance due under this Agreement; (ii) the proceeds of the refinancing are utilized to replace the Working Capital Loan describe above; or (iii) the refinancing does not impair the amount or priority of Plaintiffs’ judicial lien. Except as set forth herein, no refinancing shall adversely affect any interest, lien, or security held by Plaintiffs in the Real Property without their prior, written consent.
5. Revival and Reinstatement of Payment Obligations. If any payment due Plaintiffs under this Agreement, in whole or in part, should for any reason subsequently be declared to be void or voidable under any state or federal law, including provisions of the Bankruptcy Code relating to fraudulent transfers, preferences, or other voidable or recoverable payments of money or transfers of property (collectively a "Voidable Transfer"), and if Plaintiffs

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Plaintiffs in the Litigation, fully and forever release the MHSAA, its principals, affiliates, subsidiaries respective officers, directors, employees, attorneys, agents and their successors and assigns from any and all rights, claims, demands, contracts, obligations, expenses (including attorneys’ fees and costs), liabilities, suits and causes of action of any kind or nature in law or equity that they have or may hereafter have, whether known or unknown, certain or contingent, foreseen or unforeseen, arising prior to the date of this Agreement but excluding (i) all claims, rights and other obligations specifically arising under this Agreement and (ii) all rights and remedies available to enforce the injunctive relief orders rendered in the Litigation. Nothing in this Agreement absolves the MHSAA of its obligations to comply with any orders, injunctive or otherwise, entered in this Litigation.
9. Confidentiality. The Parties agree that the terms of this Agreement including, but not limited to, the amounts to be paid hereunder and the terms of such payments, will be confidential and will not be revealed, in whole or in part, to any person or entity other than the Plaintiffs, the MHSAA and their respective attorneys, officers, directors and representative council members. Provided, however, that each of such persons to whom this Agreement or the terms hereof is made available will be made aware of the provisions of this paragraph and the obligations imposed upon such person to maintain the confidentiality of the Agreement and its terms. Nothing contained in this paragraph shall prevent disclosure of this Agreement or its terms in response to appropriate process or to comply with audit or IRS reporting requirements or any regulatory obligations imposed upon a Party including, but not limited to, any non-profit solicitation licensing requirements. Neither Party shall issue any press release or other public disclosure concerning this Agreement other than a joint press release acceptable in form to both Parties which states only that a mutually acceptable resolution of the attorney fee dispute has been reached and that the appeal has been dismissed with prejudice. The Parties may state that the injunction entered by the District Court will remain in effect unless and until further order of the Court.
10. Jurisdiction. The District Court shall retain jurisdiction over this Litigation as required to enforce this Agreement and to enforce the injunctive relief orders and compliance plan entered in connection with the Judgment in this Litigation
11. Miscellaneous.
a. Timing. The Parties agree that time is of the essence in implementing this Agreement.
b. Headings; Presumptions. The captions and headings used in this Agreement are inserted for convenience of reference only and shall not be used in construing the provisions hereof.
c. Entire Agreement. This Agreement represents the entire agreement among the Parties hereto with respect to the subject matter hereof. This Agreement supersedes any and all prior and contemporaneous oral and written agreements and discussions among the Parties hereto with respect to the subject matter hereof.

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There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express or implied between the Parties other than those expressly set forth in this Agreement.
d. Amendments. Any provision of this Agreement may be amended if, and only if, such amendment is in writing and is signed by all Parties hereto.
e. Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Michigan. The Parties agree that the United States District Court for the Western District of Michigan shall have exclusive jurisdiction to determine all matters between them now or hereafter relating to this Agreement.
f. Costs and Attorneys’ Fees. Each Party shall bear its own costs, fees, and other expenses in connection with this Agreement. If the MHSAA violates this Agreement and if Plaintiffs prevail in any court action to enforce any term of this Agreement, then the MHSAA shall be liable for any reasonable attorneys’ fees and expenses related to such Court proceedings.
g. No Admission. Whether or not this Agreement is executed or approved by the Court, nothing contained herein may be used as, or deemed to be, an admission of liability of any Party with respect to any matter.
h. Jointly Drafted/Interpretation. The preparation of this Agreement has been a joint effort of the Parties and the resulting document shall not, solely as a matter of judicial construction or interpretation, be construed more severely against any one of the Parties than any other.
i. Further Assurances. Each Party to this Agreement agrees to perform any other or further acts, and execute and deliver any other or further documents, as may be necessary or appropriate to implement this Agreement.
j. Authority To Enter Into Agreement. The Parties hereto represent and warrant to each other that they are authorized to execute this Agreement; that each has full power and authority to enter into and perform in accordance with the terms of this Agreement; and that this Agreement is duly executed and delivered and constitutes a valid and binding agreement in accordance with its terms. Without limitation on the foregoing, CFE specifically represents that it has the right and ability to enter into and perform the terms of this Agreement, and grant the releases and other rights contained herein, on behalf of all parties that are Plaintiffs in the Litigation.
k. No Intended Third-Party Beneficiaries. This Agreement is for the benefit of the Parties and their, and there are no intended third-party beneficiaries. The Parties agree that, because this Agreement is intended to reimburse Plaintiffs’

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attorneys’ fees and expenses, Plaintiffs’ counsel also may take any action necessary to enforce this Agreement.
[Signatures on Following Page]

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 26 F.Supp.2d 1001 (1998)
COMMUNITIES FOR EQUITY, on behalf of itself, its members, and all those similarly situated; Diane Madsen, on behalf of her minor
daughters and all those similarly situated; Jay Roberts-Eveland, on behalf of her minor daughter and all those similarly situated, Plaintiff,
v. MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION, on behalf of itself
and its members; John "Jack" Roberts; Keith Alto; Geraldine David; Keith Eldred; Paul Ellinger; Eric Federico; Dan Flynn; Margra Grillo; Robert Grimes; Eunice Moore; Norm Johnson; Dewayne Jones; Dennis Kniola; William Newkirk; Thomas Rashid; Robert Riemersma; Randy Salisbury; Joyce Seals; Michael Shibler; Christi Brilinski; and Does 1 to
50, Defendants.
No. 1:98 CV 479.
United States District Court, W.D. Michigan.
November 16, 1998.
1002*1002 1003*1003 1004*1004 H. Rhett Pinsky, Pinsky, Smith, Fayette & Hulswit, Grand Rapids, MI, Marcia D. Greenberger, The National Women's Law Center, Washington, DC, Kristen Galles, Equity Legal, Alexandria, VA, Neena Chaudhry, National Women's Law Center, 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 "Jack" Roberts, Keith Alto, Geraldine David, Paul Ellinger, Eric Federico, Dan Flynn, Margra Grillo, Robert Grimes, Tammy Jackson, Norm Johnson, Dewayne Jones, Dennis Kniola, William Newkirk, Thomas Rashid, Robert Riemersma, Randy Salisbury, Joyce Seals, Michael Shibler, Eunice Moore.
ORDER
ENSLEN, Chief Judge.
In accordance with the Opinion entered this date:
IT IS HEREBY ORDERED that Defendants' Motion for More Definite Statement or to Strike Pursuant to FRCP 12(e) (dkt.# 12) is DENIED;
IT IS FURTHER ORDERED that Defendant MHSAA's Motion for Summary Judgment Pursuant to FRCP 56(c) as to First and Second Claim of Plaintiffs and Motion Pursuant to

FRCP 12(b)(6) as to Plaintiffs' Third Claim for Relief (dkt.# 14) is DENIED without prejudice, and may be renewed upon completion of discovery;
IT IS FURTHER ORDERED that individual Defendants' Motion for Summary Judgment Pursuant to FRCP 56(c) and to dismiss Pursuant to FRCP 12(b)(6) (dkt # 17) is GRANTED as to Title IX claims brought against individual Defendants in their individual capacities, which are DISMISSED, and DENIED in all other respects, without prejudice, and may be renewed upon the completion of discovery;
IT IS FURTHER ORDERED that Defendants' Suggestion of Incapacity (dkt.# 15) is DENIED;
IT IS FURTHER ORDERED that Defendants' Motion to Dismiss and for Summary Judgment for lack of standing (dkt.# 18) is GRANTED as to Plaintiff Communities for Equity, which is DISMISSED as a party to 1005*1005 this suit, and DENIED as to Plaintiffs Madsen and Roberts-Eveland;
IT IS FURTHER ORDERED that Plaintiffs' Motion Under FRCP 56(f) to Conduct Discovery Before Having to Respond to Defendants' Motions for Summary Judgment (dkt.# 30) is GRANTED;
IT IS FURTHER ORDERED that Defendants' Motion to Strike Plaintiffs' Affidavits (dkt.# 37) is DENIED as moot.
OPINION
This matter is before the Court on (a) the Michigan High School Athletic Association's ("MHSAA") (1) Suggestion of Incapacity; (2) Motion for Summary Judgment as to Plaintiffs' First and Second Claims for Relief; (3) Motion to Dismiss as to Plaintiffs' Third Claim for Relief; (b) the individual Defendants' Motion for Summary Judgment as to Plaintiffs' First and Second Claims for Relief and Motion to Dismiss Plaintiffs' Third, Fourth and Fifth Claims for Relief; and (c) joint motions by MHSAA and the individual Defendants (1) to dismiss claims of Plaintiffs Madsen and Roberts-Eveland for lack of standing; (2) for summary judgment on the standing of Communities for Equity; and (3) for more definite statement or to strike under Fed.R.Civ.P. 12(e). After submitting responses to the above motions, Plaintiffs also submitted a Motion under Fed.R.Civ.P. 56(f) to Conduct Discovery Before Having to Respond.
I. LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b)(6)
Under Rule 12(b)(6), a complaint may be dismissed only if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his [or her] claim that would entitle him [or her] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The complaint must be construed in the light most favorable to the plaintiff, and its well-pleaded

facts must be accepted as true. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987). However, the Court need not accept as true legal conclusions or unwarranted factual inferences. Lewis v. ACB Business Serv., Inc., 135 F.3d 389, 405 (6th Cir.1998).
Federal Rule of Civil Procedure 56(c)
"Federal Rule of Civil Procedure 56(c) provides that summary judgment is proper `if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" City Management Corp. v. U.S. Chemical Co., 43 F.3d 244, 250 (6th Cir.1994). "A party seeking summary judgment bears the initial burdens of specifying the basis upon which it contends judgment should be granted and of identifying that portion of the record which, in its opinion, demonstrates the absence of a genuine issue of material fact." Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir.1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Under this test, the moving party may discharge its burden by "pointing out to the district court ... that there is an absence of evidence to support the nonmoving party's case." Hall v. Tollett, 128 F.3d 418, 422 (6th Cir.1997) (quoting Celotex, 477 U.S. at 325, 106 S.Ct. 2548). "Once this initial burden is met, it becomes the burden of the non-moving party to come forward with specific facts, supported by the evidence in the record, upon which a reasonable jury could find there to be a genuine fact issue for trial." Bill Call Ford, Inc. v. Ford Motor Co., 48 F.3d 201, 205 (6th Cir.1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Mere conclusory assertions or speculation will not suffice to avoid summary judgment, however. Moore v. Philip Morris Cos., 8 F.3d 335, 343 (6th Cir.1993). The non-moving party must go beyond the pleadings and provide sufficient facts to establish the dispute. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing Fed.R.Civ.Pro. 56(e)).
"`[C]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences are jury functions, not those of a judge. The evidence of the nonmovant 1006*1006 is to be believed, and all justifiable inferences are to be drawn in [the nonmovant's] favor.'" Id. (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505). The factual record presented must be interpreted in a light most favorable to the nonmovant. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. This Court "cannot resolve issues of fact, but is empowered to determine only whether there are issues in dispute to be decided in a trial on the merits." Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987); In re Atlas Concrete Pipe, Inc., 668 F.2d 905, 908 (6th Cir. 1982).
II. STANDING
Defendants contend that Plaintiffs Madsen, Roberts-Eveland, and Communities for Equity ("CFE") lack standing to bring this action. They first raise a technical issue, contending that because Madsen and Roberts-Eveland are not designated as "next friends" or "guardians ad litem" for their minor children, they cannot sue on their behalf. This contention is defeated by Federal Rule of Civil Procedure 17(c), however, which provides that a general

guardian may sue on behalf of a minor. A parent is a guardian who may so sue. See, e.g., Croce v. Bromley Corp., 623 F.2d 1084, 1093 (5th Cir.1980).[1]
Defendants then challenge the constitutional standing of named Plaintiffs and CFE, the former under Fed.R.Civ.P. 12(b)(6), the latter under Fed.R.Civ.P. 56(c). The jurisdiction of Article III courts is limited to "cases" and "controversies." See Allen v. Wright 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). One prerequisite to the existence of a case or controversy is that a party bringing suit must have standing to bring it. Id. The Supreme Court has enumerated three constitutional requirements to a finding of standing: "[a] plaintiff must allege [1] personal injury [2] fairly traceable to the defendant's allegedly unlawful conduct and [3] likely to be redressed by the requested relief." Id. at 751, 104 S.Ct. 3315.
a. Injury
Of particular importance in the standing calculus is the requirement that an injury be personal. Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). A plaintiff, generally, may not be a proxy prosecuting the rights of another. See, e.g., Ad Hoc Committee of Concerned Teachers v. Greenburgh No. 11 Union Free Sch. Dist., 873 F.2d 25, 28 (2nd Cir.1989). Accordingly, Plaintiffs must allege both that the minor children of Madsen and Roberts-Eveland have suffered or will suffer an injury; and that members of CFE have suffered or will suffer an injury.
i. Individual Plaintiffs[2]
In order to demonstrate an injury, Plaintiffs must allege that they have sustained or are in danger of imminently sustaining a "direct injury" that is "both real and immediate, not conjectural or hypothetical." City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). Plaintiffs here allege injuries at various levels of abstraction. At its most general, the injury suffered is gender discrimination. At a more specific level, the injury may be described as a denial of equal participation, treatment, and benefits. Finally, at its most specific, Plaintiffs' injuries include those contained in their Amended Complaint at paragraphs 6 and 7.[3]As to the individual 1007*1007 Plaintiffs, the Amended Complaint appears to allege cognizable personal injuries at all levels of abstraction.
At their most specific, and most clear, the injuries suffered are contained in the allegations of unequal treatment contained at paragraphs 6 and 7 of the Amended Complaint. These specific injuries are alleged to have been suffered by "the Plaintiff Class," which, at paragraph 1, is said to include the individual Plaintiffs and CFE. A small inferential step leads to the allegation that the individual Plaintiffs have suffered from the harms enumerated at paragraphs 6 and 7.
The existence of an injury is also made apparent in Plaintiffs' more general allegation, derived from the specific ones above, that they have been excluded from opportunities to participate in interscholastic athletic programs and have received unequal treatment and benefits in these programs. (Amended Complaint at paragraph 43.) In Comm. of Concerned Teachers, the Second Circuit found injury to the plaintiffs' "right to a school environment free from the effects of racially discriminatory practices." 873 F.2d at 28. A similar right was

recognized by Judge (now Justice) Ginsburg in Women's Equity Action League v. Cavazos, 879 F.2d 880, 885 (D.C.Cir.1989) ("The district court recognized that the plaintiffs here asserted `not an abstract or generalized grievance,' but a right, currently denied them, to be educated `in an environment ... free from discrimination.'"). Plaintiffs have adequately alleged injuries to their interest, as student-athletes, in the freedom from discrimination guaranteed by Title IX and the Constitution.
Plaintiffs also note, in their opposition to Defendants' Motion to Dismiss, that they have suffered a "stigmatic" injury, causing them "to believe that they are second class citizens." (Opposition at 7.) The Supreme Court has recognized the viability of such an injury, Heckler v. Mathews, 465 U.S. 728, 739, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984), but has qualified it, limiting its availability to "those persons who are personally denied equal treatment." Id. See also Allen v. Wright, 468 U.S. 737, 755, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). As noted by the Court in Allen, to do otherwise would extend standing "to all members of the particular ... groups against which the [defendant] was alleged to be discriminating." 468 U.S. at 756, 104 S.Ct. 3315. Plaintiffs here have alleged personal denial of equal treatment.
ii. Communities for Equity
The standard under which standing is examined is different, however, when challenged under Fed.R.Civ.P. 56, as is CFE's standing. Here, allegations are insufficient, and CFE is put to its proof. To demonstrate standing, it must adduce specific facts showing that one or more of its members has been directly affected. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
An organization can sue based on the injuries of its members.[4] The affidavit provided by Madsen establishes that she is a member and that "female students" are members. Her membership would be sufficient to establish associational standing for CFE if she were an injured member, on whose behalf CFE sued. The actual injury-sufferers in this case, however, are the students, not the parents who sue on their behalf. Plaintiff Madsen's affidavit does not establish the membership in CFE of any specific female student who has suffered a specific injury. There is nothing in Plaintiff Madsen's affidavit leading to a conclusion that one of her daughters, for instance, is a member. While a mother may sue on behalf of a daughter, this does not lead to a conclusion that an organization to which the mother 1008*1008 belongs can sue on behalf of the daughter. To make injuries so easily distributive would deprive standing law of its foundation. Accordingly, CFE has failed to show with specificity that a member has suffered an injury, and summary judgment as to its standing must be granted.[5]
b. Causation and Redressability
Defendants assert that "[a]ny alleged injuries cannot be traced to Defendants because Michigan school districts control and regulate interscholastic athletics" and cite an opinion of the Michigan Attorney General to that effect. At the dismissal stage, however, the Plaintiffs allegations are taken as true, and Plaintiffs allege that Defendants are, at least, de facto regulators of high school athletics in Michigan. Correspondingly, if Defendants are the actual regulators of high school athletics in Michigan, Plaintiffs allege that changes in their

policies will effect changes at the high school level, producing Plaintiffs' desired result of equal treatment. The causation and redressability requirements of Allen are thus also met.
III. TITLE IX
a. Receipt of Federal Financial Assistance
In support of its contention that MHSAA is not a recipient of federal financial assistance, Defendants lay out a non-exhaustive list of sources from which it does not receive funding.[6] Plaintiffs, in turn, list sources from which they believe MHSAA does receive funding. Without determining if, on the materials presented, there remains a genuine issue of material fact, the Court concludes that the appropriate interim resolution of this question is to grant Plaintiffs' Motion under FRCP 56(f) to Conduct Discovery Before Having to Respond to Defendants' Motions for Summary Judgment. The Court so concludes because, although Plaintiffs have reason to believe that the MHSAA: (1) receives categories of funding which could bring it within the ambit of Title IX and/or (2) is an agent of its member schools, they have not had an adequate opportunity, under the discovery provisions of the Federal Rules of Civil Procedure, to inquire into the facts supporting or refuting the claim. When discovery is complete, a further motion for summary judgment may be appropriate.[7]
b. Individual/Official Capacity Liability
Individual Defendants contend that they cannot be sued in their individual capacities under Title IX. Plaintiffs, on the other hand, argue for individual liability in a Title IX suit by distinguishing the word "by" from the word "under," as used in 20 U.S.C. § 1681(a). The contention is that since the 1009*1009 statute prohibits discrimination under any education program or activity receiving federal financial assistance, rather than by such a program or activity, individual liability is contemplated by the statute. The Court concludes, however, that individual liability is not created solely by imperfectly exclusive statutory language.
The great majority of courts addressing the issue have concluded that there is no individual liability under Title IX. See Lipsett v. Univ. of Puerto Rico, 864 F.2d 881 (1st Cir.1988); Smith v. Metro. Sch. Dist., 128 F.3d 1014 (7th Cir.1997). See also Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 730 (6th Cir.1996) (Nelson, J., concurring) ("I do not believe that Title IX can appropriately be read as subjecting anyone other than educational institutions to liability for violation of its terms."). But see Mennone v. Gordon, 889 F.Supp. 53 (D.Conn.1995) (finding individual liability). These courts have concluded that an action may be brought against only the "education program[s] and activit[ies]" identified by the statute, and not by individuals, who cannot be federal grant recipients. See Smith, 128 F.3d at 1019. In light of the near unanimity of courts which have addressed the issue, the Court finds that individual liability against the Defendants is not available under Title IX.
It does appear, however, that officials who exercise administrative control over a grant recipient may be held liable in their official capacities. See Smith, 128 F.3d at 1020. The question here, then, is whether the individual Defendants exercise administrative control over MHSAA. Defendants submit no evidence with their summary judgment motion which

goes to the issue of administrative control. At least, a genuine issue of material fact remains as to that control.[8]
IV. EQUAL PROTECTION
Defendants first argue that Plaintiffs' equal protection allegations are conclusory, and therefore cannot survive a motion to dismiss. While it is true that conclusory allegations fail to state a claim, Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 726 (6th Cir.1996), Plaintiffs' allegations do not appear as conclusory to the Court as they do to Defendants. A case cited by Defendants illustrates this. In Yusuf v. Vassar College, 35 F.3d 709 (2nd Cir.1994), the Second Circuit noted that one manner of allegation sufficient to support a claim of intentional discrimination (in the context of Title IX) was of "patterns of decision-making that ... tend to show the influence of gender." Id. at 715. Plaintiffs' allegations are of this sort, and are therefore sufficient.[9]
Regarding the status of MHSAA as a state actor,[10] the Court will again defer ruling until the Plaintiffs have had an opportunity to conduct discovery. This is a fact specific inquiry which the Court cannot make on the facts so far presented. In the context of a Rule 12(b)(6) motion, this Court cannot now determine that there is no set of facts Plaintiffs could prove consistent with the allegation.[11]
The Defendants' remaining equal protection analysis is singularly misguided. The existence of a "fundamental right" is relevant to equal protection analysis only in the absence of a "suspect classification." See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28-29, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) (engaging in fundamental rights analysis only after determining that no suspect classification was at issue). Gender is a 1010*1010 suspect classification. When such a classification is at issue, the form of discrimination alleged is of little relevance. Here Plaintiffs allege that a state actor has invidiously discriminated on the basis of gender by treating female student athletes differently from male student athletes without sufficient justification. This is the very nature of a gender-based equal protection claim. Plaintiffs have stated an equal protection claim sufficient to defeat a 12(b)(6) challenge.
V. MICHIGAN STATE LAW CLAIMS
The individual Defendants also move to dismiss Plaintiffs' state law claims, brought pursuant to Mich.Comp.Laws §§ 37.2302 and 37.2402.[12] First, the Court determines that the Amended Complaint is sufficiently particular with regard to the state claims to survive the motion to dismiss.
Regarding the remainder of the motion, Defendants contend that, under § 37.2302, they are not a "place of public accommodation," or "public service," as required before the statute's anti-discrimination provisions can take effect. They so contend because "MHSAA is a private, nonprofit corporation and because it is the school districts themselves which regulate and control interscholastic sports within their districts." For dismissal to be appropriate, Defendants must show that there is no set of facts under which relief could be granted. Here, in order to achieve dismissal, Defendants must show that they are not a

"place of public accommodation" or "public service" as a matter of law. The Defendants' assertions do not. The law of public accommodations is very broad,[13] and it is not easy for an entity to evade designation as such an accommodation. See, e.g., Rogers v. Int'l Ass'n of Lions Clubs, 636 F.Supp. 1476, 1479-80 (E.D.Mich. 1986) (holding, under § 37.2301, that a Lion's Club chapter was a public accommodation, based primarily on public accessibility). Moreover, a "public service" includes "a tax exempt private agency established to provide a service to the public," Mich.Comp.Laws § 37.2301(b), a description which may describe MHSAA. Without determining, absent further evidence and argument, that MHSAA is a public accommodation or public service, the Court determines that Defendants have not established that it is not, as a matter of law.[14]
Regarding the individual Defendants, potential liability under § 37.2302 appears facially possible. The statute does not prohibit discrimination only by places of public accommodation or public services themselves, but by "persons" in the context of places of public accommodation and public services.
Regarding § 37.2402, Defendants contend MHSAA and individual Defendants are not "educational institutions" subject to the statute's strictures. However, as noted by Plaintiffs, the definition of educational institution "includes an agent of an educational institution." Mich.Comp.Laws. § 37.2401. Whether MHSAA and the individual 1011*1011Defendants are agents of Michigan schools is, in part, a question of fact which remains to be resolved.[15]
[1] This conclusion also resolves Defendants' Suggestion of Incapacity.
[2] In this subsection, "Plaintiffs" refers primarily to the minor children of the named Plaintiffs, on whose behalf named Plaintiffs sue.
[3] These include, at paragraph 6, refusing to sanction girls ice hockey and water polo. At paragraph 7, they include: (1) requiring that the Plaintiff Class play its sports in non-traditional seasons; (2) operating shorter athletic seasons for some girls' sports that for boys' sports; (3) scheduling the competitions of the Plaintiff Class on inferior dates; (4) providing, assigning, and operating inferior athletic facilities to the Plaintiff Class in which to play MHSAA-sanctioned games; (5) requiring that the Plaintiff Class play some sports under rules and/or conditions different from those in the NCAA or other governing organizations, unlike boys; (6) allocating more resources to the support and promotion of male interscholastic athletic programs than of female programs. While these are sufficient to survive a motion to dismiss, query whether this degree of specificity will ultimately suffice in light of Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996).
[4] "Even in the absence of injury to itself, an association may have standing solely as the representative of its members." Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). In order to demonstrate standing, an association "must allege that its members, or any one of them," has suffered an injury. Seldin, 422 U.S. at 511, 95 S.Ct. 2197.
As noted by Plaintiffs, it is premature to address any issues regarding the certification of a class of plaintiffs in this action.
[5] Plaintiffs' request for further discovery is not pertinent here. Information as to its membership is within CFE's control.
[6] Defendants also contend that a 1982 letter from the United States Dept. of Education Office of Civil Rights ("OCR") to MHSAA establishes that MHSAA is not a recipient of federal funds, and contend further that this determination should be accorded the deference described in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The Court, first, questions the deference due the letter as a formal object. It is better described as a note than a reasoned policy interpretation. It is not a regulation, an agency adjudication, or the sort of opinion letter to which courts give deference. See Pension Benefit Guaranty Corp.

v. LTV Corp., 496 U.S. 633, 646, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990) (Chevron deference appropriate for opinion letters). This question need not be resolved, however, given the letter's contents. The letter, written in 1982, contains the following paragraph:
Based on the information currently available to OCR, we have determined that the MHSAA does not receive Federal financial assistance. We are therefore closing the complaint against the MHSAA at this time. It is possible that the complaint could be reopened if other information regarding recipient status were received by OCR.
The letter, by its terms, is not an agency interpretation that MHSAA is not now a recipient of federal financial assistance. It is a highly contingent, qualified statement, establishing the OCR's opinion at the time. Indeed, by its terms, the letter disowns deference, inviting "other information" which might change its contingent conclusion.
[7] In all future motions and briefs, the parties are requested to provide: (1) pinpoint citations to legal authority, where possible; (2) subsequent history of cases, excluding denials of certiorari; and (3) when citing an unpublished case, notice of the case's publication status.
[8] Of course, it appears likely that the MHSAA Representative Council would have such control.
[9] This is true of the Amended Complaint generally. Accordingly, none of the assertions of "vagueness" will result in dismissal. As well, Defendants' Motion for a More Definite Statement will be denied. These motions are disfavored, and their purpose is better served by discovery. See Erickson v. Hunter, 932 F.Supp. 1380 (M.D.Fla.1996).
[10] An issue not raised by Defendants until addressed in Plaintiffs' brief.
[11] Plaintiffs request further discovery before responding to the Defendants' equal protection motion. However, this motion is made under Rule 12(b)(6), not Rule 56(c). Since dismissal is inappropriate, the claims will naturally proceed to discovery.
[12] MHSAA itself does not so move, choosing, instead, to depend on the dismissal of the state law claims as supplemental claims after the hoped for dismissal of the claims over which this Court has original jurisdiction. Individual Defendants appear to move on behalf of MHSAA, however, arguing that MHSAA itself is not potentially liable. Strangely, Plaintiffs treat this part of the individual Defendants' motion as though it were asserted only by MHSAA, rather than the individual Defendants, and address only whether MHSAA is potentially liable under these acts, rather than whether the individual Defendants can be held liable.
[13] Though not necessarily as broad as the parties arguments might lead one to believe. The cases relied upon by the parties, Sandison v. MHSAA, 863 F.Supp. 483 (E.D.Mich.1994), rev'd 64 F.3d 1026 (6th Cir.1995), and McPherson v. MHSAA, 119 F.3d 453 (6th Cir.1997) (en banc), all address the definition of "public accommodation" as contained in the Americans with Disabilities Act. While interpretations of the ADA may be instructive here, they do not appear binding. The Michigan law, it should go without saying, may be subject to very different interpretations.
[14] Plaintiffs request further discovery before responding to the Defendants' state law motion. However, this motion is made under Rule 12(b)(6), not Rule 56(c). Since dismissal is inappropriate, the claims will naturally proceed to discovery.
[15] See supra note 14.

 
 192 F.R.D. 568 United States District Court,
W.D. Michigan, Southern Division.
COMMUNITIES FOR EQUITY, on behalf of itself, its members, and all those similarly situated;
Diane Madsen, on behalf of her minor daughters and all those similarly situated; Jay
Roberts–Eveland, on behalf of her minor daughter and all those similarly situated, Plaintiff, v. MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION, on behalf of itself and its
members; John “Jack” Roberts; Keith Alto; Geraldine David; Keith Eldred; Paul Ellinger; Eric
Federico; Dan Flynn; Margra Grillo; Robert Grimes; Eunice Moore; Norm Johnson; Dewayne Jones; Dennis Kniola; William Newkirk; Thomas
Rashid; Robert Riemersma; Randy Salisbury; Joyce Seals; Michael Shibler; Christi Brilinski; and
Does 1 to 50, Defendants.
No. 1:98 CV 479. |
April 19, 1999.
Female high school athletes sued state high school athletic association under various statutes, alleging gender discrimination. On plaintiffs’ motion to certify plaintiff class, the District Court, Enslen, Chief Judge, held that class certification was appropriate.
Motion granted.
Attorneys and Law Firms
*570 H. Rhett Pinsky, Pinsky, Smith, Fayette & Hulswit, Grand Rapids, MI, Marcia D. Greenberger, National Women’s Law Center, Washington, DC, Kristen Galles, Equity Legal, Alexandria, VA, Neena Chaudhry, national Women’s Law Center, Washington, DC, Barbara A. Burr, National Women’s law Center, Washington, DC, for Communities for Equity, Diane Madsen, Jay Roberts-Eveland, Plaintiffs.
Edmund J. Sikorski, Ann Arbor, MI, for Michigan High School Athletic Association, Defendant.
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, Christi Brilinski, Eunice Moore, Defendants.
Charles R. Gross, U.S. Atty’s Office, Grand Rapids, MI, for U.S. Amicus.
OPINION
ENSLEN, Chief Judge.
This matter is before the Court on the Plaintiffs’ Motion for Class Certification. For the reasons which follow, the motion will be granted.
BACKGROUND Plaintiffs bring this suit against the Michigan High School Athletic Association and its Representative Council, alleging that they have been excluded from opportunities to participate in interscholastic athletic programs and have received unequal treatment and benefits in these programs. They contend that this putative exclusion and unequal treatment constitute gender discrimination, in violation of (1) Title IX of the Education Amendments of 1972; (2) the Equal Protection Clause of the Fourteenth Amendment; and (3) Mich. Comp. Laws §§ 37.2302 and 37.2402. The alleged discrimination is made manifest, according to Plaintiffs, in MHSAA’s: (1) refusing to sanction girls ice hockey and water polo; (2) requiring that the Plaintiff Class play its sports in non-traditional seasons; (3) operating shorter athletic seasons for some girls’ sports than for boys’ sports; (4) scheduling the competitions of the Plaintiff Class on inferior dates; (5) providing, assigning, and operating inferior athletic facilities to the Plaintiff Class in which to play MHSAA-sanctioned games; (6) requiring that the Plaintiff Class play some sports under rules and/or conditions different from those in the NCAA or other governing organizations, unlike boys; and (7) allocating more resources for the support and promotion of male interscholastic athletic programs than for female programs.
Plaintiffs’ Motion for Class Certification asks the Court to define the proposed class as follows: all present and future female students enrolled in MHSAA member schools who participate in interscholastic athletics or who are deterred from participating in interscholastic athletics because of Defendants’ discriminatory conduct and who
1

are adversely affected by that conduct.
STANDARD FOR CLASS CERTIFICATION [1] According to the United States Supreme Court, this Court must conduct a “rigorous analysis” into whether the prerequisites of Federal Rule of Civil Procedure 23 are met before certifying a class action. General Tel. Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). The trial court has broad discretion in deciding whether to certify a class, but that discretion must be exercised within the framework of Rule 23. Gulf Oil Co. v. Bernard, 452 U.S. 89, 100, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981); In re American Medical Systems, Inc., 75 F.3d 1069, 1079 (6th Cir.1996). The “rigorous analysis requirement” means that a class is not maintainable merely because the complaint parrots the legal requirements of Rule 23. American Med. Systems, 75 F.3d at 1079. Although a hearing prior to the *571 class determination is not always required, “it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.” Falcon, 457 U.S. at 160, 102 S.Ct. 2364; see also Weathers v. Peters Realty Corp., 499 F.2d 1197, 1200 (6th Cir.1974) (stating that in some cases it will be necessary to give the parties an opportunity to present evidence on the certification question). In this case, the extensive briefing filed by the parties, the Court’s past review of motions, and the documentary evidence and affidavits filed make the hearing of evidence unnecessary because the Court is able to probe behind the pleadings without additional evidence or argument.1
Rule 23 places the burden of class certification on the Plaintiffs. In re American Medical Systems, 75 F.3d at 1079; Senter v. General Motors Corp., 532 F.2d 511, 522 (6th Cir.1976). Under the language of the Rule, the Plaintiff must prove four prerequisites under subsection (a) and one of the prerequisites under subsection (b) for the class to be certified. The Rule provides in pertinent part as follows:
(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if
(1) the class is so numerous that joinder of all members is impracticable,
(2) there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and

(4) the representative parties will fairly and adequately protect the interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(1) * * * *; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; * * * *
Fed. R. Civ. Proc. 23(a)-(b).
CLASS CERTIFICATION
Rule 23(a)(1)—Numerosity/Impracticability of Joinder [2] [3] First, the Court must determine whether the class is sufficiently numerous that joinder is impracticable. Numbers alone are not dispositive when the numbers are small, but will dictate impracticability when the numbers are large. H. Newberg and A. Conte, 1 Newberg on Class Actions, § 3.05 (3rd ed.1992) [hereinafter “Newberg ”]. A good faith estimate of the number of class members is sufficient to support a numerosity finding. See Gomez v. Illinois State Bd. of Educ., 117 F.R.D. 394, 399 (N.D.Ill.1987). In this case, the numbers themselves justify a conclusion of numerosity and impracticability of joinder. Under Plaintiffs’ theory of liability, thousands of female high school athletes and would-be athletes are subjected to Defendants’ alleged discriminatory practices. In terms of specific numbers, Plaintiffs provide, for instance, evidence of 177 female ice hockey players, and 188 female water polo players, all of whom are allegedly discriminated against by Defendants’ refusal to sanction those sports. Similarly, almost 20,000 female basketball players are allegedly injured by a season which is purportedly shorter than that played by boys. Other numbers are presented, but need not be addressed in detail. Suffice it to say, the numbers of alleged discriminatees is high. To the extent that this claim does not concern simply water polo players, but is about a broader claim of discrimination against female high school athletes, the class is surely so numerous as to render joinder impracticable.
*572 Regarding the class membership of future and deterred students, the Court notes that they are appropriate class components, since they cannot be identified. See Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir.1986); Gomez, 117 F.R.D. at 399
2

(holding future class members are necessarily unidentifiable, and that their joinder is therefore impracticable.). See also Roman v. Korson, 152 F.R.D. 101, 111 (W.D.Mich.1993) (Enslen, J.) (noting that inclusion of future class members avoids unnecessary harm and repetitive litigation). The Court concludes that the numerosity requirement is satisfied by the proposed class.
Rule 23(a)(2)—Commonality [4] Next, the Rule requires commonality—that there are questions of law and fact common to class members. Not every common question suffices. Sprague v. General Motors Corp., 133 F.3d 388, 397 (6th Cir.1998). What is necessary for certification are common issues the resolution of which will advance the litigation. Id. In cases involving the question of whether a defendant has acted through an illegal policy or procedure, commonality is readily shown because the common question becomes whether the defendant in fact acted through the illegal policy or procedure. Van Vels v. Premier Athletic Center of Plainfield, Inc., 182 F.R.D. 500, 507 (W.D.Mich.1998) (Enslen, J.). Where the nature of the legal claims are such that individuals would have to submit separate proofs to establish liability, class actions are disapproved due to lack of commonality. See, e.g., Sprague, 133 F.3d at 398 (class action disapproved as to estoppel which would require individual proof of reliance). However, the presence of individual questions need not defeat certification. See In re Prudential Ins. Co. of America Sales Lit., 148 F.3d 283, 310 (3rd Cir.1998). This should be obvious, since Rule 23 requires common questions, not the absence of individual ones. Once it is determined that there are common questions of law and fact as to a legal claim, differences in damages sustained by class members will usually not defeat certification. Sterling v. Velsicol Chemical Corp., 855 F.2d 1188, 1197 (6th Cir.1988); Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332 (11th Cir.1984).
[5] Here, the common questions of fact and law are obvious enough. The overarching question is, did MHSAA and its Representative Council act in a manner inconsistent with Title IX, the Equal Protection Clause of the Fourteenth Amendment; and/or Mich. Comp. Laws §§ 37.2302 and 37.2402? The answer turns on the resolution of factual questions regarding Defendants’ decisionmaking process and outcomes, and determination of the legal consequences of those facts.
Rule 23(a)(3)—Typicality

Rule 23 requires that the claims asserted by class representatives be typical of class members. American Med. Systems, 75 F.3d at 1082. As the Court of Appeals said in the American Medical Systems case:
“Typicality determines whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct....”
* * * * * *
[6] .... A necessary consequence of the typicality requirement is that the representative’s interests will be aligned with those of the represented group, and in pursuing his own claims, the named plaintiff will also advance the interests of the class members.
Id. (citation omitted). The typicality requirement, so explained, tends to merge with the commonality requirement. Falcon, 457 U.S. at 158 n. 13, 102 S.Ct. 2364. Nevertheless, it is a separate inquiry and in particular focuses attention on differences between class representative claims and class claims which would defeat the representative nature of the class action. Fuller v. Fruehauf Trailer Corp., 168 F.R.D. 588, 598 (E.D.Mich.1996).
The typicality requirement is the one demanding the closest attention in this matter. The Court must determine whether, on the facts of this case, the Supreme Court’s Falcon decision precludes a finding of typicality, given the breadth of Plaintiffs’ claims. In Falcon, a Mexican–American employee who *573 alleged that he had been denied a promotion because of race discrimination brought a class action against his employer. The class included all Mexican–American employees and Mexican–American applicants for employment who had not been hired. The class was certified pursuant to a Fifth Circuit rule which permitted “across-the-board” attacks on all racially discriminatory employment practices. The Fifth Circuit had held that it was permissible for “ ‘an employee complaining of one employment practice to represent another complaining of another practice, if the plaintiff and the members of the class suffer from essentially the same injury. In this case, all of the claims are based on discrimination because of national origin.’ ” Falcon, 457 U.S. at 153, 102 S.Ct. 2364 (quoting Falcon v. General Tel. Co., 626 F.2d 369, 375 (5th Cir.1980)). The Supreme Court reversed, holding that:
3

Respondent’s complaint provided

an insufficient basis for concluding

that the adjudication of his claim of

discrimination in promotion would

require the decision of any

common question concerning the

failure of petitioner to hire more

Mexican–Americans. Without any

specific presentation identifying the

questions of law or fact that were

common to the claims of

respondent and of the members of

the class he sought to represent, it

was error for the District Court to

presume that respondent’s claim

was typical of other claims against

petitioner by Mexican–American

employees and applicants. If one

allegation

of

specific

discriminatory treatment were

sufficient to support an

across-the-board attack, every Title

VII case would be a potential

company wide class action.

457 U.S. at 158–59, 102 S.Ct. 2364.
[7] At first blush, the Supreme Court’s criticism of the class certification challenged in Falcon appears applicable in a case such as this. After all, a number of different harms are alleged here, which have not been suffered uniformly among the proposed class representatives. There are two reasons, however, that Falcon does not bar the certification of this class.

First, the various discrete harms alleged by Plaintiffs are all allegedly suffered by members of Communities for Equity, a proposed class representative. See Affidavits attached to Plaintiffs’ Motion for Reconsideration, filed Nov. 25, 1998 (dkt.# 46). “Numerous decisions have recognized the ability of associations, both incorporated and unincorporated, to act as class representatives under Rule 23. These entities are afforded representative status, provided that the underlying purpose of the organization is to represent the interests of the class.” Upper Valley Assoc. For Handicapped Citizens v. Mills, 168 F.R.D. 167, 171 (D.Vt.1996). Since CFE exists for the very purpose of achieving gender equity in high school sports, and since its members allege the manifold harms contained in its complaint, it achieves typicality of injury and claims through its membership.

More importantly, however, the mere fact of some distinction between the particular claims of named Plaintiffs and the diverse manifestations of discrimination

alleged here is insufficient to extinguish typicality. The Falcon Court provided for the possibility of broad-based attacks on discrimination if there were proof of an underlying policy of discrimination. 457 U.S. at 159 n. 15, 102 S.Ct. 2364. Here, the variety of alleged manifestations of discrimination, such as inequitable facilities, scheduling, sanctioning, and rules, present a sufficient case of an underlying policy or practice of discrimination.2 The Court determines that differences between sanctioning water polo and scheduling basketball are less significant in this matter than the typicality of claims that female high school athletes are discriminated against in violation of the various laws invoked by Plaintiffs. See, e.g., Grasty v. Amalgamated Cloth. & Textile Workers Union, 828 F.2d 123, 130 (3rd Cir.1987) (“Although the named plaintiffs in this case do not share all of the claims of the class, since the various claims alleged appear to stem from a single course *574 of conduct ... we cannot conclude that the district court abused its discretion in holding that the typicality requirement was met.”). See also In re Prudential Ins. Co. of America Sales Lit., 148 F.3d 283, 312 (3rd Cir.1998) (“The various forms which [the class members] injuries may take do not negate a finding of typicality, provided the cause of those injuries is some common wrong.”). The typicality requirement is therefore satisfied.
Rule 23(a)(4)—Adequacy of Representation [8] Rule 23(a) requires that the class members and their counsel be prepared to provide fair and adequate representation to the class. In Senter v. General Motors Corp., 532 F.2d 511, 525 (6th Cir.1976), the Sixth Circuit Court of Appeals articulated two criteria for determining adequacy of representation: “1) the representative must have common interests with unnamed members of the class, and 2) it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel.” Senter, 532 F.2d at 525; see also American Med. Systems, 75 F.3d at 1083. The 23(a)(4) requirement includes a requirement that there be no conflicts between the class representatives and the class. See Rutherford v. City of Cleveland, 137 F.3d 905, 909 (6th Cir.1998). Two issues in this matter raise the potentiality for conflict.
[9] First, it is quite possible that members of the class have no desire to pursue this action, and are not unhappy with the status quo. However, the proposed class purports to include only those who are “adversely affected.” While this term is problematic, in that it is unclear whether it should be assessed subjectively or objectively, it appears to limit the class in a way to avoid conflict. As well, even without the limiting language, this sort of putative conflict
4

generally fails to bar class certification. See Newberg at § 3.30 (“the class member who wishes to remain a victim of unlawful conduct does not have a legally cognizable conflict with the class representative”). See also Arthur v. Starrett City Associates, 98 F.R.D. 500, 506–07 (E.D.N.Y.1983). But see Alston v. Virginia High School League, 184 F.R.D. 574 (W.D.Va.1999) (exhibit 2 to Defendants’ Addendum to Brief in Opposition).
Moreover, as suggested by Plaintiffs, the interests of those class members who do not consider themselves adversely affected will be adequately represented by Defendants.3 See Dierks v. Thompson, 414 F.2d 453, 457 (1st Cir.1969); Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 487–88 (5th Cir.1982). “As long as both those seeking to uphold and those desiring to strike the particular regulations are adequately represented, the suit may proceed as a class action.” 7A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 1768 (2nd ed.1986).
A second type of potential conflict may be that achieving certain types of relief in this case could come at the expense of other types. For instance, MHSAA may experience legally justifiable financial constraints which make it impossible for it to sanction tournaments in both ice hockey and water polo.4 See Boucher v. Syracuse University, 164 F.3d 113 (2nd Cir.1999). Should a conflict arise from the limited availability of resources, however, it may be resolved by the creation of subclasses. See id. at 119. In this case, the Court believes that the appropriate course is to defer consideration of any subclasses until the relief stage, if any, of this litigation. See Newberg at §§ 3.25 (“Potential conflicts relating to relief issues which would arise only if the plaintiffs succeed on common claims of liability on behalf of the class will not bar a finding of adequacy and may be resolved, when the need arises, by the formation of subclasses at the relief stage.”) and 3.31. To the extent that the underlying issue in this case is one of unequal treatment and discrimination, the matter of whether to sanction a particular sport appears to be one relating to relief, rather than liability.

generally. The Court determines that the requirements of Rule 23(a)(4) are satisfied.
Rule 23(b)(2)—Injunctive or Declaratory Relief [10] Under Rule 23(b)(2), the class action may be certified for injunctive or declaratory relief if the party opposing the relief requested has acted or refused to act on grounds generally applicable to the class, making the requests for such relief appropriate. The Sixth Circuit Court of Appeals has approved Rule 23(b)(2) certifications for cases involving equitable relief as to discrimination claims in light of the fact that the Advisory Committee recommended this use of the Rule in such cases. See Senter, 532 F.2d at 525–26.
Defendants argue that a class is unnecessary, because relief granted to named Plaintiffs would inure to the benefit of the class. The Sixth Circuit has disclaimed any necessity requirement for Rule 23(b)(2) certification. Penland v. Warren County Jail, 797 F.2d 332, 334 (6th Cir.1986). Even if such a requirement existed, mootness concerns would suggest the necessity of certification.5
To the extent that Defendants discriminate against female high school athletes through unequal treatment, Defendants act or refuse to act on grounds generally applicable to the class. Injunctive relief is, of course, an appropriate remedy for discriminatory treatment. Rule 23(b)(2) certification is therefore appropriate.
CONCLUSION
Therefore, it is the conclusion of this Court that the Motion for Class Certification shall be granted.6 An order shall issue consistent with this Opinion.
All Citations

Adequacy of representation is also measured by the quality of class counsel. There *575 is no argument here that counsel for Plaintiffs are unqualified. They are experienced in both Title IX litigation, and litigation

192 F.R.D. 568, 43 Fed.R.Serv.3d 1078, 144 Ed. Law Rep. 990

Footnotes

1

Defendants raise a number of liability arguments in their briefing. While these may carry the day ultimately, that day

has not yet arrived. The certification determination is not concerned with a plaintiff’s success on the merits. See Eisen

v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) (stating that certification question

concerns Rule 23 factors and not an assessment of the merits).

5

2

If it should be shown by the conclusion of the litigation that such a policy were absent, there might be cause to remove

the individual Plaintiffs as representatives for lack of typicality. CFE, however, might remain a viable representative.

3

Query whether this obviates the need for the phrase, “and are adversely affected,” in the class definition.

4

The Court expresses no opinion on the viability of such a contention.

5

Though Defendants are correct that mootness is unlikely, given the scheduling of this litigation.

6

The parties are reminded, however, that under Fed.R.Civ.P. 23(c)(1), a certification order “may be altered or amended

before a decision on the merits.” The class definition, and the propriety of the class in its entirety, may change as the

litigation progresses. See, e.g., supra p. 573 n. 2, and p. 574.

6

 
 80 F.Supp.2d 729 (2000)
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.
730*730 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, 731*731 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 732*732 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.
733*733 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 a ban on discriminatory conduct by recipients of federal funds or as a prohibition against the disbursement of public funds to educational institutions engaged in discriminatory practices." Id. at 691-92, 99 S.Ct. 1946. Second, the Supreme Court recognized that Title IX "sought to accomplish two related, but nevertheless somewhat different objectives... Congress wanted to avoid the use of federal resources to support discriminatory practices; [and] it wanted to provide individual citizens effective protection against those [discriminatory] practices." Id. at 704, 99 S.Ct. 1946. In reaching this conclusion, the Supreme Court explained that a private right of action, in contrast to a suit brought by the federal government, was "fully consistent with — and in some cases even necessary to — the orderly enforcement of the statute." Id. at 705-06, 99 S.Ct. 1946. Based upon this analysis, the Supreme Court concluded that Title IX implied a private cause of action.
Based in large part upon the Supreme Court's understanding of Title IX in Cannon, this Court is convinced that any entity which has controlling authority over a "program or activity receiving Federal financial assistance" is subject to Title IX's anti-discrimination rule, even if that entity does not itself receive the federal funds which finance the program or activity. In reaching this conclusion, the Court rejects Defendants' argument that only recipients of federal funds are subject to Title IX because this interpretation is at odds with the plain meaning and purpose of the statute.
To begin with, Section 902 of Title IX does not, on its face, confine the list of potential defendants to "recipients" of federal funds. Instead, it simply prohibits discrimination "under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). While the most likely entity subject to this prohibition would be a school district that is a recipient of federal aid, there is nothing in the statute which limits the class of potential defendants to such recipients. Instead, the statute prohibits discrimination, presumably by anyone, "under any education program or activity receiving Federal financial assistance." Id.
This interpretation of the statute is supported by the Supreme Court's analysis in Cannon. In that case, the Supreme Court made it clear that Title IX did not simply ban discrimination by recipients of federal 734*734 funds; it provides a remedy for individuals who have been discriminated against on the basis of sex in the operation of programs receiving federal aid. See Cannon, 441 U.S. at 691-92, 99 S.Ct. 1946. Defendants ask the Court to interpret

Title IX as only applying to recipients of federal funds, but this is precisely the interpretation of Title IX that the Supreme Court seemed to reject in Cannon. Id.
Not only is Defendants' suggested interpretation of Title IX unsupported by the plain meaning of Title IX and the Cannon decision, it is empty formalism. If Defendants' interpretation prevailed, Title IX would prohibit "recipients" of federal funds from discriminating on the basis of sex, but would allow entities that controlled those funds to discriminate so long as those entities were not themselves "recipients." Such a scheme would not only encourage "recipients" of federal funds to transfer control over those funds to others (because both parties could thereby avoid Title IX liability), it would allow federal funds to promote gender discrimination so long as the recipients of those funds empowered someone else to promulgate the discriminatory policies. In this Court's view, such a formalistic interpretation is not warranted by the meaning or purpose of the statute.
Although the Court concludes that exercising "controlling authority" is sufficient to subject an entity to liability under Title IX, it must acknowledge that prior Supreme Court and Sixth Circuit precedent has implied that Title IX is only triggered if the defendant is a "recipient" of federal money. See Grove City College v. Bell, 465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984) (examining whether Grove City College was a recipient of federal financial assistance in order to determine whether it was subject to Title IX); U.S. Dept. of Transp. v. Paralyzed Veterans, 477 U.S. 597, 106 S.Ct. 2705, 91 L.Ed.2d 494 (1986) (stating that Congress limited the scope of § 504 of the Rehabilitation Act — a statute with similar wording and history to Title IX — to cover only entities that receive federal financial assistance); Horner v. Kentucky High Sch. Ath. Ass'n, 43 F.3d 265 (6th Cir.1994) (examining extent to which Kentucky High School Athletic Association ("KHSAA") could be considered a recipient of federal financial assistance in order to determine whether it was subject to Title IX).[2]
While the Court is mindful of these three decisions, it concludes that they are not conclusive on the issue currently before the Court. The Court reaches this conclusion for three reasons.
First, none of these cases explicitly considered the "controlling authority" rationale. Therefore, while these cases focused on whether certain defendants were appropriately considered recipients of federal funds, these cases did not explicitly hold that only recipients could be Title IX defendants. See Smith, 119 S.Ct. at 929-930 (implying that the "controlling authority" theory of Title IX liability has not been addressed by the Supreme Court).
Second, the holdings in all three of these cases are logically consistent with the "controlling authority" theory of liability. See Grove City, 465 U.S. at 563-570, 104 S.Ct. 1211 (finding that Grove City College was a proper defendant under Title IX where it had obvious control over its own financial aid program which was funded, in part, by federal grants); Paralyzed Veterans, 477 U.S. at 604-611, 106 S.Ct. 2705 (finding that air carriers were not subject to Title IX where they had no control over 735*735 program which developed airports and received federal aid); Horner, 43 F.3d at 272 (finding that KHSAA was properly sued under Title IX where it had control over interscholastic athletic programs that were receiving federal financial assistance).

Third, the case which goes the furthest in implying that only recipients of federal funds may be subject to Title IX, Paralyzed Veterans, is inconsistent with the Supreme Court's explicit analysis in Cannon. In Paralyzed Veterans, the Supreme Court held that § 504 of the Rehabilitation Act only applied to recipients of federal funds, noted that § 504 and Title IX were similar statutes, and thereby implied that Title IX's requirements were similarly limited to recipients of federal aid. See Paralyzed Veterans, 477 U.S. at 605-606, 106 S.Ct. 2705. This implication, however, is at odds with the Supreme Court's analysis in Cannon that Title IX does more than simply prevent recipients of federal funds from discriminating on the basis of sex. See Cannon 441 U.S. at 691-92, 704-06, 99 S.Ct. 1946. Therefore, whatever implication arises out of Paralyzed Veterans is trumped by the Supreme Court's explicit analysis in Cannon.
Therefore, because the plain meaning of Section 902 of Title IX does not limit the class of defendants to recipients of federal funds, because the Cannon decision makes it clear that Title IX was designed to prevent sex discrimination in programs that are financed by federal money (as opposed to merely stopping recipients of federal resources from discriminating), because the precedent of the Supreme Court and the Sixth Circuit is consistent with the "controlling authority" theory of liability, and because holding otherwise would be nothing more than empty formalism, the Court concludes that any entity that exercises controlling authority over a federally funded program is subject to Title IX, regardless of whether that entity is itself a recipient of federal aid.
B. Factual Question
Having concluded that "controlling authority" is a valid basis for Title IX liability, the Court turns to whether Plaintiffs have offered sufficient evidence that the MHSAA possesses the necessary authority to create a genuine issue of material fact. In order to sustain this burden, Plaintiffs point to a variety of factors. First, they point out that local school districts receive federal funds and therefore those districts' athletic programs are "programs or activities receiving Federal financial assistance ...." See 20 U.S.C. § 1687(2)(A). Second, they note that the MHSAA's stated purpose is "to create, establish and provide for, supervise and conduct interscholastic programs throughout the state." Third, they argue that MHSAA promulgates rules and decisions that influence virtually every aspect of interscholastic athletics. Specifically, they point to: MHSAA's eligibility requirements, MHSAA's rules governing contests, MHSAA's rules relating to coaches, MHSAA's rules relating to the training of officials, MHSAA's decisions about the seasons in which certain sports will be played, MHSAA's rules relating to the number of practices that are allowed, and MHSAA's control over postseason competitions. In light of the fact that virtually every high school in Michigan is a member of MHSAA, each school agrees to be bound by the rules of MHSAA, and the MHSAA can impose sanctions on schools that violate its rules, the Plaintiffs argue that schools have ceded controlling authority over interscholastic athletics to the MHSAA.
In response, Defendants argue that MHSAA receives no money from its member schools either directly or indirectly. Furthermore, they point out that Michigan law vests a nondelegable duty to regulate interscholastic athletics in local school boards. More specifically, they counter Plaintiffs' assertion that local schools have ceded control over interscholastic athletics with the following facts: individual schools are solely responsible for decisions

about what teams to sponsor, MHSAA rules must be formally adopted by local school districts, these districts are primarily responsible 736*736 for enforcement, membership in MHSAA is voluntary, and local school districts often make and enforce rules that are more stringent than MHSAA rules. From Defendants' perspective, the relationship between school districts and the MHSAA is analogous to the relationship between adverse parties and an arbitrator. Defendants argue that the MHSAA simply provides member schools with a set of rules, which the member schools suggest and must formally adopt, so that a uniform set of rules can be obtained.
Essentially, Plaintiffs and Defendants disagree about what it means to "cede controlling authority." Plaintiffs assert that because the MHSAA makes the rules, it has controlling authority over interscholastic athletics — even though the local school districts must formally ratify those rules. Defendants argue that MHSAA cannot have controlling authority over interscholastic athletics because a school district is only bound by MHSAA rules if that school district formally adopts those rules.
To resolve this disagreement, the Court begins with a review of the MHSAA and its historic role in interscholastic athletics. In 1924, the MHSAA was founded to "exercise control over the interscholastic athletic activities of all schools of the state through agreement with the Superintendent of Public Instruction." 1978-90 MHSAA Handbook, Foreword. Prior to 1965, the Superintendent of Public Instruction was given supervision and control over interscholastic athletics by statute. See School Code of 1955, 1955 PA 269 § 784. Then, in 1965, this authority was transferred to the State Board of Education via statute. Mich. Comp. Laws § 388.1014. From 1924 through 1974 the MHSAA appears to have been part of the state government, assisting either the Superintendent of Public Instruction or the State Board of Education in regulating interscholastic athletics.
In 1972, the Michigan legislature transferred authority over interscholastic athletics from the State Board of Education to the local school boards. In addition to transferring authority over interscholastic athletics in this manner, the Michigan legislature provided that:
The [MHSAA] is the official association of the state for the purpose of organizing and conducting athletic events, contests, and tournaments among schools and shall be responsible for the adoption and enforcement of rules relative to eligibility of athletes in schools for participation in interschool athletic events, contests and tournaments.
Id. at § 380.1292(2). In addition to this "official designation," a representative of the State Board of Education was required to be a member of the MHSAA governing body. Id. at § 380.1292(1). In 1972, the MHSAA incorporated as a private association.
In 1995, the Michigan legislature again amended the statute. This time it removed MHSAA's official designation but explicitly provided that local school districts could "join organizations as part of performing the function of the school district." Id. at § 380.11a(4). While the MHSAA's public or private status may have changed throughout the years, its basic function appears to have remained the same since its inception in 1924 — create rules and policies for the regulation of interscholastic athletics in the state of Michigan.

Against this historical backdrop, the Court's analysis of the extent to which the MHSAA currently exercises control over interscholastic athletics begins with a review of the "MHSAA Handbook For 1999-2000 School Year" (Handbook). The forward to the Handbook provides, "the Michigan High School Athletic Association, Inc. is a private, voluntary association of public, private and parochial secondary schools ...[i]t is not necessary for any school to join the MHSAA in order to conduct a program of competitive athletics, and MHSAA member schools are not prohibited from engaging in competition against nonmember schools ... MHSAA is a self-supporting organization that does 737*737 not rely on taxpayer dollars from any agency of the state or federal government. Schools do not pay membership dues, tournament entry fees, or service fees. When schools host MHSAA events they are reimbursed their itemized expenses and usually generate additional income from concession and program sales, parking fees, and a portion of gate receipts...." Forward, MHSAA Constitution. The MHSAA Constitution goes on to provide that, "all high schools, junior high/middle schools, or other schools of Michigan ... may become members of this organization ...." Art. II, MHSAA Constitution. These provisions confirm Defendants' assertion that MHSAA is a private organization and that membership is purely voluntary. As such, these provisions go a long way in assuring the Court that the MHSAA does not exercise controlling authority over interscholastic athletics because the local schools can presumably disregard MHSAA rules, or exercise their option not to join the MHSAA, whenever they choose.
However, as the Court reads the MHSAA Handbook more closely, its initial assessment of the benign relationship between the MHSAA and local school districts is called into question. In the same forward that promises individual school districts that their membership in MHSAA is purely voluntary, MHSAA writes, "... schools adopt the Regulations and Interpretations of this Handbook as their own and agree to be primarily responsible for their enforcement." (emphasis in original). This warning is then reiterated by the MHSAA Constitution which provides,
[f]or a school to become a member of this organization, its board of education/governing body must complete the annual Membership Resolution stating that the board of education/governing body has adopted the organization's rules as its own and agrees to primary enforcement of such rules as to its own schools. Failure to implement required effects of policies and procedures promulgated by the organization to govern eligibility, competition and tournaments shall require that members of the administration and board of education/governing body appear before the [MHSAA] to show cause why the school is not in violation of the terms of its Membership Resolution.
Art. II, MHSAA Constitution. These provisions run contrary to the permissive and voluntary tone of the previously cited provisions and demand a closer examination of the relationship between the MHSAA and local school districts.
To uncover the precise nature of this relationship, it is necessary to examine the duties assigned to the Representative Council, the governing body of the MHSAA. The MHSAA Constitution provides:
Article VI — Duties of the Council

Sec. 1. The Council shall have general control of interscholastic athletic policies.

Sec. 2. It shall make rules of eligibility for players.

Sec. 3. It shall make regulations for the conduct of interscholastic contests.

Sec. 4.

It shall be the annual responsibility of the Council to ascertain that the Council elective process has provided for representation of females and minorities. If, in the judgment of the Council, these results have not been achieved, said Council shall appoint not to exceed four Representative Council members-at-large for two-year terms.

Sec. 5. It may discipline member schools and contest officials for violations of rules and regulations

Sec. 6. It shall provide for the hearing of appeals from decisions of the Executive Director

Sec. 7. It shall exercise all other functions necessary for carrying out the spirit and purpose of the Constitution.

Art. VI, MHSAA Constitution. Not only is the Representative Council given broad authority to regulate interscholastic athletics, a separate Due Process Procedure provides a complex process which governs "the investigation into alleged or contested 738*738 violations by a party of the Constitution, By-Laws, regulations, rules, or interpretations of the MHSAA." The Regulations provide lengthy eligibility requirements, limitations on the number of games that may be played, specifications of what type of officials may be used, rules for playing MHSAA sports, practice and scrimmage schedules, limitations on the number of games in which an athlete may participate in a given week, day, month, etc, maximum number of competitions allowable in a given year, a list of sanctions for a wide variety of violations, and a calendar of MHSAA sponsored state tournaments. These Regulations cover 51 pages of the Handbook.

A comprehensive review of the Handbook undercuts Defendants' assertion that MHSAA has no real control over interscholastic athletics. Defendants may be correct, as a technical matter, that the local schools must formally adopt MHSAA rules and enforce MHSAA

policies, but this does not necessarily mean that MHSAA does not have control over those rules or policies. There is only one interscholastic athletic association in the state of Michigan and that is the MHSAA. In a very real sense, the MHSAA has a de facto monopoly over interscholastic sports. This is evidenced by the fact that there is not a single high school in the state of Michigan, that is eligible for MHSAA membership, that is not a member. While local school districts may have the power to disregard MHSAA rules or policies, and the legal authority to leave the Association altogether, these are not realistic options given the nature of interscholastic sports in Michigan. If a local school district were to disregard MHSAA rules, or leave the MHSAA, it would subject itself to MHSAA imposed sanctions (including possible expulsion), jeopardize its ability to compete in statewide tournaments, find it difficult to schedule opponents, and in general have problems providing interscholastic athletic programs to its students.
This explains why Defendants' reliance, on statements by the Michigan Attorney General and several state courts that interscholastic sports is a "non-delegable" duty of the local school districts, is misplaced. While the regulation of interscholastic athletics under Michigan state law is "non-delegable," the local school districts have delegated it to the Defendants. Having delegated this duty, the local school districts have now lost the power to control interscholastic athletics independent from the MHSAA.
The evidence presented reveals a genuine issue of material fact regarding the extent to which the MHSAA exerts control over interscholastic athletics. Thus, summary judgment must be denied.[3]
II. EQUAL PROTECTION AND 42 U.S.C. § 1983
Defendants also ask this Court to grant summary judgment in their favor with respect 739*739 to Plaintiffs' 42 U.S.C. § 1983 claim. Defendants argue that the MHSAA is not a state actor and therefore cannot be liable under § 1983. Plaintiffs respond that the symbiotic relationship between the state of Michigan and the MHSAA is so pronounced that the MHSAA should be considered a state actor.
In the Sixth Circuit, "the principal inquiry in determining whether a private party is a "state actor" is whether the party's actions may be `fairly attributable to the state.'" Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir.1992) citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). The Supreme Court has created three tests to assist courts in making this determination. First, the public function test. See West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Second, the state compulsion test. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Third, the symbiotic relationship or nexus test. Burton v. Wilmington Parking Auth., 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). The Supreme Court has suggested that these tests may be simply "different ways of characterizing the necessarily fact-bound inquiry that confronts the Court [when resolving state actor questions]." Lugar, 457 U.S. at 939, 102 S.Ct. 2744.
The public function test asks whether "the private entity exercises powers which are traditionally exclusively reserved to the state, such as holding elections, or eminent domain." Wolotsky, 960 F.2d at 1335. Although the United States, as amicus, argues that

interscholastic sports in Michigan is a public function, this position is contradicted by the Sixth Circuit's analysis in Brentwood Academy v. Tennessee Secondary School Athletic Association, 180 F.3d 758, 763 (6th Cir.1999). In that case, the Sixth Circuit concluded, based upon the Supreme Court's decision in San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522, 545, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987), that interscholastic sports is not a power traditionally reserved to the state. Id. While this Court agrees with the United States that the State of Michigan has a long history of regulating interscholastic athletics (see I, B above), and that many of the cases and Michigan Attorney General opinions which Defendants cite indicate that interscholastic athletics is a "traditional government function," the Sixth Circuit's analysis in Brentwood is controlling.
The state compulsion test examines the extent to which the party seeking to establish state action can prove that the state so coerced or encouraged a private entity to act in a given way that the entity's action must be regarded as the choice of the state. Wolotsky, 960 F.2d at 1335. The Court believes that the MHSAA is a state actor pursuant to this test. The most persuasive argument supporting this conclusion is made by Defendants, albeit in the context of Title IX, where they argue that interscholastic athletics is a "non-delegable" duty of local school districts. According to Defendants, because all power over interscholastic athletics is held by the local districts, the MHSAA only acts at the will and direction of those districts. This characterization of the MHSAA-local school district relationship, added to the fact that the MHSAA is governed by a Representative Council comprised of primarily state employees (16 of the Representative Council members are public school employees and the Superintendent of Instruction is an ex-officio member), combines to make a strong case that the MHSAA is a state actor pursuant to the state compulsion test.
While satisfaction of the state compulsion test is reason enough to conclude that the MHSAA is a state actor, the Court is even more convinced by application of the symbiotic relationship test. As the Sixth Circuit explained, "under the symbiotic relationship or nexus test, the action of a private party constitutes state action when there is a sufficiently close nexus between the state and the challenged action of the regulated entity so 740*740 that the action of the latter may be fairly treated as that of the state itself." Wolotsky, 960 F.2d at 1335.
There is no denying that there is a unique and close relationship between the MHSAA and the State of Michigan. Among other factors which define this relationship, the MHSAA is made up of primarily public schools,[4] public school employees are elected to serve on the Representative Council which oversees the MHSAA, school employees who desire to serve on the Representative Council must have approval from their principal or school district superintendent, the Michigan Superintendent of Public Instruction is an ex-officio member of the Representative Council, the MHSAA exercises tremendous influence and control over the rules and policies that regulate interscholastic athletics, MHSAA rules and policies are binding on all schools unless they withdraw from the MHSAA, and local school districts are primarily responsible for enforcing MHSAA rules and policies. Based upon similar factual circumstances linking state athletic associations to the state, a variety of Circuit Courts have found that these associations are state actors. See Griffin High School v. Illinois High School Ass'n, 822 F.2d 671, 674 (7th Cir.1987); In Re United States ex. rel. Missouri State High School Activities Ass'n, 682 F.2d 147, 151 (8th Cir.1982); Clark v. Arizona Interscholastic Ass'n, 695 F.2d 1126, 1128 (9th Cir.1982); Moreland v. Western

Pennsylvania Interscholastic Athletic League, 572 F.2d 121, 125 (3rd Cir.1978); Louisiana High School Athletic Ass'n v. St. Augustine High School, 396 F.2d 224, 227 (5th Cir.1968); Oklahoma High School Athletic Ass'n v. Bray, 321 F.2d 269, 273 (10th Cir.1963). If this were the only precedent on the issue, the Court would be hard-pressed to justify any conclusion other than that the MHSAA is a state actor.[5] However, before the Court reaches this conclusion, there are two reported decisions which demand close attention.
In Brentwood Academy v. Tennessee Secondary School Athletic Association, 180 F.3d 758 (6th Cir.1999), the Sixth Circuit was asked to decide whether the Tennessee Secondary Athletic Association ("TSSAA") was a state actor when it enforced a rule against a private school, Brentwood Academy, that prohibited the school from using undue influence in recruiting student-athletes. The Sixth Circuit began by analyzing the structure and function of TSSAA which is strikingly similar to the MHSAA in this case.[6] The 741*741 Sixth Circuit noted that: (1) the TSSAA was a voluntary organization, that authorized member schools to withdraw at any time; (2) the TSSAA was made up of public and private schools; (3) a Board of Control, made up of nine members elected from member schools, decided TSSAA policy; (4) at all relevant times the Board of Control was comprised of public high school administrators; (5) the TSSAA receives no state funding; (6) the TSSAA's revenue was generated from gate receipts at state tournaments and the TSSAA negotiated contracts with member schools for the use of their facilities to house these tournaments; and (7) while a Tennessee Board of Education rule at one time designated the TSSAA to conduct interscholastic athletics, this rule was repealed in 1995.
With these facts in mind, the court examined prior Sixth Circuit precedent and concluded that Brentwood Academy had failed to satisfy any of the three tests for determining when a private entity should be considered a state actor. In reaching this conclusion, the Sixth Circuit examined several of its prior decisions that had held that a state athletic association was a state actor. See Yellow Springs v. Ohio High School Athletic Association, 647 F.2d 651 (6th Cir.1981); Alerding v. Ohio High School Athletic Association, 779 F.2d 315 (6th Cir.1985). The Sixth Circuit concluded that these decisions were not controlling. Brentwood Academy, 180 F.3d at 764-766.
Additionally, the Sixth Circuit examined the extent to which a finding that TSSAA was not a state actor was consistent with Footnote 13 of the Supreme Court's decision in NCAA v. Tarkanian, 488 U.S. 179, 193 n. 13, 109 S.Ct. 454, 102 L.Ed.2d 469 (1988). The Sixth Circuit explained that while Tarkanian Footnote 13 indicated that high school athletic associations might potentially be state actors in relation to public schools, the same footnote indicates that "even if an athletic association is a state actor when dealing with a public school, it `was not acting under color of state law in its relationships with private universities.'" Brentwood Academy, 180 F.3d at 766citing Tarkanian, 488 U.S. at 193 n. 13, 109 S.Ct. 454. Therefore, the Sixth Circuit concluded that because Brentwood Academy was a private school, Footnote 13 did not require a finding that the TSSAA was a state actor. Brentwood Academy, 180 F.3d at 766.
This analysis misapplies the reasoning in Tarkanian. In Tarkanian, the Supreme Court was asked to decide whether the National Collegiate Athletic Association ("NCAA") was acting under color of state law when it conducted an investigation into athletic programs at the University of Nevada Las Vegas ("UNLV") and recommended to UNLV that it discipline its

mens basketball coach, Jerry Tarkanian. In a 5-4 decision, the Supreme Court concluded that the NCAA was not a state actor.
The central issue in the case was whether the NCAA's recommendations, and UNLV's adverse employment actions, were so coordinated that they should be considered "joint actions" such that the NCAA was a state actor. Tarkanian, 488 U.S. at 194-199, 109 S.Ct. 454. Before analyzing this "joint action" issue, however, the majority opinion briefly examined whether UNLV exercised such control over the NCAA that all NCAA policies and actions were transformed into state actions. Id. at 193, 109 S.Ct. 454. The majority observed that the NCAA was made up of colleges and universities from all across the country, and that UNLV had no more influence over the NCAA than other schools. Id. Therefore, because these colleges and universities outside of Nevada were not acting under color of Nevada state law, the NCAA's decisions and policies could not possibly be considered to be those of the state of Nevada. Id.
At this point, the majority inserted Footnote 13. Id. at 193 n. 13, 109 S.Ct. 454. The first sentence of the Footnote points out that the majority's analysis would be quite different in cases where an association's membership consisted entirely 742*742 of schools from the same state, many of which were public institutions. Id. The majority then cited two circuit court decisions which found that state athletic associations were state actors. Id. In the second sentence of the Footnote, the majority notes that the dissenters accept the proposition that the NCAA is not a state actor when it takes "joint action" with a private university, and that the majority of the NCAA's membership is private schools. Id. The inference to be drawn from this second sentence is that because the dissenters accept the idea that "joint action" between the NCAA and a private university would not transform NCAA action into state action, and because the NCAA is made up of primarily private universities, the NCAA cannot be considered a state actor based upon its membership. The majority is using the dissents "joint action" analysis to reinforce its own conclusion that the NCAA cannot possibly be a state actor because of its membership.
The Tarkanian case required the Supreme Court to examine two independent state actor questions. First, the Supreme Court was required to briefly analyze in what instances an athletic association might be considered a state actor because its members controlled the association and those members were state actors. ("The membership question"). Second, the Supreme Court examined in what instances an athletic association should be considered a state actor when it engages in joint activity with the state. ("The joint action question"). With these independent inquiries in mind, Footnote 13 appears to stand for three propositions. First, an athletic association made up of schools from across the country, the majority of which are private schools, is not a state actor because no one state controls the policy of the association. Second, if an association were made up of schools from the same state, and the majority of those schools were public, the association might well be a state actor. Third, while "joint action" between a public school and a private association might render the private association a state actor, joint action between a private school and a private association would not.
The Sixth Circuit's opinion in Brentwood Academy misstates the Supreme Court's reasoning in Tarkanian. The Sixth Circuit explained that the TSSAA was not a state actor, in part, because "all nine justices agree that even if an athletic association is a state actor when

dealing with a public school, it `was not acting under color of state law in its relationship with private universities.'" Brentwood Academy, 180 F.3d at 766citing Tarkanian, 488 U.S. at 193 n. 13, 109 S.Ct. 454. The problem with this analysis, however, is that this quoted line from Footnote 13 applies to the joint action question, not the membership question at issue in Brentwood Academy. In Brentwood Academy, the issue was not whether "joint action" between the TSSAA and Brentwood Academy transformed the TSSAA into a state actor, it was whether the TSSAA was a state actor because its members were primarily public schools, it was historically recognized by the state of Tennessee, and its Board was dominated by public school employees. As a result, there appears to be a serious disconnect between Tarkanian and the Sixth Circuit's reasoning in Brentwood Academy.
In the end, the Court concludes that the MHSAA is a state actor. The Court reaches this conclusion for four primary reasons. First, the actions of the MHSAA may be "fairly attributed to the state" as evidenced by the fact that under the state compulsion test or the symbiotic relationship test, the MHSAA is a state actor. Second, the vast majority of circuit courts to consider this issue have concluded that state athletic associations such as the MHSAA are state actors. Third, the Brentwood Academy decision is not controlling in this case because (a) it cannot be reconciled with Footnote 13 in Tarkanian, and (b) by its own terms its analysis is limited to a unique factual situation — a private school alleging that a state athletic association is a state actor when it regulates that private school — not present 743*743here. Fourth, Footnote 13 of the Tarkanian decision indicates that the Supreme Court believes that state athletic associations, such as the MHSAA, are state actors. Therefore, the Equal Protection Clause claim survives Defendants' Motion for Summary Judgment and Motion to Dismiss.
III. Standing
Plaintiffs bear the burden of demonstrating standing. "To establish Article III standing to sue in federal court, an individual plaintiff must show that (1) he or she has suffered an injury in fact; (2) there is a causal connection between the injury and the conduct complained of; and (3) the injury will likely be redressed by a favorable decision." American Federation of Government Employees v. Clinton, 180 F.3d 727, 732 (6th Cir.1999) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).
Organizations have standing to assert claims on behalf of members provided that three additional requirements are met. These requirements are "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organizations' purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members." Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); see also American Federation, 180 F.3d at 732.
In the context of a summary judgment motion, provided that there is sufficient evidence to create a genuine issue of material fact as to standing, the motion should be denied. See Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997); Kardules v. City of Columbus, 95 F.3d 1335, 1346 (6th Cir.1996). The Court has previously examined standing issues in relation to Defendants' Motion to Dismiss. In the Opinion and Order which resolved that Motion, the Court held that Plaintiffs had presented

enough evidence to survive the Motion to Dismiss. (Dkt. Nos. 44 and 45.) Although Defendants have offered subsequent evidence and argument which undermines the credibility of Plaintiffs' position on the standing issue, the Court remains convinced that there are genuine issues of material fact still in controversy. Therefore, for the reasons stated here and the Court's prior rulings, Defendants' Motion for Summary Judgement for Lack of Standing is denied.
IV. Liability for Individual Defendants
The Court has previously considered whether the individual Defendants may be sued in their official capacity. (Opinion and Order Dkt. Nos. 44 and 45.) Individuals who exercise administrative control over an entity which is subject to Title IX liability may be sued in their official capacity. See generally Smith v. Metro. Sch. Dist., 128 F.3d 1014, 1020 (7th Cir.1997). This is because official capacity suits represent another way of pleading an action against the entity represented by the individuals. Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). In this case, there is no question that the MHSAA Representative Council has control over the MHSAA. Therefore, to the extent that the MHSAA is a viable Title IX defendant, so to are the members of the MHSAA Representative Council. As such, summary judgment is denied.
Conclusion
In 1924, the MHSAA was created by the State of Michigan to regulate interscholastic athletics. Coincident to the passage of Title IX, the MHSAA incorporated itself to operate as a private association, although its functions remained largely the same. Then, in 1995, after the Sixth Circuit's decision in Horner, the State of Michigan removed the "official designation" of the MHSAA, though its membership and function again remained unchanged. Since then, the MHSAA has continued to exercise 744*744de facto control over interscholastic athletic programs in the state of Michigan.
The various formulations of the MHSAA appear to have been motivated by a desire to avoid the requirements of Title IX and the Equal Protection Clause, not to alter its mission or purpose. Since resolution of Defendants' motions require that this Court not exalt form over substance, and instead inquire into the real and substantial legal acts of the Defendants, their arguments cannot prevail.
[1] Plaintiffs filed an Amended Complaint on July 27, 1998.
[2] As noted earlier, Section 902 of Title IX (20 U.S.C. § 1681(a)) does not use the term "recipient," although it does reference programs that "receive" federal funds. The Court suggests that one reason that courts have focused on "recipients" of federal funds is because entities that receive federal financial assistance will almost always be in control of those funds. Therefore, in the normal case, there is no need to inquire into who "controls" the funds. It is only in the rarest of cases, such as this one, where the entity that controls the federal funds and the entity that receives the federal funds are different, that the issue of control becomes important.
[3] The Court notes that the relief which the Plaintiffs seek cannot be obtained by suing the school districts directly. This is because the local school districts cannot unilaterally alter any policies of the MHSAA that are discriminatory. Assuming Plaintiffs allegations are true, the only way a local school districts could avoid whatever discrimination emanates from MHSAA policies would be to withdraw from the MHSAA. While this might end the discrimination, it would do so by depriving Plaintiffs of the ability to participate in interscholastic sports at all.

The Court believes that the potential inability to hold anyone accountable for alleged discrimination in a program receiving federal financial assistance is precisely why the ceding "controlling authority" is consistent with the purpose of Title IX. Without liability for those who control federal programs, such as interscholastic athletics, victims of discrimination are placed in an untenable dilemma clearly at odds with the spirit, purpose, and language of Title IX. On the one hand, these victims may seek a remedy from the athletic association, but that association will respond that it only makes "suggestions" to the local school districts, and that the local school districts have the real power to adopt and enforce policies and rules. On the other hand, these victims might go to the local school districts to address their problems, but these districts will respond that they are powerless to change the policies of the MHSAA on their own, and that the MHSAA holds all the real power over interscholastic athletics.
[4] In the 1998-1999 school year, the MHSAA was comprised of 617 public high schools and 114 private schools.
[5] Defendants' argument that it is not a state actor, because it receives no state funds, is similar to its Title IX argument in that both ask the Court to exalt form over substance. The Supreme Court has repeatedly found, however, that when determining whether a private entity is a "state actor," courts should engage in a factual and pragmatic inquiry as opposed to an overly formalistic mode of analysis. See Lugar, 457 U.S. at 939, 102 S.Ct. 2744; Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953) (rejecting formalistic application of the Fifteenth Amendment and holding that Jaybird Political Party was a state actor on the grounds that the Jaybird primary had the practical effect of determining who would win the general election and the party was created for the sole purpose of avoiding the Fifteenth Amendment and discriminating against blacks); Smith v. Allwright, 321 U.S. 649, 661, 64 S.Ct. 757, 88 L.Ed. 987 (1944) (holding that Texas Democratic Party was subject to the Fourteenth Amendment as a state actor and rejecting as a "slight ... change in form" defendants' argument that because the Democratic Party was a private entity it was not a state actor).
[6] There are only minor differences between the TSSAA and the MHSAA. First, whereas the TSSAA had nine members on the governing board, the MHSAA has 18. Second, whereas all members of the TSSAA Control Board were public school employees during the relevant time period, 16 of the 18 members of the MHSAA Representative Council were public school employees. Third and finally, whereas the TSSAA was "designated" by the Tennessee Board of Education to conduct interscholastic athletics until 1995, the MHSAA was statutory authorized to oversee interscholastic athletics until 1995 at which time Michigan state law was amended.

 
 2008 WL 906031 Only the Westlaw citation is currently available.
United States District Court, W.D. Michigan,
Southern Division.
COMMUNITIES FOR EQUITY, et al., Plaintiffs, v.
MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION, Defendant.
No. 1:98-CV-479. |
March 31, 2008.
Attorneys and Law Firms
Philip L. Cohan, Piper, Marbury, Rudnick & Wolfe LLP, Roger E. Warin, Steptoe & Johnson, Barbara A. Burr, Neena Chaudhry, Marcia D. Greenberger, Washington, DC, Kristen Galles, Equity Legal, Alexandria, VA, Robin K. Bohnenstengel, Piper, Marbury, Rudnick & Wolfe LLP, Baltimore, MD, Lindsey B. Lang, H. Rhett Pinsky, Pinsky, Smith, Fayette, Hulswit, Grand Rapids, MI, for Plaintiffs.
Edmund J. Sikorski, Ann Arbor, MI, William M. Azkoul, Law Offices of William Azkoul, P.C., Carole D. Bos, Bos & Glazier, Grand Rapids, MI, for Defendant.
OPINION
RICHARD ALAN ENSLEN, Senior District Judge.

47 Cleaning Contractors Pension Plan v. Grandview Raceway, 46 F.3d 1392, 1402 (6th Cir.1995). An evidentiary hearing is required only if the court is unable to resolve material factual disputes based on the affidavits and written documentation submitted. Id. (citing authorities). In this case, the disputes between the parties can be readily resolved based on the materials submitted, which include Plaintiffs’ Petition, MHSAA’s Response and Request for Limited Discovery, MHSAA’s Response, MHSAA’s Addendum to its Response, Plaintiffs’ Reply,4 Plaintiffs’ Supplemental Petition, MHSAA’s Supplemental Response, Plaintiffs’ Supplemental Reply, MHSAA’s Expert Report, Plaintiffs’ Expert Report, MHSAA’s Supplemental Expert Report,5 and a plethora of exhibits, affidavits, and declarations comprising approximately 1,500 pages. The extensive filings have provided the parties with ample opportunity to express their views and the Court discerns no reason for oral argument. See W.D. Mich. LCivR 7.3(d).
The United States Supreme Court has repeatedly cautioned that resolution of fee petitions should not become a “second major litigation.” See, Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 609, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (citation omitted); Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989); Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). This optimistic hope has gone unfulfilled as defendants routinely oppose fee petitions brought by prevailing plaintiffs on every conceivable ground. The case sub judice is no exception. After laborious review, the Court concludes that Plaintiffs are entitled to the bulk of the requested attorneys’ fees and costs. This is a classic case of the obdurate defendant who digs in its heels while litigating the merits of an action, loses, and then cries “foul” when asked to pay the resulting attorneys’ fees and costs.

When the game is complete, the loser should not complain about the rules.
*1 This matter is before the Court on the Petition for Attorneys’ Fees1 and Costs of Plaintiffs Communities for Equity, which represents a class of more than 150,000 interscholastic female athletes in the State of Michigan.2 The Petition, which was filed over six years ago, is adamantly opposed by Defendant Michigan High School Athletic Association (“MHSAA”).3 The court has substantial discretion in determining whether to conduct an evidentiary hearing on a fee petition. Bldg. Serv. Local

I. BACKGROUND Plaintiffs filed this action in 1998 and alleged that MHSAA discriminates against female interscholastic athletics by: (1) sanctioning too few female sports; (2) scheduling female but not male sports in nontraditional seasons; (3) scheduling female sports to shorter athletic seasons than male sports; (4) assigning female sports to inferior and non-regulation facilities for MHSAA tournaments; and (5) providing female sports with less publicity and promotion than male sports during MHSAA tournaments. After three years of vigorous litigation on the merits, the parties entered into mediation.

1

*2 As a result of mediation, the parties entered into a

(Consent Decree 2.)

Consent Decree settling all issues except the scheduling

of interscholastic athletic seasons. Among other

The parties thereafter went to trial on the scheduling of

concessions, MHSAA agreed to sanction two more

seasons issue. Plaintiffs alleged that MHSAA’s

female sports, move the female basketball finals to the

scheduling of six female sports but no male sports in

Breslin Center at Michigan State University, renovate the

nontraditional seasons violates: (1) Title IX of the

state tournament softball facility, assign female softball

Education Amendments of 1972 (20 U.S.C. § 1681 et

tournaments only to sites with regulation fastpitch fields,

seq.); (2) the Equal Protection Clause of the 14th

assign girls’ volleyball tournaments only to sites that meet

Amendment to the United States Constitution; and (3)

the standards of the National Federation of State High

Michigan’s Elliott-Larsen Civil Rights Act (Mich. Comp.

School Associations, equalize promotion and publicity

Laws § 37.2101 et seq.). Trial began on September 24,

(including equal coverage of MHSAA tournament finals

2001 and lasted two weeks. The Court found in favor of

on television), and promote the same number of holes of

Plaintiffs on all three legal theories and held that MHSAA

golf for both genders. The Consent Decree includes an

discriminated in the scheduling of all six contested sports.

attorneys’ fees and costs provision which states:

Communities for Equity v. MHSAA, 178 F.Supp.2d 805,

862 (W.D.Mich.2001), aff’d, 459 F.3d 676 (6th Cir.2006),

[E]ntitlement of plaintiffs to attorneys’ fees and costs as

cert. denied, --- U.S. ----, 127 S.Ct. 1912, 167 L.Ed.2d 566 (2007).

“prevailing parties” will be

determined solely upon a final

Plaintiffs’ Fee Petition, which was timely filed on January

judicial resolution of which “parties

30, 2002, seeks $5,155,136.05. This amount is comprised

prevailed” on the issues actually

of $5,023,991.25 in attorneys’ fees and $131,144.80 in

tried. If plaintiffs are “prevailing

costs. (Suppl. Reply 25.) A breakdown of the fees and

parties,” they shall be entitled to

costs by firm is as follows:

petition the Court for their

attorneys’ fees and costs for work

on all issues in this case, whether

tried or settled.

Law Firm and

Requested Fees

Requested Costs

Headquarters

Equity Legal (comprised solely of Kristen Galles) Alexandria, Virginia

$3,405,519.00

$89,510.86

National Women’s Law Center (“NWLC”) Washington, D.C.

$998,870.00

$22,823.34

DLA Piper (formerly known as Piper Rudnick) Decentralized

$225,912.00

,074.67

Steptoe & Johnson Washington, D.C.

$216,815.25

$6,127.67
2

Pinsky, Smith, Fayette & Kennedy Grand Rapids, Michigan

$176,875.00

$1,608.26

MHSAA argues Plaintiffs are entitled to $0.00 in fees and costs, but alternatively to no more than $917,955.00, which roughly equals 17% of Plaintiffs’ request.6 (Suppl.Resp.7-8.) Because MHSAA objects to almost every facet of Plaintiffs’ Petition, limited judicial resources prevent discussion of each objection individually. Accordingly, the Court discusses the most significant categories of objections. Any objection not explicitly discussed is hereby denied.
II. LEGAL STANDARDS *3 Attorneys’ fees are not awarded in federal civil actions except where a federal statute or court rule departs from “the American Rule that litigants in most circumstances must bear their own costs.” Bus. Guides, Inc. v. Chromatic Commc’ns Enters., Inc., 498 U.S. 533, 565, 111 S.Ct. 922, 112 L.Ed.2d 1140 (1991); see also Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 271, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Rule 54(d) of the Federal Rules of Civil Procedure provides that attorneys’ fees and costs can be awarded to the prevailing party of a case in limited circumstances. To be eligible for fees, besides complying with procedural requirements, a party must file a petition for attorneys’ fees and “specify the judgment and the statute, rule, or other grounds entitling the movant to the award.” Fed.R.Civ.P. 54(d) (2)(B)(ii). In this case, Plaintiffs are the prevailing party under the plain terms of the Consent Decree because they prevailed “on the issue [ ] actually tried.”7 (Consent Decree 2.) Plaintiffs are also the prevailing party under Title IX, see 42 U.S.C. § 1988(b), and the Elliott-Larsen Civil Rights Act. See Mich. Comp. Laws §§ 37.2801-2802. “Unless a federal statute, these rules, or a court order provides otherwise, costs-other than attorney’s fees-should be allowed to the prevailing party.” Fed.R.Civ.P. 54(d)(1). The party claiming any item of cost or disbursement must, through an affidavit, verify the amount and indicate that the services for which fees have been charged were actually and necessarily performed. 28 U.S.C. § 1924.
The primary concern when awarding attorneys’ fees is that the fees are reasonable. See Blum v. Stenson, 465

U.S. 886, 893, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). Fees are calculated utilizing the “lodestar” method, which was explained by the United States Supreme Court in Hensley:
The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer’s services. The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly.
The district court also should exclude from this initial fee calculation hours that were not “reasonably expended.” S.Rep. No. 94-1011, p. 6 (1976). Cases may be overstaffed, and the skill and experience of lawyers vary widely. Counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. “In the private sector, ‘billing judgment’ is an important component in fee setting. It is no less important here. Hours that are not properly billed to one’s client also are not properly billed to one’s adversary pursuant to statutory authority.” Copeland v. Marshall, 205 U.S.App. D.C. 390, 401, 641 F.2d 880, 891 (1980) (en banc) (emphasis in original).
*4 461 U.S. at 433-34. As an alternative to line-by-line reduction, the propriety of simple across-the-board reductions by a certain percentage has been recognized by the Sixth Circuit as an appropriate mechanism for penalizing duplication and other billing problems. See Coulter v. Tennessee, 805 F.2d 146, 152 (6th Cir.1986). Where fee documentation is voluminous, some courts have found it impractical to engage in a precise line-by-line analysis and favor across-the-board reductions. See, e.g., Loranger v. Stierheim, 10 F.3d 776, 783 (11th Cir.1994).
3

Reasonable hourly rates typically equate to the customary rates charged by local attorneys of comparable experience and expertise. Hadix v. Johnson, 65 F.3d 532, 536 (6th Cir.1995). Certain cases create an exception to this general rule and allow higher rates to be recouped by an “out-of-town specialist.” Id. Regarding this exception, the Sixth Circuit has counseled:
When fees are sought for an out-of-town specialist, courts must determine (1) whether hiring the out-of-town specialist was reasonable in the first instance, and (2) whether the rates sought by the out-of-town specialist are reasonable for an attorney of his or her degree of skill, experience, and reputation. Chrapliwy v. Uniroyal, Inc., 670 F.2d 760, 768-69 (7th Cir.1982); Maceira v. Pagan, 698 F.2d 38, 40 (1st Cir.1983). A corollary of this rule is that judges may question the reasonableness of an out-of-town attorney’s billing rate if there is reason to believe that competent counsel was readily available locally at a lower charge or rate. Chrapliwy, 670 F.2d at 769.
Id. at 535.
Adjudication of the lodestar fee does not end the analysis mandated by the Supreme Court. While there is a “strong presumption” that the lodestar fee is reasonable, pertinent circumstances may warrant an adjustment either upward or downward. Bldg. Serv. Local 47 Cleaning Contractors Pension Plan, 46 F.3d at 1401-02. Factors pertinent to setting and adjusting the lodestar fee was specified long ago by the Fifth Circuit Court of Appeals in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974). The Johnson factors have now become part of the settled law of lodestar analysis under both Supreme Court and Sixth Circuit decisions. These factors include:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount

involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
*5 Blanchard v. Bergeron, 489 U.S. 87, 91 n. 5, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989) (citing Johnson); Paschal v. Flagstar Bank, 297 F.3d 431, 435 (6th Cir.2002). The Johnson factors are a “useful catalog” to consider when exercising statutory discretion, Paschal, 297 F.3d at 435 (citation omitted), but are not die-hard requirements.8 Crosby v. Bowater Inc. Ret. Plan for Salaried Employees of Great N. Paper, Inc., 262 F.Supp.2d 804, 811 (W.D.Mich.2003), rev’d on other grounds, No. 03-1808, 2004 WL 5389834 (6th Cir.2004).
III. ANALYSIS
A. Local Counsel and Out-of-Town Specialists MHSAA’s most financially significant objection questions whether Plaintiffs’ numerous out-of-town specialists were reasonably necessary to the litigation and thus deserving of non-local attorneys’ rates. To resolve this issue, two questions must be answered: (1) whether competent counsel was available locally, and (2) whether the rates requested by Plaintiffs’ counsel are reasonable based on the applicable market.
1. Competent Counsel Prosecuting the discrimination suffered by Plaintiffs presented challenges far more complex than those found in typical civil rights actions. To succeed in this case, Plaintiffs needed counsel with: (1) knowledge of the application of Title IX and the Equal Protection Clause to athletics programs; (2) the capability to devote significant human and capital resources for the life of the case; (3) a willingness to take on a powerful local entity with significant financial resources and widespread public support;9 (4) a willingness to tolerate a high degree of risk with recovery contingent on success; (5) litigation experience; and (6) competency to manage a large class action lawsuit.
A “good-faith effort to find local counsel is all that is necessary, lest the meticulous generation of a comprehensive log of inquires deter plaintiffs from bringing worthy discrimination suits, frustrating the
4

rationale for statutes enabling private civil rights suits.” See Mathur v. Bd. of Trs. of S. Ill. Univ., 317 F.3d 738, 744 (7th Cir.2003) (citation omitted). Courts must be mindful to not impose impossible burdens on potential plaintiffs in cases “of great national concern” by requiring plaintiffs to look for the proverbial needle in the haystack before retaining counsel ideally qualified to handle their case. See Northcross v. Bd. of Educ. of Memphis City Sch., 611 F.2d 624, 634 (6th Cir.1979). The “representation of important national concerns [must] not depend upon the charitable instincts of a few generous attorneys.” Id. at 638.
After the class representatives contacted Kristen Galles, she began searching for a local attorney to serve as lead counsel.10 In early 1998, Galles spent at least 9.9 hours in furtherance of this search. After searching Martindale-Hubble entries, Galles contacted the only attorney in Michigan claiming expertise in Title IX-Jean King of Ann Arbor.11 According to Galles, King-“a woman not known for backing down from a fight”-“refused to take the case because she believed MHSAA had too much money and power for the case to be winnable.” (Galles’ Suppl. Decl. ¶ 6; see also King’s Aff. ¶¶ 11-13; Madsen’s Decl. ¶¶ 32-34.) Galles also contacted, but to no avail, the American Civil Liberties Union, National Organization of Women, Grand Rapids Bar Association, Western Michigan Women’s Bar Association, the American Association of University Women, and three other local attorneys. Thus, Plaintiffs argue, no competent local attorneys were willing to lead this case.12 Galles eventually convinced Rhett Pinsky, a local attorney at a small law firm, to serve as local counsel, see W.D. Mich. LCivR 83.1(f), although he was unwilling to assume a lead role. (Pinsky’s Suppl. Decl. ¶ 3.)
*6 MHSAA protests Galles’ search for “local counsel” by way of semantics. MHSAA argues Galles never actually searched for local Michigan counsel to lead the case, but rather searched only for secondary counsel in Michigan to assist her as lead counsel. MHSAA bases this argument on Galles’ use of the adjective “local” in billing descriptions. “Local” has two connotations, the first of which designates close geographic proximity, see Webster’s New Universal Unabridged Dictionary 1127 (Barnes & Noble 2003), and the second which describes counsel who has a secondary role to out-of-town lead counsel. See W.D. Mich. LCivR 83.1(f) (“The Court may ... require any attorney whose office is a great distance from the courthouse to retain local counsel. Local counsel ... shall have both the authority and responsibility for the conduct of the case should lead counsel be unavailable....)
Read naturally in the context of Galles’ billing records

and based on a review of the organizations and attorneys she actually contacted, “local” indicates that she looked for Michigan attorneys to spearhead the case, not attorneys to take on a secondary role. It was only after Plaintiffs concluded no competent local attorneys were willing to lead the case that Pinsky was hired as secondary counsel, as required by local rule. MHSAA’s argument for a contrary interpretation is disingenuously pedantic. For example, in an affidavit submitted on behalf of MHSAA, the attorney affiant uses the word “local” to mean secondary counsel. (See Mackraz’s Aff. ¶ 9 (stating that “plaintiffs could have retained local counsel to represent their interests had they so chosen”).)

To counter the assertion that no competent Michigan attorneys were available to lead the case, MHSAA presents an affidavit from one Michigan attorney, Frederick E. Mackraz, who claims he could have served as lead counsel. Cf. Guckenberger v. Boston Univ., 8 F.Supp.2d 91, 104 (D.Mass.1998) (denying out-of-state counsel rates because the plaintiffs only made a cursory search for Boston counsel and the defendants had submitted affidavits from several well-respected civil rights attorneys who averred they were competent to handle the litigation). Mackraz avers: “I was not approached by Plaintiffs .... Had I been approached, I would have certainly investigated their claims .... I would have given very serious consideration to representing their interests in this case pursuant to my standard fee agreement.” (Mackraz’s Aff. ¶ 8.)

Mackraz’s affidavit, however, fails to demonstrate his

competency and ability to lead this case. He has failed to

demonstrate he had the requisite time or financial

resources to handle such a large case. To this Court’s

knowledge, Mackraz has never handled, much less even

worked on, a class action lawsuit. There is a significant

chance that Mackraz could not have even jumped through

an initial hurdle of the case-being appointed as class

counsel pursuant to Federal Rule of Civil Procedure

23(g). Mackraz also did not possess any Title IX

experience. Moreover, in 1998, he was an associate at

Plunkett Cooney, a local firm which states that its

“attorneys practice in the state and federal trial courts

every day, defending lawsuits brought under Title VII, 42

U.S.C. § 1983 and state civil rights acts such as

Michigan’s Elliot Larsen Civil Rights Act.” Plunkett

Cooney,

Civil

Rights,

http://

www.plunkettcooney.com/practices-67.html (last visited

Mar. 24, 2008). Plaintiffs needed counsel with experience

prosecuting civil rights actions, not defending them.

There was thus no reason to even consider attorneys at

Plunkett Cooney. Simply put, Mackraz was not competent

to lead Plaintiffs’ case in 1998.

5

*7 After reviewing MHSAA’s acrimonious argument, it is quite telling that Mackraz is the only attorney MHSAA can present to the Court to counter Plaintiffs’ compelling argument that Michigan attorneys lacked competency in this area of the law. The Court in no way means to discredit Mackraz’s practice, but he was simply not qualified in 1998. MHSAA’s argument magnifies the frustration Plaintiffs and Galles must have felt when searching for local counsel. Galles-acting without the benefit of hindsight that MHSAA has enjoyed in its search for potentially competent local counsel-surely felt that if Plaintiffs retained incompetent local counsel, it would prove fatal to their claims.

If Plaintiffs had kept searching for lead local counsel and

receiving rejections after Galles contacted at least four

local attorneys and five local organizations, which in the

aggregate represent thousands of local attorneys, this

meritorious suit may have been abandoned due to

overwhelming frustration. The Court holds that expending

almost ten hours in search of competent counsel and

contacting

thousands

of

attorneys-albeit

indirectly-constitutes a good-faith effort to find local

counsel. See Gottlieb v. Barry, 43 F.3d 474, 485 n. 8

(10th Cir.1994) (finding out-of-town counsel reasonably

necessary where there existed “neither a lawyer nor a firm

in this town which could have devoted to this case the

timely expertise, experience, and manpower” of the

plaintiffs’ counsel); Avalon Cinema Corp. v. Thompson,

689 F.2d 137, 140 (8th Cir.1982) (concluding it is not

always possible to find local counsel willing or able to

undertake difficult and controversial civil rights

litigation). Thus, Plaintiffs appropriately ventured to find

competent counsel outside Michigan.

i. Galles and Pinsky It is undisputed that Galles is a leading Title IX and Equal Protection attorney with extensive litigation experience. Based on this background, her previous work getting Plaintiffs’ case off the ground, and the request of Plaintiffs, Galles assumed the role of lead counsel.13 Because at least one competent out-of-town attorney was necessary, Galles was surely reasonably employed and is properly compensated based on Washington, D.C. rates. Pinsky was also necessary for all intents and purposes since a Michigan attorney was required as “local counsel.” See W.D. Mich. LCivR 83.1(f). The determination of whether the other out-of-town attorneys were reasonably employed is unfortunately not as straightforward.

ii. NWLC MHSAA objects to counsel from NWLC when Galles was already acting as lead counsel and questions how many experts in Title IX and sex discrimination were necessary. MHSAA claims the Department of Justice, which has considerable experience in Title IX and sex discrimination law, essentially assisted Plaintiffs as “co-counsel” because of its role as amicus curiae, which negates the need for perhaps any experts in these areas or at least NWLC. (Def.’s Expert Report 3; see also Suppl. Resp. 6.) While the assistance of amicus curiae no doubt benefits a plaintiff, it is not the amicus curiae’s case to win. Based on the relative strength of MHSAA and the number of hours necessary to successfully prosecute this case, Galles reasonably believed Plaintiffs would need more attorneys than just herself and Pinsky. (See Reply 18.) She therefore sought out NWLC for its highly-regarded expertise in Title IX and sex discrimination. This was a reasonable decision given NWLC’s experience and the number of attorneys it could provide to assist in this case. NWLC is thus also entitled to Washington, D.C. rates.
*8 Moreover, the number of attorneys employed by a party is not dispositive of whether an attorneys’ fees award is reasonable. The important consideration is the number of billable hours requested. More than one attorney working on a case simply signals to the Court that it must be mindful of hours that are duplicative or excessive. An analysis of the hours that are allegedly duplicative and excessive is discussed infra.
iii. DLA Piper MHSAA objects to compensating DLA Piper counsel because neither Cohan nor Bohnenstengel had any Title IX, civil rights or sex discrimination experience when they were brought onto Plaintiffs’ trial team. (Def.’s Expert Report 3.) These attorneys, however, were not added for Title IX or civil rights experience, but for trial experience.14 (Reply 10.) Admittedly, the Court ordered the parties to pare down their cases considerably so that trial would not last longer than two weeks.15 As is the case with many parties facing this situation, Plaintiffs retained counsel with extensive trial experience and the proven ability to expeditiously and effectively condense Plaintiffs’ case within the allotted time frame. Nevertheless, even though it was reasonable to hire experienced trial counsel, this does not mean that local attorneys did not possess the same competency. Plaintiffs have failed to convince the Court otherwise because no affidavits demonstrate a lack of local competent trial counsel. The Court concludes that these out-of-town attorneys are only entitled to local rates and not rates
6

based on the Washington, D.C. market.
iv. Steptoe & Johnson
Finally, MHSAA argues it is unreasonable to compensate counsel from Steptoe & Johnson-a firm known for, inter alia, its extensive attorneys’ fees practice-to assist in fee petition litigation. “Where necessary, fee petitioners may hire outside counsel to represent them in fee litigation. The outside counsel may also recover reasonable attorneys fees.” Knop v. Johnson, 712 F.Supp. 571, 592 (W.D.Mich.1989) (citations omitted). The vigor with which the defendant has litigated the fee issue may render the decision to retain outside fee counsel as reasonable. Id. MHSAA vigorously litigated the fee issue and retained an expert to file two substantial reports nitpicking the Fee Petition. As such, it was entirely reasonable for Plaintiffs to hire outside fee counsel. Plaintiffs have not convinced the Court, however, that competent fee counsel was unavailable locally. Plaintiffs cite to a recent decision in the Eastern District of Michigan where lead counsel, Jenner & Block of Washington, D.C., was awarded Washington, D.C. attorneys’ rates. Entm’t Software Ass’n v. Granholm, No. 05-73634, slip op. at 2 (E.D.Mich. July 6, 2006). In pertinent part, the court stated:
The Court finds that it was reasonable for plaintiffs to hire Jenner & Block because of their expertise in the issues involved with this litigation, given their involvement in representing the video game industry in five other cases involving similar laws. See Northcross v. Bd. of Educ. Of the Memphis City Schools, 611 F.2d 624, 637 (6th Cir.1979) (awarding fees for out-of-town civil rights attorneys because “the attorneys’ intimate familiarity with the issues involved in [this] litigation undoubtedly meant that their time was far more productive in this area than would be that of a local attorney with less expertise”). While Detroit has its share of qualified First Amendment attorneys, Jenner & Block was uniquely qualified to head the litigation effort on behalf of plaintiffs due to their recent and on-going involvement in other jurisdictions, the compressed time-frame involved, and their sole access to deposition transcripts of expert witnesses in the Illinois case.
*9 Id. Plaintiffs argue Steptoe & Johnson’s recent and ongoing involvement in litigating similar issues in other jurisdictions made them uniquely qualified to represent Plaintiffs against MHSAA. (Suppl. Reply 21.) Plaintiffs do not provide enough information in this regard to

compare this case to Entertainment Software. Accordingly, Plaintiffs will be compensated for the services of Steptoe & Johnson attorneys based on local rates and not Washington, D.C. rates.16
2. Reasonable Rates Although some out-of-town counsel were reasonably employed, this does not necessarily mean the rates charged by said counsel are reasonable. Likewise, just because certain out-of-town counsel were not necessary, this does not necessarily mean the rates charged by said counsel are unreasonable.
[I]f the client needs to go to a different city to find [a] specialist, he will expect to pay the rate prevailing in that city. In such a case, there is no basis for concluding that the specialist’s ordinary rate is unreasonably high. If one wishes to be literal, the “prevailing” rate “in the community” for work performed by an outside specialist ... is most likely to be that outside specialist’s ordinary rate. If the courts (without cause) award fees at less than that rate, they will tend to prevent those in smaller communities from obtaining the experienced legal counsel they may need, contrary to the policy behind awards of attorneys’ fees to prevailing parties.
Maceira, 698 F.2d at 40 (citations omitted). The issue is not, as MHSAA argues, whether Plaintiffs hired the “best” attorneys. Even the “best” attorneys may charge reasonable rates. Once a party has demonstrated lack of local competent counsel, the party need not begin searching for “cheap” out-ofstate counsel. Such a requirement would indubitably discourage plaintiffs with worthy claims from pursuing them because instead of searching for the proverbial needle in a (local) haystack, plaintiffs would be saddled with the more onerous burden of searching for the needle in a (national) hayfield. Each attorney representing Plaintiffs must be scrutinized. All attorneys request compensation based on current market rates to compensate for the almost ten-year delay in payment. Such a request is entirely equitable and in accord with firmly-established precedent. See Barnes v. City of Cincinnati, 401 F.3d 729, 745 (6th Cir.2005); Ams. United For Separation of Church & State v. Sch. Dist. of the City of Grand Rapids, 717 F.Supp. 488, 499
7

(W.D.Mich.1989). Plaintiffs’ counsel additionally seek

their customary rates, which likely represents the market

value of the services provided. See Adcock-Ladd v. Sec’y

of Treasury, 227 F.3d 343, 351 (6th Cir.2000) (holding

that “special need” for out-of-state specialists dictates

compensation at counsel’s customary rates); Louisville

Black Police Officers Org., Inc. v. City of Louisville, 700

F.2d 268, 277-78 (6th Cir.1983); cf. Berry v. Sch. Dist. of

the City of Benton Harbor, 703 F.Supp. 1277, 1282-83

(W.D.Mich.1986) (“Especially in cases involving

Attorney

Firm

particularly complex issues ... [a] national market or a market for a particular legal specialization may provide the appropriate market.”) (citations omitted). The following rates represent the customary rate requested for each attorney based on the 2008 market:

Exper ience

Hourly Rate

Rhett Pinsky

Pinsky, Smith, Fayette & Kennedy

42 years

$250

Kristen Galles

Equity Legal

18 years

$390

Marcia Greenberger

NWLC

38 years

$440

Neena Chaudhry

NWLC

12 years

$390

Barbara Burr

NWLC

19 years

$390

Jocelyn Samuels

NWLC

26 years

$440

Leslie Annexstein

NWLC

16 years

$390

Laura Duos

NWLC

Law Clerk

$125

Beth Burkstrand-Reid

NWLC

Law

$125

8

Dina Lassow Andrea Kahn Roger Warin Lindsey Lang Philip Cohan Robin Bohnenstengel

NWLC NWLC Steptoe & Johnson Steptoe & Johnson DLA Piper DLA Piper

Clerk
36 years
Law Clerk
37 years
26 years
42 years
13 years

$440 $125 $440 $375 $440 $390

i. Pinsky, Smith, Fayette & Kennedy (Local Rates for Local Counsel) *10 The Court first analyzes whether the rate requested by Pinsky is a reasonable local rate. When deciding whether a Michigan attorney’s rate is reasonable, the Court relies on a combination of its own expertise and judgment, see Garber v. Shiner Enters., Inc., No. 1:06-CV-646, 2007 WL 4557857, at *1 (W.D.Mich. Dec.21, 2007), the State Bar of Michigan’s “Economics of Law Practice Survey,” see Citizens Ins. Co. of Am. v. KIC Chems., Inc., No. 1:04-CV-385, 2007 WL 2902213, at *5 (W.D.Mich. Oct.1, 2007), other market surveys if necessary, see id. at *6, and the “attorney’s normal billing rate [which] will often show the market value of the services provided.” Ams. United For Separation of Church & State, 717 F.Supp. at 495.

MHSAA submitted an affidavit of Barbara A. Ruga-a long-standing Grand Rapids attorney-which sets forth her opinion regarding reasonable rates in the Western District of Michigan for attorneys and paralegals. (See Ruga’s Aff. ¶ 1) Based on Ruga’s market assessment, MHSAA argues Pinsky, Plaintiffs’ sole Michigan attorney, should not be compensated more than $185 an hour. (Def.’s Expert Report 3, 11.) This suggested rate is too low based on the Court’s knowledge of the current market. The Court accords little deference to Ruga’s assessment of the legal market. The 2007 “Economics of Law Practice Survey” provides a much more authoritative summary of hourly billing rates. The following table compares the hourly rates of litigators at all Michigan firms to attorneys at Grand Rapids firms of any size:
9

Mean Median 10th Percentile 25th Percentile 50th Percentile 75th Percentile 90th Percentile

All Michigan Firms $200 $195 $150 $155 $195 $225 $275

Grand Rapids Firms $298 $263 $230 $250 $263 $294 $400

Economics of Law Practice Survey, State Bar of Michigan (2007) (numbers are rounded to nearest dollar). As can be seen, Pinsky’s customary rate is charged by the twenty-fifth percentile of Grand Rapids attorneys. Based on his 42 years of experience and the quality of his advocacy, this rate is extremely reasonable. Were Ruga’s market analysis to be accepted, Pinsky would be compensated at a rate significantly lower than that charged by the bottom ten percent of Grand Rapids attorneys. While the Court is happy to consider the opinions of local attorneys such as Ruga, sometimes the rates suggested by such “long-standing” attorneys fail to consider the changes in the legal market and inflation that have occurred over the last decade. Besides being reasonable based on the State Bar of Michigan’s survey, Pinsky’s rate is also reasonable based on local precedent. In Spurlock v. Rajt, an Eastern District of Michigan court awarded an attorney with 16 years of experience $300 an hour based on the 2003 “Economics of Law Practice Survey.” No. 06-15251, 2008 WL 474082, at *2-3 (E.D.Mich. Feb.15, 2008). Noting that in 2003 such a rate represented the ninety-fifth percentile of

all Michigan attorneys, the court nevertheless found such an award proper. Id. at *2. In this case, Pinsky has much more experience than the attorney in Spurlock and is requesting $50 less an hour. Moreover, the rates at issue in Spurlock are over four years behind the current market. Accordingly, Pinsky’s billed hours are computed based on his $250 an hour rate.
ii. Equity Legal and NWLC (Washington, D.C. Rates for Out-of-Town Counsel) *11 The Court next turns to compensation requested by Galles and NWLC. As aforesaid, rates based on the Washington, D.C. market are appropriate for both. The Sixth Circuit has seemingly endorsed the use of the Laffey Matrix17 to determine the reasonableness of rates for Washington, D.C. attorneys. See Adcock-Ladd, 227 F.3d at 347 n. 3 (noting that the Laffey Matrix is an “official statement of market-supported reasonable attorney fee rates” for Washington, D.C.). The Laffey Matrix for June 1, 2007 through May 31, 2008 is as follows:
10

United States Attorneys’s Office for the District of

Columbia,

Laffey

Matrix

2003-2008,

http://www.usdoj.gov/usao/dc

/Divisions/Civil_

Division/Laffey_Matrix_7.html (last visited Mar. 24,

2008). For almost two decades, courts have relied on the

Laffey Matrix-or a variation of it-as evidence of

reasonable rates for attorneys in Washington, D.C. See,

e.g., Covington v. District of Columbia, 57 F.3d 1101,

1109 (D.C.Cir.1995); Save Our Cumberland Mountains,

Inc. v. Hodel, 857 F.2d 1516, 1525 (D.C.Cir.1988) (en

banc); Smith v. District of Columbia, 466 F.Supp.2d 151,

156 (D.D.C.2006).

MHSAA objects to any presumptive market rate

associated with Galles because she is a solo-practitioner

and employs no support staff. (Resp.13.) Solo

practitioners with no support staff, MHSAA argues,

traditionally charge less than attorneys working with other

attorneys at a law firm with support staff. For example, if

a market rate of $175 an hour is appropriate for attorneys

comparable to Galles, MHSAA argues she only is worth

$150 an hour. (Id.; see also Ruga’s Aff. ¶¶ 5-6.) The

Court finds this argument baseless due to lack of authority

or compelling evidence. Accordingly, the Court awards

Plaintiffs’ fees for the services of Galles and NWLC

attorneys at their requested rates since they are in accord

with the Laffey Matrix.

iii. DLA Piper and Steptoe & Johnson (Local Rates for Out-of-Town Counsel) Determining appropriate rates for DLA Piper and Steptoe & Johnson attorneys presents more of a challenge than Plaintiffs’ other attorneys since they are out-of-town attorneys but only entitled to local rates. Although counsel are only entitled to local rates, it is notable that they are requesting rates based on the Laffey Matrix as opposed to their customary rates, which are higher. Plaintiffs’ counsel hoped “this litigation decision [would] reduce the potential of even more rancorous litigation over fees and result in a quicker realization of the fee award.” (Suppl.Pet.8.) By all accounts, MHSAA was no less rancorous in fighting almost every dollar Plaintiffs requested in attorneys’ fees.
MHSAA objects to any compensation flowing to DLA Piper counsel because the attorneys originally stated they were appearing pro bono. (See Resp. 8-9.) This argument can be summarily dismissed. Courts are instructed to avoid “decreasing reasonable fees because the attorneys conducted the litigation more as an act of pro bono publico than as an effort at securing a large monetary return.” Blum, 465 U.S. at 895 (quoting Stanford Daily v. Zurcher, 64 F.R.D. 680, 681 (N.D.Cal.1974)). Thus, the Court will not prohibit reasonable fees just because

attorneys were willing to volunteer their time without charging a fee.
*12 Based on the 2007 “Economics of Law Practice Survey,” Warin and Cohan’s requested rates of $440 an hour are above the ninetieth percentile of Grand Rapids litigators, Bohnenstengel’s requested rate of $390 an hour is just below the ninetieth percentile, and Lang’s requested rate of $375 an hour is a little further below the ninetieth percentile. See Economics of Law Practice Survey, State Bar of Michigan (2007). Based on the impressive resumes of these four attorneys, extensive experience, and high quality briefing and documentation, the Court is satisfied that they are all well-above the ninetieth percentile of Grand Rapids litigators and deserve compensation at the top of the local market.
[They] are nationally recognized experts in a complex field of federal practice. They are by no means the “median” member of the bar, and their hourly rates should be adjusted upward to reflect both their specialization and the extremely high quality of the representation they provided to the plaintiff class. Such an adjustment is not simply reasonable, it is mandated by equity and fairness.
Knop, 712 F.Supp. 583. Other compensation surveys compel the same conclusion. For example, the National Law Journal’s 2007 survey concludes that top rates for partners in the reporting Michigan firms ranged between $530 to $625 an hour, with most partners averaging $400 an hour. See A Nationwide Sampling of Law Firm Billing Rates, Nat’l L. J., Dec. 10, 2007, at B2, B4. Accordingly, the Court finds that counsel’s requested rates are reasonable based on the local market. See Citizens Ins. Co. of Am., 2007 WL 2902213, at *6 (citing Yamanouchi Pharm. Co. v. Danbury Pharmacal, Inc., 51 F.Supp.2d 302, 305 (S.D.N.Y.1999) (finding that counsel’s rates need only be “ball-park reasonable”).18
B. Improper Staffing MHSAA argues Plaintiffs’ counsel were improperly staffed on assignments and performed clerical work that should have been performed by paralegals. (Resp. 13 n. 4, 15-17; Def.’s Suppl. Expert Report 24-25.) Statutes conferring attorneys’ fees on prevailing parties are “not designed as a form of economic relief to improve the financial lot of attorneys, nor were they intended to replicate exactly the fee an attorney could earn through a
11

private fee arrangement with his client.” Coulter, 805 F.2d at 149 n. 4 (quoting Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986).

Nor do [courts] approve the

wasteful use of highly skilled and

highly priced talent for matters

easily

delegable

to

non-professionals or less

experienced associates. Routine

tasks, if performed by senior

partners in large firms, should not

be billed at their usual rates. A

Michelangelo should not charge

Sistine Chapel rates for painting a

farmer’s barn.

Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3d Cir.1983). The Supreme Court of Oklahoma has identified a useful list of common tasks performed by paralegals, including interviewing clients and witnesses, drafting pleadings and other documents, researching legal issues, researching public records, preparing discovery requests and responses, scheduling depositions, preparing notices and subpoenas, summarizing depositions and other discovery responses, coordinating and managing document production, organizing pleadings and trial exhibits, preparing witness and exhibit lists, preparing trial notebooks, preparing for the attendance of witnesses at trial, and assisting attorneys at trial. See Taylor v. Chubb Group of Ins. Cos., 874 P.2d 806, 809 (Okla.1994).

*13 MHSAA concludes that approximately 2,600 hours billed by Plaintiffs’ counsel should have instead been performed by paralegals. These tasks include legal research (700 hours), factual research (175 hours), scheduling depositions (55 hours), compiling witness and exhibit lists (150 hours), digesting depositions (100 hours), preparing trial notebooks (75 hours), organizing documents (350 hours), reviewing discovery responses and requests (450 hours), and managing document production (475 hours).19 (Def.’s Expert Report 41.) MHSAA recommends compensating 75% of these hours at prevailing paralegal rates in Michigan, which it argues is $62.50 an hour. (Id.) MHSAA also encourages the Court to use the rate for hiring temporary paralegals for calculation purposes, which it suggests is $25.00 an hour. (Id.)

“[D]ecisions concerning which tasks an attorney performs and involving the allocation of personnel toward the efficient and effective completion of tasks will be left to the discretion of the professional unless the allocation is

egregious.” In re Seneca Oil Co., 65 B.R. 902, 911 (Bankr.W.D.Okla.1986) (citation omitted). “Competent plaintiffs’ counsel are in the best position to determine how their time and the time of their associates can best be allocated.” Muehler v. Land O’Lakes, Inc., 617 F.Supp. 1370, 1379 (D.Minn.1985). In Roberts v. Nat’l Bank of Detroit, 556 F.Supp. 724, 728 n. 1 (E.D.Mich.1983), the court concluded that experienced attorneys who complete routine work themselves should not be penalized if they are not involved in large law practices because they have no lower-level associates for delegation purposes. The case at bar is sufficiently analogous to Roberts. Thus, the Court will not decrease an attorney’s rate even though the attorney performed tasks that could have been completed by a lower-level associate or paralegal, provided the attorney is not involved in a law firm where such delegation is possible.
In this case, the work characterized by MHSAA as “clerical”-most of which was performed by Galles who is a solo-practitioner and thus has no lower-level associates to delegate work to-was all reasonably necessary to the success of the litigation and was not unreasonable in duration. After reviewing the time entries and affidavits, the Court finds no merit in MHSAA’s contention that the legal research, factual research, digestion of depositions, and reviewing of discovery responses and requests should have been performed by paralegals. Regarding the other tasks contested, although this work may have been more appropriate for lower-level associates or paralegals, a reduction in fees is inappropriate. Most of this work was performed by Galles, however, some was completed by other attorneys although it totals less than 90 hours. Due to the significant number of hours rendered overall in this case, the Court accords discretion to the judgment of Plaintiffs’ other attorneys in determining that it was reasonable to perform these tasks themselves. By performing this work themselves, Plaintiffs’ counsel were likely able to enhance their trial preparation because of their increased familiarity with the matters. See Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1583 (5th Cir.1989) (“Though some of the work done by plaintiff’s attorneys arguably could have been done by paralegals, the fact that this work was done by the attorneys will not diminish the fee award as their efforts enhanced trial preparation.”). Therefore, the Court concludes that the challenged staffing was proper.
C. Vague Billing Records *14 MHSAA argues the time records of Plaintiffs’ counsel are impermissibly vague. (Def.’s Suppl. Expert Report 13-21.) The absence of detailed contemporaneous time records, except in extraordinary circumstances, will
12

call for a substantial reduction in hours or, in egregious cases, disallowance. Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 952 (1st Cir.1984). Any ambiguities arising out of poor time records should be resolved against the fee applicant. New York State Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1142 (2d Cir.1983).
MHSAA protests any compensation for approximately 17% of allegedly vague time entries. (See Def.’s Expert Report 4, 19-26; Def.’s Suppl. Expert Report 13-21.) A common objection is time billed for a telephone call or the drafting of a letter in which an attorney failed to state the subject matter discussed. (See Def.’s Expert Report 20-26.) Viewing MHSAA’s argument broadly, it essentially argues counsel should not be compensated if a detailed memorandum was not drafted for every billable six-minute increment of time. Had counsel provided this level of detail, however, MHSAA would likely instead complain that counsel devoted far too many hours to billing and recommend substantial reductions. This typical argument espoused by losing defendants tries to place prevailing plaintiffs in a “Catch-22.”
The Court finds merit in some of MHSAA’s vagueness arguments due to overly ambiguous time records. Although a large majority of the time records are more detailed than necessary, which makes fee petition review much easier, the same cannot be said for all records. Accordingly, the Court imposes an across-the-board reduction of 10% on the total attorneys’ fees award.20 Cf. Bronco’s Entm’t, Ltd. v. Charter Twp. of Van Buren, Civil Action No. 99-70197, 2007 WL 2221406, at *1, 6 (E.D.Mich. July 31, 2007). In so holding, the Court seeks to penalize Plaintiffs’ counsel not only for vagueness, but also for general over-billing problems such as excessiveness and duplicity. These over-billing problems are discussed separately infra, although further reductions in excess of 10% are not appropriate.
D. Excessive Hours MHSAA argues Plaintiffs’ counsel billed an excessive amount of hours and that most hours, if not all, should not be compensated. (Def.’s Suppl. Expert Report 25-30.) “The aggregate time for their cause exceeds 9000 hours, despite the fact that they boast of being the Nation’s most acclaimed and experienced litigators in civil rights suits of this nature, and in handling the legal issues involved.” (Resp.14.) This argument seems to suggest that great attorneys do not have to work hard. In the Court’s experience, the exact opposite is true. Most great attorneys realize that to achieve a goal, much hard work and toil is necessary, especially when entering unchartered legal territory.

MHSAA chastises numerous days where Plaintiffs’ attorneys worked extremely long hours, most notably Galles.21 (See id. at 6-7; Def.’s Expert Report 16.) Although discussing each day individually would prove tedious, the most seemingly egregious day is worth mentioning. On June 30, 1999, Galles billed 25.10 hours. This was the only day Galles billed in excess of 24 hours and she readily admits that during certain periods of time, she worked every waking minute and slept little. Further, she “worked all night several days in a row, so that [she] did not carefully pay attention to when one day ended and another began.” (Galles’ Suppl. Decl. ¶ 199.) The Court could punish Galles’ inaccuracy, assuming it is inaccurate, but doing so is inequitable.
*15 Contrary to the “normal” hours MHSAA implies all attorneys keep,22 most attorneys have had to pull “all-nighters,” as have many judges and their law clerks.23 “It is certainly not unusual for attorneys to work long hours when they are litigating a complex matter.” Knop, 712 F.Supp. at 579. Indeed, attorneys who have not experienced an unexpected event requiring such hours on the eve of a trial, proceeding, or transaction represent anomalies of the profession. (See gen. Kator’s Decl. ¶¶ 5-7 (stating that as an attorney, long hours are common in complex cases).) Alternatively, even if Galles should have billed the hours she worked between 3:00 a.m. and 5:00 a.m. under July 1 instead of June 30, for example, this does not change the total hours billed. Either way, MHSAA’s argument is void of merit.
MHSAA next takes issue with 640 hours Galles billed in initial research,24 346 hours of which were related to the “basic” legal issues and claims in the litigation. (Def.’s Expert Report 3.) MHSAA fails to specify whether it objects to all the research hours or only those related to “basic” legal issues, although it would not be surprising if MHSAA believes an “expert” like Galles cannot justify a single hour of research. If “a district court decides to eliminate hours of service adequately documented by the attorneys, it must identify those hours and articulate its reasons for their elimination.” Northcross, 611 F.2d at 637. MHSAA summarily identifies the dates this alleged unnecessary research was performed. (See Def.’s Supp. Expert Report 25-28.) MHSAA fails, however, to adequately articulate why these hours should be eliminated and why the research was in fact unnecessary. Conclusory statements do not suffice. Thus, the Court is unable to find merit in the objection.
Alternatively, based on review of billed research hours, the amount of research undertaken by Plaintiffs’ counsel was reasonable based on the circumstances of this case. Title IX is a complex area of the law and contains
13

relatively few reported decisions to guide practitioners. See Cohen v. Brown Univ., 101 F.3d 155, 169 (1st Cir.1996) (recognizing “factual intricacies and legal complexities that characterize Title IX litigation”). Plaintiffs’ counsel treaded new ground with their claims, including the applicability of Title IX to state high school athletic associations. To tackle this issue required learning how MHSAA operates in order to establish that it controls and operates interscholastic athletics in Michigan and is thus a “state actor” subject to Plaintiffs’ constitutional claims. This involved review of over 30 years of MHSAA’s handbooks, bulletins, representative council packets, and agendas. It was not until the middle of this case that the Supreme Court resolved the “state actor” issue, which essentially adopted the position advocated for by Plaintiffs. See Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001). Had less-experienced counsel handled this case, it would have greatly increased the number of hours that would have been billed.
*16 Generally speaking, the number of overall hours expended was reasonably necessary due in large part to defense counsel’s tactics. “Defendants’ counsel harassed plaintiffs and their counsel, intimidated the named plaintiffs and their minor children, were rude, uncooperative, and dilatory, and introduced a level of hostility into the litigation that vastly increased both the workload and the stress of prosecuting this case.” (Reply 2.)
Defendants challenged plaintiffs at every turn, filing motion after motion. Issues of capacity and standing, standards governing motions to compel and for protective orders, standards governing Rule 15 motions to amend, standards for interlocutory appeals, mandamus, rehearing en banc, and certiorari, the standards governing judicial disqualification, and several evidentiary issues were briefed in response to Defendants’ obstructionist strategy.
(Id. at 9-10.) MHSAA cannot choose to “litigate tenaciously and then be heard to complain about the time necessarily spent by plaintiff in response.” City of Riverside v. Rivera, 477 U.S. 561, 580 n. 11, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986); Knop, 712 F.Supp. at 578. The time required to litigate increases when the defendant bitterly contests the case, forcing the plaintiffs to win their victory from “rock to rock and from tree to tree.” Lipsett v. Blanco, 975 F.2d 934, 939 (1st Cir.1992). Accordingly,

MHSAA must reap what it has sown. The excessiveness objection is denied.
E. Duplicative Hours MHSAA argues that Plaintiffs’ counsel exhibited duplicative efforts. (See Def.’s Expert Report 28-38; Def.’s Suppl. Expert Report 25-30.) “[I]f the same task is performed by more than one lawyer, multiple compensation should be denied. The more lawyers representing a side of the litigation, the greater the likelihood will be for duplication of services.” Ramos v. Lamm, 713 F.2d 546, 554 (10th Cir.1983). MHSAA takes issue with approximately 1,100 hours that resulted from attorneys speaking to one another or meeting with the Department of Justice, such as telephone conferences, meetings, and emails. (Def.’s Export Report 27-28.) MHSAA also argues unnecessary staffing added over 200 billable hours to time billed for depositions as well as additional travel costs. (Id. at 6.) MHSAA posits it was unnecessary for more than one attorney to be present at almost every event, including depositions, status conferences, pretrial conferences, and mediation. (See id.)
In complex matters, it is standard practice for at least two attorneys to appear at most proceedings, along with paralegals or law clerks to assist with document handling. If two attorneys are present at a deposition, for example, one can interrogate the witness while the other can consider what topics are not being adequately covered because of rude defense tactics, an evasive witness, or witnesses who claim not to remember. Similarly, it is reasonable for all trial counsel to be present for mediation. This case is an example of the success of such a staffing practice because mediation resulted in trial being reduced to a single issue. This successful result indubitably saved time and attorneys’ fees because a favorable result in mediation is almost always reached in a shorter period of time than it would take for the same result to be reached at trial.
*17 After reviewing the numerous time entries associated with the hours at issue, the Court is satisfied that Plaintiffs’ counsel did not overly duplicate or otherwise improperly staff proceedings and assignments. Counsel reasonably consulted each other concerning pretrial orders, especially given the hostile and uncooperative nature of defense counsel, which eventually led the Court to order all parties to convene in the Court’s jury room to produce a pretrial order. This also applies to the drafting of the final order of proof and court appearances where multiple attorneys were present.25 Plaintiffs’ expert provides a pointed summary of this issue:
14

This case was lengthy, complex and vigorously contested. Undoubtedly, the defense tactics of rude, offensive behavior, foot dragging, dissembling and totally refusing to cooperate to move the case to a conclusion resulted in the expenditure of many more hours of lawyer time on the part of plaintiffs’ counsel than would have been necessary if defense counsel had been more professional in their responsibilities to their client, to opposing counsel and to the Court. (Pls.’ Expert Report 15.) Accordingly, the Court finds that there was no duplication of attorney effort or unreasonable use of attorney time. Cf. Knop, 712 F.Supp. at 577-78 (finding billable time for eight attorneys, “one paralegal and a number of law clerks and law student interns” constituted reasonable staffing).
F. Billing Fraud MHSAA argues Galles fraudulently “padded” her billing records.26 MHSAA tries to prove this allegation in two ways. First, MHSAA cites the approximately 3,400 aggregate hours Galles billed in 1999 in this case, Paton v. New Mexico Highlands Univ., No. 97-01360-JC (D.N.M.), and Alston v. Va. High School League, Inc., No. CIV. A. 97-0095-C (W.D.Va.).27 When coupled with her community, special interest, and professional activities, MHSAA questions, “[w]hen did counsel have time to sleep, eat, conduct personal business and attend to administrative matters?” (Addendum to Resp. 4; see also Resp. 4.) Given that Galles only took off 28 days in 1999, 3,400 hours roughly equates to billing 10 hours a workday. These three cases-especially the case sub judice-were extremely time intensive and involved numerous deadlines. Billing 3,400 hours is not facially unreasonable, especially given the amount of travel required. The Court does not assume fraud based solely on the number of hours Galles billed.
MHSAA’s expert also argues Galles consistently billed more time for attendance at trial, depositions, pretrial conferences, and other proceedings than the time records reflect the proceedings actually lasted. (Def.’s Expert Report 4, 12-14.) As any trial attorney knows, it is not acceptable to show up to court a second before the judge bangs the gavel to commence the proceeding. Well-prepared attorneys are “working” before the start of any proceeding because they may need to assemble necessary materials, confer with clients or co-counsel, negotiate with opposing counsel, or engage in a plethora of other legitimate activities. These incidentals performed in furtherance of the proceeding need not be billed under separate task descriptions from the underlying proceeding. “[C]ounsel ... is not required to record in great detail how each minute of his time was expended.”

Knop, 712 F.Supp. at 576 (quoting Hensley, 461 U.S. at 437 n. 12); cf. Lenihan v. City of New York, 640 F.Supp. 822, 826 (S.D.N.Y.1986) (finding that a seven hour entry for “general preparation” or “preparation” followed by entries for a trial or preliminary hearing are “not so vague that the Court is unable to assess their reasonableness”). On average, Galles worked approximately 45 minutes in addition to the time it actually took to complete each proceeding. This time likely reflects dealing with administrative matters such as those aforementioned. Upon review of the time records, the Court does not find any abnormalities and thus rejects MHSAA’s argument.
*18 MHSAA’s final argument alleging fraud concerns time billed for alleged telephone calls between Galles and Pinsky which she billed for but he did not. (Def.’s Expert Report 14-15.) MHSAA suggests such calls never actually took place and that Galles fabricated these records. Galles contends that such discrepancies indicate only that the two attorneys exercised their billing judgment independently. (Reply 13.) To the Court, these billing “discrepancies” do not raise suspicion because it is well-known not every attorney exercises his or her billing discretion the same way. The Court is satisfied that these billing records were contemporaneously compiled and accurately reflect telephone calls that took place.
G. Unreasonable Billing Increments and Block Billing In its initial briefing, MHSAA contended some of Plaintiffs’ attorneys billed in unreasonably large billing increments, such as quarter-hour, half-hour, and full-hour increments. (Resp. 17; Def.’s Expert Report 17; Def.’s Suppl. Expert Report 9-14.) This problem was allegedly compounded due to block billing. Plaintiffs’ attorneys countered that they billed in tenths of an hour and that “[t]he fact that a task took sixty minutes does not imply ... a sixty-minute billing increment, rounding up to a full hour for tasks that took less time.” (Reply 14.) MHSAA appears to concede in later briefing-albeit evasively-that Plaintiffs’ counsel did not bill in such large increments. (See Suppl. Resp. 7.) If this concession was not meant to be made, the Court nevertheless finds that counsel did not bill in unreasonable increments and rejects any argument to the contrary.
H. Travel Hours MHSAA argues attorneys’ fees are inappropriate for travel time, or alternatively only worthy of half of the attorney’s billing rate. The thrust of MHSAA’s argument is that traveling costs would not have been incurred had
15

Plaintiffs not hired out-of-town counsel. (See Def.’s Expert Report 47-48; Def.’s Suppl. Expert Report 32, 36.) Plaintiffs’ attorneys seek compensation for over 600 travel hours, most of which represents long-distance travel. MHSAA faults all counsel who traveled-besides Cohan-for not working while traveling and underscores they may have instead been sleeping or relaxing. (Def.’s Expert Report 7, 39.) Since it was reasonable to employ out-of-town counsel, it was necessary for counsel to travel to necessary proceedings and other matters. Travel time billed at an attorney’s usual rate has routinely been awarded as a matter of course. See, e.g., Wayne v. Village of Sebring, 36 F.3d 517, 532 (6th Cir.1994); Citizens Ins. Co. of Am., 2007 WL 2902213, at *6. The Court makes no exception in this case and rejects MHSAA’s argument to the contrary.
I. “Fees for Fees” Hours MHSAA argues Plaintiffs’ counsel are requesting unreasonable “fees for fees” compensation. (Def.’s Suppl. Expert Report 33-34.) “It would be inconsistent with the purpose of the Fees Act to dilute a fees award by refusing to compensate the attorney for the time reasonably spent in establishing and negotiating his rightful claim to the fee.” Lund v. Affleck, 587 F.2d 75, 77 (1st Cir.1978). Nevertheless, prevailing parties do not have unlimited access to attorneys’ fees. The Sixth Circuit, in Coulter, 805 F.2d at 151, provides guidance on “fees for fees” compensation. In the absence of unusual circumstances, the hours allowed for preparing and litigating a fee petition should not exceed 3% of the total hours in the underlying case if the issue is submitted on the briefing without a trial. Id. If there is a trial on the fee issue, the hours allowed should not exceed 5%. Id. The suggested 3% to 5% range represents a guideline and not an unbending rule. See id.
*19 Plaintiffs’ original Fee Petition and Bill of Costs28 contained 96 hours spent on the Fee Petition, which represents approximately 2.2% of the hours billed in the underlying case. (Suppl. Reply 14-15.) MHSAA objects to these hours because Galles did not present contemporaneous time records to verify the hours claimed. Based on Galles’ affidavit and the Fee Petition itself, numerous hours were undoubtably spent. Due to the lack of contemporaneous time records, however, the Court reduces these hours by 25% to 72 hours. Cf. Hensley, 461 U.S. at 428; Kelley v. Metro. County Bd. of Educ., 773 F.2d 677, 683-84 (6th Cir.1985).
The heart of MHSAA’s “fees for fees” objection concerns the approximately 1,100 additional hours incurred after the original Petition was filed. “Supplemental attorneys’

fees can be awarded in the same manner as attorneys’ fees.” McCombs v. Meijer, Inc., 395 F.3d 346, 361 (6th Cir.2005) (citation omitted). As Plaintiffs concede, since there was no trial on this issue, the total number of hours actually billed for fee litigation is roughly three times the 3% guideline recommended by the Coulter Court. (See Suppl. Reply 13.) Plaintiffs blame this departure from the guideline on MHSAA:
MHSAA opposed the bill of costs; it filed unsuccessful motions for costs on behalf of the MHSAA individual defendants; it retained a hired gun29 to search plaintiffs’ records for entries that might provide fodder for its buckshot attack on CFE counsel personally and their legal services on behalf of the plaintiff class; it opposed a routine motion to exceed page limits; it moved to strike the majority of the exhibits to plaintiffs’ Reply-exhibits necessary to meet its burden of proof in face of the allegations in MHSAA’s Opposition.
(Id. at 15.) As Plaintiffs correctly note, “[t]his kind of procedural posturing wastes everyone’s time and drives up the cost of the litigation. Yet Plaintiffs had no choice but to respond thoroughly.” (Suppl.Pet.5.)
The congressional purpose behind the Fees Act would be thwarted if losing defendants were able to dilute a fee award by forcing prevailing plaintiffs to devote uncompensated time to defend their legitimate fees. See Weisenberger v. Huecker, 593 F.2d 49, 53-54 (6th Cir.1979). If the defendant vigorously objects to a fee petition with lengthy and specific objections, it is necessary for fee counsel to respond in kind. Knop, 712 F.Supp. at 592. MHSAA’s vigorous objections, employment of an expert, and obstructionist tactics compel finding that the efforts of Plaintiffs’ counsel was reasonably expended and absolutely necessary to secure their fee award. Cf. Ams. United For Separation of Church & State, 717 F.Supp. at 494-95 (awarding attorneys’ fees for hours that constituted 15% of the total hours in the underlying case based on atypical circumstances). Accordingly, the Court finds that this departure from the 3% “fees for fees” guideline is proper.
J. Motion to Intervene Hours *20 On July 13, 2007, the Court denied the Motion to
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Intervene of the Michigan High School Tennis Coaches’ Association and individual movants. See Communities for Equity v. MHSAA, No. 1:98-CV-479, 2007 WL 2078753, at *5 (W.D.Mich. July 13, 2007). On the same day, the Court also denied the Motion to Intervene of certain coaches of female and male high school soccer teams in the Upper Peninsula of Michigan and individual movants. (See Dkt. No. 719.) MHSAA argues it should not have to pay for the approximately 180 hours devoted by Plaintiffs’ counsel to defeating these intervention efforts. (Suppl. Resp. 4-5, 16; see also Def.’s Suppl. Expert Report 30-31.)
The Supreme Court has held that a prevailing party in a civil rights suit cannot recover attorneys’ fees and costs from an intervenor who has not violated the law, unless the intervention is frivolous or unreasonable. Indep. Fed’n of Flight Attendants v. Zipes, 491 U.S. 754, 761, 109 S.Ct. 2732, 105 L.Ed.2d 639 (1989). The Supreme Court has not decided whether the prevailing party can recover fees and costs from the defendant whose illegal conduct precipitated the intervention. This issue was discussed in detail by the district court in Gratz v. Bollinger:
At least two circuit courts have interpreted Zipes as implying that the prevailing plaintiffs should bear the risk of incurring intervention-related costs as a result of filing a lawsuit and therefore have extended Zipes to a prevailing parties’ [sic] request for intervention-related attorneys’ fees from the losing defendant. See, e.g., Rum Creek Coal Sales, Inc. v. Caperton, 32 F.3d 169, 176-78 (4th Cir.1994); Bigby v. City of Chicago, 927 F.2d 1426, 1428-29 (7th Cir.1991). In a case similar to the one now before this Court, the Fifth Circuit upheld the district court’s refusal to award intervention-related fees and costs from the defendant’s pocket because the plaintiffs “did not ‘prevail’ on this issue vis-a-vís [the defendant].” Hopwood v. Texas, 236 F.3d 256, 280 (5th Cir.2000). As the court explained “[the defendant] remained neutral on the intervention issue. In addition, the potential intervenors made clear ... that the purpose of their intervention was to raise arguments and defenses that [the defendant] itself had no interest in raising.” Id. The Fifth Circuit, however, declined to decide whether a prevailing party always should be barred from shifting to the defendant the costs associated with defending against an intervention. Id.
353 F.Supp.2d 929, 940 (E.D.Mich.2005). In Gratz, the district court disallowed fees related to defeating intervention efforts by intervenors who asserted a ground the defendant “never asserted during the litigation.” Id.
This case is distinguishable from Gratz, Hopwood, and Rum Creek Coal Sales. In this case, the unsuccessful

intervenors asserted a ground which was previously abandoned by MHSAA after all appeals were exhausted. Thus, Plaintiffs are the “prevailing party” on grounds advocated for by MHSAA. These arguments were rejected when they were made by both MHSAA and the intervenors. Moreover, the intervenors in Gratz tried to intervene during litigation on the merits by alleging that the defendant might not defend the case with the same vigor or on the same grounds as the intervenors would. See id. In this case, the interveners moved to intervene after the trial on the merits, at a point in time where there could be no argument that MHSAA had not vigorously represented the interveners’ interests because MHSAA opposed any rescheduling of seasons.
*21 If Plaintiffs’ counsel had not argued against intervention, Plaintiffs would have potentially exposed themselves to a reversal of the victory already achieved. This would have resulted in Plaintiffs thereafter “starting over” in hopes of winning another victory, which would have no doubt involved ample billable hours and numerous more years of litigation. There can be no question that the time spent for anti-intervention efforts was reasonably necessary to the successful completion of the litigation. Cf. Del. Valley Citizens’ Council for Clean Air, 478 U.S. at 559-60 (recognizing that post-judgment services to enforce the relief obtained can be as important as securing the relief in the first instance). Thus, the Court denies MHSAA’s objection.
K. Public Relations Efforts MHSAA objects to public relations efforts undertaken by Galles, such as hours billed when Galles spoke at a 2004 luncheon of federal bar practitioners in Grand Rapids; for conducting press conferences; and generally for media communications. (Suppl. Resp. 4, 17; Def.’s Suppl. Expert Report 31-32.) Galles billed 241 hours for these activities. Media-related services are compensable under certain circumstances. See, e.g., Davis v. City & County of San Francisco, 976 F.2d 1536, 1545 (9th Cir.1992), vacated in part on other grounds, 984 F.2d 345 (9th Cir.1993) (concluding that narrowly focused public relations efforts are compensable); United States ex rel. Scott v. Metro. Health Corp., No. 1:02-CV-485, 2005 WL 3434830, at *8 n. 15 (W.D.Mich. Dec.13, 2005) (noting that the heavy use of the media by one party may render media services by the other party essential). Moreover, “review of media statements by an opponent is proper investigation in connection with a suit.” Metro. Health Corp., 2005 WL 3434830, at *8 n. 15 (citation omitted). The “fact that private lawyers may perform tasks other than legal services for their clients, with their consent and approval, does not justify foisting off such expenses on an
17

adversary under the guise of reimbursable fees.” Gratz, 353 F.Supp.2d at 941 (citation omitted).
In this case, Plaintiffs’ counsel responded to media inquiries prompted by MHSAA’s press releases and other attempts to publicly discredit Plaintiffs. At times, it appeared Plaintiffs’ cause was vilified by MHSAA, teachers, coaches, parents, the media, and the general public. Attempting to sway public opinion in favor of Plaintiffs, however, is not compensable. “The legitimate goals of litigation are almost always attained in a courtroom, not in the media.” Rum Creek Coal Sales, 31 F.3d at 176. The Court will therefore deny compensation for the 241 hours expended relating to public relations. See Halderman by Halderman v. Pennhurst State Sch. & Hosp., 49 F.3d 939, 942 (3d Cir.1995); Hart v. Bourque, 798 F.2d 519, 523 (1st Cir.1986); Gratz, 353 F.Supp.2d at 941-42.
L. Amicus Curiae Fees *22 MHSAA argues Plaintiffs’ counsel should not recover attorneys’ fees for services performed in connection with obtaining and later working with amicus curiae. (Suppl. Resp. 16-17; Def.’s Suppl. Expert Report 30-31.) MHSAA argues these services were not necessary to the litigation but admits no Sixth Circuit precedent exists supporting this view. (Suppl.Resp.17.) MHSAA does cite, however, non-persuasive authority such as Shakman v. Democratic Org. of Cook County, 634 F.Supp. 895 (N.D.Ill.1986), and United States v. Washington, 626 F.Supp. 1405 (W.D.Wash.1985). Shakman and State of Washington both concerned fees for an amicus brief prepared by the prevailing plaintiffs’ counsel but filed in a different case. Shakman, 634 F.Supp. at 900; Washington, 626 F.Supp. at 1514. Since this issue is not present in the case at bar, these cases are not useful.
MHSAA’s conduct is quite telling because even MHSAA solicited several groups as amici to argue in support of its position, apparently because it thought enlisting this help was a reasonable cost in defending this action. Based on the significance of this case, it is inequitable to deny Plaintiffs’ attorneys compensation for time spent responding to amici filings and soliciting amici in support of its own position. These actions were reasonably necessary to the successful prosecution of this case and compensation shall be awarded in full.
M. Specific Cost Objections The Sixth Circuit has counseled that there exists “two

separate sources of authority to award out-of-pocket expenses. Some expenses are included in the concept of attorney’s fees, as ‘incidental and necessary expenses incurred in furnishing effective and competent representation,’ and thus are authorized by [42 U.S.C.] section 1988.” Northcross, 611 F.2d at 639 (citations omitted). Costs under § 1920, however, “are on a different footing.” Id. Under § 1988, Sixth Circuit courts have consistently awarded “reasonable photocopying ... and travel and telephone costs.” Id. The court will not “second-guess” an attorney’s decision on how many copies are necessary. Id. at 642.
1. Photocopying and Printing MHSAA argues against a reimbursement request of over $31,000 in photocopying and printing costs, most of which is attributable to Galles. (Def.’s Suppl. Expert Report 35-36.) Galles seeks reimbursement of in-house photocopying costs at 20 cents per page early in the case, 25 cents per page later in the case, and at actual cost when copies were made through Kinko’s. Galles seeks reimbursement at 10 cents a page for documents printed from her computer. MHSAA recommends reducing photocopying and printing costs 75% for Galles and by a lesser amount for other attorneys. (See Def.’s Expert Report 46.) MHSAA claims a very small percentage of these documents were admitted as exhibits at trial and that only costs incurred for those documents presented at trial are recoverable. MHSAA further argues that most of the copies made of MHSAA’s documents were not necessary as “Defendant offered Plaintiff [sic] access to inspect these documents.” (Resp. 22 (emphasis added); see also Def.’s Expert Report 9, 45-46.) Federal Rule of Civil Procedure 34 provides any party the right “to inspect and copy” any documents within the broad scope of Rule 26(b). Thus, Plaintiffs had the right to copy these documents. MHSAA’s argument is untenable because these copying costs are obviously reasonable litigation costs. The Court concludes that all of the requested photocopying and printing costs are reasonable and should be reimbursed in full.
2. Postage *23 MHSAA argues Plaintiffs’ counsel cannot be reimbursed for postage costs because some courts have held that postage is ordinarily part of a firm’s overhead. See, e.g., Altergott v. Modern Collection Techniques, Inc., 864 F.Supp. 778, 783 (N.D.Ill.1994). “Other courts have routinely allowed recovery for non-overhead expenses such as postage,” such as this Court. Knop, 712 F.Supp. at 590. Accordingly, MHSAA’s objection is denied.
18

3. Telephone MHSAA objects to certain telephone calls billed by NWLC counsel and suggests reducing these costs by 75%, which equals approximately $2,700. MHSAA questions whether these costs were related to the litigation. (Def.’s Expert Report 48.) The Court is satisfied that these costs were related to the litigation, although greater detail in the cost records would have been preferred.
4. Westlaw and Lexis Research MHSAA objects to legal research costs incurred by counsel such as Westlaw and Lexis charges. (Def.’s Suppl. Expert Report 35.) The Third, Seventh, Tenth, and District of Columbia Circuit Courts of Appeal have all found these costs reasonable. See, e.g., Case v. Unified Sch. Dist. No. 233, Johnson County, Kan., 157 F.3d 1243, 1258 (10th Cir.1998); Matter of Cont’l Ill. Sec. Litig., 962 F.2d 566, 570 (7th Cir.1992). “The logic of these cases is irrefutable.” Citizens Ins. Co. of Am., 2007 WL 2902213, at *7 (citing Crosby, 262 F.Supp.2d at 817)). These costs are routinely billed to clients and are necessary in the studied practice of law. Cf. Northcross, 611 F.2d at 638-39 (holding that costs which are routinely charged to clients and aid in the effective practice of law should be reimbursed.) Therefore, these costs will be awarded to Plaintiffs.

complaint. See Mich. Comp. Laws § 600.6013; Grow v. W.A. Thomas Co., 236 Mich.App. 696, 601 N.W.2d 426, 438 (Mich.App.1999); Schellenberg v. Rochester Mich. Lodge No. 2225, 228 Mich.App. 20, 577 N.W.2d 163, 177 (Mich.App.1998). In this case, prejudgment interest accrues from the filing date of the Complaint in June 1998 until the issuance of the Court’s Opinion and Judgment. The Court leaves it to the parties to determine the applicable interest rate and amount of interest.30 See Mich. Comp. Laws § 600.6013.
IV. CONCLUSION For the reasons stated above, the Court reduces the requested attorneys’ fee award of $5,023,991.25 through an across-the-board reduction for “fees for fees” hours claimed31 and public relations hours claimed.32 After deducting these amounts, the fee award is $4,921,241.25. This amount, however, is further reduced by a 10% across-the-board reduction for vagueness, excessiveness, and duplicity in the hours billed.33
*24 Accordingly, the Court awards Plaintiffs Communities for Equity $4,429,117.13 in attorneys’ fees and $131,144.80 in costs, for a total award of $4,560,261.93. Prejudgment interest is payable on the total award and shall be calculated from the filing date of Plaintiffs’ Complaint, with post-judgment interest payable from the date of this Opinion and Judgment. A Judgment consistent with this Opinion shall issue.

N. Prejudgment Interest Michigan’s Elliott-Larsen Civil Rights Act, which specifically defines “damages” to include attorneys’ fees and costs, entitles counsel to interest on the attorneys’ fees and costs award calculated from the filing date of the

All Citations Not Reported in F.Supp.2d, 2008 WL 906031

Footnotes

1

As a threshold matter, the stylistic difference between “attorneys’ fees,” “attorney’s fees,” “attorneys fees,” and

“attorney fees” is trivial. Nevertheless, this donnish question of style and spelling was thoroughly discussed by the

Sixth Circuit Court of Appeals in Stallworth v. Greater Cleveland Reg’l Transit Auth., 105 F.3d 252, 253 n. 1 (6th

Cir.1997). The Stallworth Court concluded that the proper form is that which appears in the governing statute, which in

that case was “attorney fees.” Id. The Sixth Circuit, however, has not spoken with consistency. In Ridder v. City of

Springfield, 109 F.3d 288, 290 n. 1 (6th Cir.1997), the statutory form “attorneys’ fees” was rejected, as was the

reasoning in Stallworth, in favor of “attorney fees” based on a “survey[ ][of] the landscape.” Pursuant to Sixth Circuit

Rule 206(c), since a conflict exists regarding what spelling is appropriate, Stallworth controls. See Ruth v. Comcast

Corp., No. 3:04-CV-332, 2006 WL 2792179, at *1 n. 1 (S.D.Ohio Sept.26, 2006). Unfortunately, Stallworth does not

resolve the issue for this Court. Federal Rule of Civil Procedure 11 speaks of “attorney’s fees,” 42 U.S.C. § 1988 refers

to “attorneys’ fees,” Michigan’s Elliot-Larsen Civil Rights Act inconsistently refers to both “attorney’s fees” and “attorney

fees,” and the Consent Decree entered into by the parties refers to “attorneys’ fees.” The Court will use the form

“attorneys’ fees” since it is utilized in both § 1988 and the Elliot-Larsen Civil Rights Act, albeit inconsistently. Variations

from this form appearing in other sources are left unchanged.

19

2

The class representatives are Diane Madsen, on behalf of her minor daughters, and Jay Roberts-Eveland, on behalf of

her minor daughter.

3

Plaintiffs originally also sued members of MHSAA’s representative council and its executive director. MHSAA is the

only remaining Defendant pursuant to the Court’s Order of October 2, 2001.

4

MHSAA has moved to strike 16 of the 19 exhibits submitted with Plaintiffs’ Reply. (Dkt. No. 633.) MHSAA argues these

exhibits do not rebut MHSAA’s Response. The Court denies MHSAA’s motion because all of the exhibits rebut

statements made or authorities cited in MHSAA’s Response. Moreover, the majority of MHSAA’s objections teeter on

the brink of frivolousness.

5

The Court has scrutinized the three expert reports but accords no deference to the legal conclusions contained therein.

As can be expected, MHSAA’s expert agrees with all of MHSAA’s objections and Plaintiffs’ expert agrees with all of the

requested attorneys’ fees and costs. To avoid unnecessary confusion, the Court seldom distinguishes between

arguments advanced by a party’s expert rather than the party itself since all expert conclusions have been adopted by

reference.

6

MHSAA would likely agree to a slightly higher amount than $917,955.00 because this figure did not take into account

the fees and costs incurred for researching and drafting Plaintiffs’ Supplemental Reply.

7

The most important consideration at the heart of a fee request is the degree of success. See Hensley, 461 U.S. at 435.

MHSAA argues that although Plaintiffs succeeded in getting some seasons changed, Plaintiffs did not succeed in

obtaining the same schedule for both genders, monetary relief, or any relief against members of MHSAA’s

representative council or its executive director. (Suppl.Resp.14.) In reported decisions alone, Plaintiffs defeated

MHSAA’s 1998 Motions to Dismiss and for Summary Judgment, Communities for Equity v. MHSAA, 26 F.Supp.2d

1001 (W.D.Mich.1998); achieved class certification, Communities for Equity v. MHSAA, 192 F.R.D. 568

(W.D.Mich.1999); defeated MHSAA’s Second Motions to Dismiss and for Summary Judgment, Communities for Equity

v. MHSAA, 80 F.Supp.2d 729 (W.D.Mich.2000); succeeded in significant Motions in Limine, Communities for Equity v.

MHSAA, 137 F.Supp.2d 910 (W.D.Mich.2001); and won on the liability issues tried by the Court, Communities for

Equity v. MHSAA, 178 F.Supp.2d 805 (W.D.Mich.2001). Plaintiffs were also extremely successful at the appellate

level. Accordingly, MHSAA’s argument is wholly without merit.

8

Based on MHSAA’s objections, a discussion of each Johnson factor is implicitly integrated into the Court’s analysis.

The Court determines that the final award need not be adjusted upward or downward as it adequately compensates

counsel while not producing a windfall.

9

In 1998, MHSAA enjoyed a reputation for vehement litigation tactics. MHSAA’s website formerly boasted it had

“prevailed in every legal action for 20 years.” MHSAA, Local Litigation Now National Issue (2002),

http://www.mhsaa.com/news/equity.html.

10 Galles’ role in the beginning of the case was unknown to her, although she knew an attorney with Title IX expertise would be essential to success. “I knew that either NWLC or I would have to participate in the litigation in some way. However, at the beginning of the case, I did not know whether I would be involved as lead counsel or merely as advisory counsel.” (Galles’ Suppl. Decl. ¶ 91.)

11 A class representative had previously contacted King herself. King turned down this request for representation.

12 MHSAA confusingly interprets Galles’ argument to mean she is “the only competent lawyer available to take this case.” (Suppl.Resp.11.) Plaintiffs, however, have never made this argument, rather that no Michigan attorneys possessed both (1) competency and (2) amenability to taking this case.
13 “I agreed to become lead counsel because there was no one else to do it, because I knew that MHSAA was violating the law, and because Plaintiffs had begun to rely on me as the only person who told them they were right.” (Galles’ Suppl. Decl. ¶ 95.)
14 Plaintiffs’ female attorneys also ironically admit they “felt compelled to bring in a white male to succeed” due to defense counsel’s alleged intimidation tactics against female counsel. (See Reply 10.)
15 Interestingly, while MHSAA objects to Plaintiffs’ hiring of experienced trial counsel, MHSAA also added new trial
20

counsel in 2001.
16 In awarding fees, the fee award is technically made to the party and not to counsel per se. See Evans v. Jeff D., 475 U.S. 717, 756, 106 S.Ct. 1531, 89 L.Ed.2d 747 (1986). The client’s liability to the attorney is a separate contract matter. See Gisbrecht v. Barnhart, 535 U.S. 789, 806, 122 S.Ct. 1817, 152 L.Ed.2d 996 (2002) (noting that “nothing prevents the attorney for the prevailing party from gaining additional fees, pursuant to contract, from his own client”) (citation omitted).
17 The Laffey Matrix was created in Laffey v. Nw. Airlines, Inc., 746 F.2d 4 (D.C.Cir.1984).

Experience Level

Hourly Rate

20+ years

$440

11-19 years

$390

8-10 years

$315

4-7 years

$255

1-3 years

$215

Paralegals & Law Clerks

$125

18 Although MHSAA does not voice much objection to the requested rates of paralegals and law clerks relative to the rates requested by attorneys, the Court finds that all such rates are reasonable based on the applicable market.

19 All hours are approximate.

20 This reduction is imposed after reducing fees for individual reductions. See infra.

21 MHSAA notes Galles billed “almost 700% more long days than any other attorney working on the Litigation.” (Def.’s Expert Report 16.) As lead counsel, this should be expected.
22 MHSAA also suggests that “[n]ot every event in an attorney’s day is a billable one.... It has been estimated that a lawyer must generally spend three hours in the office to legitimately bill for two hours. Furthermore, an attorney working a lengthy day will inevitably be less efficient as the day progresses.” (Def.’s Expert Report 16.)
23 In this Court’s chambers, for example, “working hours ... exceed 50 hours a week as a general rule, and often total between 60 and 80 hours per week during trial terms.” Knop, 712 F.Supp. at 579 n. 5.
24 This research took place during the merit-phase of the case. In later briefing, MHSAA chides many of the additional hours performed relating to the Fee Petition.
25 The most seemingly egregious of these appearances occurred at the final pretrial conference when all five trial counsel were present. Although such a practice would not be reasonable for every appearance in court, it was appropriate in this circumstance because all attorneys who are going to appear at trial should be at the final pretrial conference. This is a courtesy to the Court where, as here, new attorneys are appearing for the first time.
26 Along these same lines, MHSAA argues Plaintiffs’ counsel failed to use billing judgment and that substantial reductions are necessary to the hours claimed. (See Resp. 14; Def.’s Expert Report 41-43.) Plaintiffs’ counsel claims to have exercised billing judgment to exclude over 1,000 billable hours. (See Reply 3 n. 4.) Upon review of the time entries and affidavits, there is nothing to indicate that MHSAA’s allegation has merit so it is therefore rejected.
27 In Alston, Galles was one of ten attorneys and claimed personal attorney’s fees of $157,900. MHSAA implies fraud by questioning why Galles is claiming much higher fees in this case and argues the two cases have virtually identical legal and factual issues. (Resp.19.) MHSAA also argues “Galles has never sought or been awarded out-of-state billing rates in any of her other Title IX case [sic].” (Suppl. Resp. 4; see also Resp. 9.) MHSAA’s position is untenable and irrelevant because the rates used to compensate Galles for her representation in Alston, local Virginia rates, has no bearing on
21

the central question of whether competent counsel exists in Michigan. Moreover, Galles worked many more hours in this case than she did in Alston. 28 On August 13, 2002, the Court awarded $22,359.14 to Plaintiffs after reviewing their Bill of Costs. (See Dkt. No. 595.) MHSAA argues a “plethora of expenses previously awarded Plaintiffs with their Bill of Costs are again claimed in their present Fee Petition.” (Resp.23.) This equates to approximately $20,000 in costs. (See Def.’s Expert Report 9, 44-45.) Plaintiffs counter that the costs claimed in the Fee Petition are computed in two ways: (1) total costs if no costs were awarded pursuant to the Bill of Costs, and (2) a reduced cost amount taking into account any costs awarded on the Bill of Costs. (Reply 23-24.) Plaintiffs clearly are not entitled to a double recovery for incurred costs; however, Plaintiffs have correctly categorized the operation of their reimbursement request and thus MHSAA’s objection is denied. 29 This “hired gun,” MHSAA’s expert, tremendously increased the workload of Plaintiffs’ counsel and the Court while advancing few meritorious arguments. 30 The prejudgment interest rate shall be “equal to 1% plus the average interest rate paid at auctions of 5-year United States treasury notes during the 6 months immediately preceding July 1 and January 1, as certified by the state treasurer, and compounded annually ....” Mich. Comp. Laws § 600.6013(8). It is noted that post-judgment interest, which is calculated from the date of the entry of the judgment, is controlled by 28 U.S.C. § 1961 since this case involved both federal and state law claims. See Reed v. Country Miss, Inc., Nos. 93-6370 & 94-5005, 1995 WL 348041, at *2 (6th Cir. June 8, 1995). 31 This reduction equates to 24 hours at $390 an hour (Galles’ rate), which is $9,360.00. 32 This reduction equates to 241 hours at $390 an hour (Galles’ rate), which is $93,390.00. 33 To avoid a duplicative reduction, the Court reduces the award by 10% after making the “fees for fees” and public relations adjustments, as opposed to before.
22

 
 2008 WL 3834024 Only the Westlaw citation is currently available.
United States District Court, W.D. Michigan,
Southern Division.
COMMUNITIES FOR EQUITY, et al., Plaintiffs, v.
MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION, Defendant.
No. 1:98-CV-479. |
Aug. 14, 2008.
Attorneys and Law Firms
Philip L. Cohan, Piper, Marbury, Rudnick& Wolfe LLP, Washington, DC, Barbara A. Burr, Neena Chaudhry, Marcia D. Greenberger, National Women’s Law Center, Roger E. Warin, Steptoe & Johnson, Washington, DC, Kristen Galles, Equity Legal, Alexandria, VA, Robin K. Bohnenstengel, Piper, Marbury, Rudnick & Wolfe LLP, Baltimore, MD, Lindsey B. Lang, H. Rhett Pinsk, Pinsky, Smith, Fayette Hulswit, Grand Rapids, MI, for Plaintiffs.
Edmund J. Sikorski, Ann Arbor, MI, William M. Azkoul, Law Offices Of William Azkoul, P.C., Carole D. Bos, Bos & Glazier, Grand Rapids, MI, for Defendant.
OPINION
RICHARD ALAN ENSLEN, Senior District Judge.
*1 This matter is before the Court on Plaintiffs Communities for Equity, et al.’ s Second Supplemental Petition for Attorney Fees. Defendant Michigan High School Athletic Association (“MHSAA”) has opposed the Motion. Argument is unnecessary given the Court’s understanding of the issues and the adequate briefings received.
BACKGROUND Plaintiffs became the prevailing parties in this suit after obtaining injunctive relief which forced the MHSAA to adopt equal scheduling for high school male and female sports. In particular, this Court entered an Opinion and
1

final Judgment in Plaintiffs’ favor on December 17, 2001. Plaintiffs then received Court permission approving their December 26, 2001 motion for extension of time to file an attorney fee petition. The attorney fee petition and a supplemental attorney fee petition were not approved, however, until March 31, 2008, much of that delay being attributable to the parties’ ongoing contests before the Sixth Circuit Court of Appeals and the United States Supreme Court as to the merits of the underlying Judgment. In any event, the Opinion and Judgment of March 31, 2008 approved attorney fees in the amount of $4,429,117.13 and costs in the amount of $131,144.80. (Judgment of 3/31/2008 at 1 .) Although the fee petition included many years of litigation, it did not include time for the attorneys of the Steptoe & Johnson, LLP law firm incurred after September 3, 2007, nor attorney fees for the National Women’s Law Center, Pinsky, Smith Fayette & Hulswit, and the Equity Legal law firm incurred after August 31, 2007. (See Pls.’ 2d Suppl. Pet. 1 n. 1.) Plaintiffs now seek recovery for the later services of the Steptoe Johnson attorneys in the amount of $92,491.88 plus an additional $1,817.90 of costs/expenses.
Plaintiffs’ second supplemental petition is supported by the Declaration of Lindsey B. Lang. The Declaration seeks reimbursement for 299.05 attorney and paralegal hours. (Lang Decl., Ex. B at 1.) The attorney fee hours include 253.30 hours for Lang and 7.5 hours for Roger Warin. (Id.) The paralegal hours include 25 hours for Larry Taylor, 8.75 hours for Karen Tucker and 4.50 hours for Andrew Knipe. (Id.) To calculate a lodestar fee, Plaintiffs have utilized a $375/hour rate for Lang, a $400/hour rate for Warin, and a rate of $125/hour for paralegals. (Id.) This Court has previously approved these attorneys and paralegals’ requested rates as reasonable ones, and continues in this conclusion as to the rates set forth above.1 (See Op. of 3/31/2008 at 17-24.) Plaintiffs have also attached daily time logs for all of the work referenced, which are detailed to the tenth of the hour. (Lang Decl ., Ex. A at 1-4.) The daily time logs show that the work performed related to the recovery of attorney fees in this litigation. The records also show that Plaintiffs’ attorneys have written off hours for administrative time spent in connection with the litigation. Plaintiffs’ attorneys have also applied a 10-percent across-the-board reduction to the fee sought to adjust for any insufficiency of the billed hours. (See Lang Decl., Ex. B.) The total lodestar so adjusted is $92,491.88. (Id.)
*2 Plaintiffs also have not sought fees for the services of Equity Legal, the National Women’s Law Center and Pinsky, Smith Fayette & Kennedy for work performed after August 31, 2007. This gesture by Plaintiffs was meant to facilitate resolution of the Motion. (See 2d Suppl. Pet. 1 n. 2.) The expense fees sought include:

$387.20 for copying and printing expenses, and $1430.59 data charges for Lexis, Westlaw and PACER. (Id., Ex. C.) There has been no objection to the amount of the expenses, which are reasonable, typical for litigation work, and consistent with expenses previously approved by the Court.
LEGAL STANDARDS Attorney fees are sought and authorized in this suit by Title IX (20 U.S.C. §§ 1681-88), 42 U.S.C. § 1988(b), and the Michigan Elliott-Larsen Civil Rights (Mich. Comp. Laws §§ 37.2301 et seq., including § 37.2801(3)). These are prevailing party/fee-shifting statutes which authorize attorney fees notwithstanding the usual American rule against them. Though such fee-shifting statutes allow some discretion, it is not a discretion to completely deny fees authorized by statute to the prevailing party. See Berger v. City of Mayfield Heights, 265 F.3d 399, 402-03 (6th Cir.2001). The authorization to receive fees also includes compensation for paralegal services and other attorney expenses which are typically billed to the client. See Missouri v. Jenkins, 491 U.S. 274, 285, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989) (approving paralegal fees); Northcross v. Board of Ed. of Memphis City Sch., 611 F.2d 624, 639 (6th Cir.1979) (approving reimbursement for attorney out-of-pocket expenses apart from authorization under 28 U.S.C. § 1920).
The following standards govern fee-shifting attorney awards:
In an attorneys’ fee case, the primary concern is that the fee awarded be “reasonable.” Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir.1999) (citing Blum v. Stenson, 465 U.S. 886, 893, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). A reasonable fee is “adequately compensatory to attract competent counsel yet which avoids producing a windfall for lawyers.” Geier, 372 F.3d at 791 (emphasis added); see also Coulter v. Tennessee, 805 F.2d 146, 149 (6th Cir.1986) (“[H]ourly rates for fee awards should not exceed the market rates necessary to encourage competent lawyers to undertake the representation in question.”). The starting point for determining a reasonable fee is the lodestar, which is the product of the number of hours billed and a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The district court’s calculation of the lodestar value, as well as any justifiable upward or downward departures, deserves substantial deference, but only when the court provides “a clear and concise explanation of its reasons for the fee award.” Eckerhart, 461 U.S. at 438, 103 S.Ct. 1933, 76 L.Ed.2d 40; Hadix v. Johnson, 65 F.3d
2

532, 535 (6th Cir.1995).
Gonter v. Hunt Valve Co., Inc., 510 F.3d 610, 616 (6th Cir.2007).
*3 Furthermore, time spent in preparing, presenting, and litigating an attorney fee application is compensable. Gonter, 510 F.3d at 620; Coulter, 805 F.2d at 151. Such fees are to be limited, however, consistent with sound judicial oversight. Id. To obtain such fees, a party may file a supplemental fee petition consistent with Rule 54. McCombs v. Meijer, Inc., 395 F.3d 346, 361 (6th Cir.2005).
LEGAL ANALYSIS Defendant objects to the award of these supplemental fees on several grounds. The first of its objections concerns the Notice of Appeal it filed in Sixth Circuit case no. 08-1670 (noted in Dkt. No. 751). The Notice of Appeal concerns the attorney fee Opinion and Judgment entered on March 31, 2008. Defendant argues that the pendency of the appeal deprives the Court of jurisdiction to entertain the supplemental petition. (Def.’s Resp. 2-3, citing Fed.R.Civ.P. 60(a) and Domino’s Pizza v. Seymour, 848 F.2d 189 (6th Cir.1988).) Defendant also makes a related argument that the supplemental petition may not be considered as a Rule 59(e) motion to alter or amend the judgment because the motion was not filed within 10 days of the Judgment. (Def.’s Resp. 3-4.)
Interestingly, both of Defendant’s arguments are answered by Circuit Judge Boyce Martin’s analysis in Miltimore Sales, Inc. v. International Rectifier, Inc., 412 F.3d 685 (6th Cir.2005). Miltimore Sales, like this case, concerned an attempt to file a motion for attorney fees and the question of whether the petition was timely when filed after the denial of a Rule 59 motion. The first point noted by the Court was how the 14-day deadline under Fed.R.Civ.P. 54(d)(2) works: The Court said:
The first step in ascertaining whether a fee application is timely is determining when to start the clock. International Rectifier, Inc. argues that the “judgment” in this case was entered on December 19, 2001, when the district court entered judgment on the jury verdict. Thus, International Rectifier, Inc. asserts that any motion for fees must have been filed within fourteen days of December 19, 2001-that is, by January 2, 2002. Miltimore Sales, Inc. argues conversely that while the judgment was entered on December 19, 2001, the judgment did not become an “order from which an appeal lies” under Rule 54(a), and was not the “final judgment” as described in Rule 54’s Advisory

Committee Notes, until February 12, 2003, when the district court denied International Rectifier, Inc.’s timely filed Rule 59(e) motion. In support of its argument, Miltimore Sales, Inc. points to Federal Rule of Appellate Procedure 4 and this Court’s decision in Brown v. Local 58 International Brotherhood of Electrical Workers, 76 F.3d 762 (6th Cir.1996). Federal Rule of Appellate Procedure 4 addresses the effect of the filing of post-judgment motions on the time for appeal. Rule 4(a)(4)(A) provides that if certain post-judgment motions, including a Rule 59(e) motion, are filed following the entry of judgment, “the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion.” Thus, says Miltimore Sales, Inc., if a timely filed Rule 59(e) motion prevents an appeal of the underlying judgment until the Rule 59(e) motion is disposed of, then logically, the judgment cannot be “an order from which an appeal lies” until the disposition of the Rule 59(e) motion. We agree.
*4 Id at 687-88.
This means, of course, that pursuant to Federal Rule of Civil Procedure 4, a notice of appeal would not have taken effect if a timely Rule 59(e) motion were filed. Defendant’s argument assumes that the 10-day limit of Rule 59(e) expired when Plaintiffs waited 14 days to file their supplemental petition. This argument was rejected in Miltimore because of the interaction of Rule 59 with Rule 6(a).
We write further to discuss the effect of the Federal Rules for those in practice. As the Advisory Committee Notes discuss, one of the reasons the fourteen-day limit was adopted, as opposed to no time limit was, theoretically, for increased efficiency in processing motions for fees. The practical effect, however, is decreased efficiency and increased uncertainty-not to mention more paperwork. In nearly every case where attorney fees are available, the prevailing party will now need to file not one, but two fee applications-an initial fee application for fees incurred securing the favorable judgment, and a supplemental application for fees incurred defending post-judgment motions such as Rule 59(e) motions. As the Second Circuit in Weyant noted, “[a]s a practical matter ... given the time constraints imposed by the various Rules, [one fee application] will rarely be possible.” Weyant, 198 F.3d at 314. The bizarre timing situations occur by virtue of adding Federal Rule of Civil Procedure 6 to the mix. The time limit for filing a Rule 59(e) post-judgment motion is ten days. Fed.R.Civ.P. 59(e). The time limit for filing the fee application under Rule 54(d)(2)(B) is fourteen days. Fed.R.Civ.P. 54(d)(2)(B). Federal Rule
3

of Civil Procedure 6 states that the computation for the ten-day period applicable to Rule 50(b), 52(b), or 59 motions excludes intermediate Saturdays, Sundays, and legal holidays. See Fed.R.Civ.P. 6(a). The computation for the fourteen-day period within which the prevailing party must file a fee application includes intermediate Saturdays, Sundays, and legal holidays. See id. Therefore, “the 14-day period will never be longer than the 10-day period and in some cases will be shorter.” Weyant, 198 F.3d at 315. Stated another way, the ten-day period prescribed by the Federal Rules always lasts at least fourteen days. The end result of this dubious occurrence is that, because the Rule 59(e) time limit and the Rule 54(d)(2)(B) time limit almost always expire on the same day ....
Id. at 691-92.
One final quotation from Milimore completes the legal analysis of the jurisdiction issue:
“A judgment is said to be final if it conclusively determines the rights of the parties to the litigation and leaves nothing for the court to do but execute the order.” Weyant v. Okst, 198 F.3d 311, 314 (2d Cir.1999) (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)). A jury verdict and the entry of judgment does just this. However, “a timely petition for rehearing [i.e., a Rule 59(e) motion] tolls the running of the [appeal] period because it operates to suspend the finality of the ... court’s judgment, pending the court’s further determination whether the judgment should be modified so as to alter its adjudication of the rights of the parties.” Browder v. Dir., Dept. of Corr., 434 U.S. 257, 267, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); see also Osterneck v. Ernst & Whinney, 489 U.S. 169, 174, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989) (stating that the time for appeal does not begin to run “until the District Court has had an opportunity to dispose of all motions that seek to amend or alter what otherwise might appear to be a final judgment.”); 12 Moore’s Federal Practice § 59.12[1], at 59-38 (3d ed.1999) (a “timely motion under Rule 59 destroys the finality of the judgment”). Thus, when a Rule 59(e) motion is filed and finality is suspended, the judgment is neither final nor an “order from which an appeal lies.” Fed.R.Civ.P. 54(a). When the district court disposes of the Rule 59(e) motion, that order itself is not the “final” judgment, nor is it itself “an order from which an appeal lies”; instead, the disposition of the Rule 59(e) motions is an order or ruling that reinstates the finality of the original entry of judgment and a ruling that makes the underlying judgment appealable.

*5 We now join the Second and Eleventh Circuits in holding that a fee application is timely in these circumstances. In Weyant v. Okst, the district court entered judgment in favor of the plaintiff on April 15, 1998. 198 F.3d at 313. On April 21, the defendant filed post-trial motions pursuant to Federal Rule of Civil Procedure 59(e) and the motions were denied in an order docketed on October 21. Id. On April 23, the plaintiff filed an initial application for fees and expenses, the merits of which were decided in the district court’s October 21 order. Id. On October 22, the plaintiff filed a supplemental fee application for the costs incurred in successfully opposing the defendant’s post-trial motions. Id. The district court dismissed the supplemental application as untimely finding that judgment was entered on April 15. Id. The Second Circuit reversed, holding that the “supplemental application was timely and that [the prevailing party] was entitled to reasonable attorney’s fees for services rendered in the period following his initial application.” Id. at 314.
Id. at 688-89.
Therefore, Plaintiffs’ Second Supplemental Petition was timely in this case, under both Federal Rules of Civil Procedure 54(d)(2) and 59(e). Since the Petition was filed within 14 days of the Judgment, it had the effect of

delaying the finality of the attorney fee Judgment under Rule 59(e) and permitting this Court’s consideration of the amendment of the Judgment to include fees incurred after August 2007. Defendant’s legal objections are denied. In doing so, the Court also overrules Defendant’s objection to the attorney fee rate, which the Court approves as reasonable. The Court also finds that the fees billed were for services reasonably and necessarily incurred and that the fees and expenses should be approved in the total amount of $94,309.78.
CONCLUSION
In accordance with this Opinion, Plaintiffs’ Second Supplemental Petition for Attorney Fees and Expenses (Dkt. No. 746) is GRANTED and a Supplemental Judgment shall enter providing for the award of additional attorney fees and expenses in the amount of amount of $94,309.78.
All Citations
Not Reported in F.Supp.2d, 2008 WL 3834024

Footnotes

1

As noted earlier, the attorneys’ actual billing rates are much higher. (See Warin Decl. ¶ 27, noting Warin’s regular rate

of $600/hour.) The Court does acknowledge some errors in the summary data included on the table on page 20 of the

Court’s previous Opinion. However, notwithstanding such errors, the rates previously awarded to Plaintiffs’ attorneys

and those sought now are wholly reasonable in light of the attorneys’ experience, qualifications and unique skills and

the relevant market factors pertaining to the Grand Rapids/Kalamazoo legal market.

4

 
 United States District Court Western District of Michigan (Southern Division (1)) CIVIL DOCKET FOR CASE #: 1:98-cv-00479-PLM

Communities Equity, et al v. MI High Sch Ath Assn, et al Date Filed: 06/26/1998

Assigned to: District Judge Paul L. Maloney

Date Terminated: 12/19/2001

Demand: $0

Jury Demand: Both

Case in other court: the Sixth Circuit Court of Appeals, Nature of Suit: 440 Civil Rights:

08-01670

Other

Cause: 42:1983 Other Civil Rights

Jurisdiction: Federal Question

plaintiff
Communities for Equity on behalf of itself, its members, and all those similarly situated

represented by Barbara Ann Burr National Women's Law Center 11 Dupont Circle, NW, Ste. 800 Washington, DC 20036 (202) 588-5180 TERMINATED: 07/20/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

H. Rhett Pinsky Pinsky, Smith, Fayette & Hulswit 146 Monroe Ctr., NW, 1515 McKay Tower Grand Rapids, MI 49503 (616) 451-8496 Email: hrpinsky@sbcglobal.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lindsey B. Lang Steptoe & Johnson LLP (DC) 1330 Connecticut Ave., NW Washington, DC 20036-1765 (202) 429-3000 Email: llang@steptoe.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roger E. Warin Steptoe & Johnson LLP (DC) 1330 Connecticut Ave., NW Washington, DC 20036-1765

plaintiff

(202) 429-6280 Email: rwarin@steptoe.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen M. Galles Equity Legal 10 Rosecrest Ave. Alexandria, VA 22301 (703) 683-4491 Fax: (703) 683-4636 Email: kgalles@comcast.net ATTORNEY TO BE NOTICED
Marcia D. Greenberger National Women's Law Center 11 Dupont Circle, NW, Ste. 800 Washington, DC 20036 (202) 588-5180 Email: MGreenberger@nwlc.org ATTORNEY TO BE NOTICED
Neena K. Chaudhry National Women's Law Center 11 Dupont Circle, NW, Ste. 800 Washington, DC 20036 (202) 588-5180 Email: nchaudhry@nwlc.org ATTORNEY TO BE NOTICED
Philip L. Cohan Piper Rudnick 1200 19th St., NW Washington, DC 20036-2412 (202) 861-3900 TERMINATED: 05/15/2007 ATTORNEY TO BE NOTICED
Robin K. Bohnenstengel (CWNS) University of Baltimore Law School 1420 N Charles St. Baltimore, MD 21201 (410) 837-5145 ATTORNEY TO BE NOTICED

Diane Madsen on behalf of her minor daughters and all those similarly situated
plaintiff Jay Roberts-Eveland on behalf of her minor daughter and all those similarly situated

represented by Barbara Ann Burr (See above for address) TERMINATED: 07/20/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
H. Rhett Pinsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lindsey B. Lang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roger E. Warin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen M. Galles (See above for address) ATTORNEY TO BE NOTICED
Marcia D. Greenberger (See above for address) ATTORNEY TO BE NOTICED
Neena K. Chaudhry (See above for address) ATTORNEY TO BE NOTICED
Philip L. Cohan (See above for address) TERMINATED: 05/15/2007 ATTORNEY TO BE NOTICED
Robin K. Bohnenstengel (CWNS) (See above for address) ATTORNEY TO BE NOTICED
represented by Barbara Ann Burr (See above for address) TERMINATED: 07/20/2007

V.
defendant
Michigan High School Athletic Association on behalf of itself and its members

LEAD ATTORNEY ATTORNEY TO BE NOTICED
H. Rhett Pinsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lindsey B. Lang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roger E. Warin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen M. Galles (See above for address) ATTORNEY TO BE NOTICED
Marcia D. Greenberger (See above for address) ATTORNEY TO BE NOTICED
Neena K. Chaudhry (See above for address) ATTORNEY TO BE NOTICED
Philip L. Cohan (See above for address) TERMINATED: 05/15/2007 ATTORNEY TO BE NOTICED
Robin K. Bohnenstengel (CWNS) (See above for address) ATTORNEY TO BE NOTICED
represented by Edmund J. Sikorski , Jr. Edmund J. Sikorski, Jr. PC 3300 Washtenaw Ave., Ste. 240 Ann Arbor, MI 48104

defendant John Roberts TERMINATED: 10/02/2001
defendant Keith Alto TERMINATED: 10/02/2001

(734) 677-2110 Fax: (734) 677-2207 Email: sikorski@provide.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy A. Fusco Miller Canfield Paddock & Stone PLC (Detroit) 150 W Jefferson Ave., Ste. 2500 Detroit, MI 48226-4415 (313) 496-8435 LEAD ATTORNEY ATTORNEY TO BE NOTICED
William M. Azkoul William Azkoul, P.C. 161 Ottawa Ave., NW, Ste. 205-C Grand Rapids, MI 49503 (616) 458-1315 Email: carol@azkoullaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carole D. Bos Bos & Glazier PLC 990 Monroe Ave., NW Grand Rapids, MI 49503 (616) 458-6814 Email: cbos@bosglazier.com ATTORNEY TO BE NOTICED
represented by William M. Azkoul (See above for address) TERMINATED: 10/02/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William M. Azkoul (See above for address) TERMINATED: 10/02/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

defendant Geraldine David TERMINATED: 10/02/2001
defendant Keith Eldred TERMINATED: 10/02/2001
defendant Paul Ellinger TERMINATED: 10/02/2001
defendant Eric Federico TERMINATED: 10/02/2001
defendant Dan Flynn TERMINATED: 10/02/2001
defendant Margra Grillo TERMINATED: 10/02/2001
defendant Robert Grimes TERMINATED: 10/02/2001

represented by William M. Azkoul (See above for address) TERMINATED: 10/02/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William M. Azkoul (See above for address) TERMINATED: 10/02/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William M. Azkoul (See above for address) TERMINATED: 10/02/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William M. Azkoul (See above for address) TERMINATED: 10/02/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William M. Azkoul (See above for address) TERMINATED: 10/02/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William M. Azkoul (See above for address) TERMINATED: 10/02/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William M. Azkoul (See above for address)

defendant Tammy Jackson TERMINATED: 07/27/1998
defendant Norm Johnson TERMINATED: 10/02/2001
defendant Dewayne Jones TERMINATED: 10/02/2001
defendant Dennis Kniola TERMINATED: 10/02/2001
defendant William Newkirk TERMINATED: 10/02/2001
defendant Thomas Rashid TERMINATED: 10/02/2001

TERMINATED: 10/02/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William M. Azkoul (See above for address) TERMINATED: 07/27/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William M. Azkoul (See above for address) TERMINATED: 10/02/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William M. Azkoul (See above for address) TERMINATED: 10/02/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William M. Azkoul (See above for address) TERMINATED: 10/02/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William M. Azkoul (See above for address) TERMINATED: 10/02/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William M. Azkoul (See above for address) TERMINATED: 10/02/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

defendant Robert Riemersma TERMINATED: 10/02/2001
defendant Randy Salisbury TERMINATED: 10/02/2001
defendant Joyce Seals TERMINATED: 10/02/2001
defendant Michael Shibler TERMINATED: 10/02/2001
defendant Unknown Part(y)(ies) named as Unknown Does 1-50 TERMINATED: 10/02/2001 defendant Christi Brilinski TERMINATED: 10/02/2001
defendant Eunice Moore TERMINATED: 10/02/2001

represented by William M. Azkoul (See above for address) TERMINATED: 10/02/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William M. Azkoul (See above for address) TERMINATED: 10/02/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William M. Azkoul (See above for address) TERMINATED: 10/02/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William M. Azkoul (See above for address) TERMINATED: 10/02/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William M. Azkoul (See above for address) TERMINATED: 10/02/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William M. Azkoul (See above for address) TERMINATED: 10/02/2001 LEAD ATTORNEY

amicus USA
amicus Michigan Interscholastic Administrators Association

ATTORNEY TO BE NOTICED
represented by Charles R. Gross U.S. Attorney (Grand Rapids) The Law Bldg. 330 Ionia Ave., NW P.O. Box 208 Grand Rapids, MI 49501-0208 (616) 456-2404 Email: charles.gross@usdoj.gov TERMINATED: 03/26/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew L. Meyer U.S. Attorney (Grand Rapids) The Law Bldg. 330 Ionia Ave., NW P.O. Box 208 Grand Rapids, MI 49501-0208 (616) 456-2404 Email: usamiw.ecfcriminal@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah A. Dunne (CWNS) U.S. Department of Justice Educational Opportunities Section 601 D Street, NW, Ste. 4300 Washington, DC 20530 (202) 514-6406 TERMINATED: 08/26/2008 ATTORNEY TO BE NOTICED
represented by Allen S. Bush Allen S. Bush PC 2607 E Crown Dr. Traverse City, MI 49684 (231) 929-7620 Email: asbush@chartermi.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. movant Michigan High School Tennis Coaches' Association, The TERMINATED: 07/13/2007
movant Amy Christman TERMINATED: 07/13/2007 next friend of LC TERMINATED: 07/13/2007

represented by Garry L. Walton Garry L. Walton, PC 229 E Michigan Ave., Ste. 445 Kalamazoo, MI 49007 (269) 383-3434 Email: glwalton@charterinternet.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard D. Friedman University of Michigan Law School 314 Hutchins Hall 625 S. State St. Ann Arbor, MI 48109-1215 (734) 647-1078 Email: rdfrdman@umich.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart H. Deming Deming PLLC 229 E Michigan Ave., Ste. 145 Kalamazoo, MI 49007 (269) 382-8080 Fax: (269) 382-8083 Email: stuart.deming@deminggroup.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Garry L. Walton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard D. Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

movant Richard D. Friedman TERMINATED: 07/13/2007 next friend of RAF TERMINATED: 07/16/2007
movant Rafat Rizk TERMINATED: 07/13/2007 next friend of MR TERMINATED: 07/16/2007
movant Kelly Jean Bianco Coach TERMINATED: 07/13/2007

Stuart H. Deming (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Garry L. Walton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard D. Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart H. Deming (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Garry L. Walton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard D. Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart H. Deming (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert C. Anderson Elder Law Firm of Anderson & Associates PC 148 W Hewitt Ave. Marquette, MI 49855 (906) 228-6212 Email: rcanderson@upelderlaw.com LEAD ATTORNEY

movant Dave Hodgins Coach TERMINATED: 07/13/2007
movant Will Andresen Coach TERMINATED: 07/13/2007
movant

ATTORNEY TO BE NOTICED
James Shek 225 Hubbard St., Suite B P. O. Box A Allegan, MI 49010 (269) 673-3547 Email: jshekesq@btc-bci.com ATTORNEY TO BE NOTICED
Leonard A. Kaanta 148 W. Hewitt Ave. Marquette, MI 49855 (906) 228-6212 Email: lkaanta@charter.net ATTORNEY TO BE NOTICED
represented by Robert C. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Shek (See above for address) ATTORNEY TO BE NOTICED
Leonard A. Kaanta (See above for address) ATTORNEY TO BE NOTICED
represented by Robert C. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Shek (See above for address) ATTORNEY TO BE NOTICED
Leonard A. Kaanta (See above for address) ATTORNEY TO BE NOTICED

Dennis West Coach TERMINATED: 07/13/2007
movant Michael Parks Coach TERMINATED: 07/13/2007
movant Kellie Holmstrom TERMINATED: 07/13/2007 next friend of K.A.C. TERMINATED: 07/13/2007
movant Holly Conrad TERMINATED: 07/13/2007 next friend of E.C. TERMINATED: 07/13/2007
movant Joseph Limback TERMINATED: 07/13/2007 next friend of E.M.L. TERMINATED: 07/13/2007

represented by Robert C. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Shek (See above for address) ATTORNEY TO BE NOTICED
represented by Robert C. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Shek (See above for address) ATTORNEY TO BE NOTICED
represented by Robert C. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Shek (See above for address) ATTORNEY TO BE NOTICED
represented by Robert C. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Shek (See above for address) ATTORNEY TO BE NOTICED
represented by Robert C. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Shek

movant Ross Tresedder TERMINATED: 07/13/2007 next friend of A.J.T. TERMINATED: 07/13/2007
movant Wendy Stolt TERMINATED: 07/13/2007 next friend of E.M.S. TERMINATED: 07/13/2007
movant Lantz D. Whitfield Coach TERMINATED: 07/13/2007
movant David Lucas named as Dr. David Lucas TERMINATED: 07/13/2007 next friend of A.L. TERMINATED: 07/13/2007
movant Gayle Larson TERMINATED: 07/13/2007

(See above for address) ATTORNEY TO BE NOTICED
represented by Robert C. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Shek (See above for address) ATTORNEY TO BE NOTICED
represented by Robert C. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Shek (See above for address) ATTORNEY TO BE NOTICED
represented by James Shek (See above for address) ATTORNEY TO BE NOTICED
Robert C. Anderson (See above for address) ATTORNEY TO BE NOTICED
represented by Leonard A. Kaanta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Shek (See above for address) ATTORNEY TO BE NOTICED
represented by Leonard A. Kaanta (See above for address)

next friend of G.P.L. TERMINATED: 07/13/2007
movant John T. Fornetti named as Dr. John T. Fornetti TERMINATED: 07/13/2007 next friend of D.M.F. TERMINATED: 07/13/2007
movant Monica Erickson TERMINATED: 07/13/2007 next friend of M.E. TERMINATED: 07/13/2007
movant Mary Formolo TERMINATED: 07/13/2007 next friend of C.F. TERMINATED: 07/13/2007
movant Maureen McKindles TERMINATED: 07/13/2007 next friend of D.F.M. TERMINATED: 07/13/2007

LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Shek (See above for address) ATTORNEY TO BE NOTICED
represented by Leonard A. Kaanta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Shek (See above for address) ATTORNEY TO BE NOTICED
represented by Leonard A. Kaanta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Shek (See above for address) ATTORNEY TO BE NOTICED
represented by Leonard A. Kaanta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Shek (See above for address) ATTORNEY TO BE NOTICED
represented by Leonard A. Kaanta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Shek (See above for address) ATTORNEY TO BE NOTICED

movant Connie J. Tresedder TERMINATED: 07/13/2007 next friend of A.J.T. TERMINATED: 07/13/2007
movant Kimberly Sirrene TERMINATED: 07/13/2007 next friend of D.S. TERMINATED: 07/13/2007
movant Alan Beck Coach TERMINATED: 07/13/2007
movant Todd Chambers Coach TERMINATED: 07/13/2007
V. mediator VFM

represented by Leonard A. Kaanta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Shek (See above for address) ATTORNEY TO BE NOTICED
represented by Leonard A. Kaanta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Shek (See above for address) ATTORNEY TO BE NOTICED
represented by Leonard A. Kaanta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Shek (See above for address) ATTORNEY TO BE NOTICED
represented by Leonard A. Kaanta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Shek (See above for address) ATTORNEY TO BE NOTICED
represented by Jon R. Muth

TERMINATED: 03/27/2001

Miller Johnson PLC (Grand Rapids) 250 Monroe Ave., NW, Ste. 800 P.O. Box 306 Grand Rapids, MI 49501-0306 (616) 540-2299 Email: jon@muthadr.com TERMINATED: 03/27/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/26/1998 06/26/1998 06/26/1998 07/08/1998 07/08/1998 07/08/1998 07/10/1998 07/23/1998
07/23/1998

# Docket Text
1 COMPLAINT (34 pgs) w/jury demand (rlw) (Entered: 06/29/1998)
2 RECEIPT #307716 in the amount of $150.00 submitted by pltf's Cmnties for Equity, Diane Madsen, Jay Roberts-Eveland for filing fee (rlw) (Entered: 06/29/1998)
SUMMONS issued as to defts and returned to pltf's rep. (rlw) (Entered: 06/29/1998)
ADMITTANCE requirement letter mailed to attorney Kristen Galles (rlw) (Entered: 07/08/1998)
ADMITTANCE requirement letter mailed to attorney Marcia D. Greenberger (rlw) (Entered: 07/08/1998)
ADMITTANCE requirement letter mailed to attorney Neena Chaudhry (rlw) (Entered: 07/08/1998)
3 SUMMONS AND RETURN OF SERVICE executed upon defts MI High Sch Ath Assn and John "Jack" Roberts on 7/6/98 (mrs) (Entered: 07/13/1998)
4 PROOF OF SERVICE by MI High Sch Ath Assn, John "Jack" Roberts, Keith Alto, Geraldine David, Keith Eldred, Paul Ellinger, Eric Federico, Dan Flynn, Margra Grillo, Robert Grimes, Tammy Jackson, Norm Johnson, Dewayne Jones, Dennis Kniola, William Newkirk, Thomas Rashid, Robert Riemersma, Randy Salisbury, Joyce Seals, Michael Shibler for attorney appearance of William M. Azkoul and Edmund J. Sikorski (mrs) (Entered: 07/23/1998)
5 ATTORNEY APPEARANCE by John "Jack" Roberts, Keith Alto, Geraldine David, Keith Eldred, Paul Ellinger, Eric Federico, Dan Flynn, Margra Grillo, Robert Grimes, Tammy Jackson, Norm Johnson, Dewayne Jones, Dennis Kniola, William Newkirk, Thomas Rashid, Robert Riemersma, Randy Salisbury, Joyce Seals, Michael Shibler adding attorney(s) William M. Azkoul (mrs) (Entered: 07/23/1998)

07/23/1998 07/23/1998 07/23/1998 07/27/1998 07/29/1998
08/03/1998 08/13/1998 08/13/1998 08/13/1998 08/18/1998 08/24/1998 09/14/1998 09/15/1998 09/15/1998
09/15/1998

6 ATTORNEY APPEARANCE by MI High Sch Ath Assn adding attorney(s) Edmund J. Sikorski (mrs) (Entered: 07/23/1998)
ADMITTANCE requirement letter mailed to attorney Edmund J. Sikorski, Jr. (mrs) (Entered: 07/23/1998)
7 LETTER from court financial administrator, Mike Polkowski enclosing a check in the amount of $10.00 which represented a refund of an overpayment of the filing fees (rlw) (Entered: 07/24/1998)
9 AMENDED COMPLAINT (34 pgs) by pltfs; terming party Tammy Jackson; adding Christi Brilinski; w/prf of svc (mrs) (Entered: 07/29/1998)
8 STIPULATION AND ORDER (3 pgs) by Magistrate Judge Doyle A. Rowland that defts shall have an extension of time to file pleadings in response to pltfs' complaint through 9/15/98 (cc: all counsel) (mrs) (Entered: 07/29/1998)
10 ORDER Scheduling Rule 16 Conference by Chief Judge Richard A. Enslen; Rule 16 conf set for 11:00 a.m. on 10/7/98 before Magistrate Judge Rowland (cc: all counsel) (mrs) (Entered: 08/03/1998)
ATTORNEY Kristen Galles admitted to practice 8/6/98 (mrs) (Entered: 08/13/1998)
ATTORNEY Marcia D. Greenberger admitted to practice 8/6/98 (mrs) (Entered: 08/13/1998)
ATTORNEY Neena Chaudhry admitted to practice 8/6/98 (mrs) (Entered: 08/13/1998)
ATTORNEY Edmund J. Sikorski, Jr. admitted to practice on 8/10/98 (mrs) (Entered: 08/18/1998)
11 STIPULATION AND ORDER (4 pgs) by Magistrate Judge Doyle A. Rowland approving defts request for non-attendance at the Rule 16 Status Conference (cc: all counsel) (rlw) (Entered: 08/24/1998)
12 MOTION by deft MI High Sch Ath Assn for more definite statement or to strike pursuant to FRCP 12(e) w/brief in support; oral argument requested, and prf of svc (mrs) (Entered: 09/16/1998)
13 ANSWER to amended complaint and affirmative defenses by MI High Sch Ath Assn (mrs) (Entered: 09/17/1998)
14 MOTION by MI High Sch Ath Assn for summary judgment pursuant to FRCP 56(c) as to first and second claim of pltfs and motion pursuant to FRCP 12(b)(6) as to pltf's third claim for relief w/brief in support, w/Exhibit 1&2 (mrs) (Entered: 09/17/1998)
15 SUGGESTION OF INCAPACITY (NOTICE) by MI High Sch Ath Assn

09/15/1998 09/15/1998 09/15/1998
09/15/1998 10/02/1998 10/07/1998 10/07/1998 10/15/1998
10/20/1998 10/20/1998 10/20/1998

(mrs) (Entered: 09/17/1998)
16 ANSWER to amended complaint and affirmative and/or special defenses by all defts except MI High School Athletic Association (mrs) (Entered: 09/17/1998)
17 MOTION by defts except MI High School Athletic Association for summary judgment pursuant to FRCP 56(c) and to dismiss pursuant to FRCP 12(b)(6) w/brief in support, Exhibit 1; oral argument requested (mrs) (Entered: 09/17/1998)
18 MOTION by all defts except MI High School Athletic Association to dismiss pltf Madsen and Roberts-Eveland's claims for lack of standing and for summary judgment challenging pltf, community for equity's associational standing w/brief in support, Exhibit 1; oral argument requested (mrs) (Entered: 09/17/1998)
19 PROOF OF SERVICE by deft for pleadings #13 thru #18 (mrs) (Entered: 09/17/1998)
20 JOINT STATUS REPORT (mrs) (Entered: 10/06/1998)
21 MOTION by pltfs to extend time to respond to defts' responsive motions w/brief in support and cert of svc (mrs) (Entered: 10/07/1998)
PROCEEDING before Magistrate Judge Doyle A. Rowland; Rule 16 Status Conf did not take place at 11:00 a.m. on 10/7/98; pltf's motion to extend time (#20) granted; order to follow; Recorder, C. Rather, tape #943 (mrs) (Entered: 10/08/1998)
22 ORDER (2 pgs) by Magistrate Judge Doyle A. Rowland granting in part pltf's motion to extend time to respond to defts' responsive motions [21-1]; Status Conf adjourned to 10:00 a.m. on 12/8/98; joint status report filed on or before 12/1/98; pltfs shall respond to dispositive motions on or before 10/20/98; defts shall have until 10/30/98 to reply to pltfs' response (cc: all counsel) (mrs) (Entered: 10/15/1998)
23 OPPOSITION by pltf to defts' motion to dismiss pltf Madsen and RobertsEveland's claims for lack of standing and for summary judgment challenging pltf, community for equity's associational standing [18-1] w/cert of svc (mrs) (Entered: 10/22/1998)
24 AFFIDAVIT of Diane Madsen in opposition regarding defts' motion to dismiss pltf Madsen and Roberts-Eveland's claims for lack of standing and for summary judgment challenging pltf, community for equity's associational standing [18-1] w/cert of svc (mrs) (Entered: 10/22/1998)
25 OPPOSITION by pltfs Diane Madsen and Jay Roberts-Eveland to defts' motion for more definite statement or to strike pursuant to FRCP 12(e) [12-1] w/cert of svc (mrs) (Entered: 10/22/1998)

10/20/1998 10/20/1998 10/20/1998 10/20/1998
10/27/1998 10/27/1998 10/27/1998
10/30/1998 10/30/1998 10/30/1998 10/30/1998
10/30/1998 10/30/1998

26 OPPOSITION by pltfs Diane Madsen and Jay Roberts-Eveland to suggestion of incapacity w/cert of svc (mrs) (Entered: 10/22/1998)
27 AFFIDAVIT of Roberts-Eveland in opposition to suggestion of incapacity w/cert of svc (mrs) (Entered: 10/22/1998)
28 AFFIDAVIT of Madsen in opposition to suggestion of incapacity w/cert of svc (mrs) (Entered: 10/22/1998)
29 AFFIDAVIT IN OPPOSITION by pltf Diane Madsen to defts' motions for summary judgment pursuant to FRCP 56(c) [17-1], and for summary judgment pursuant to FRCP 56(c) as to first and second claim of and motion pursuant to FRCP 12(b)(6) as to pltf's third claim for relief [14-1] w/cert of svc (mrs) (Entered: 10/22/1998)
30 MOTION under FRCP 56(f) by pltfs to conduct discovery before having to respond to defts' motion for summary judgment w/brief in support and cert of svc (mrs) (Entered: 10/27/1998)
31 OPPOSITION by pltfs to individual defts' motion for summary judgment pursuant to FRCP 56(c) [17-1] and to dismiss pursuant to FRCP 12(b)(6) [17-2] w/cert of svc (mrs) (Entered: 10/27/1998)
32 OPPOSITION by pltfs to defts' motion for summary judgment pursuant to FRCP 56(c) as to first and second claim of pltfs and motion pursuant to FRCP 12(b)(6) as to pltf's third claim for relief [14-1] w/cert of svc (mrs) (Entered: 10/27/1998)
33 TRANSCRIPT of Rule 16 Conference held 10/7/98 before Judge Rowland; transcribed by Gass Reporting Services (mrs) (Entered: 10/30/1998)
34 RESPONSE by defts to pltfs' opposition to defts' suggestion of incapacity [26-1] (mrs) (Entered: 11/03/1998)
35 REPLY by defts to response to pltfs' motion for more definite statement or to strike pursuant to FRCP 12(e) [12-1] (mrs) (Entered: 11/03/1998)
36 REPLY by deft MI High Sch Ath Assn to response to deft's motion for summary judgment pursuant to FRCP 56(c) as to first and second claim of pltfs and motion pursuant to FRCP 12(b)(6) as to pltf's third claim for relief [14-1] (mrs) (Entered: 11/03/1998)
37 MOTION by defts to strike pltf's affidavits w/brief in support (mrs) (Entered: 11/03/1998)
38 PROOF OF SERVICE by defts for pleadings #34 thru #37, individual defts' reply to pltfs' opposition to individual defts' motion for summary judgement and to dismiss; and defts' reply to pltfs' opposition to defts' motion to dismiss for lack of standing (mrs) (Entered: 11/03/1998)

10/30/1998 10/30/1998 11/06/1998 11/09/1998 11/12/1998 11/16/1998 11/16/1998
11/25/1998 12/01/1998

39 REPLY by defts to response to defts' motion to dismiss pltf Madsen and Roberts-Eveland's claims for lack of standing and for summary judgment challenging pltf, community for equity's associational standing [18-1] w/Exhibit 1 (mrs) (Entered: 11/03/1998)
40 REPLY by defts to response to defts' motion to dismiss pltf Madsen and Roberts-Eveland's claims for lack of standing and for summary judgment challenging pltf, community for equity's associational standing [18-1] (mrs) (Entered: 11/03/1998)
41 RESPONSE IN OPPOSITION by defts to pltfs' motion to conduct discovery before having to respond to defts' motion for summary judgment [30-1] w/prf of svc (mrs) (Entered: 11/09/1998)
42 SUPPLEMENT by MI High Sch Ath Assn re repoly to pltfs' response in opposition to deft's motion for summary judgment [36-1] w/prf of svc (mrs) (Entered: 11/10/1998)
43 OPPOSITION by pltfs to motion to strike pltf's affidavits [37-1] w/cert of svc (mrs) (Entered: 11/13/1998)
44 OPINION (14 pgs) by Chief Judge Richard A. Enslen (cc: all counsel) (mrs) (Entered: 11/16/1998)
45 ORDER (2 pgs) in accordance with the Opinion entered this date by Chief Judge Richard A. Enslen denying defts' motion for more definite statement or to strike pursuant to FRCP 12(e) [12-1]; denying without prejudice and may be renewed upon completion of discovery deft's MHSAA'S motion for summary judgment pursuant to FRCP 56(c) as to first and second claim of and motion pursuant to FRCP 12(b)(6) as to pltf's third claim for relief [14-1]; granting individual defts' motion for summary judgment pursuant to FRCP 56(c) [17-1], as to Title IX claims brought against individual defts in their individual capacities which are dismissed and denying in all other respects, without prejudice and may be renewed upon the completion of discovery [17-2]; denying defts' suggestion of incapacity [15-1]; granting defts' motion to dismiss and for summary judgment for lack of standing as to pltf Community for Equity's which is dismissed as a party to this suit, and denied as to pltfs Madsen and Roberts-Eveland [181]; granting pltf's motion to conduct discovery before having to respond to defts' motion for summary judgment [30-1]; and denying as moot defts' motion to strike pltf's affidavits [37-1] and to dismiss party Communities Equity (cc: all counsel) (mrs) (Entered: 11/16/1998)
46 MOTION by pltfs for reconsideration of Order dismissing pltf Communities for Equity for Lack of Standing w/brief in support and prf of svc (mrs) (Entered: 12/01/1998)
48 SECOND JOINT STATUS REPORT (mrs) (Entered: 12/03/1998)

12/02/1998 12/08/1998 12/08/1998
12/15/1998 12/23/1998 01/05/1999
01/05/1999 01/13/1999 01/14/1999 01/14/1999

47 ORDER (1 pg) by Chief Judge Richard A. Enslen that pursuant to LCivR 7.4, briefing by defts would assist the Court in its decision on pltfs' motion for reconsideration of Court's Order (cc: all counsel) (mrs) (Entered: 12/02/1998)
PROCEEDING before Magistrate Judge Doyle A. Rowland; Rule 16 Status Conf held by phone at 10:00 a.m. on 12/8/98; CMO to follow; Recorder, C. Rather, tape #957 (mrs) (Entered: 12/08/1998)
49 CASE MANAGEMENT ORDER (6 pgs) by Chief Judge Richard A. Enslen; joinder/amendment by 1/30/99; pltf's witnesses 1/30/99; dft's witnesses by 1/30/99; interrogatories limited to 50 single part questions; depositions limited to 25 fact witnesses per party; trial set for trial session beginning 12/1/99; discovery completed by 6/8/99; motion filing ddl set for 7/1/99; final pretrial conf set for 11:00 a.m. on 11/18/99 before Magistrate Judge Rowland; ADR scheduled before Magistrate Judge Rowland on 5/17/99 at 10:00 a.m.; case assigned to standard track (cc: all counsel) (mrs) (Entered: 12/08/1998)
50 RESPONSE IN OPPOSITION by defts to pltfs' motion for reconsideration of Order dismissing pltf Communities for Equity for Lack of Standing [461] w/attached Exhibits 1&2 and prf of svc (mrs) (Entered: 12/18/1998)
51 REPLY by pltf to response in opposition to motion for reconsideration of Order dismissing pltf Communities for Equity for Lack of Standing [46-1] w/cert of svc (mrs) (Entered: 12/24/1998)
52 ORDER (2 pgs) by Chief Judge Richard A. Enslen granting pltf's motion for reconsideration of Order dismissing pltf Communities for Equity for Lack of Standing [46-1], denying motion to dismiss pltf Madsen and Roberts-Eveland's claims for lack of standing and for summary judgment challenging pltf, community for equity's associational standing [18-1] (cc: all counsel) (mrs) Modified on 01/08/1999 (Entered: 01/06/1999)
53 MOTION by individual defts to strike pltfs' reply to defts' opposition to motion for reconsideration of Order dismissing ptf Communities for Equity for lack of standing w/brief in support and prf of svc (mrs) (Entered: 01/07/1999)
54 ORDER (1 pg) by Chief Judge Richard A. Enslen finding the defts' motion to strike pltfs' reply to defts' opposition to for reconsideration of Order dismissing ptf Communities for Equity for lack of standing [53-1] denied as moot (cc: all counsels) (mrs) (Entered: 01/13/1999)
55 NOTICE by deft of taking deposition of: Kristi Madsen on 2/4/99, Kelsey Madsen on 2/4/99, Kiann Eveland on 2/3/99, Breanna Eveland on 2/3/99, and Kele Eveland on 2/3/99 w/prf of svc (mrs) (Entered: 01/15/1999)
55 PROOF OF SERVICE by individual defts for request for production and

01/20/1999 01/21/1999 01/21/1999 01/27/1999 02/01/1999 02/01/1999 02/02/1999 02/08/1999 02/08/1999 02/11/1999
02/12/1999 02/16/1999 02/16/1999 02/16/1999

tangible things upon: Kele Eveland, Breanna Eveland, Kiann Eveland, Kelsey Madsen, and Kristi Madsen (mrs) (Entered: 01/20/1999)
56 PROOF OF SERVICE by individual defts for first interrogatories and request for production of documents served upon pltfs by first class mail (mrs) (Entered: 01/22/1999)
57 NOTICE by deft of taking deposition of Katie Madsen on 2/14/99 (mrs) (Entered: 01/22/1999)
58 PROOF OF SERVICE by deft for notice of taking deposition of Katie Madsen and request for production of documents and tangible things upon Katie Madsen (mrs) (Entered: 01/22/1999)
LETTER from court returning individual defts' "Request for Production of Documents and Tangible Things upon Katie Madsen Pursuant to PRCP 34 (discovery material) (mrs) (Entered: 02/01/1999)
59 PROOF OF SERVICE by individual defts for response to pltfs' request for prodution of documents (mrs) (Entered: 02/03/1999)
60 WITNESS LIST submitted by individual defts w/prf of svc (mrs) (Entered: 02/03/1999)
61 WITNESS LIST submitted by deft MI High Sch Ath Assn w/prf of svc (mrs) (Entered: 02/03/1999)
62 MOTION by deft MI High Sch Ath Assn for protective order w/brief in support and prf of svc (mrs) (Entered: 02/09/1999)
63 PROOF OF SERVICE by individual defts for second requests for production of documents, second interrogatories and request for admission upon pltfs by first class mail (mrs) (Entered: 02/09/1999)
64 PROOF OF SERVICE by individual defts for supplement to the Michigan High School Athletic Association's respons to pltfs' request for production of documents #31,47,48,129,130 and 131 by US mail upon pltf's attorney (mrs) (Entered: 02/12/1999)
65 PRELIMINARY WITNESS LIST submitted by pltfs w/cert of svc (mrs) (Entered: 02/12/1999)
66 MOTION by pltf to certify class action w/brief in support, proposed order granting and cert of svc (mrs) (Entered: 02/17/1999)
67 PROOF OF SERVICE by deft MI High Sch Ath Assn for first set of interrogatories to pltfs by US mail (mrs) (Entered: 02/17/1999)
68 PROOF OF SERVICE by deft MI High Sch Ath Assn for request for production of documents and request for admission upon plft Communities for Equity by US mail (mrs) (Entered: 02/17/1999)

02/17/1999 02/19/1999 02/22/1999 02/24/1999 03/02/1999
03/02/1999 03/03/1999 03/09/1999 03/18/1999
03/26/1999 03/26/1999 03/26/1999 03/29/1999 03/29/1999 04/01/1999

69 SUPPLEMENT by pltf re motion to certify class action [66-1]; copy of page 5 for the brief in support (mrs) (Entered: 02/18/1999)
70 SUPPLEMENTAL witness list by deft MI High Sch Ath Assn re witness list [61-1] w/prf of svc (mrs) (Entered: 02/22/1999)
71 PROOF OF SERVICE by MI High Sch Ath Assn for answer to pltfs' (Madsen and Eveland) first set of interrogatories (mrs) (Entered: 02/24/1999)
72 NOTICE by individual defts of taking deposition of Diane Madsen and Jay Roberts-Eveland on 3/15/99 w/prf of svc (mrs) (Entered: 02/25/1999)
73 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland granting deft MHSAA's motion for protective order [62-1]; deft need not respond to pltfs' request for production of documents #32 (cc: all counsel) (mrs) (Entered: 03/02/1999)
74 PROOF OF SERVICE by pltfs of expert disclosure upon defts' representative by US mail (mrs) (Entered: 03/03/1999)
75 SUPPLEMENTAL DISCLOSURE OF WITNESSES submitted by individual defts w/prf of svc (mrs) (Entered: 03/04/1999)
76 SUPPLEMENT by pltfs re motion to certify class action [66-1]; page 11 from the brief in support is missing (mrs) (Entered: 03/11/1999)
77 BRIEF IN OPPOSITION by defts to pltfs' motion to certify class action [66-1] w/affidavits from John E. Roberts and Daniel L. Stufflebeam, Ph.D., depositions of Diane Madsen and Jay Roberts-Eveland and prf of svc (mrs) (Entered: 03/23/1999)
78 NOTICE OF SERVICE by pltfs for notice of service of 14 Discovery Responses upon defts' representative w/prf of svc (mrs) (Entered: 03/26/1999)
79 NOTICE OF SERVICE by pltfs for 3 discovery request upon defts' representative by U.S. mail w/prf of svc (mrs) (Entered: 03/26/1999)
80 SECOND SUPPLEMENTAL DISCLOSURE WITNESS LIST submitted by individual defts w/prf of svc (mrs) (Entered: 03/29/1999)
81 NOTICE by pltfs of supplemental disclosures with prf of svc (mrs) (Entered: 03/30/1999)
82 NOTICE by pltfs of supplemental production of documents w/prf of svc (mrs) (Entered: 03/30/1999)
83 DISCLOSURE OF POTENTIAL EXPERT WITNESS LIST submitted by individual defts (mrs) (Entered: 04/05/1999)

04/01/1999 04/01/1999 04/01/1999 04/06/1999 04/08/1999 04/08/1999 04/12/1999
04/12/1999 04/12/1999 04/12/1999 04/15/1999 04/16/1999 04/16/1999 04/16/1999 04/19/1999

84 EXPERT WITNESS LIST submitted by deft MI High Sch Ath Assn (mrs) (Entered: 04/05/1999)
85 SECOND SUPPLEMENTAL WITNESS LIST submitted by deft MI High Sch Ath Assn (mrs) (Entered: 04/05/1999)
86 PROOF OF SERVICE by deft MI High Sch Ath Assn for pleadings #84 and #85 (mrs) (Entered: 04/05/1999)
87 REPLY by pltf to defts' opposition to motion for class certification [77-1]; oral argument requested w/cert of svc (mrs) (Entered: 04/07/1999)
89 SUPPLEMENT (ADDENDUM) by defts to brief in opposition to pltfs' motion for class certification [77-1] w/Exhibits 1&2 (mrs) (Entered: 04/13/1999)
90 PROOF OF SERVICE by defts for pleading #89 (mrs) (Entered: 04/13/1999)
88 STIPULATION AND ORDER (2 pgs) by Magistrate Judge Doyle A. Rowland that parties agree that pltfs' reply brief with respect to their motion for class certification due on 4/1/99 may be filed on 4/6/99: (cc: all counsel) (mrs) (Entered: 04/12/1999)
91 PROOF OF SERVICE by individual defts for ntoce of taking deposition and request for production of doucments and tangible things upon Donna A. Lopiano, Ph.D. by U.S. Mail (mrs) (Entered: 04/15/1999)
92 PROOF OF SERVICE by individual defts for notice of taking depositions of 17 individuals, see pleading for specifics (mrs) (Entered: 04/15/1999)
93 MOTION by individual defts to compel discovery w/brief in support, O/A requested, Exhibits 1-8 and prf of svc (mrs) (Entered: 04/15/1999)
94 PROOF OF SERVICE by pltf for supplemental disclosure of documents served upon defense counsels via first class mail (mrs) (Entered: 04/15/1999)
97 MOTION by MI High Sch Ath Assn to compel response to deft's MI High Sch Ath Assn's first set of interrogatories w/brief in support, Exhibit 1, and O/A requested (mrs) (Entered: 04/20/1999)
98 MOTION by MI High Sch Ath Assn to compel production of documents w/brief in support, Exhibits 1-3 and O/A requested (mrs) (Entered: 04/20/1999)
99 PROOF OF SERVICE by MI High Sch Ath Assn for pleadings #97 and #98 (mrs) (Entered: 04/20/1999)
95 OPINION (13 pgs) by Chief Judge Richard A. Enslen (cc: all counsel) (mrs) (Entered: 04/20/1999)

04/19/1999 04/20/1999 04/28/1999
05/04/1999 05/04/1999 05/04/1999 05/04/1999 05/04/1999 05/05/1999 05/07/1999
05/10/1999
05/10/1999

96 ORDER (2 pgs) by Chief Judge Richard A. Enslen in accordance with the Court's Opinion of this date granting pltfs' motion to certify class action [66-1] (cc: all counsel) (mrs) (Entered: 04/20/1999)
100 ADDENDUM (SUPPLEMENT) by defts to defts' brief in opposition to pltfs' motion for class clarification [77-1] (mrs) (Entered: 04/23/1999)
101 MOTION by pltfs to compel deft MI High School Athletic Association to answer plts' first set of interrogatories w/brief in support, oral argument requested and cert of svc (mrs) Modified on 05/10/1999 (Entered: 04/29/1999)
103 OPPOSITION by pltf to deft MHSAA'S motion to compel response to deft's MI High Sch Ath Assn's first set of interrogatories [97-1], O/A requested, w/prf of svc (mrs) (Entered: 05/07/1999)
104 OPPOSITION by pltfs to deft MHSAA'S motion to compel production of documents [98-1], O/A requested w/prf of svc (mrs) (Entered: 05/07/1999)
105 OPPOSITION by pltfs to individual defts' motion to compel discovery [93-1], O/A requested w/prf of svc (mrs) (Entered: 05/07/1999)
106 AFFIDAVIT of Dan Adrianse regarding pltfs' opposition to motion to compel [105-1] w/prf of svc (mrs) Modified on 05/07/1999 (Entered: 05/07/1999)
107 AFFIDAVIT of Jay Eveland regarding pltfs' opposition to motion to compel [105-1] w/prf of svc (mrs) (Entered: 05/07/1999)
102 STIPULATION AND ORDER (2 pgs) by Magistrate Judge Doyle A. Rowland to extend time for pltfs to respond to defts' motion to compel (cc: all counsel) (mrs) (Entered: 05/05/1999)
108 NOTICE of hearing: before Magistrate Judge Doyle A. Rowland on motion to compel discovery [93-1], motion to compel production of documents [98-1], and motion to compel response to deft's MI High Sch Ath Assn's first set of interrogatories [97-1]; set for hearing at 10:00 a.m. on 5/17/99 (cc: all counsel) (mrs) (Entered: 05/10/1999)
109 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland adjourning ADR Conference and motion to compel discovery [93-1], motion to compel production of documents [98-1], and motion to compel response to deft's MI High Sch Ath Assn's first set of interrogatories [97-1] hearing re-set 11:00 a.m. on 5/27/99 (cc: all counsel) (mrs) (Entered: 05/10/1999)
110 NOTICE of hearing: before Magistrate Judge Doyle A. Rowland on pltf's motion to compel deft MI High School Athletic Association to answer plts' first set of interrogatories [101-1]; set for 11:00 a.m. on 5/27/99 (cc: all counsel) (mrs) Modified on 05/10/1999 (Entered: 05/10/1999)

05/12/1999 05/13/1999 05/17/1999 05/17/1999 05/19/1999 05/21/1999 05/24/1999 05/24/1999
05/26/1999 05/26/1999 05/26/1999 05/27/1999
05/28/1999

111 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland rescheduling ADR Conference and motions [dkt. 93,97,98,101] as to time only for 5/27/99 at 12:00 p.m. (cc: all counsel) (mrs) (Entered: 05/12/1999)
112 ANSWER (RESPONSE) by deft MI High Sch Ath Assn to pltfs' motion to compel deft MI High School Athletic Association to answer plts' first set of interrogatories [101-1] (mrs) (Entered: 05/17/1999)
113 PROOF OF SERVICE by pltfs for supplemental disclosure of documents (mrs) (Entered: 05/17/1999)
114 NOTICE by pltfs of taking depositions of Mary Leiker, Jock Ambrose and Patricia Oldt on 6/2/99 w/prf of svc (mrs) Modified on 05/20/1999 (Entered: 05/20/1999)
115 PROOF OF SERVICE by individual defts for notice of taking deposition of Christine H.B. Grant; request for production of documents and tangible things upon Christine H.B. Grant (mrs) (Entered: 05/21/1999)
116 NOTICE by pltfs of taking deposition: of Gina Mazzolini on 6/3/99 and Jack Roberts on 6/4/99 w/prf of svc (mrs) (Entered: 05/24/1999)
117 NOTICE by pltf of taking deposition of James Glazer on 6/2/99 w/prf of svc (mrs) (Entered: 05/27/1999)
118 PROOF OF SERVICE by individual defts for notice of taking deposition of Linda Bunker, Ph.D., request for production of documents and tangible things upon Linda Bunker, and prf of svc by US mail (mrs) (Entered: 05/27/1999)
119 MOTION by pltf to compel all defts to disclose expert information w/brief in support, O/A requested w/cert of svc (cr) (Entered: 05/28/1999)
120 MOTION by pltfs to compel defts to disclose addresses and phone numbers of their designated witnesses w/brief in support, O/A requested w/cert of svc (cr) (Entered: 05/28/1999)
125 MOTION by pltfs to extend discovery w/brief in support, A/O requested and cert of svc (mrs) (Entered: 06/01/1999)
PROCEEDING before Magistrate Judge Doyle A. Rowland; ADR Conf/motions: motion to compel production of documents (#98) - granted; motion to compel deft MI High to ans first set of interrog (#101) - granted in part, denied in part; motion to compel discovery (#93) - granted in part, denied in part; motion to compel responses (#97) - granted in part denied in part; two motions not filed with the court decided - order to follow; Recorder, C. Rather, tape #986,987,988 ; (cr) (Entered: 05/28/1999)
121 ORDER (2 pgs) by Magistrate Judge Doyle A. Rowland granting deft MI High School Athletic Association's motion to compel production of

05/28/1999
05/28/1999 05/28/1999
06/04/1999 06/08/1999
06/08/1999 06/11/1999 06/15/1999 06/15/1999 06/15/1999

documents [98-1]; pltfs shall produce all responsive material on or before 6/15/99 (cc: all counsel) (mrs) (Entered: 05/28/1999)
122 ORDER (2 pgs) by Magistrate Judge Doyle A. Rowland granting in part and denying in part pltfs' motion to compel deft MI High School Athletic Association to answer plts' first set of interrogatories [101-1]; deft to answer interrogatories 21 thru 43 by 6/15/99 (cc: all counsel) (mrs) (Entered: 05/28/1999)
123 ORDER (2 pgs) by Magistrate Judge Doyle A. Rowland granting in part and denying in part individual defts' motion to compel discovery [93-1]; provisions of this order shall be complied with or before 6/15/99 (cc: all counsel) (mrs) (Entered: 05/28/1999)
124 ORDER (2 pgs) by Magistrate Judge Doyle A. Rowland granting in part and denying in part the motions: pltf's to compel defts to disclose addresses and phone numbers of their designated witnesses [120-1]; pltf's to compel all defts to disclose expert information [119-1]; and deft MI High School Athletic Association's to compel response to first set of interrogatories [97-1] (cc: all counsel) (mrs) (Entered: 05/28/1999)
127 RESPONSE in opposition by deft to pltfs' motion to extend deadlines [125-1] w/prf of svc (mrs) (Entered: 06/09/1999)
126 ORDER (2 pgs) by Magistrate Judge Doyle A. Rowland granting in part pltfs' motion to extend discovery [125-1] ; Mtn filing ddl on or before 9/1/99; Discovery on or before 8/8/99; Pretrial conference is rescheduled to 11:00 a.m. on 1/13/00; Trial is adjourned to the trial term beginning 2/7/00 (cc: all counsel) (rlw) (Entered: 06/08/1999)
128 PROOF OF SERVICE by pltfs for response to defts' request for production of documents on Donna A. Lopiano and response to defts' request for production of documents on Christine H.B. Grant (mrs) (Entered: 06/09/1999)
129 PROOF OF SERVICE by pltfs for response to defts' request for production of documents on Linda A. Bunker, Ph.D. (mrs) (Entered: 06/14/1999)
132 (Amended) NOTICE by pltf Communities Equity, pltf Diane Madsen, pltf Jay Roberts-Eveland of taking deposition of PATRICIA OLDT on 07/07/99 at 1:00 p.m. in Grand Rapids, MI; (bd) (Entered: 06/18/1999)
133 (Amended) NOTICE by pltf Communities Equity, pltf Diane Madsen, pltf Jay Roberts-Eveland of taking deposition of MARY LEIKER on 07/20/99 at 9:00 a.m. in Grand Rapids, MI (bd) (Entered: 06/18/1999)
134 (Amended) NOTICE by pltf Communities Equity, pltf Diane Madsen, pltf Jay Roberts-Eveland of taking deposition of JOCK AMBROSE on

06/15/1999 06/16/1999 06/16/1999 06/16/1999 06/16/1999 06/16/1999 06/17/1999 06/18/1999 06/21/1999 06/21/1999 06/21/1999
06/22/1999 06/24/1999

07/08/99 AT 9:00 A.M. in Grand Rapids, MI (bd) (Entered: 06/18/1999)
135 NOTICE by pltf Communities Equity, pltf Diane Madsen, pltf Jay Roberts-Eveland of taking deposition of MARK THOMAS on 07/08/99 at 11:30 a.m. in Grand Rapids, MI (bd) (Entered: 06/18/1999)
130 PROOF OF SERVICE by pltfs for service of supplemental disclosure of documents w/cert of svc (mrs) (Entered: 06/16/1999)
131 PROOF OF SERVICE by pltfs for service of supplemental responses to defts' request for production of documents on Christine H.B. Grant w/cert of svc (mrs) (Entered: 06/16/1999)
136 WITNESS LIST (expert witnesses) submitted by deft MI High Sch Ath Assn, deft Robert Riemersma, deft Randy Salisbury, deft Joyce Seals, deft Michael Shibler, deft Eunice Moore (bd) (Entered: 06/18/1999)
137 WITNESS LIST submitted by deft Robert Riemersma, deft Randy Salisbury, deft Joyce Seals, deft Michael Shibler, deft Eunice Moore (bd) (Entered: 06/18/1999)
138 PROOF OF SERVICE by deft MI High Sch Ath Assn, deft Robert Riemersma, deft Randy Salisbury, deft Joyce Seals, deft Michael Shibler for #136 and #137 via first-class mail (bd) (Entered: 06/18/1999)
139 PROOF OF SERVICE by deft MI High Sch Ath Assn for answer to pltfs' interrogatories filed 4/18/99 pursuant to court Order dated 5/27/99 (mrs) (Entered: 06/21/1999)
143 MOTION by defts for protective order and for sanctions w/brief in support, Exhibits 1-8, expedited consideration requested, O/A requested w/prf of svc (mrs) (Entered: 06/22/1999)
140 PROOF OF SERVICE by pltfs for addendum to pltfs' expert disclosures (mrs) (Entered: 06/22/1999)
141 PROOF OF SERVICE by pltfs for deposition notices (mrs) (Entered: 06/22/1999)
142 PROOF OF SERVICE by pltfs for supplemental discovery responses (responses to individual defts' request for admissions, second set of interrogatories and first & second requests for production of documents) (mrs) (Entered: 06/22/1999)
144 AMENDED NOTICE by pltf of taking deposition of James Glazer changed from 6/2/99 to 7/20/99 w/prf of svc (mrs) Modified on 06/23/1999 (Entered: 06/23/1999)
145 MOTION by deft MI High Sch Ath Assn for sanctions for failure to comply with order w/brief in support and prf of svc (mrs) (Entered:

06/25/1999 06/28/1999 06/28/1999 06/29/1999 06/29/1999 06/29/1999 06/30/1999
06/30/1999 07/01/1999 07/08/1999 07/08/1999 07/12/1999
07/12/1999

06/25/1999)
146 OPPOSITION by pltf to defts' motion for protective order [143-1] and for sanctions [143-2] w/prf of svc (mrs) (Entered: 06/29/1999)
147 PROOF OF SERVICE by pltf for supplement to pltfs' preliminary witness list with cert of svc (mrs) (Entered: 06/29/1999)
148 PROOF OF SERVICE by pltfs for supplemental disclosure of documents w/cert of svc (mrs) (Entered: 06/29/1999)
149 NOTICE by individual defts of taking deposition of Angie Adrianse on 7/13/99 (mrs) Modified on 06/30/1999 (Entered: 06/30/1999)
150 NOTICE by individual deft of taking deposition of Dan Adrianse on 7/13/99 (mrs) (Entered: 06/30/1999)
151 PROOF OF SERVICE by individual defts for pleadings #149 and #150 (mrs) (Entered: 06/30/1999)
152 NOTICE of hearing: before Magistrate Judge Doyle A. Rowland on defts' motion for protective order [143-1] and for sanctions [143-2]; and defts' motion for sanctions for failure to comply with order [145-1]; set 10:00 a.m. on 7/14/99 in Kalamazoo (cc: all counsel) (mrs) (Entered: 06/30/1999)
153 PROOF OF SERVICE by individual defts for third interrogatories to pltfs along with prf of svc via first class mail (mrs) (Entered: 07/02/1999)
154 OPPOSITION by pltfs to deft MHSAA'S motion for sanctions for failure to comply with order [145-1] w/prf of svc (mrs) (Entered: 07/06/1999)
155 NOTICE by deft of taking deposition of Mitzi Witchger of GREAT on 7/8/99 w/request for production of documents and tangible things and prf of svc (mrs) (Entered: 07/09/1999)
156 RE-NOTICE by deft of taking deposition of Angie Adrianse and Dan Adrianse on 7/14/99 w/prf of svc (mrs) (Entered: 07/09/1999)
157 PROOF OF SERVICE by pltfs for first request for admissions on deft MI High School Athletic Association; second request for admissions on deft MI High School Athletic Association; third request for admissions on deft MI High School Athletic Association; first request for admissions on individual defts; revised supplemental responses to individual defts' first & second requests for production of documents; and revised supplemental responses to individual defts' second interrogatories (mrs) (Entered: 07/13/1999)
158 PROOF OF SERVICE by pltfs for supplemental disclosure of documents (mrs) (Entered: 07/13/1999)

07/12/1999 07/14/1999 07/14/1999 07/16/1999 07/16/1999
07/16/1999 07/23/1999
07/30/1999 08/03/1999 08/03/1999

159 PROOF OF SERVICE by pltfs for supplemental responses to defts' request for production of documents on Christine H.B. Grant (mrs) (Entered: 07/13/1999)
160 PROOF OF SERVICE by individual defts for copy of attached letter dated 7/9/99 addressed to M. Galles (mrs) (Entered: 07/15/1999)
PROCEEDING before Magistrate Judge Doyle A. Rowland; motion for protective order and sanctions [143-1, 2] denied; for sanctions for failure to comply with order (MI High Sch #145) granted in part-denied in part Order to follow; Recorder, C. Rather, tape #994 (mrs) (Entered: 07/16/1999)
161 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland denying deft's motion for protective order [143-1] and for sanctions [143-2]; Status Conf scheduled for 12:00 noon on 8/4/99 in Kalamazoo (cc: all counsel) [EOD Date 7/16/99] (mrs) (Entered: 07/16/1999)
162 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland granting in part and denying in part MI High School Athletic Association's motion for sanctions for failure to comply with order [145-1]; granted to the extent that pltf is directed to comply wit Court's Order of 5/27/99 on or before 7/30/99 all other respects the motion is denied (cc: all counsel) [EOD Date 7/16/99] (mrs) (Entered: 07/16/1999)
163 PROOF OF SERVICE by pltfs for revised supplemental responses to individual defts' first & second requests for production of documents and revised supplemental responses to individual defts' second set of interrogatories upon defts' representatives by US mail (mrs) (Entered: 07/16/1999)
164 NOTICE by individual defts of taking depositions of Virgil Hooe via telephone on 7/22/99 at 1:00 pm, Harry Townsend on 7/22/99 at 3:00 pm, Marcia Federbush on 7/23/99 at 1:00 pm, Beth Launiere on 7/27/99 at 10:30 am, and Sanya J. Tyler on 7/28/99 at 9:00 am, and prf of svc for above notice of depositions and discovery materials (requests for production of documents and things directed to above-named five individuals) (ddk) Modified on 07/29/1999 (Entered: 07/29/1999)
165 MOTION by MI High Sch Ath Assn for sanctions for failure to comply wit Order w/brief in support and prf of svc (mrs) (Entered: 08/03/1999)
166 PROOF OF SERVICE by pltfs for responses to defts' document requests upon certain non-retained experts (Townshend, Witchger and Tyler) (mrs) (Entered: 08/03/1999)
167 PROOF OF SERVICE by individual defts for response to pltfs' first request for admissions by US Mail to pltfs' and deft MI High School Athletic's represenatives (mrs) (Entered: 08/05/1999)

08/04/1999 08/06/1999 08/06/1999
08/09/1999
08/09/1999
08/09/1999 08/16/1999 08/18/1999 08/18/1999 08/24/1999 08/24/1999 08/24/1999 09/01/1999

PROCEEDING before Magistrate Judge Doyle A. Rowland; Status Conf held at 12:00 p.m. on 8/4/99 Recorder, C. Rather, tape #997 (mrs) Modified on 08/16/1999 (Entered: 08/06/1999)
171 SUPPLEMENT by deft MI High Sch Ath Assn re motion for sanctions for failure to comply wit Order [165-1] (mrs) (Entered: 08/10/1999)
172 PROOF OF SERVICE by deft MHSAA for answers to the request to pltfs' first request for admission; answers to the request to pltfs' second request for admission; and answers to the request to pltfs' third request for admission (mrs) (Entered: 08/10/1999)
168 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland rejecting FIRST AND SECOND Affidavit of Kristen Galles re Discovery and Scheduling Issues for reason that pleadings do not support any moving documents or opposition to moving documents (cc: all counsel) [EOD Date 8/9/99] (mrs) (Entered: 08/09/1999)
169 PROOF OF SERVICE by pltfs for supplemental responses to deft MHSAA's request for production of documents (7/30/99); responses to individual defts' third set of interrogatories (8/1/99 faxed); and supplemental disclosure of documents (8/2/99) (mrs) (Entered: 08/09/1999)
170 ATTORNEY APPEARANCE by pltfs adding attorney(s) Barbara A. Burr (mrs) (Entered: 08/10/1999)
173 OPPOSITION by pltfs to MHSAA'S motion for sanctions for failure to comply wit Order [165-1] w/prf of svc (mrs) (Entered: 08/18/1999)
174 MOTION by pltfs to compel individual defts to produce documents w/brief in support, Oral Arguments Requested, and prf of svc (mrs) (Entered: 08/19/1999)
175 MOTION by pltfs to reconsider Court's scheduling order and to reinstate court's 7/14/99 order w/brief in support, and cert of svc (mrs) (Entered: 08/19/1999)
176 TRANSCRIPT of motion hearing held 7/14/99 before Judge Rowland; transcribed by Gass Reporting Service (mrs) (Entered: 08/24/1999)
177 TRANSCRIPT of status conference held 8/4/99 before Judge Rowland; transcribed by Gass Reporting Services (mrs) (Entered: 08/24/1999)
178 TRANSCRIPT of motion hearing held 5/27/99 before Judge Rowland; transcribed by Gass Reporting Services (mrs) (Entered: 08/24/1999)
180 OPPOSITION by individual defts to pltf's motion to compel individual defts to produce documents [174-1] w/Exhibits 1&2 (mrs) (Entered: 09/03/1999)

09/01/1999 09/01/1999 09/01/1999 09/01/1999 09/01/1999 09/02/1999 09/08/1999 09/08/1999
09/15/1999 09/22/1999 09/28/1999 09/30/1999

181 RENEWED MOTION by defts for summary judgment for lack of standing w/brief in support, Exhibits 1-22, Oral Argument Requested (mrs) (Entered: 09/03/1999)
182 RENEWED MOTION by individual defts for summary judgment w/brief in support, Exhibits 1-12, Oral Argument Requested (mrs) (Entered: 09/03/1999)
183 SUPPLEMENTARY MOTION by deft MI High Sch Ath Assn for summary judgment pursuant to FRCP 56(c) as to the first and second claim of pltfs and motion pursuant to FRCP 12b(6) as to pltfs' third claim of relief w/brief in support, Exhibits 1-6 (mrs) (Entered: 09/03/1999)
184 PROOF OF SERVICE by deft MI High Sch Ath Assn for pleading #183 (mrs) (Entered: 09/03/1999)
185 PROOF OF SERVICE by individual defts for pleadings #180 thru #182 (mrs) (Entered: 09/03/1999)
179 PROOF OF SERVICE by pltfs for supplemental responses to defts' request for production of documents on Dan & Angela Adrianse request for production of documents (7/30/99) and supplemental disclosure of documents (mrs) (Entered: 09/02/1999)
186 OPINION (4 pgs) by Magistrate Judge Doyle A. Rowland (cc: all counsel) [EOD Date 9/8/99] (mrs) (Entered: 09/08/1999)
187 ORDER (2 pgs) by Magistrate Judge Doyle A. Rowland denying pltfs' motion to reconsider Court's scheduling order and to reinstate court's 7/14/99 order [175-1], granting pltfs' motion to compel individual defts to produce documents [174-1], granting deft MI High School Athletic Assoc motion for sanctions for failure to comply with Order [165-1] (cc: all counsel) [EOD Date 9/8/99] (mrs) (Entered: 09/08/1999)
188 ORDER (2 pgs) by Magistrate Judge Doyle A. Rowland granting reconsideration and denying without prejudice motion to compel individual defts to produce documents [174-1] (cc: all counsel) [EOD Date 9/15/99] (mrs) (Entered: 09/15/1999)
189 OBJECTIONS by pltfs to Magistrate Rowland's order [187-1] and opinion [186-1] denying pltfs' motion to reconsider the Court's scheduling order and to reinstate the Court's 7/14/99 order w/certificate of service (rlw) (Entered: 09/24/1999)
190 RESPONSE by defts to pltfs' FRCP 72 objections to magistrate judge's 9/8/99 Order [189-1] w/prf of svc (mrs) (Entered: 09/30/1999)
191 MOTION by pltfs to waive page limit of proposed objections to defts' motions for summary judgment w/brief in support; proposed order granting; and cert of svc (mrs) (Entered: 09/30/1999)

10/01/1999 10/01/1999 10/01/1999 10/01/1999 10/01/1999
10/01/1999 10/01/1999 10/01/1999 10/05/1999
10/05/1999 10/05/1999 10/05/1999 10/06/1999 10/07/1999 10/08/1999

192 MOTION by pltf to complete discovery before responding to defts' motions for summary judgment w/brief in support (mrs) (Entered: 10/01/1999)
193 AFFIDAVIT of Earl Nelson in support of pltfs' oppositions to motions for summary judgment (mrs) (Entered: 10/01/1999)
194 PROOF OF SERVICE by pltfs for pleadings #192 thru #193 (mrs) (Entered: 10/01/1999)
195 PROOF OF SERVICE by pltfs for additional documents served upon defense counsel (mrs) (Entered: 10/01/1999)
196 MOTION by USA for leave to file as Amicus Curiae in opposition to defts' motion for summary judgment w/brief in support; proposed brief as Amicus Curiae in opposition to defts' motion for summary judgment; and cert of svc (mrs) Modified on 10/04/1999 (Entered: 10/04/1999)
201 OPPOSITION by pltfs to defts' motion for summary judgment for lack of standing [181-1] (mrs) (Entered: 10/05/1999)
202 AFFIDAVIT of Jo Jacobs regarding pltfs' opposition to motions for summary judgment [198-1], and regarding standing opposition [201-1] (mrs) (Entered: 10/05/1999)
203 PROOF OF SERVICE by pltf for pleadings #201,#202, and a copy of an affidavit of Catherine Dritsas (mrs) (Entered: 10/05/1999)
197 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland granting pltfs' motion to waive page limit of proposed objections to defts' motions for summary judgment [191-1] (cc: all counsel) [EOD Date 10/5/99] (mrs) (Entered: 10/05/1999)
198 OPPOSITION by pltfs to MHSAA and individual defts' motions for summary judgment [183-1 and 181-1] w/attachments (mrs) (Entered: 10/05/1999)
199 EXHIBITS VOL. 1 (1-20) by pltfs in support to pltfs' opposition to defts' motion for summary judgment [198-1] (mrs) (Entered: 10/05/1999)
200 EXHIBITS Vol 2 (21-58) by pltfs in support of pltfs' opposition to defts' motions to summary judgment [198-1] (mrs) (Entered: 10/05/1999)
212 RESPONSE in oppositon by defts to US' motion for leave to file as Amicus Curiae in opposition to defts' motion for summary judgment [1961] w/prf of svc (mrs) (Entered: 10/20/1999)
204 SUPPLEMENT by pltfs re opposition [201-1]; page 2 was inadvertently omitted from the briefs w/prf of svc (mrs) (Entered: 10/07/1999)
205 AFFIDAVIT of Catherine Dritsas regarding pltfs' opposition to defts'

10/12/1999 10/13/1999 10/14/1999 10/14/1999 10/14/1999
10/14/1999 10/25/1999 11/26/1999 12/23/1999 12/28/1999
01/11/2000
01/11/2000

motion for summary judgment [198-1] (mrs) (Entered: 10/08/1999)
206 RESPONSE IN OPPOSITION by defts to pltfs' motion to complete discovery before responding to defts' motions for summary judgment [1921] w/prf of svc (mrs) (Entered: 10/13/1999)
207 USA's REPLY in support of motion for leave to file as amicus curiae [1961] w/cert of svc (mrs) (Entered: 10/14/1999)
208 REPLY by defts to pltfs' oppositon response to defts' renewed motion for summary judgment for lack of standing [181-1] (mrs) (Entered: 10/18/1999)
209 REPLY by individual defts to opposition response to defts' renewed motion for summary judgment [182-1] (mrs) (Entered: 10/18/1999)
210 REPLY by deft MI High Sch Ath Assn to pltfs' oppositon response to MI High Sch Ath Assn' supplementary motion for summary judgment pursuant to FRCP 56(c) as to the first and second claim of pltfs and motion pursuant to FRCP 12b(6) as to pltfs' third claim of relief [183-1] (mrs) (Entered: 10/18/1999)
211 PROOF OF SERVICE by defts for pleadings #208 thru #210 (mrs) (Entered: 10/18/1999)
213 REPLY by pltf to defts' opposition (response) to pltfs' motion to complete discovery before responding to defts' motions for summary judgment [1921] (mrs) (Entered: 10/27/1999)
214 MOTION by pltfs for leave to file supplemental authority in support of pltfs' opposition to defts' motions for summary judgment w/proposed supplement and prf of svc (mrs) (Entered: 11/26/1999)
215 NOTICE of hearing: Pretrial conference continued to 3:30 p.m. for 2/22/00 before Judge Enslen; Trial scheduled for trial session beginning 3/1/00 (cc: all counsel) (mrs) (Entered: 12/23/1999)
216 ADDENDUM (SUPPLEMENT) by defts to individual defts' motion for summary judgment for lack of standing [181-1], and supplementary motion for summary judgment to FRCP 56(c) as to the first and second claim of pltfs and motion pursuant to FRCP 12b(6) as to pltfs' third claim of relief [183-1] w/Exhibit 1, proof of service (rlw) (Entered: 12/28/1999)
217 ORDER (5 pgs) by Chief Judge Richard A. Enslen denying pltfs' objections to Magistrate Rowland's 9/8/99 Order denying pltfs' motion to reconsider the Court's Scheduling Order and to Reinstate the Court's 7/14/99 Order [189-1] (cc: all counsel) [EOD Date 1/11/00] (mrs) Modified on 01/18/2000 (Entered: 01/11/2000)
218 ORDER (2 pgs) by Chief Judge Richard A. Enslen granting motion for

01/11/2000 01/18/2000 01/21/2000
01/21/2000 01/21/2000
01/27/2000 01/28/2000 02/03/2000 02/07/2000

leave to file as Amicus Curiae in opposition to defts' motion for summary judgment [196-1] (cc: all counsel) [EOD Date 1/11/00] (mrs) (Entered: 01/11/2000)
219 BRIEF by USA as amicus curiae in opposition to defts' motions for summary judgment [183-1], [182-1], and [181-1] (mrs) (Entered: 01/11/2000)
220 ORDER (1 pgs) by Chief Judge Richard A. Enslen granting pltfs' motion for leave to file supplemental authority in support of pltfs' opposition to defts' motions for summary judgment [214-1] (cc: all counsel) [EOD Date 1/19/00] (mrs) (Entered: 01/19/2000)
221 ORDER (2 pgs) by Chief Judge Richard A. Enslen granting pltfs' motion to complete discovery before responding to defts' motions for summary judgment [192-1]; Discovery commencing on the date of this Order and ending on 3/10/00; Pretrial conference is rescheduled for 3/29/00 at 3:30 p.m.; Trial is rescheudled for the trial sesssion beginning 4/1/00 (cc: all counsel) [EOD Date 1/21/00] (mrs) (Entered: 01/21/2000)
222 OPINION (27 pgs) by Chief Judge Richard A. Enslen (cc: all counsel) [EOD Date 1/21/00] (mrs) (Entered: 01/21/2000)
223 ORDER (1 pg) in accordance with the Opinion of this date by Chief Judge Richard A. Enslen denying defts' motion for summary judgment pursuant to FRCP 56(c) as to first and second claim of pltfs and motion pursuant to FRCP 12b(6) as to pltfs' third claim of relief [183-1]; denying individual defts' renewed motion for summary judgment [182-1]; and denying defts' supplementary motion for judgment for lack of standing [181-1] (cc: all counsel) Date 1/21/00] (mrs) Modified on 01/21/2000 (Entered: 01/21/2000)
224 MOTION by pltfs for reconsideration of Order re FRCP 72 motion w/brief in support (mrs) (Entered: 01/27/2000)
225 NOTICE by pltfs of withdrawal of motion for reconsideration of Order regarding FRCP 72 motion and brief in support [224-1] w/prf of svc (mrs) (Entered: 01/28/2000)
226 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland ; Pretrial conference rescheduled to 2:30 p.m. on 3/27/00 (cc: all counsel) [EOD Date 2/3/00] (tlb) (Entered: 02/03/2000)
227 ORDER (1 pg) by Chief Judge Richard A. Enslen that due to a clerical error, the Court's 1/21/00 opinion 222 is amended as follows: in the first full paragraph of page five, line 4 the Court substitutes roman numeral "VI' in place of roman numeral "IX" (cc: all counsel) [EOD Date 2/8/00] (rlw) (Entered: 02/08/2000)

02/14/2000 02/14/2000 02/14/2000 02/17/2000 02/17/2000 02/18/2000
02/23/2000 02/28/2000 02/28/2000 02/28/2000 02/29/2000
02/29/2000 03/01/2000 03/02/2000

228 MOTION by defts to stay w/brief in support and expecited consideration requested (mrs) (Entered: 02/15/2000)
229 MOTION by defts to certify interlocutory appeal w/brief in support, expedited consideration requested and oral argument requested (mrs) (Entered: 02/15/2000)
230 PROOF OF SERVICE by deft for pleadings #228 and #229 (mrs) (Entered: 02/15/2000)
231 PROOF OF SERVICE by deft MI High Sch Ath Assn regarding the Answer and objections of the MHSAA for pltfs' request for production of documents (mrs) (Entered: 02/17/2000)
232 MOTION by deft MI High Sch Ath Assn for the imposition of sanctions w/brief in support and prf of svc (mrs) (Entered: 02/17/2000)
236 LETTER to court from CCA enclosing copy of petition for writ of mandamus prohibition filed under Rule 21 of FRAP; USDC does not wish to respond; mailed certified copy of docket to CCA (tlb) (Entered: 02/29/2000)
233 PROOF OF SERVICE by individual defts for response to pltfs' request for production of documents from all defts pursuant to Court's 1/21/00 Order (mrs) (Entered: 02/23/2000)
234 OPPOSITION by pltfs to defts' motion to certify interlocutory appeal [229-1] w/cert of svc (mrs) (Entered: 02/28/2000)
235 PROOF OF SERVICE by pltfs for request for production of defts pursuant to Court's Order of 1/21/00 (mrs) (Entered: 02/28/2000)
238 RESPONSE by pltfs to defts' motion for stay [228-1] w/cert of svc (mrs) (Entered: 03/01/2000)
237 ORDER (2 pgs) by Chief Judge Richard A. Enslen granting defts' motion to certify interlocutory appeal [229-1], granting motion to stay [228-1], and that the Court's Order of 1/21/00 (dkt. #223) is amended to include the terms of this Order (cc: all counsel) [EOD Date 2/29/00] (mrs) (Entered: 02/29/2000)
239 BRIEF by amicus USA in opposition regarding defts' motion to certify interlocutory appeal [229-1] and motion to stay [228-1] w/cert of svc (mrs) (Entered: 03/01/2000)
240 MOTION by USA for leave to participate as amicus curiae at trial w/brief in support and cert of svc (mrs) (Entered: 03/02/2000)
241 PROOF OF SERVICE by individual defts for request for production of documents upon pltfs by U.S. Mail (mrs) (Entered: 03/02/2000)

03/07/2000 03/08/2000
03/09/2000 03/10/2000 03/23/2000 03/23/2000 06/21/2000 07/07/2000 07/12/2000 07/12/2000 07/14/2000

242 STIPULATION by parties for adjournment of trial (mrs) (Entered: 03/07/2000)
243 AMENDED ORDER (2 pgs) by Chief Judge Richard A. Enslen granting dfts' motion to certify interlocutory appeal (dkt. #229); granting the motion for stay (dkt. #228) pending outcome of the appeal; and that the Court's Order of 1/21/00 (dkt. #223) is amended to include the terms of this Order (cc: all counsel) [EOD Date 3/9/00] (mrs) Modified on 07/28/2000 (Entered: 03/09/2000)
244 ORDER (1 pg) by Chief Judge Richard A. Enslen denying US's motion for leave to participate as amicus curiae at trial [240-1], and denying stipulation for adjournment of trial [242-1]; both are denied without prejudice (cc: all counsel) [EOD Date 3/9/00] (mrs) (Entered: 03/09/2000)
245 ORDER (1 pg) by Chief Judge Richard A. Enslen; Pretrial conference canceled for 2:30 p.m. on 3/27/00 (cc: all counsel) [EOD Date 3/10/00] (mrs) (Entered: 03/10/2000)
246 ORDER from CCA; re: CCA #00-1129 denying defts' petition for permission to appeal the denial of their motion to dismiss the pltfs' claims (rlw) Modified on 04/04/2000 (Entered: 03/24/2000)
247 ORDER from CCA; re: CCA #00-1129 that defts' petition for a writ of mandamus and the alternative request to construe the petition as a notice of appeal are denied (rlw) (Entered: 03/24/2000)
248 NOTICE of hearing: setting status/scheduling conference for 2:00 p.m. on 7/12/00 before Mag. Judge Scoville in Grand Rapids, MI (cc: all counsel) (rlw) (Entered: 06/21/2000)
249 RENEWED MOTION by USA for leave to participate as amicus curiae at trial w/brief in support, proposed order granting and cert of svc (mrs) (Entered: 07/11/2000)
250 JOINT STATUS REPORT of parties purs to court's order dtd 6/21/00, submitted by local counsel for pltfs and the atty for individual defendants (ddk) (Entered: 07/12/2000)
PROCEEDING before Magistrate Judge Joseph G. Scoville; Scheduling/Status conference held; status conference set for 10/19/00 @ 2 pm; ct recorder: d. hand; Tape 00-S165 (ddk) (Entered: 07/13/2000)
251 ORDER (3 pgs) by Magistrate Judge Joseph G. Scoville; the stay of proceedings is extended to 10/19/00; Status Conf is set for 2:00 p.m. on 10/19/00 before Mag. Scoville; Pretrial conference is set for 3:30 p.m. on 1/18/01 before Judge Enslen; jury trial set for the term beginning 2/01 ; see order for discovery deadlines (cc: all counsel) [EOD Date 7/17/00] (rlw) Modified on 12/28/2000 (Entered: 07/17/2000)

07/25/2000 07/31/2000
09/01/2000 09/07/2000 09/07/2000
09/19/2000 09/20/2000 09/22/2000 10/02/2000
10/02/2000 10/04/2000 10/04/2000

252 RESPONSE IN OPPOSITION by defts to US's renewed motion for leave to participate as amicus curiae at trial [249-1] w/prf of svc (mrs) (Entered: 07/26/2000)
253 NOTICE OF FILING petition for writ of certiorari by deft MI High Sch Ath Assn from the U.S. Supreme Court; re: CCA # 00-1129, appeal Filed July 17, 2000 and placed on the docket July 17, 2000 as No. 00-99 (ghl) (Entered: 08/01/2000)
254 MOTION by pltfs to strike jury demand and to proceed with bench trial w/brief in support, proposed order granting and cert of svc (mrs) (Entered: 09/01/2000)
255 ORDER (2 pgs) by Chief Judge Richard A. Enslen granting USA's motion for leave to participate as amicus curiae at trial [249-1] (cc: all counsel) [EOD Date 9/8/00] (mrs) (Entered: 09/08/2000)
256 ORDER (2 pgs) by Chief Judge Richard A. Enslen denying without prejudice defts' motion for the imposition of sanctions [232-1]; defts may refile pending defts' compliance with Rule 7.1(d) (cc: all counsel) [EOD Date 9/8/00] (mrs) Modified on 11/03/2000 (Entered: 09/08/2000)
257 MOTION by defts for reconsideration of order denying defts' motion for imposition of sanctions (dkt. no. 232) w/brief in support and prf of svc (mrs) (Entered: 09/21/2000)
258 RESPONSE IN OPPOSITION by defts to pltfs' motion to strike jury demand and to proceed with bench trial [254-1] w/prf of svc (mrs) (Entered: 09/25/2000)
259 TRANSCRIPT of Status Conference and Scheduling Hearing held 7/12/00 before Judge Scoville; transcribed by Patricia Pritchard (mrs) (Entered: 09/27/2000)
260 ORDER (3 pgs) by Chief Judge Richard A. Enslen denying pltfs' motion to strike jury demand and to proceed with bench trial [254-1]; pltfs except individually named Madsen and Eveland have previously waived their requests for monetrary damages (cc: all counsel) [EOD Date 10/2/00] (mrs) (Entered: 10/02/2000)
261 MOTION by pltfs to compel defts to produce documents w/brief in support and cert of svc (mrs) (Entered: 10/03/2000)
262 MOTION by deft MI High Sch Ath Assn for the imposition of sanctions w/brief in support and prf of svc (mrs) (Entered: 10/04/2000)
263 NOTICE of hearing: setting Pltf's motion to compel defts to produce documents [Dkt. #261-1] set at 2:00p.m. on 10/19/00, before Magistrate Judge Joseph G. Scoville, Courtroom 654, 110 Michigan, N.W., Grand Rapids, MI (cc: all counsel) (cr) (Entered: 10/04/2000)

10/11/2000 10/12/2000 10/12/2000 10/16/2000 10/17/2000 10/19/2000 10/23/2000
10/27/2000 10/30/2000 12/06/2000 12/13/2000 12/13/2000

264 NOTICE of hearing before Magistrate Judge Joseph G. Scoville setting motion for the imposition of sanctions [262-1] for 2:00 p.m. on 10/19/00 (cc: all counsel on 10/12/00) (mj) (Entered: 10/12/2000)
265 ANSWER (response) by deft MI High Sch Ath Assn to pltfs' motion to compel defts to produce documents [261-1] w/brief in support and proof of service (mj) (Entered: 10/12/2000)
266 RESPONSE IN OPPOSITION by individual defts to pltfs' motion to compel defts to produce documents [261-1] w/exhibits 1-3 attached and proof of svc (mj) (Entered: 10/16/2000)
267 RESPONSE by pltfs to motion by MHSAA for the imposition of sanctions [262-1] w/attachments A-E and certificate of svc (mj) (Entered: 10/17/2000)
268 MOTION by pltfs for reconsideration of order [260-1] denying mtn to strike jury demand w/brief in support and certificate of service (mj) Modified on 11/07/2000 (Entered: 10/18/2000)
PROCEEDING before Magistrate Judge Joseph G. Scoville; hrg on pltfs' mtn to compel [261-1], deft MHSAA's mtn for sanctions [262-1] and status conf ; recorded on tapes 00-S240/241 by D Hand (mj) (Entered: 10/20/2000)
269 DISCOVERY ORDER (2 pgs) by Magistrate Judge Joseph G. Scoville denying MHSAA's motion for the imposition of sanctions [262-1]; nlt 10/24/00 defts to provide to pltfs' counsel a listing of specific allegations of fact gleaned from the complaint; w/in 14 days of service of the list pltf to identity all documents that defts rely on to support each factual allegation; 30 days after pltfs serve the required specification defts shall identify all then-known trial exhibits and produce a copy of any exhibit not previously disclosed in discovery (cc: all counsel on 10/24/00) [EOD 10/24/00] (mj) (Entered: 10/24/2000)
270 WRIT OF CERTIORARI from the U.S. Supreme Court denied; re: CCA # 00-1129 (rlw) (Entered: 10/31/2000)
271 PROOF OF SERVICE by pltf Communities Equity for deft MHSAA's request for production of documents (mrs) (Entered: 10/31/2000)
272 PROOF OF SERVICE by individual defts for disclosure of potential known tiral exhibits (mrs) (Entered: 12/08/2000)
273 ORDER ( 2 pgs) by Chief Judge Richard A. Enslen denying as moot defts' motion for reconsideration of order denying defts' motion for imposition of sanctions (dkt. no. 232) [257-1] (cc: all counsel) [EOD Date 12/14/00] (mrs) (Entered: 12/14/2000)
274 NOTICE OF FAILURE TO FILE A RESPONSE to pltfs' motion to strike

12/13/2000 12/20/2000 12/27/2000 12/28/2000 12/29/2000
01/04/2001 01/08/2001 01/08/2001 01/08/2001 01/10/2001
01/11/2001 01/11/2001

jury demand (dkt. #268); failure to file a response within 14 days may result in the entry of an order granting the motion (mrs) (Entered: 12/14/2000)
275 MOTION by defts for expedited consideration to preserve the trial deposition of its witness Harry Orris w/brief in support and prf of svc (mrs) (Entered: 12/18/2000)
276 MOTION by deft MI High Sch Ath Assn for disqualification of Chief Judge Richard A. Enslen from the case w/brief in support, O/A Requested and prf of svc (mrs) Modified on 02/06/2001 (Entered: 12/20/2000)
277 RESPONSE by defts' (individual and MHSAA) to motion for reconsideration of order [260-1] denying mtn to strike jury demand [2681]; w/Proof of Service (bd) (Entered: 12/28/2000)
278 OPPOSITION by USA to defts' motion for expedited consideration to preserve the trial deposition of its witness Harry Orris [275-1] w/cert of svc (mrs) (Entered: 01/02/2001)
279 TRIAL DOCKET: (3 pgs) with jury selection commencing 8:30 a.m. for trial session beginning 2/5/01 w/this case listed as No. 5, proposed voir dire, motions in limine and trial briefs by 1/29/01; proposed jury instructions due a.m. of trial (cc: all counsel) (mrs) (Entered: 01/02/2001)
281 REPLY by defts' to USA's opposition to defts' motion for expedited consideration to preserve the trial testimony of its witness, Harry Orris [278-1] w/prf of svc (mrs) (Entered: 01/09/2001)
280 MOTION by pltf for continuance of pretrial order and conference and late February/early March start date for trial w/brief in support and cert of svc (mrs) (Entered: 01/08/2001)
282 SUPPLEMENTAL by pltfs of possible trial exhibits w/cert of svc (mrs) (Entered: 01/09/2001)
283 SUPPLEMENTAL by pltfs of possible trial exhibits w/cert of svc (mrs) (Entered: 01/09/2001)
284 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody; Pretrial conference is rescheduled to 3:30 p.m. on 2/21/01 before Judge Enslen; Jury trial rescheduled to 8:30 a.m. for the term beginning 3/01 (cc: all counsel) [EOD Date 1/10/01] (rlw) (Entered: 01/10/2001)
285 OPINION (3 pgs) by Magistrate Judge Ellen S. Carmody (cc: all counsel) [EOD Date 1/11/01] (mrs) (Entered: 01/11/2001)
286 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody in accordance with the Opinion entered this date denying defts' motion for expedited consideration to preserve the trial deposition of its witness Harry Orris

01/19/2001 01/19/2001 01/19/2001 01/24/2001
01/24/2001 01/29/2001
01/30/2001 01/31/2001 02/01/2001 02/07/2001 02/08/2001
02/08/2001 02/08/2001

[275-1] (cc: all counsel) [EOD Date 1/11/01] (mrs) Modified on 01/11/2001 (Entered: 01/11/2001)
287 MOTION by pltf for leave to file reply brief to defts' opposition to pltfs' motion for reconsideration of order denying motion to strike jury demand (dkt. 268) w/brief in support and cert of svc (mrs) (Entered: 01/19/2001)
288 SUPPLEMENTAL by pltfs of disclosure of possible trial exhibits w/cert of svc (mrs) (Entered: 01/19/2001)
289 OPPOSITION by pltfs to motion for disqualification [276-1] w/cert of svc (mrs) (Entered: 01/19/2001)
290 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody granting pltf's motion for leave to file reply brief to defts' opposition to pltfs' motion for reconsideration of order denying motion to strike jury demand (dkt. 268) [287-1] (cc: all counsel) [EOD Date 1/24/01] (mrs) (Entered: 01/24/2001)
291 REPLY by pltfs to defts' response in opposition to pltfs' motion for reconsideration of order [260-1] denying mtn to strike jury demand [2681] w/prf of svc (mrs) Modified on 01/29/2001 (Entered: 01/24/2001)
292 TRIAL DOCKET: (3 pgs) with jury selection commencing 8:30 a.m. for trial session beginning 3/5/01 with this case listed as #2 on trial docket; proposed jury instructions due a.m. of trial (cc: all counsel) (mrs) Modified on 01/29/2001 (Entered: 01/29/2001)
294 PROOF OF SERVICE by individual defts for supplemental disclosure of know potential trial exhibits and prf of svc (mrs) (Entered: 02/05/2001)
293 NOTICE of completion of deposition (mrs) (Entered: 02/01/2001)
295 ATTORNEY APPEARANCE by deft MI High Sch Ath Assn adding attorney(s) Carole D. Bos as co-counsel w/prf of svc (mrs) (Entered: 02/05/2001)
296 ORDER (2 pgs) by Chief Judge Richard A. Enslen denying MHSAA's motion for disqualification of Chief Judge Richard A. Enslen from the case [276-1] (cc: all counsel) [EOD Date 2/7/01] (mrs) (Entered: 02/07/2001)
297 ORDER (2 pgs) by Chief Judge Richard A. Enslen denying pltfs' motion for reconsideration of order [260-1] denying pltfs' motion to strike jury demand [268-1] (cc: all counsel) [EOD Date 2/8/01] (mrs) (Entered: 02/08/2001)
298 ATTORNEY APPEARANCE by USA adding attorney(s) Sarah A. Dunne w/cert of svc (mrs) (Entered: 02/09/2001)
299 NOTICE of completion of deposition of Suzanne Mabel Martin on 12/12/200 submitted by Timothy Boroski Court Reporter (mrs) (Entered:

02/09/2001 02/12/2001 02/14/2001 02/14/2001 02/14/2001 02/14/2001
02/14/2001
02/14/2001 02/14/2001 02/14/2001 02/16/2001 02/16/2001 02/16/2001

02/09/2001)
300 PROOF OF SERVICE by individual defts for second supplemental disclosure of known potential trial exhibits and prf of svc (mrs) (Entered: 02/12/2001)
301 SUPPLEMENTAL by pltfs of disclosure of possible trial exhibits w/cert of svc (mrs) (Entered: 02/12/2001)
302 MOTION by deft MI High Sch Ath Assn in limine to exlude application of OCR Intercollegiate Athletic Policy Interpretation (Policy Interpretation) w/brief in support and prf of svc (mrs) (Entered: 02/15/2001)
303 MOTION by pltf to exceed page limitation by combining 2 motions in limine into one regarding sports seasons surveys w/brief in support (mrs) Modified on 02/20/2001 (Entered: 02/15/2001)
304 MOTION by USA for leave to file to file non-dispositive motion exceeding 10 pages w/brief in support, proposed order and cert of svc (mrs) (Entered: 02/15/2001)
305 MOTION by USA in limine to exclude the Michigan Attorney General Opinions nos. 4795, 5346, 5348 and 6352 and any evidence or testimony relating to these opinions w/brief in support and cert of svc (mrs) (Entered: 02/15/2001)
307 JOINDER MOTION by pltfs filed by United States in limine requesting the exclusion of all testimony, documents and other evidence relating to findings of the Office of Civil Rights of US Dept of ED and commentary of MI Attorney General's office relating to deft MHSAA w/brief in support and cert of svc (mrs) (Entered: 02/16/2001)
Defts' final pretrial order sent to Chambers (mrs) (Entered: 02/16/2001)
308 MOTION by defts in limine to exclude witnesses w/brief in support (mrs) (Entered: 02/16/2001)
309 PROOF OF SERVICE by defts for pleading #308 and proposed defts' motion in limine to exclude witnesses and request to submit brief in support of motin which exceeds page limits (mrs) (Entered: 02/16/2001)
306 PROOF OF SERVICE by pltfs for reduced trial exhibits served upon defts' representatives (mrs) (Entered: 02/16/2001)
Plaintiffs' proposed pretrial order sent to Chambers (mrs) (Entered: 02/16/2001)
316 PROOF OF SERVICE by defts for Final Pretrial Order and prf of svce served upon counsels of record via first class mail (mrs) (Entered: 02/20/2001)

02/20/2001 02/20/2001 02/20/2001 02/20/2001 02/20/2001
02/20/2001 02/20/2001 02/21/2001 02/22/2001 03/05/2001 03/05/2001 03/05/2001

310 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody granting pltfs' motion to exceed page limitation by combining 2 motions in limine into one [303-1] (cc: all counsel) [EOD Date 2/20/01] (mrs) (Entered: 02/20/2001)
311 MOTION by pltfs in limine to exclude seasons surveys w/brief in support (mrs) (Entered: 02/20/2001)
312 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody granting USA's motion for leave to file to file non-dispositive motion exceeding 10 pages relating to prior investigations [304-1] (cc: all counsel) [EOD Date 2/20/01] (mrs) (Entered: 02/20/2001)
313 MOTION by USA in limine relating to prior investigations by the Deptartment of Education's Office for Civil Rights and any evidence or testimony relating to same w/brief in support (mrs) (Entered: 02/20/2001)
314 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody that request to submit brief in support of motion which exceeds page limit is granted and defts; motin in limine to exclude testimony by pltfs' expert witnesses be accepted for filing (cc: all counsel) [EOD Date 2/20/01] (mrs) (Entered: 02/20/2001)
315 MOTION by defts in limine to exlcude the testimony by pltfs' expert witnesses Lopiano, Grant, Hooe and Witchger w/brief in support (mrs) (Entered: 02/20/2001)
Plaintiffs' Proposed Pretrial order received 2/14/01 sent to Judge Enslen's Chambers (mrs) (Entered: 02/20/2001)
PROCEEDING before Magistrate Judge Ellen S. Carmody ; ; Pretrial conference held on the record at 3:30p.m. on 2/21/01. proposed Pretrial Order was rejected - Hrg. ended 4:26 p.m. ; Carleen Rather, Tape #1077 (cr) (Entered: 03/21/2001)
317 MOTION by pltfs to amend complaint to strike request for damages and to strike jury demand w/brief in support and cert of svc (mrs) (Entered: 02/22/2001)
318 MOTION by defts to exceed page limitation w/proposed response in oppositon to pltfs' motion in limine to exclude seasons surveys (mrs) (Entered: 03/07/2001)
319 BRIEF IN OPPOSITION by defts to USA's motion in limine relating to prior investigations by the Department of Education's Office for Civil Rights and any evidence or testimony relating to same [313-1] (mrs) Modified on 03/20/2001 (Entered: 03/07/2001)
320 OPPOSITION by deft MI High Sch Ath Assn (also signed by all defts' representatives) to USA's motion in limine to exclude the Michigan

03/05/2001 03/05/2001 03/05/2001 03/06/2001 03/07/2001 03/07/2001 03/07/2001 03/08/2001
03/12/2001
03/12/2001
03/12/2001 03/14/2001

Attorney General Opinions nos. 5346, 5348 and 6352 and any evidence or testimony relating to these opinions [305-1] (mrs) (Entered: 03/07/2001)
321 PROOF OF SERVICE by defts for pleadings #319 and #320 (mrs) (Entered: 03/07/2001)
322 RESPONSE by pltfs to defts' motion in limine to exclude witnesses [3081] (mrs) (Entered: 03/07/2001)
323 OPPOSITION by pltfs to defts' motion in limine to exlcude the testimony by pltfs' expert witnesses Lopiano, Grant, Hooe and Witchger [315-1] (mrs) (Entered: 03/07/2001)
327 RESPONSE by USA to defts' motion in limine to exlude application of OCR Intercollegiate Athletic Policy Interpretation (Policy Interpretation) [302-1] w/cert of svc (mrs) (Entered: 03/08/2001)
324 RESPONSE IN OPPOSITION by defts to pltfs' motion to amend complaint to strike request for damages and to strike jury demand [317-1] (mrs) (Entered: 03/08/2001)
325 MOTION by defts for trial by jury w/brief in support (mrs) (Entered: 03/08/2001)
326 PROOF OF SERVICE by defts for pleadings #324 and #325 (mrs) (Entered: 03/08/2001)
328 NOTICE of hearing: before Magistrate Judge Ellen S. Carmody on pltfs' motion to amend complaint to strike request for damages and to strike jury demand [317-1]; set for 10:00 a.m. on 3/29/01 (cc: all counsel) (mrs) (Entered: 03/08/2001)
329 REPLY in support by USA to motion in limine relating to prior investigations by the Dept of Ed's Office for Civil Rights and any evidence or testimony relating to same 313-1] w/cert of svc (mrs) (Entered: 03/12/2001)
330 REPLY in support by USA to motion in limine to exclude the MI Atty General's opinions nos. 4795, 5346, 5348 and 6352 and any evidence or testimony relating to these opinions [305-1] w/cert of svc (mrs) (Entered: 03/12/2001)
331 MOTION by pltfs to exceed page limitation w/brief in support, proposed reply in support of motion in limine to exclude seasons surveys and cert of svc (mrs) (Entered: 03/12/2001)
332 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody granting defts' motion to exceed page limitation [318-1] for response in opposition to pltfs' motion in limine to exclude seasons surveys (cc: all counsel) [EOD Date 3/14/01] (mrs) (Entered: 03/14/2001)

03/14/2001 03/14/2001 03/16/2001 03/16/2001 03/16/2001 03/19/2001 03/19/2001 03/20/2001 03/22/2001
03/26/2001 03/26/2001
03/27/2001

333 RESPONSE OPPOSITION by defts to pltfs' motion in limine to exclude seasons surveys [311-1], w/Exhibits 1-16 and prf of svc (mrs) (Entered: 03/14/2001)
334 NOTICE of hearing: before Magistrate Judge Ellen S. Carmody on pltfs' motion to amend complaint to strike request for damages and to strike jury demand [317-1] and on defts' motion for trial by jury [325-1]; set for 2:00 p.m. on 4/11/01 (cc: all counsel) (mrs) (Entered: 03/14/2001)
335 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody granting motion to exceed page limitation [331-1] (cc: all counsel) [EOD Date 3/16/01] (mrs) (Entered: 03/16/2001)
336 REPLY by pltfs in support re motion in limine to exclude searsons surveys [311-1] w/cert of svc (mrs) (Entered: 03/16/2001)
337 MOTION by defts to introduce evidence regarding OCR's recent Hawaii Investigation w/brief in support, Exhibit 1,2,&3 and cert of svc (mrs) (Entered: 03/19/2001)
338 MOTION by pltfs to enjoin defendants from advertising about matters at issue in this case w/brief in support and cert of svc (mrs) (Entered: 03/19/2001)
339 EXHIBIT A by pltfs for pleading #338 (mrs) (Entered: 03/19/2001)
340 OPPOSITION by pltfs to defts' motion for trial by jury [325-1] w/cert of svc (mrs) (Entered: 03/22/2001)
341 ORDER (2 pgs) by Magistrate Judge Ellen S. Carmody Trial scheduled for 8/13/01 thru 8/24/01; motions in limine must be filed no later than 7/1/01; 7/1/20 counsel for parties shall sumit a joint proposed schedule for the trial and during the month of 6/01 the parties will engage in non-binding facilitative mediation with Jon Muth acting as mediator (cc: all counsel) [EOD Date 3/22/01] (mrs) (Entered: 03/22/2001)
342 OPINION (5 pgs) by Chief Judge Richard A. Enslen (cc: all counsel) [EOD Date 3/26/01] (mrs) (Entered: 03/26/2001)
343 ORDER (1 pg) by Chief Judge Richard A. Enslen in accordance with the Opinion entered this day granting USA's motion in limine to exclude the Michigan Attorney General Opinions nos. 4795, 5346, 5348 and 6352 and any evidence or testimony relating to these opinions [305-1]; and that any cits to these opinions in the MHSAA handbook and specifically cites to opinions Nos. 5348 and 6352 must be redacted before any MHSAA handbooks are presented to the jury as exhibits (cc: all counsel) [EOD Date 3/26/01] (mrs) (Entered: 03/26/2001)
PROCEEDING before Magistrate Judge Ellen S. Carmody ; Conference held at 8:30 a.m. re: Final Pretrial Order and Trial schedule - Trial

03/27/2001
03/27/2001 03/27/2001 03/27/2001 03/28/2001 03/30/2001 04/02/2001 04/05/2001
04/06/2001 04/06/2001
04/06/2001

adjourned to August, 2001 ; (cr) Modified on 04/19/2001 (Entered: 03/21/2001)
344 MEDIATION ORDER by Magistrate Judge Carmody for parties to explore issues to resolve without restort to trial; Jon R. Muth appointed as mediator; facilitative mediation session shall take place no later than 6/30/01 (cc: all counsel, Jon Muth and ADR Clerk) (mrs) (Entered: 03/28/2001)
346 OPPOSITION by defts to pltfs' motion to enjoin defendants from advertising about matters at issue in this case [338-1] w/Exhibits 1-14 (mrs) (Entered: 03/28/2001)
347 REPLY by defts to pltfs' response in opposition to defts' motion for trial by jury [325-1] (mrs) (Entered: 03/28/2001)
348 PROOF OF SERVICE by defts for pleadings #346 and #347 (mrs) (Entered: 03/28/2001)
345 NOTICE of hearing: before Magistrate Judge Ellen S. Carmody on defts' motion to introduce evidence regarding OCR's recent Hawaii Investigation [337-1]; set for 10:00 a.m. on 6/21/01 in Kalamazoo (cc: all counsel) (mrs) (Entered: 03/28/2001)
349 NOTICE of hearing: before Magistrate Judge Ellen S. Carmody in Kalamazoo on pltfs' motion to enjoin defendants from advertising about matters at issue in this case [338-1]; hearing set for 2:00 p.m. on 4/11/01 (cc: all counsel) (mrs) (Entered: 03/30/2001)
350 OPPOSITION by amicus USA to defts' motion to introduce evidence regarding OCR's recent Hawaii Investigation [337-1], w/2 attached declarations and cert of svc (mrs) (Entered: 04/02/2001)
351 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody following telephone conference held 4/5/01 that parties be present for a working "proposed final pretrial order" on 5/3/01 at 10:00 a.m. in Grand Rapids; and that the most current draft of the proposed final pretrial order be submitted to Judge Carmody by 4/23/01 (cc: all counsel) [EOD Date 4/5/01] (mrs) (Entered: 04/05/2001)
352 OPINION (9 pgs) by Chief Judge Richard A. Enslen (cc: all counsel) [EOD Date 4/6/01] (mrs) (Entered: 04/06/2001)
353 ORDER (2 pgs) by Chief Judge Richard A. Enslen in accordance with the Opinion entered this day granting in part and denying in part US's motion in limine relating to prior investigations by the Deptartment of Education's Office for Civil Rights and any evidence or testimony relating to same [313-1] (cc: all counsel) [EOD Date 4/6/01] (mrs) (Entered: 04/06/2001)
354 OPINION (6 pgs) by Chief Judge Richard A. Enslen (cc: all counsel)

04/06/2001 04/11/2001 04/11/2001
04/12/2001 04/18/2001 04/25/2001 04/25/2001 04/26/2001 04/27/2001 04/30/2001

[EOD Date 4/6/01] (mrs) (Entered: 04/06/2001)
355 ORDER (1 pg) by Chief Judge Richard A. Enslen in accordance with the Opinion entered this day denying pltfs' motion in limine to exclude seasons surveys [311-1] (cc: all counsel) [EOD Date 4/6/01] (mrs) (Entered: 04/06/2001)
356 SUPPLEMENT by pltfs re motion to amend complaint to strike request for damages and to strike jury demand [317-1] w/proposed second amended complaint (mrs) (Entered: 04/11/2001)
PROCEEDING before Magistrate Judge Ellen S. Carmody on 4/11/01, 2:00 p.m. to 4:30 p.m.; pltfs' motion to amend complaint to strike request for damages and to strike jury demand [317-1], taken under advisement; defts' motion for trial by jury [325-1], taken under advisement; pltfs' motion to enjoin defendants from advertising about matters at issue in this case [338-1], denied, Order to be prepared by defts' counsel, Azkoul; Recorder, C. Rather, tape #1082-1083 (mrs) (Entered: 04/12/2001)
357 ORDER (3 pgs) by Chief Judge Richard A. Enslen granting defts' motion in limine to exclude witnesses [308-1] (cc: all counsel) [EOD Date 4/12/01] (mrs) (Entered: 04/12/2001)
358 MOTION by defts for reconsideration of April 6, 2001 Order excluding evidence relating to OCR's investigation of the MHSAA in 1982-84 and request to exceed page limit w/brief in support and prf of svc (mrs) (Entered: 04/19/2001)
359 SUPPLEMENT by pltfs re pltfs' motion to amend complaint to strike request for damages and to strike jury demand [317-1], re defts' motion for trial by jury [325-1] w/cert of svc (mrs) (Entered: 04/27/2001)
360 SUPPLEMENTAL MEMORANDUM IN OPPOSITION by defts to pltfs' motion to amend complaint [317-1], and in support of defts' motion for trial by jury [325-1] w/prf of svc (mrs) (Entered: 04/27/2001)
361 MOTION by defts for leave to file addendum to defts' supplemental memorandum in opposition to pltfs' motion to amend complaint and in support of defts' motion for trial by jury w/brief in support and prf of svc (mrs) (Entered: 04/27/2001)
364 MOTION by USA for clarification of April 6, 2001 Order relating to prior OCR investigations w/brief in support and prf of svc (mrs) (Entered: 05/02/2001)
362 ORDER (1 pg) by Chief Judge Richard A. Enslen that plfts and the US shall file responses within 10 days of this Order to defts' motion for reconsideration of 4/6/01 Order exlcuding evidence relating to OCR's investigation of the MHSAA in 1982-84 (dkt. #358) (cc: all counsel)

05/01/2001 05/02/2001 05/02/2001 05/02/2001 05/03/2001 05/04/2001
05/08/2001 05/09/2001 05/14/2001

[EOD Date 5/1/01] (mrs) (Entered: 05/01/2001)
363 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody denying without prejudice pltfs' motion to enjoin from advertising [338-1] (cc: all counsel) [EOD Date 5/1/01] (mrs) (Entered: 05/01/2001)
365 OPINION (9 pgs) by Chief Judge Richard A. Enslen (cc: all counsel) [EOD Date 5/3/01] (mrs) (Entered: 05/03/2001)
367 OPINION (4 pgs) by Chief Judge Richard A. Enslen (cc: all counsel) [EOD Date 5/3/01] (mrs) (Entered: 05/03/2001)
368 ORDER (1 pg) by Chief Judge Richard A. Enslenin accordance with the Opinion entered this day denying motion in limine to exlude application of OCR Intercollegiate Athletic Policy Interpretation (Policy Interpretation) [302-1] (cc: all counsel) [EOD Date 5/3/01] (mrs) (Entered: 05/03/2001)
366 ORDER (1 pg) by Chief Judge Richard A. Enslen n accordance with an Opinion filed this day granting in part and denying in part motion in limine to exlcude the testimony by pltfs' expert witnesses [315-1]; Lopiano and Grant permitted to testify; and Hooe and Witchger not permitted (cc: all counsel) [EOD Date 5/3/01] (mrs) (Entered: 05/03/2001)
369 ORDER (2 pgs) by Magistrate Judge Ellen S. Carmody in accordance with the Proceedings held 5/3/01 the defts will profice plts w/all of its documents and exhibits by 5/11/01; defts will provide plts w/summary exhibits by 5/25/01; that all publicity exhibits will be picked up by a commercial copier from MHSAA and copied on 5/4/01 and plts are responsible for picking up their copies; parties shall file joint final proposed pretrial order, signed by both parties by 5/29/01; and if this Order is not complied with in any respect, the non-complying party(ies) is/are order to appear on Saturday, 6/2/01 at 7:30 a.m. in Grand Rapids to show cause why they should not be held in contempt of court and sanctioned (cc: all counsel) [EOD Date 5/4/01] (mrs) (Entered: 05/04/2001)
371 OPPOSITION (Response) by deft to motion for clarification of April 6, 2001 Order relating to prior OCR investigations [364-1]; w/Proof of Service (bd) (Entered: 05/11/2001)
370 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody rejecting defts proposed order regarding pltfs' motion to enjoin defts from advertising about matters at issue in this case because on 5/1/01 the Court entered its own order denying pltfs' motion (cc: all counsel) [EOD Date 5/9/01] (rlw) (Entered: 05/09/2001)
372 RESPONSE by USA to defts' motion for reconsideration of April 6, 2001 Order excluding evidence relating to OCR's investigation of the MHSAA in 1982-84 and request to exceed page limit [358-1] w/cert of svc (mrs)

05/15/2001 05/22/2001 05/22/2001
05/29/2001 05/29/2001
05/29/2001 06/01/2001 06/01/2001 06/06/2001 06/08/2001

(Entered: 05/15/2001)
373 RESPONSE by pltfs in joinder in USAs' response to defts' motion for reconsideration of April 6, 2001 Order excluding evidence relating to OCR's investigation of the MHSAA in 1982-84 and request to exceed page limit [358-1] (mrs) (Entered: 05/18/2001)
374 OPINION (10 pgs) by Magistrate Judge Ellen S. Carmody (cc: all counsel) [EOD Date 5/22/01] (mrs) (Entered: 05/22/2001)
375 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody in accordance with the Court's Opinion granting pltfs' motion to amend complaint to strike jury demand [317-1], granting defts' motion for leave to file addendum to defts' supplemental in opposition to pltfs' motion to amend complaint and in support of defts' motion for trial by jury [361-1], and denying as moot defts' motion for trial by jury [325-1] (cc: all counsel) [EOD Date 5/22/01] (mrs) (Entered: 05/22/2001)
376 OPINION (4 pgs) by Judge Richard A. Enslen (cc: all counsel) [EOD Date 5/29/01] (mrs) (Entered: 05/29/2001)
377 ORDER (1 pg) by Judge Richard A. Enslen in accordance with the Opinion entered this day denying defts' motion for reconsideration of April 6, 2001 Order excluding evidence relating to OCR's investigation of the MHSAA in 1982-84 [358-1]; and granting to the extent explained in the Opinion accompanying this Order, US's motion for clarification of April 6, 2001 Order relating to prior OCR investigations [364-1] (cc: all counsel) [EOD Date 5/29/01] (mrs) (Entered: 05/29/2001)
Proposed Joint Pretrial Order sent to Mag. Judge Carmody (mrs) (Entered: 05/30/2001)
378 RENEWED MOTION by deft MI High Sch Ath Assn for disqualification of Judge Richard Alan Enslen w/brief in support, EXPEDITED Consideration Requested, O/A Requested and prf of svc (mrs) (Entered: 06/04/2001)
379 MOTION by defts for leave to file motion to dismiss w/brief in support, proposed motion to dismiss w/Exhibit 1, EXPEDITED Consideration requested, O/A requested and prf of svc (mrs) Modified on 06/04/2001 (Entered: 06/04/2001)
380 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody on defts' motion to introduce evidence regarding OCR's recent Hawaii Investigation [337-1]; hearing set for 9:00 a.m. on 6/21/01 in Grand Rapids before Magistrate Judge Carmody (cc: all counsel) [EOD Date 6/6/01] (mrs) (Entered: 06/06/2001)
381 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody granting defts'

06/08/2001 06/21/2001 06/21/2001
06/22/2001
06/29/2001 06/29/2001 06/29/2001 07/02/2001 07/02/2001 07/02/2001 07/02/2001 07/02/2001 07/02/2001

motion for leave to file motion to dismiss [379-1]; because trial date is in August, pltfs response to the motion will be due 6/30/01 (cc: all counsel) [EOD Date 6/11/01] (mrs) (Entered: 06/11/2001)
382 MOTION by defts to dismiss pursuant to FRCP 12(b)(1) and (6) w/brief in support; expedited consideration requested, O/A Requested (mrs) (Entered: 06/11/2001)
383 OPPOSITION by pltfs to defts' renewed motion for disqualification of Judge Richard Alan Enslen [378-1] w/cert of svc (mrs) (Entered: 06/21/2001)
PROCEEDING before Magistrate Judge Ellen S. Carmody; re defts' motion to introduce evidence regarding OCR's recent Hawaii Investigation [337-1]; motion taken under advisement; Recorder, C. Hosner, Tape #CGR-01-033 (mrs) (Entered: 06/22/2001)
384 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody for reasons stated on the record at the hearing of 6/21/01 that the deadline for the parties to file the ordered trial schedule for this matter is extended to 7/15/01 (cc: all counsel) [EOD Date 6/22/01] (mrs) (Entered: 06/22/2001)
385 RESPONSE by USA to defts' motion to dismiss pursuant to FRCP 12(b)(1) and (6) [382-1] w/cert of svc (mrs) (Entered: 06/29/2001)
386 MOTION by pltfs in limine to exclude defense exhibits and related testimony that violate or contradict prior order w/brief in support and cert of svc (mrs) (Entered: 06/29/2001)
387 OPPOSITION by pltfs to defts' motion to dismiss pursuant to FRCP 12(b)(1) and (6) [382-1] and cert of svc (mrs) (Entered: 07/02/2001)
388 MOTION by pltfs in limine to exclude certain videotapes from evidence w/brief in support and cert of svc (mrs) (Entered: 07/02/2001)
389 EXHIBITS (Videotapes #201, 267 and 268) by pltfs to pltfs' motion in limine to exclude certain videotapes from evidence [388-1] (mrs) (Entered: 07/02/2001)
390 MOTION by pltfs in limine to exclude defense exhibits that are hearsay and/or lack authentication w/brief in support and cert of svc (mrs) (Entered: 07/02/2001)
391 EXHIBITS by pltfs to pltfs' motion in limine to eclude defense exhibits that are hearsay or lack authentication [390-1] (mrs) (Entered: 07/02/2001)
394 MOTION by defts in limine to strike some of pltfs' trial witnesses w/brief in support, Exhibits 1-3 (mrs) (Entered: 07/03/2001)
395 MOTION by defts in limine to strike proposed exhibits identified on pltfs'

07/02/2001 07/02/2001 07/02/2001 07/02/2001 07/03/2001 07/03/2001 07/03/2001 07/03/2001 07/03/2001 07/11/2001 07/12/2001 07/12/2001
07/12/2001

attachment "A" w/brief in support (mrs) (Entered: 07/03/2001)
396 PROOF OF SERVICE by defts for pleadings #394 and #395 (mrs) (Entered: 07/03/2001)
400 MOTION by pltf to exceed page limitation for motions in limine w/brief in support, and cert of svc (mrs) (Entered: 07/06/2001)
401 MOTION by pltfs in limine to exlude certain of defts' incomplete exhibits from evidence w/brief in support and cert of svc (mrs) (Entered: 07/06/2001)
402 MOTION by pltfs in limine to exlcude the stufflebeam survey due to spoliation of evidence w/brief in support and cert of svc (mrs) (Entered: 07/06/2001)
392 TRANSCRIPT of Motion Hearing to Introduce Evidence held 6/21/01 before Mag. Judge Carmody in Grand Rapids; transcribed by P. Pritchard (mrs) (Entered: 07/03/2001)
393 ORDER (1 pg) by Judge Richard A. Enslen denying deft MHSAA's motion for disqualification of Judge Richard Alan Enslen [378-1] (cc: all counsel) [EOD Date 7/3/01] (mrs) (Entered: 07/03/2001)
397 MOTION by pltfs in limine to exclude untimely disclosed defense exhibits w/brief in support and cert of svc (mrs) (Entered: 07/03/2001)
398 MOTION by pltfs in limine to exclude defense exhibit 321 w/brief in support and cert of svc (mrs) (Entered: 07/03/2001)
399 MOTION by pltfs to permit filing of pltfs' affirmative motion in limine re: certain pltf trial witnesses and brief in support w/brief in support, proposed motion attached and cert of svc (mrs) (Entered: 07/05/2001)
406 MOTION by defts (all) for leave to file Reply to Pltfs' Opposition to Defts' Motion to Dismiss Pursuant to FRCP 12(b)(1) and (6) w/proposed brief; w/Proof of Svc. (bd) (Entered: 07/16/2001)
403 OPINION (7 pgs) by Judge Richard A. Enslen (cc: all counsel) [EOD Date 7/12/01] (rlw) (Entered: 07/12/2001)
404 ORDER (2 pgs) by Judge Richard A. Enslen in accordance w/opinion granting in part and denying in part defts' motion to dismiss pursuant to FRCP 12(b)(1) and (6) [382-1]; pltfs shall file an amended complaint by 7/23/01; defts shall file an amended answer by 8/2/01; trial is rescheduled for two weeks beginning 9/24/01 (cc: all counsel) [EOD Date 7/12/01] (rlw) (Entered: 07/12/2001)
405 ORDER (3 pgs) by Judge Richard A. Enslen; Pretrial conference is scheduled for 9:00 a.m. on 9/7/01 before Mag. Carmody; vacating [384-1]

07/13/2001 07/13/2001 07/13/2001 07/13/2001 07/13/2001 07/13/2001 07/13/2001 07/13/2001

order - the parties shall file the ordered trial schedule by 8/24/01; denying as moot pltfs' motion in limine to exclude defense exhibits and related tesimony that violate or contradict prior order 386 ; denying as moot pltfs' motion in limine to exclude certain videotapes from evidence [388-1], denying as moot pltfs' motion in limine to exclude defense exhibits that are hearsay and/or lack authentication [390-1], denying as moot pltfs's motion in limine to strike some of pltfs' trial witnesses [394-1], denying as moot defts' motion in limine to strike proposed exhibits identified on pltfs' attachment "A" [395-1], denying as moot pltfs' motion in limine to exclude untimely disclosed defense exhibits [397-1], denying as moot pltfs' motion in limine to exclude defense exhibit 321 [398-1], denying as moot pltfs' motion in limine to exlude certain of defts' incomplete exhibits from evidence [401-1], denying as moot pltfs' motion in limine to exlcude the stufflebeam survey due to spoliation of evidence [402-1] denying as moot pltfs' motion to permit filing of pltfs' affirmative motion in limine re: certain pltf trial witnesses and brief in support [399-1], denying as moot motion to exceed page limitation for motions in limine [400-1], denying as moot pltfs' motion to introduce evidence regarding OCR's recent Hawaii Investigation [337-1]; no additional discovery shall be allowed (cc: all counsel) [EOD Date 7/12/01] (rlw) (Entered: 07/12/2001)
407 OPPOSITION by deft to Pltfs' Motion in Limine to Exclude Certain of Defts' Incomplete Exhibits from Evidence (#401) (bd) (Entered: 07/18/2001)
408 OPPOSITION by defts to Pltfs' Motion in Limine to Exclude Untimely Disclosed Defense Exhibits (#397) (bd) Modified on 07/18/2001 (Entered: 07/18/2001)
409 OPPOSITION by defts to Pltfs' Motion in Limine to Exclude Defense Exhibit 321 (#398) (bd) (Entered: 07/18/2001)
410 OPPOSITION by defts to Pltfs' Motion in Limine to Exclude Certain Defense Witnesses; w/Ex. 1 (bd) (Entered: 07/18/2001)
411 OPPOSITION by defts to Pltfs' Motion in Limine to Exclude Defense Exhibits and Related Testimony that Violate or Contradict Prior Orders (bd) (Entered: 07/18/2001)
412 OPPOSITION by defts to Pltfs' Motion in Limine to Exclude Certain Videotapes from Evidence (#388); w/Exhibits 1 & 2 (bd) (Entered: 07/18/2001)
413 MOTION by defts for Rule 11 sanctions w/brief in support; w/Exhibit 1 (bd) (Entered: 07/18/2001)
414 OPPOSITION by defts to Pltfs' Motion in Limine to Exclude Defense Exhibits that are Hearsay and/or Lack Authentication; w/Exhibits 1 & 2

07/13/2001 07/13/2001 07/19/2001
07/19/2001
08/02/2001
08/06/2001 08/07/2001 08/10/2001 08/15/2001
08/15/2001 08/15/2001 08/15/2001

(bd) (Entered: 07/18/2001)
415 OPPOSITION by defts to Pltfs' Motion in Limine to Exclude the Stufflebeam Survey Due to Spoliation of Evidence; w/Ex. 1-5 (bd) (Entered: 07/18/2001)
416 PROOF OF SERVICE by defts for Pleadings #407-#415 via first-class mail on 7/13/01 (bd) (Entered: 07/18/2001)
417 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody that the 7/12/01 Order is modified only that pltfs shall file an amended complaint no later than 8/6/01 and defts' answer to the amended complaint be filed no later than 10 days after the filing of pltfs' amended complaint (cc: all counsel) [EOD Date 7/19/01] (mrs) (Entered: 07/19/2001)
418 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody denying as moot defts' motion for leave to file Reply to Pltfs' Opposition to Defts' Motion to Dismiss Pursuant to FRCP 12(b)(1) and (6) [406-1] (cc: all counsel) [EOD Date 7/19/01] (mrs) (Entered: 07/19/2001)
419 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody denying as moot defts' motion for Rule 11 sanctions [413-1] pursuant to this Court's 7/12/01 Order (dkt. #405) (cc: all counsel) [EOD Date 8/2/01] (mrs) (Entered: 08/02/2001)
420 NOTICE of hearing: Pretrial conference rescheduled to 9:00 a.m. on 9/6/01 before Magistrate Carmody in Grand Rapids (cc: all counsel) (mrs) (Entered: 08/06/2001)
421 SEALED document third amended class action complaint by pltfs (mrs) (Entered: 08/08/2001)
422 JOINT MOTION by parties to withdraw third amended complaint; place it under seal; and file fourth amended complaint w/brief in support and cert of svc (mrs) (Entered: 08/13/2001)
423 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody granting joint motion to withdraw third amended complaint; place it under seal; and file fourth amended complaint [422-1] (cc: all counsel) [EOD Date 8/15/01] (mrs) (Entered: 08/15/2001)
424 FOURTH AMENDED COMPLAINT (28 pgs) per order granting filing (dkt. #423) w/cert of svc (mrs) (Entered: 08/15/2001)
425 ORDER (2 pgs) by Magistrate Judge Ellen S. Carmody that the consent motion to file motion, brief and notice of reservation of rights under seal is granted (cc: all counsel) [EOD Date 8/15/01] (mrs) (Entered: 08/15/2001)
426 SEALED document by pltfs (consent motion to file motion, brief and notice of reservation of rights under seal) (mrs) (Entered: 08/15/2001)

08/16/2001 08/16/2001 08/17/2001 08/17/2001
08/17/2001 08/17/2001 08/17/2001 08/17/2001 08/17/2001 08/17/2001 08/17/2001 08/17/2001 08/17/2001 08/20/2001

428 ANSWER to 4th amended complaint and affirmative defenses by deft MI High Sch Ath Assn w/prf of svc (mrs) (Entered: 08/17/2001)
429 ANSWER to 4th amended complaint and affirmative defenses by individual defts w/prf of svc (mrs) (Entered: 08/17/2001)
427 ORDER (1 pg) by Judge Richard A. Enslen that parties shall file trial briefs, proposed findings of fact and conclusions of law no later than 9/14/01 (cc: all counsel) [EOD Date 8/17/01] (mrs) (Entered: 08/17/2001)
431 MOTION by pltfs to exceed page limit for proposed motions in limine: to exclude certain defense witnesses; exclude defense exhibits that are hearsay; exclude untimely disclosed exhibits; exclude defense exhibit 321; and exclude the Stufflebeam Survey w/brief in support and cert of svc (mrs) Modified on 08/20/2001 (Entered: 08/20/2001)
432 RENEWED MOTION by pltfs in limine re certain pltf trial witnesses w/brief in support and cert of svc (mrs) Modified on 08/20/2001 (Entered: 08/20/2001)
433 RENEWED MOTION by pltfs in limine to exclude certain of defts' incomplete exhibits from evidence w/brief in support and cert of svc (mrs) Modified on 08/20/2001 (Entered: 08/20/2001)
434 RENEWED MOTION by pltfs in limine to exclude certain videotapes from evidence w/brief in support and cert of svc (mrs) (Entered: 08/20/2001)
435 RENEWED MOTION by pltfs in limine to exclude defense exhibits & related testimony that violate or contradict prior orders w/brief in support and cert of svc (mrs) (Entered: 08/20/2001)
436 MOTION by pltfs in limine to exclude BCAM Survey w/brief in support and cert of svc (mrs) (Entered: 08/20/2001)
438 MOTION by defts for Rule 11 Sanctions w/brief in support (mrs) (Entered: 08/21/2001)
439 MOTION by defts in limine to strike proposed exhibits identified on pltfs; Attachment A w/brief in support (mrs) (Entered: 08/21/2001)
440 MOTION by defts in limine to strike some of pltfs' trial witnesses w/brief in support (mrs) (Entered: 08/21/2001)
441 PROOF OF SERVICE by defts for pleadings #438 thru #439 (mrs) (Entered: 08/21/2001)
430 AMENDED ORDER (1 pg) by Judge Richard A. Enslen that trial is cheduled to begin 9/24/01 and that parties shall file trial briefs, proposed findings of fact and conclusions of law no later than 9/14/01 (cc: all

08/20/2001
08/21/2001
08/21/2001 08/21/2001 08/21/2001 08/21/2001 08/21/2001 08/24/2001
08/24/2001 08/27/2001

counsel) [EOD Date 8/20/01] (mrs) (Entered: 08/20/2001)
437 ORDER OF REFERENCE (1 pg) by Judge Richard A. Enslen that the motion to exceed page limit for motions in limine (dkt. no. 431) is referred to Mag. Judge Carmody and counsel shall send courtesy copies of all responses and/or replies to Mag. Judge Carmody (cc: all counsel) [EOD Date 8/20/01] (mrs) (Entered: 08/20/2001)
442 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody granting pltfs' motion to exceed page limit for proposed motions in limine: to exclude certain defense witnesses; exclude defense exhibits that are hearsay; exclude untimely disclosed exhibits; exclude defense exhibit 321; and exclude the Stufflebeam Survey [431-1] (cc: all counsel) [EOD Date 8/21/01] (mrs) (Entered: 08/21/2001)
443 RENEWED MOTION by pltfs in limine to exclude certain defense witnesses w/brief in support and cert of svc (mrs) (Entered: 08/21/2001)
444 RENEWED MOTION by pltfs in limine to exclude defense exhibits that are hearsay and/or lack authentication w/brief in support and cert of svc (mrs) (Entered: 08/21/2001)
445 RENEWED MOTION by pltfs in limine to exclude untimely disclosed defense exhibits w/brief in support and cert of svc (mrs) (Entered: 08/21/2001)
446 RENEWED MOTION by pltfs in limine to exclude the Stufflebeam Survey due to spoliation of evidence w/brief in support and cert of svc (mrs) (Entered: 08/21/2001)
447 RENEWED MOTION by pltfs in limine to exclude defense exhibit 321 w/brief in support and cert of svc (mrs) (Entered: 08/21/2001)
448 ORDER (3 pgs) by Chief Judge Robert Holmes Bell GRANTING IN PART and DENYING IN PART pltfs' renewed motion in limine to exclude certain of defts' incomplete exhibits from evidence [433-1]; further, that defts produce copies of 1999-2000 US Volleyball Rules; all completed 1998-99 and 1999-00 MHSAA School directory info. forms; and all boys' and girls' Sports Participation Survery Answer Sheets by Sept. 7, 2001; further that defts file w/Court their affdt. of expenses in complying w/producing the above mentioned copies within 21 days of the date of this Order. (cc: all counsel) [EOD 8/27/01] (bd) (Entered: 08/27/2001)
450 NOTICE by parties of Proposed Trial Schedule w/cert of svc (mrs) (Entered: 08/28/2001)
449 MOTION by defts for relief from pltfs' trial schedule which violates previous court orders w/brief in support; Expedited Consideration

08/29/2001 08/30/2001
08/30/2001 08/30/2001 08/30/2001 08/30/2001 08/30/2001 08/30/2001 08/30/2001 08/30/2001 08/30/2001 08/30/2001 08/31/2001

Requested; and prf of svc (mrs) (Entered: 08/28/2001)
453 ATTORNEY APPEARANCE by pltfs adding attorney(s) Philip L. Cohan and Robin K. Bohnenstengel w/cert of svc (mrs) (Entered: 08/31/2001)
451 ORDER OF REFERENCE (1 pg) by Judge Richard A. Enslen that defts' motion for relief from pltfs' trial scheduled (dkt. #449) referred to Mag. Judge Carmody (cc: all counsel) [EOD Date 8/30/01] (mrs) (Entered: 08/30/2001)
454 RESPONSE IN OPPOSITION by defts to pltfs' motion in limine to exclude untimely disclosed defense exhibits [445-1] (mrs) (Entered: 08/31/2001)
455 RESPONSE IN OPPOSITION by defts to pltfs' motion in limine to exclude certain videotapes from evidence [434-1] (mrs) (Entered: 08/31/2001)
456 OPPOSITION by defts to pltfs' motion in limine to exclude the Stufflebeam Survey due to spoliation of evidence [446-1] (mrs) (Entered: 08/31/2001)
457 OPPOSITION by deft to motion in limine to exclude BCAM Survey [4361] (mrs) (Entered: 08/31/2001)
458 OPPOSITION by defts to pltfs' motion in limine to exclude defense exhibits & related testimony that violate or contradict prior orders [435-1] (mrs) (Entered: 08/31/2001)
459 OPPOSITION by defts to pltfs' motion in limine to exclude certain defense witnesses [443-1] (mrs) (Entered: 08/31/2001)
460 OPPOSITION by defts to plfs' motion in limine to exclude defense exhibits that are hearsay and/or lack authentication [444-1] (mrs) (Entered: 08/31/2001)
461 OPPOSITION by defts to pltfs' motion in limine to exclude defense exhibit 321 [447-1] (mrs) (Entered: 08/31/2001)
462 PROOF OF SERVICE by defts for pleadings #454 thru #461 (mrs) (Entered: 08/31/2001)
464 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody; Pretrial conference scheduled for 11:00 a.m. on 9/6/01 in Grand Rapids (cc: all counsel) [EOD Date 9/4/01] (mrs) (Entered: 09/04/2001)
452 ORDER (3 pgs) by Judge Richard A. Enslen that the parties' evidence pertaining to the issue of whether deft MHSAA is a "state actor" for purposes of 42 USC 1983 will be considered relevant at trial (cc: all counsel) [EOD Date 8/31/01] (mrs) (Entered: 08/31/2001)

08/31/2001 08/31/2001 08/31/2001 09/04/2001
09/05/2001 09/06/2001
09/06/2001 09/06/2001
09/10/2001
09/10/2001 09/10/2001 09/10/2001 09/11/2001

465 OPPOSITION by pltfs to defts' motion for Rule 11 Sanctions [438-1] w/cert of svc (mrs) (Entered: 09/06/2001)
466 OPPOSITION by pltfs to defts' motion in limine to strike proposed exhibits identified on pltfs; Attachment A [439-1] w/cert of svc (mrs) (Entered: 09/06/2001)
467 OPPOSITION by pltfs to defts' motion in limine to strike some of pltfs' trial witnesses [440-1] w/cert of svc (mrs) (Entered: 09/06/2001)
463 ORDER (1 pg) by Judge Richard A. Enslen that defts file any response to pltfs' renewed motion in limine to exclude certain of defendants' incomplete exhibits from evidence (dkt. #433) within 7 days of the date of this order (cc: all counsel) [EOD Date 9/4/01] (mrs) (Entered: 09/04/2001)
468 OPPOSITION by pltfs to defts' motion for relief from pltfs' trial schedule which violates previous court orders [449-1] w/cert of svc (mrs) (Entered: 09/06/2001)
469 ORDER (2 pgs) by Judge Richard A. Enslen denying pltfs' renewed motion in limine to exclude defense exhibits & related testimony that violate or contradict prior orders [435-1] (cc: all counsel) [EOD Date 9/6/01] (mrs) (Entered: 09/06/2001)
470 AFFIDAVIT of expenses by defendants (mrs) (Entered: 09/07/2001)
PROCEEDING before Magistrate Judge Ellen S. Carmody; Pretrial conference held 11:00 a.m. - 1:40 p.m. on 9/6/01; Pretrial order to be submitted to court 9/7/01 @ 8:30 a.m.; motion for relief from pltfs' trial schedule which violates previous court orders (dkt. #449) granted in part and denied in part; Recorder, C. Rather tape # 10-061 (mrs) (Entered: 09/10/2001)
471 ORDER (2 pgs) by Magistrate Judge Ellen S. Carmody granting in part and denying in part defts' motion for relief from pltfs' trial schedule which violates previous court orders [449-1] (cc: all counsel) [EOD Date 9/10/01] (mrs) (Entered: 09/10/2001)
472 PRE-TRIAL ORDER approved (47 pgs) by Magistrate Judge Ellen S. Carmody (cc: all counsel) [EOD Date 9/10/01] (mrs) (Entered: 09/10/2001)
473 RESPONSE in oppositon to pltfs' renewed motion in limine to exclude certain of defts' incomplete exhibits from evicence [433-1] (mrs) (Entered: 09/12/2001)
476 NOTICE by pltfs of Revised Trial Schedule w/cert of svc (mrs) (Entered: 09/12/2001)
474 OPINION (6 pgs) by Judge Richard A. Enslen (cc: all counsel) [EOD Date

09/11/2001
09/12/2001 09/13/2001
09/14/2001 09/14/2001 09/14/2001 09/14/2001
09/14/2001 09/14/2001
09/17/2001 09/17/2001 09/17/2001

9/12/01] (mrs) (Entered: 09/12/2001)
475 ORDER (2 pgs) by Judge Richard A. Enslen in accordance with an Opinion filed this day granting in part and denying in part pltfs' motion in limine to exclude certain videotapes from evidence [434-1] (cc: all counsel) [EOD Date 9/12/01] (mrs) (Entered: 09/12/2001)
477 MOTION by defts for relief from pltfs' revised trial scheduled dated 9/10/01 w/brief in support, Expedited Consideration Requested, and prf of svc (mrs) (Entered: 09/12/2001)
478 ORDER OF REFERNCE (1 pg) by Judge Richard A. Enslen that defts' motion for relief from pltfs' revised trial schedule dkt. 477 is referred to Mag. Judge Carmody (cc: all counsel) [EOD Date 9/13/01] (mrs) Modified on 01/28/2002 (Entered: 09/13/2001)
479 OPINION (10 pgs) by Judge Richard A. Enslen (cc: all counsel) [EOD Date 9/14/01] (mrs) (Entered: 09/14/2001)
480 ORDER (1 pg) by Judge Richard A. Enslen in accordance with an Opinion filed this day denying pltfs' motion in limine to exclude BCAM Survey [436-1] (cc: all counsel) [EOD Date 9/14/01] (mrs) (Entered: 09/14/2001)
481 OPINION (13 pgs) by Judge Richard A. Enslen (cc: all counsel) [EOD Date 9/14/01] (mrs) (Entered: 09/14/2001)
482 ORDER (2 pgs) by Judge Richard A. Enslen n accordance with an Opinion filed this day granting in part and denying in part pltfs' renewed motion in limine re certain pltf trial witnesses [432-1]; granting in part and denying in part defts' motion in limine to strike some of pltfs' trial witnesses [440-1]; granting in part and denying in part pltfs' renewed motion in limine to exclude certain defense witnesses [443-1] (cc: all counsel) [EOD Date 9/14/01] (mrs) (Entered: 09/14/2001)
483 OPINION (9 pgs) by Judge Richard A. Enslen (cc: all counsel) [EOD Date 9/14/01] (mrs) (Entered: 09/14/2001)
484 ORDER (1 pg) by Judge Richard A. Enslen in accordance with an Opinion filed this day denying defts' motion in limine to strike proposed exhibits identified on pltfs' Attachment A [439-1]; and denying pltfs' renewed motion in limine to exclude untimely disclosed defense exhibits [445-1] (cc: all counsel) [EOD Date 9/14/01] (mrs) (Entered: 09/14/2001)
486 MOTION by defts to strike pltfs' additional trial exhibits w/brief in support, Expedited Consideration Requested (mrs) (Entered: 09/19/2001)
487 TRIAL BRIEF submitted by individual defts (mrs) (Entered: 09/19/2001)
488 TRIAL BRIEF w/Exhibit 1 submitted by defts (mrs) (Entered: 09/19/2001)

09/17/2001 09/17/2001 09/17/2001 09/18/2001 09/18/2001 09/18/2001 09/19/2001 09/19/2001 09/21/2001 09/21/2001
09/21/2001 09/21/2001
09/21/2001 09/24/2001

489 PROPOSED FINDINGS OF FACT and CONCLUSIONS OF LAW by defts (5 pgs) (cc: all counsel) (mrs) (Entered: 09/19/2001)
490 PROOF OF SERVICE by defts for pleadings #486 thru #489 (mrs) (Entered: 09/19/2001)
491 TRIAL BRIEF submitted by USA w/cert of svc (mrs) (Entered: 09/19/2001)
485 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody denying defts' motion for relief from pltfs' revised trial scheduled dated 9/10/01 [477-1] (cc: all counsel) [EOD Date 9/18/01] (mrs) (Entered: 09/18/2001)
492 TRIAL BRIEF submitted by pltf w/cert of svc (mrs) (Entered: 09/19/2001)
493 PROPOSED FINDINGS OF FACT and CONCLUSIONS OF LAW (13 pgs) by pltfs w/cert of svc (cc: all counsel) (mrs) Modified on 09/19/2001 (Entered: 09/19/2001)
494 REVISED TRIAL BRIEF submitted by pltf w/cert of svc (mrs) (Entered: 09/20/2001)
495 REVISED PROPOSED FINDINGS OF FACT and CONCLUSIONS OF LAW ( 25 pgs) submitted by pltfs (cc: all counsel) (mrs) (Entered: 09/21/2001)
496 OPINION (19 pgs) by Judge Richard A. Enslen (cc: all counsel) [EOD Date 9/21/01] (mrs) (Entered: 09/21/2001)
497 ORDER (2 pgs) by Judge Richard A. Enslen in accordance with an Opinion filed this day granting in part and denying in part plts' renewed motion in limine to exclude defense exhibit 321 [447-1], and granting in part and denying in part motion in limine to exclude defense exhibits that are hearsay and/or lack authentication [444-1] (cc: all counsel) [EOD Date 9/21/01] (mrs) (Entered: 09/21/2001)
498 OPINION (11 pgs) by Judge Richard A. Enslen (cc: all counsel) [EOD Date 9/21/01] (mrs) (Entered: 09/21/2001)
499 ORDER (1 pg) by Judge Richard A. Enslen in accordance with an Opinion filed this day denying pltfs' renewed motion in limine to exclude the Stufflebeam Survey due to spoliation of evidence [446-1] (cc: all counsel) [EOD Date 9/21/01] (mrs) (Entered: 09/21/2001)
500 SECOND REVISED TRIAL SCHEDULE (BRIEF) submitted by pltfs w/cert of svc (mrs) (Entered: 09/24/2001)
PROCEEDING before Judge Richard A. Enslen; bench trial began on 9/24/01 at 8:30 a.m.; witnesses Diane Madsen, Kristi Madsen, Kelsey Madsen, Connie Engel, Lynn Kostreva, Bette Norman-Nakamura called

09/25/2001 09/25/2001 09/25/2001 09/26/2001
09/26/2001 09/26/2001 09/27/2001 09/27/2001 09/28/2001 10/01/2001 10/02/2001

by pltf; Reporter, K. Thomas (mrs) (Entered: 09/24/2001)
501 TRANSCRIPT of Bench Trial held 9/24/01, Volume I, before Judge Richard Alan Enslen; transcribed by K. Thomas (mrs) (Entered: 09/25/2001)
PROCEEDING before Judge Richard A. Enslen; Second day of Bench Trial, 9/25/01; witnesses Bette Norman-Nakamura, Charles Erbe, Kele Eveland, Sharon Schatz by pltfs; Reporter, K. Thomas (mrs) (Entered: 09/25/2001)
502 TRANSCRIPT of Bench Trial held 9/25/01, Volume II, before Judge Richard Alan Enslen; transcribed by K. Thomas (mrs) (Entered: 09/26/2001)
503 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody striking order entered on 9/18/01 [485-1] and granting defts' motion for relief from pltfs' revised trial scheduled dated 9/10/01 [477-1]; and a revised trial schedule shall be filed by pltfs by 9/24/01 (cc: all counsel) [EOD Date 9/26/01] (mrs) (Entered: 09/26/2001)
PROCEEDING before Judge Richard A. Enslen; Bench Trial continued 8/26/01, witnesses Sharon Schatz, Jack Magelssen, Donna Lopiano, Breanne Hall, and Daniel Adrianse for pltfs; and witness Catherine Dritsas for USA; Reporter, K. Thomas (mrs) (Entered: 09/26/2001)
504 TRANSCRIPT of Bench Trial held 9/26/01, Volume III, before Judge Richard Alan Enslen; transcribed by K. Thomas (mrs) (Entered: 09/27/2001)
505 ORDER (1 pg) by Judge Richard A. Enslen denying as moot defts' motion to strike pltfs' additional trial exhibits [486-1] (cc: all counsel) [EOD Date 9/27/01] (mrs) (Entered: 09/27/2001)
PROCEEDING before Judge Richard A. Enslen; Bench Trial continued 9/27/01; witnesses Daniel Adrianse, Angie Adrianse and Breanna Eveland by pltfs; Reporter, K. Thomas (mrs) (Entered: 09/27/2001)
506 TRANSCRIPT of Bench Trial held 9/27/01, Volume IV, before Judge Richard Alan Enslen; transcribed by K. Thomas (mrs) (Entered: 09/28/2001)
PROCEEDING before Judge Richard A. Enslen; Bench Trial continued; witnesses Linda Bunker for pltf and Kathleen McGee for deft; Mr. Azkoul oral motion entered an apperance on behalf of the deft MHSAA; Reporter, K. Thomas (mrs) Modified on 12/24/2001 (Entered: 10/02/2001)
507 ORDER (1 pg) by Judge Richard A. Enslen that the individual defendants are dismissed from this case pursuant to the defts' motion for direct verdict: (terminating party Unknown Parties, Eunice Moore, Christi

10/02/2001 10/02/2001 10/02/2001 10/03/2001 10/03/2001 10/04/2001 10/04/2001 10/04/2001 10/09/2001 10/11/2001 10/24/2001 10/24/2001

Brilinski, Michael Shibler, Joyce Seals, Randy Salisbury, Robert Riemersma, Thomas Rashid, William Newkirk, Dennis Kniola, Dewayne Jones, Norm Johnson, Robert Grimes, Margra Grillo, Dan Flynn, Eric Federico, Paul Ellinger, Keith Eldred, Geraldine David, Keith Alto, and John Roberts) (cc: all counsel) [EOD Date 10/2/01] (mrs) (Entered: 10/02/2001)
508 TRANSCRIPT of Bench Trial held 10/01/01, Volume V, before Judge Richard Alan Enslen; transcribed by K. Thomas (mrs) (Entered: 10/02/2001)
PROCEEDING before Judge Richard A. Enslen; Bench Trial continued; witnesses Kathleen McGee, Sue Guevara, James Glazier, Kathryn Lindahl for defts; Reporter, K. Thomas (mrs) (Entered: 10/02/2001)
509 TRANSCRIPT of Bench Trial held 10/2/01, Volume VI, before Judge Richard Alan Enslen; transcribed by K. Thomas (mrs) (Entered: 10/03/2001)
PROCEEDING before Judge Richard A. Enslen; Bench Trial continued; witnesses Daniel Stufflebeam and Philip Wilson for deft; Reporter, K. Thomas (mrs) (Entered: 10/03/2001)
510 TRANSCRIPT of Bench Trial held 10/3/01, Volume VII, before Judge Richard Aland Enslen; transcribed by K. Thomas (mrs) (Entered: 10/04/2001)
PROCEEDING before Judge Richard A. Enslen; re motion for Rule 11 Sanctions [438-1]; Reporter, K. Thomas (mrs) (Entered: 10/04/2001)
511 TRANSCRIPT of Bench Trial (Volume VIII) and Motion Hearing re sanctions held 10/4/01 before Judge Richard Alan Enslen; transcribed by K. Thomas (mrs) (Entered: 10/05/2001)
PROCEEDING before Judge Richard A. Enslen; Trial ended 9/24/01 (8:42 am - 11:48 am) Reporter K. Thomas (mrs) (Entered: 12/24/2001)
512 ORDER (1 pgs) by Judge Richard A. Enslen denying motion defts' for Rule 11 Sanctions [438-1] (cc: all counsel) [EOD Date 10/9/01] (mrs) (Entered: 10/09/2001)
513 ORDER (2 pgs) by Judge Richard A. Enslen that post-trial briefs due by 10/24/01 and responses by 11/8/01 (cc: all counsel) [EOD Date 10/11/01] (mrs) (Entered: 10/11/2001)
514 EXHIBITS by pltfs to pltfs' post-trial proposed findings of fact w/cert of svc (mrs) (Entered: 10/25/2001)
515 DEFENDANT'S PROPOSED FINDINGS OF FACT and CONCLUSIONS OF LAW (41 pgs + Exhibits 1-4) w/prf of svc (cc: all

10/24/2001 10/24/2001 10/24/2001 10/25/2001 11/08/2001 11/08/2001 11/08/2001 11/08/2001 11/20/2001
12/04/2001
12/14/2001
12/17/2001 12/17/2001 12/17/2001

counsel) (mrs) (Entered: 10/25/2001)
517 PROPOSED POST-TRIAL CONCLUSIONS OF LAW (21 pgs) submitted by pltfs (cc: all counsel) (mrs) (Entered: 10/26/2001)
518 PROPOSED POST-TRIAL FINDINGS OF FACT (43 pgs) submitted by pltfs (cc: all counsel) (mrs) (Entered: 10/26/2001)
519 POST-TRIAL BRIEFING, final argument by MI High Sch Ath Assn w/prf of svc (mrs) (Entered: 10/26/2001)
516 AMICUS CURIE UNITED STATES' PROPOSED FINDINGS OF FACT and CONCLUSIONS OF LAW (70 pgs w/attachments) and floppy disk (cc: all counsel) (mrs) (Entered: 10/25/2001)
520 NOTICE OF AMENDMENTby amicus USA to proposed findings of fact [516-1] w/cert of svc (mrs) (Entered: 11/08/2001)
521 REPLY by amicus USA to MHSAA's post-trial brief [519-1] w/cert of svc (mrs) (Entered: 11/08/2001)
522 RESPONSE by deft to Amicus Curiae's [516-1] and pltfs' [518-1] proposed findings of fact and conclusions of law w/prf of svc (mrs) Modified on 11/09/2001 (Entered: 11/09/2001)
523 POST-TRIAL BRIEF by pltfs w/cert of svc (mrs) (Entered: 11/09/2001)
524 MOTION by amicus USA to strike certain exhibits attached to deft's response to pltfs' and amicus curiae's proposed findings of fact and conslusions of law w/brief in support w/cert of svc (mrs) (Entered: 11/26/2001)
525 RESPONSE IN OPPOSITION by defts to Amicus Curiae's motion to strike certain exhibits attached to deft's response to pltfs' and amicus curiae's proposed findings of fact and conslusions of law [524-1] w/prf of svc (mrs) (Entered: 12/05/2001)
526 ORDER (3 pgs) by Judge Richard A. Enslen granting in part and denying in part Amicus Curiae US's motion to strike certain exhibits attached to deft's response to pltfs' and amicus curiae's proposed findings of fact and conslusions of law [524-1] (cc: all counsel) [EOD Date 12/14/01] (mrs) (Entered: 12/14/2001)
527 CONSENT DECREE (25 pgs) by Judge Richard A. Enslen (mrs) (Entered: 12/17/2001)
528 OPINION (94 pgs) by Judge Richard A. Enslen (cc: all counsel) [EOD Date 12/17/01] (mrs) (Entered: 12/17/2001)
529 JUDGMENT: (2 pgs) by Judge Richard A. Enslen in accordance with an Opinion filed this day that defts MHSAA's scheduling is declared to be in

12/19/2001
12/21/2001 12/26/2001 12/26/2001 01/09/2002 01/11/2002 01/11/2002

violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; that deft MHSAA's scheduling is hereby declared to be in violation of Title IX of the Education Amendments of 1972, 20 USC 1681 et seq.; that deft MHSAA's scheduling is declared to be in violation of Michigan's Elliott-Larsen Civil Rights Act, Mich. Comp. Laws 37.2101 et. seq.; that deft MHSAA bring its scheduling of the seasons of high school sports into compliance with the law by the 20032004 school year; that deft MHSAA submit a Compliance Plan consistent with the Opinion by 5/24/02; that pltfs and US respond to deft MHSAA's Compliance Plan by 6/14/02 or within 14 days of deft's service of the plan; that deft MHSAA reply to the responses of pltf and US by 7/8/02 or within 14 days of pltfs' service of response; that an In-court hearing will be held at 9:00 a.m. on 7/18/02 to allow parties to present argument with respect to the proposed Compliance Plan; pltfs brief pursuant to FRCP 54(d)(2)(B), whether they are entitled to attorneys' fees; deft must respond to pltfs' brief within 14 days of service and any bill of costs must be filed in accordance with LCivR 54 (cc: all counsel) [EOD Date 12/17/01] (mrs) (Entered: 12/17/2001)
530 NOTICE COMPLIANCE by deft MI High Sch Ath Assn pursuant to the 12/7/01 Consent Decree hereby notifes the Court, pltfs and the US Dept of Justice that the MHSAA Baseball/Softball Site Selection Committee has been established as referred to in Exhibit 6 attached to the Consent Decree w/prf of svc (mrs) (Entered: 12/21/2001)
531 ORDER (1 pg) by Judge Richard A. Enslen to correct two clerical errors as to the Court's 12/17/01 Opinion (dkt. #528); see order for details (cc: all counsel) [EOD Date 12/21/01] (mrs) (Entered: 12/21/2001)
532 MOTION by pltfs (all) to clarify , and/or to extend time to file Petition for Attorneys' Fees ; w/Cert. of Svc. - EXPEDITED CONSIDERATION REQUESTED (bd) (Entered: 12/26/2001)
533 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody granting pltfs' motion to clarify [532-1] and/or for extension of time [532-2]; pltfs shall have until 1/30/02 to file their petition for attys' fees and related pleadings (cc: all counsel on 12/27/01) [EOD 12/27/01] (mj) (Entered: 12/27/2001)
534 MOTION by pltfs for costs (referred to clerk) w/PROPOSED Bill of Costs (rlw) (Entered: 01/10/2002)
535 NOTICE OF APPEAL to Circuit Court of Appeals by deft MI High Sch Ath Assn re order [531-1] entered on 12/21/01 and order [527-1], order [526-1] and judgment [529-2] entered on 12/17/01 (jld) (Entered: 01/16/2002)
536 RECEIPT # 327699 in the amount of $ 105.00 submitted by deft MI High Sch Ath Assn for appeal filing fee (jld) (Entered: 01/16/2002)

01/17/2002 01/23/2002 01/23/2002 01/23/2002 01/30/2002
01/30/2002 01/30/2002 02/01/2002 02/04/2002 02/04/2002 02/06/2002 02/11/2002 02/11/2002 02/13/2002

537 MOTION by MI High Sch Ath Assn to stay the Court's December 17,2001 Judgment and Injunctive Order w/brief in support, Exhibits 1-3, Oral Argument Requested and prf of svc (mrs) (Entered: 01/18/2002)
MAILED information copies to CCA consisting of Notice of Appeal [5351], docket sheet and #526, #527, #529, #531 (cc: District Judge and all counsel) (erv) (Entered: 01/23/2002)
538 TRANSCRIPT ORDER Form from appellant's atty indicating that all transcripts are already on file (rlw) (Entered: 01/23/2002)
539 MOTION by deft to disallow pltfs' bill of costs w/brief in support and cert of svc (mrs) (Entered: 01/24/2002)
540 MOTION by pltfs for attorney fees w/brief in support; affidavits of Stephen Drew, H. Rhett Pinsky w/attachment, Kristen Galles w/attachments, and Neena Chaudhry w/attachments; and prf of svc (mrs) (Entered: 01/31/2002)
541 AFFIDAVIT of Robin K. Bohnestengel w/attachments regarding motion for attorney fees [540-1] and cert of svc (mrs) (Entered: 01/31/2002)
542 BILL OF COSTS submitted by individual defts w/prf of svc [EOD Date 2/1/02] (mrs) (Entered: 02/01/2002)
544 RESPONSE IN OPPOSITION by amicus USA to deft's motion to stay the Court's December 17,2001 Judgment and Injunctive Order [537-1] w/cert of svc (mrs) (Entered: 02/04/2002)
543 TRANSMISSION FORM showing notice of appeal [535-1] filed by CCA on 01/25/02 and assigned CCA 02-1127 (jld) (Entered: 02/04/2002)
545 OPPOSITION by pltfs to deft's motion to stay the Court's December 17,2001 Judgment and Injunctive Order [537-1] w/cert of svc (mrs) (Entered: 02/05/2002)
546 NOTICE of hearing: re motion to stay the Court's December 17,2001 Judgment and Injunctive Order [537-1] hearing set for 2:30 p.m. on 2/15/02 before Judge Enslen (cc: all counsel) (mrs) (Entered: 02/06/2002)
547 NOTICE by MI High Sch Ath Assn of compliance with the majority vote of the survey as set forth in Exhibit No. 4 of the Consent Decree w/prf of svc (mrs) (Entered: 02/12/2002)
548 MOTION by pltfs to exceed page limitation for opposition to deft's motion to disallow bill of costs w/brief in support, proposed oppositon and cert of svc (mrs) (Entered: 02/13/2002)
549 RESPONSE IN OPPOSITION by MI High Sch Ath Assn to pltfs' motion for attorney fees [540-1] and costs [534-1]; and request for limited

02/15/2002 02/19/2002 02/19/2002 02/19/2002 02/19/2002 03/04/2002 03/05/2002 03/12/2002 03/19/2002 05/13/2002
05/22/2002 05/30/2002

discovery w/prf of svc (mrs) (Entered: 02/15/2002)
PROCEEDING before Judge Richard A. Enslen on 2/15/02, 2:30 - 3:25 p.m.; denying deft's motion to stay the Court's December 17,2001 Judgment and Order [537-1]; Reporter, K. Thomas (mrs) (Entered: 02/19/2002)
550 OPINION (9 pgs) by Judge Richard A. Enslen (cc: all counsel) [EOD Date 2/19/02] (mrs) (Entered: 02/19/2002)
551 ORDER (1 pg) by Judge Richard A. Enslen in accordance with an Opinion filed this day denying motion to stay the Court's December 17,2001 Judgment and Injunctive Order [537-1] (cc: all counsel) [EOD Date 2/19/02] (mrs) (Entered: 02/19/2002)
552 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody granting pltfs' motion to exceed page limitation for opposition to deft's motion to disallow bill of costs [548-1] (cc: all counsel) [EOD Date 2/20/02] (mrs) (Entered: 02/20/2002)
553 OPPOSITION by pltfs to deft's motion to disallow pltfs' bill of costs [5391] (mrs) (Entered: 02/20/2002)
554 RESPONSE by pltf to deft's oppositon to pltfs' motion for attorneys' fees and expenses [549-1] w/cert of svc (mrs) (Entered: 03/05/2002)
555 OBJECTIONS by pltfs to individual defts' bill of costs [542-1] w/cert of svc (mrs) (Entered: 03/05/2002)
556 TRANSCRIPT of Hearing held 2/15/02 before Judge Richard Alan Enslen; transcribed by Kathleen Thomas (mrs) (Entered: 03/12/2002)
557 SUPPLEMENT - Correction by pltfs re opposition to defts' motion to disallow pltfs' bill of costs [553-1] w/cert of svc (mrs) (Entered: 03/19/2002)
558 ORDER from CCA; re: CCA # 02-1127 granting Govt's motion for leave to file as amicus curiae; denying pltfs' motion to dismiss the appeal for lack of jurisdiction; granting deft's motion for a stay pending appeal insofar as it seeks a stay of the 12/17 injunction requiring the deft to bring its scheduling into compliance w/the law by the 2003-04 school year and denied in all other respects; the partial stay granted herein is w/o prejudice to reconsideration by this court upon entry of a final judgment in the district court (rlw) (Entered: 05/17/2002)
559 DEFENDANT'S COMPLIANCE PLAN (RESPONSE) to Court Orders [528,529,531] w/Exhibit A-C, and prf of svc (mrs) Modified on 06/12/2002 (Entered: 05/23/2002)
560 MOTION by pltfs for limited discovery re deft MHSAA's proposed

06/07/2002
06/07/2002 06/14/2002 06/18/2002 06/18/2002 06/20/2002 06/21/2002
06/21/2002 06/21/2002 06/21/2002 06/21/2002 06/24/2002 06/24/2002

compliance plan and for response schedule that allows for discovery w/brief in support, Exhibits, and cert of svc (mrs) (Entered: 05/30/2002)
561 ORDER (4 pgs) by Magistrate Judge Ellen S. Carmody granting in part and denying in part motion for limited discovery re deft MHSAA's proposed compliance plan and for response schedule that allows for discovery [560-1] (cc: all counsel) [EOD Date 6/12/02] (mrs) (Entered: 06/12/2002)
562 OBJECTIONS by deft to Magistrate Judge Carmody's Order granting limited discovery and altering compliance plan briefing schedule [561-1], Expedited Consideration Requested (mrs) (Entered: 06/13/2002)
563 PROOF OF SERVICE by deft for disclosure of potential witnesses to testify at Compliance Plan Hearing, disclosure of potential exhibits to be introducted at Compliance Plan Hearing (seal) (Entered: 06/18/2002)
564 WITNESSES to testify at Compliance Plan Hearing submitted by deft (mrs) (Entered: 06/19/2002)
565 PROTENTIAL EXHIBITS to be introduced at Compliance Plan Hearing by deft MI High Sch Ath Assn (mrs) (Entered: 06/19/2002)
566 MOTION by pltfs re MHSAA's failure to comply with disclosure orders w/brief in support, Expedited Consideration Requested, and proposed order (mrs) (Entered: 06/20/2002)
567 ORDER (3 pgs) by Judge Richard A. Enslen denying as moot motion re MHSAA's failure to comply with disclosure orders [566-1]; Compliance Plan hearing will take place at 9:00 a.m. on 7/26/02 in Kalamazoo (cc: all counsel) [EOD Date 6/21/02] (mrs) (Entered: 06/21/2002)
568 RESPONSE in opposition by deft to pltfs' motion re MHSAA's failure to comply with disclosure order [566-1] w/prf of svc (mrs) (Entered: 06/24/2002)
569 WITNESSES and trial exhibits for the 7/18/02 hearing submitted by amicus USA (mrs) (Entered: 06/24/2002)
570 RESPONSE by amicus USA to deft's proposed compliance plan w/cert of svc (mrs) (Entered: 06/24/2002)
571 ANTICIPATED EXHIBITS by pltfs for 7/18/02 Injunctive Relief Hearing w/cert of svc (mrs) (Entered: 06/24/2002)
572 SUPPLEMENT by pltfs re exhibits [571-1] w/cert of svc (mrs) (Entered: 06/24/2002)
573 NOTICE by pltfs of disclosure of anticipated witnesses for 7/18/02 injunctive relief hearing w/certificate of hearing (rlw) (Entered:

06/24/2002 06/27/2002 06/27/2002
07/01/2002 07/01/2002 07/05/2002 07/08/2002 07/10/2002
07/11/2002 07/12/2002 07/18/2002 07/18/2002 07/18/2002 07/19/2002 07/22/2002

06/26/2002)
574 SUPPLEMENTAL DISCLOSURES by pltfs of anticipated exhibits for 7/18/02 injunctive relief hearing [571-1] w/attachment, certificate of service (rlw) (Entered: 06/26/2002)
575 ATTORNEY APPEARANCE by amicus MI Interscholastic adding attorney Allen S. Bush (rlw) (Entered: 06/28/2002)
576 MOTION by amicus MI Interscholastic for leave to file amicus curiae brief in support of the Michigan High School Athletic Assoc.'s proposed Compliance Plan w/brief in support w/PROPOSED brief, proof of service (rlw) (Entered: 06/28/2002)
577 SUPPLEMENT by pltf re supplemental [572-1] Exhibit 17 w/cert of svc (mrs) (Entered: 07/01/2002)
578 SECOND SUPPLEMENTAL disclosure of anticipated exhibits for 7/18/02 Injunctive Relief Hearing by pltf w/cert of svc (mrs) (Entered: 07/02/2002)
579 LETTER to court from attorney Bush regarding amicus appearance (mrs) (Entered: 07/05/2002)
580 RESPONSE by pltfs to deft MHSAA's proposed Compliance Plan w/cert of svc (mrs) (Entered: 07/08/2002)
581 ORDER (2 pgs) by Judge Richard A. Enslen granting motion for leave to file amicus curiae brief in support of the Michigan High School Athletic Assoc.'s proposed Compliance Plan [576-1]; the plan is accepted for filing (cc: all counsel) [EOD Date 7/10/02] (mrs) (Entered: 07/10/2002)
582 SUPPLEMENTAL by pltf CORRECTED exhibit 16 [571-1] w/cert of svc (mrs) (Entered: 07/12/2002)
583 BRIEF by amicus MI Interscholastic in support of the MHSAA proposed Compliance Plan (mrs) (Entered: 07/12/2002)
584 COMPLIANCE PLAN REPLY BRIEF by deft (mrs) (Entered: 07/19/2002)
585 EXHIBITS TO BE INTRODUCED AT COMPLIANCE PLAN HEARING by deft w/Exhibits 1-19 (mrs) (Entered: 07/19/2002)
586 PROOF OF SERVICE by deft for pleadings #584 and #585 (mrs) (Entered: 07/19/2002)
588 SUPPLEMENT by deft revised pages 20 and 21 of deft's Compliance Plan Reply Brief [584-1] w/prf of svc (mrs) (Entered: 07/23/2002)
587 CLERK'S NOTICE that Motion to Withdraw Third Amended Complaint

07/23/2002 07/25/2002 07/26/2002 08/01/2002 08/01/2002
08/05/2002
08/12/2002 08/13/2002
08/13/2002

[421-1] will be unsealed pursuant to Local Civil Rule 10.6(c) in 30 days (cc: all counsel) (mrs) (Entered: 07/22/2002)
589 SUPPLEMENT by deft revised page 4 to Compliance Plan Reply Brief [584-1] w/cert of svc (mrs) (Entered: 07/24/2002)
590 MOTION by amicus USA in limine to exclude certain exhibits intended to be introduced by defts at Compliance Plan Hearing w/brief in support and cert of svc (mrs) (Entered: 07/26/2002)
PROCEEDING before Judge Richard A. Enslen; present pltf - Galles, Pinsky, deft - Azkoul, Sikorski, USA - Guzman Dunne In-court hearing on deft's Compliance Plan held 9:10 - 11:10 a.m. on on 7/26/02; Plan taken under advisement, deft's exhibits 12-14 excluded; Reporter, K. Thomas (mrs) (Entered: 07/26/2002)
591 OPINION (12 pgs) by Judge Richard A. Enslen (cc: all counsel) [EOD Date 8/1/02] (rlw) (Entered: 08/01/2002)
592 INJUNCTIVE ORDER (1 pg) by Judge Richard A. Enslen in accordance w/opinion that deft MHSAA's Compliance Plan is rejected; that MHSAA file written notice of its amended Plan with the Clerk of the Court on or before 10/30/02; that MHSAA shall implement its amended Plan so as to apply to the first academic year following the lapse of the stay of the Sixth Circuit Court of Appeals (cc: all counsel) [EOD Date 8/1/02] (rlw) (Entered: 08/01/2002)
593 ORDER (1 pg) by Judge Richard A. Enslen granting in part and denying in partAmicus Curiae United States' motion in limine to exclude certain exhibits intended to be introduced by defts at Compliance Plan Hearing [590-1]; that the Court excludes Exhibits 12 through 15 of deft's reply as not relevant; that because deft withdrew Exhibits 5, 6, 16 and 18 the USA's Motion as to Exhibits 16 and 18 is denied as moot (cc: all counsel) [EOD Date 8/5/02] (rlw) (Entered: 08/05/2002)
594 LETTER to court from attorney Galles regarding keeping sealed document (Third Amended Complaint, sealed (mrs) (Entered: 08/13/2002)
595 JUDGMENT: (3 pgs) by Judge Richard A. Enslen granting in part and denying in part pltfs' motion for costs (referred to clerk) [534-1], bill granted in the amount of $22,359.14; granting in part and denying in part deft's motion to disallow pltfs' bill of costs [539-1]; and denying individual defts' bill of costs [542-1] (cc: all counsel) [EOD Date 8/13/02] (mrs) (Entered: 08/13/2002)
596 ORDER (3 pgs) by Judge Richard A. Enslen that by 8/26/02 the NWLC submit to the MHSAA further documentation of its claim in the petition and that MHSA file any response to the petiton with the Court Clerk by 10/25/02 (cc: all counsel) [EOD Date 8/13/02] (mrs) (Entered:

08/22/2002 08/26/2002 09/04/2002 10/08/2002 10/25/2002 10/28/2002 10/30/2002 11/01/2002
11/01/2002 11/08/2002 11/08/2002
11/12/2002

08/13/2002)
597 MOTION by pltfs for clarification re finality of Court's August 1, 2002 Order for injunctive relief w/brief in support and cert of svc (mrs) (Entered: 08/23/2002)
598 DECLARATION of councel Neena Chaudhry in support of further documentation of expenses w/Exhibits A-C and cert of svc (mrs) (Entered: 08/26/2002)
599 RESPONSE by defts to pltfs' motion for clarification re finality of Court's August 1, 2002 Order for injunctive relief [597-1] and prf of svc (mrs) (Entered: 09/06/2002)
600 STIPULATION AND ORDER (2 pgs) by Judge Richard A. Enslen : (cc: all counsel) (mrs) (Entered: 10/08/2002)
602 PROOF OF SERVICE by deft for proposed response to pltfs' fee petition (mrs) (Entered: 10/30/2002)
601 MOTION by deft to exceed page limitation in conjunction with response in opposition to pltfs' fee petition w/brief in support and prf of svc (mrs) (Entered: 10/29/2002)
603 AMENDED COMPLIANCE PLAN (BRIEF) by MI High Sch Ath Assn w/prf of svc (mrs) (Entered: 11/01/2002)
604 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody granting motion to exceed page limitation in conjunction with response in opposition to pltfs' fee petition [601-1] (cc: all counsel) [EOD Date 11/6/02] (mrs) (Entered: 11/06/2002)
605 RESPONSE in opposition by deft to pltfs' motion for attorney fees [5401], Exhibits 1-9, O/A requested (mrs) (Entered: 11/06/2002)
606 MOTION by pltfs for leave to file response to amended compliance plan w/brief in support, proposed Response and cert of svc (mrs) (Entered: 11/08/2002)
607 FINAL INJUNCTIVE ORDER (2 pgs) by Judge Richard A. Enslen denying as moot pltfs' motion for clarification re finality of Court's August 1, 2002 Order for injunctive relief [597-1]; and that defts' Amended Compliance Plan (dkt. 603) is accepted (cc: all counsel) Date 11/8/02] (mrs) (Entered: 11/08/2002)
608 ORDER (1 pg) by Judge Richard A. Enslen granting pltfs' motion for leave to file response to amended compliance plan [606-1]; pltfs and USA's response to defts' Amended Compliance Plan is due w/in 14 days of this order; defts reply to pltfs' response is due w/in 14 days of pltfs' service of a response to defts (cc: all counsel) [EOD Date 11/13/02] (rlw)

11/12/2002 11/14/2002 11/18/2002 11/22/2002 11/26/2002 11/27/2002 12/03/2002
12/04/2002 12/05/2002 12/06/2002
12/12/2002 12/18/2002 12/20/2002 12/24/2002

(Entered: 11/13/2002)
609 ADDENDUM (SUPPLEMENT) by deft re motion response [605-1] to pltfs' fee petition, O/A Requested w/prf of svc (mrs) (Entered: 11/13/2002)
610 MOTION by pltfs for reconsideration and/or to amend final injunctive relief order w/brief in support and cert of svc (mrs) (Entered: 11/14/2002)
611 MOTION by pltfs for leave to file reply to deft's response in oppositon to pltfs' fee petition w/brief in support and cert of svc (mrs) (Entered: 11/20/2002)
612 RESPONSE by pltfs to MHSAA's Amended Compliance Plan [603-1] w/cert of svc (mrs) (Entered: 11/22/2002)
613 MOTION by USA to amend the judgment and for clarification w/brief in support (mrs) (Entered: 11/27/2002)
614 CERTIFICATE OF SERVICE by USA for motion to amend and for clarification` (mrs) (Entered: 11/29/2002)
615 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody granting pltfs' motion for leave to file reply to deft's response in oppositon to pltfs' fee petition [611-1] (cc: all counsel) [EOD Date 12/4/02] (mrs) (Entered: 12/04/2002)
616 REPLY by MI High Sch Ath Assn re [612-1] w/prf of svc (mrs) (Entered: 12/06/2002)
617 MOTION by pltfs to extend time to file reply to deft's response in opposition to pltfs' fee petition w/brief in support and cert of svc (mrs) (Entered: 12/06/2002)
618 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody granting motion to extend time to file reply to deft's response in opposition to pltfs' fee petition [617-1] (cc: all counsel) [EOD Date 12/6/02] (mrs) (Entered: 12/06/2002)
619 OBJECTIONS by MI High Sch Ath Assn to 12/6/02 order [618-1], Expedited Consideration Requested w/prf of svc (mrs) (Entered: 12/17/2002)
620 ORDER (1 pg) by Judge Richard A. Enslen denying defts' objection to Magistrate's 12/6/02 Order [619-1] (cc: all counsel) [EOD Date 12/18/02] (mrs) (Entered: 12/18/2002)
621 ATTORNEY APPEARANCE by pltf adding attorney(s) Roger E. Warin and Lindsey B. Lang w/cert of svc (mrs) (Entered: 12/20/2002)
622 OPPOSITION by pltf re deft's objection [619-1] to Magistrate's 12/6/02 Order w/cert of svc (mrs) (Entered: 12/26/2002)

01/22/2003 02/07/2003 02/27/2003 02/27/2003
03/03/2003 03/03/2003 03/06/2003 03/10/2003 03/12/2003 03/13/2003 03/14/2003 03/28/2003

623 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody setting status conf for 10:00 a.m. on 3/7/03 in Grand Rapids (cc: all counsel) [EOD 1/22/03] (mj) (Entered: 01/22/2003)
624 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody rescheduling status conf to 3/18/03 at 2:00 p.m. (cc: all counsel) [EOD 2/7/03] (mj) (Entered: 02/07/2003)
625 OPINION ( 5 pgs) by Judge Richard A. Enslen (cc: all counsel) [EOD Date 2/27/03] (mrs) (Entered: 02/27/2003)
626 ORDER (1 pg) by Judge Richard A. Enslen granting in part and denying in part motion to amend the judgment and for clarification [613-1], and denying motion for reconsideration and/or to amend final injunctive relief order [610-1]; and that MHSAA shall implement its ameded Plan so as to apply to the first academic year following the lapse of the stay of the Sixth Circuit Court of Appeals (cc: all counsel) [EOD Date 2/27/03] (mrs) (Entered: 02/27/2003)
627 MOTION by pltf to exceed page limitation w/brief in support, and proposed oversized brief in support of pltfs' petition for attorneys' fees and expenses (mrs) (Entered: 03/03/2003)
628 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody adjourning without date status conference scheduled for 3/18/03 (cc: all counsel on 3/3/03) [EOD 3/3/03] (mj) (Entered: 03/03/2003)
629 RESPONSE IN OPPOSITION by deft to motion to exceed page limitation [627-1] w/prf of svc (mrs) (Entered: 03/11/2003)
630 ORDER (2 pgs) by Judge Richard A. Enslen that Court will stay its decision on pltfs' petition for attorneys' fees and expenses (dkt #540) until resolution of defts' appeal currently pending before the Sixth Circuit (cc: all counsel) [EOD Date 3/11/03] (mrs) (Entered: 03/11/2003)
631 BRIEF IN SUPPORT of RESPONSE by MI High Sch Ath Assn to pltf's motion to exceed page limitation [627-1] and prf of svc (mrs) (Entered: 03/14/2003)
632 ORDER (1 pg) by Magistrate Judge Ellen S. Carmody denying motion to exceed page limitation [627-1] (cc: all counsel) [EOD Date 3/18/03] (mrs) (Entered: 03/18/2003)
633 MOTION by MI High Sch Ath Assn to strike portions of pltfs' reply brief exhibits in support of pltfs' petition for attorneys' fees and expenses w/brief in support and prf of svc (mrs) (Entered: 03/18/2003)
634 REPLY brief in support by pltf re motion for attorneys fees and expenses [540-1] w/cert of svc (mrs) (Entered: 03/31/2003)

03/28/2003 04/07/2003
07/07/2003 07/29/2004 07/29/2004 11/22/2004 02/10/2005
02/10/2005
02/18/2005
02/18/2005 02/24/2005 02/24/2005 02/28/2005

635 EXHIBITS 1 - 19 by pltfs re reply biref in support of motion for attorneys fees and expenses [634-1] (mrs) (Entered: 03/31/2003)
636 STIPULATION AND ORDER (2 pgs) by Magistrate Judge Ellen S. Carmody regarding filing of briefs with respect to deft's motin to strike portion of pltfs' reply brief exhibits in support of pltfs petition for attorneys fees and expenses (cc: all counsel) (mrs) (Entered: 04/09/2003)
637 TRANSCRIPT of hearing held 7/26/03 before Judge Richard Alan Enslen; transcribed by Kathleen S. Thomas (rlw) (Entered: 07/08/2003)
638 SLIP OPINION from CCA re: CCA # 02-1127 affirming the judgment of the district court; appeal by defts [535-1] (rlw) (Entered: 07/30/2004)
639 JUDGMENT from Sixth Circuit Court of Appeals: (1 pg) affirming the judgment of the district court re: appeal by defts [535-1] (cc: all counsel) [EOD Date 7/30/04] (rlw) (Entered: 07/30/2004)
640 MANDATE of USCA re appeal 638 (mrs, ) (Entered: 11/24/2004)
641 ORDER that Defendant shall file a brief in support of 633 on or before 14 days from the date of this Order; Plaintiffs' brief in opposition to 633 is due on or before 14 days after receipt of Defendant's brief; signed by Judge Richard Alan Enslen (Judge Richard Alan Enslen, blb) (Entered: 02/10/2005)
Copy of Order, 641 sent via U.S. Mail to William M. Azkoul, Robin K. Bohnenstengel, Barbara Ann Burr, Allen S. Bush, Neena Chaudhry, Philip L. Cohan, Sarah A. Dunne, Kristen Galles, Marcia D. Greenberger, Lindsey B. Lang, Edmund J. Sikorski, and Roger E. Warin (acr, ) (Entered: 02/10/2005)
642 BRIEF in support of 633 motion to strike portions of plaintiffs' reply brief exhibits in support of plaintiffs' petition for attorneys' fees and expenses filed by Michigan High School Athletic Association (acr, ) (Entered: 02/24/2005)
643 PROOF OF SERVICE by defendant Michigan High School Athletic Association re 642 brief in support (acr, ) (Entered: 02/24/2005)
644 CLERK'S LETTER to attorney William M. Azkoul regarding e-filing requirement and paper filing 642 , 643 (acr, ) (Entered: 02/24/2005)
645 CLERK'S LETTER to attorney Edmund J. Sikorski regarding e-filing requirement and paper filing 642 , 643 (acr, ) (Entered: 02/24/2005)
646 PETITION FOR A WRIT OF CERTIORARI was filed with the US Supreme Court re Notice of Appeal 535 (rlw, ) Modified on 3/4/2005 to correct text (rlw, ). (Entered: 03/01/2005)

03/08/2005 03/08/2005 05/03/2005
05/03/2005
05/05/2005
05/06/2005 08/21/2006 08/21/2006 01/29/2007 02/15/2007 04/12/2007 04/12/2007

647 RESPONSE in opposition re 633 MHSAA'S Motion to Strike Portions of Plaintiffs' Reply Brief Exhibits in Support of Plaintiffs' Petition for Attorneys' Fees filed by Communities for Equity (Pinsky, H.) Modified text on 12/14/2006 (bd, ). (Entered: 03/08/2005)
648 PROOF OF SERVICE by plaintiffs Communities for Equity, Diane Madsen, Jay Roberts-Eveland (Pinsky, H.) (Entered: 03/08/2005)
649 SUPPLEMENT re 633 to Brief in Support of Defendant's Motion to Strike Portions of Plaintiffs' Reply Brief Exhibits in Support of Plaintiffs' Petition for Attorney Fees and Expensesby defendant Michigan High School Athletic Association (Azkoul, William) Modified to create link to docket #633 and delete link to docket #647 on 5/4/2005 (bd, ). (Entered: 05/03/2005)
650 PROOF OF SERVICE by defendant Michigan High School Athletic Association re 649 Supplemental Brief in Support of Defendant's Motion to Strike Portions of Plaintiffs' Reply Brief Exhibits in Support of Plaintiffs' Petition for Attorneys' Fees and Expenses (Azkoul, William) (Entered: 05/03/2005)
651 LETTER from Supreme Court of the United States that the petition for writ of certiorari is granted. The judgment is vacated and the case is remanded to the U.S. Court of Appeals for the Sixth Circuit in light of Rancho Palos Verdes v. Abrama re Notice of Appeal 535 (ldm, ) (Entered: 05/06/2005)
652 LETTER from Supreme Court of the United States that the petition for writ of certiorari is granted re Notice of Appeal 535 (rlw, ) (Entered: 05/12/2005)
653 SLIP OPINION of USCA re appeal 535 ; affirming the judgment of the district court (acr, ) (Entered: 08/22/2006)
654 JUDMGENT of USCA re 535 Notice of Appeal; the judgment of the district court is affirmed (acr, ) (Entered: 08/23/2006)
655 MANDATE of USCA re appeal 653 (rlw) (Entered: 02/02/2007)
656 LETTER from Supreme Court of the United States that a petition for writ of certiorari was filed on 1/29/07 and assigned case number 06-1038 (mrs) (Entered: 02/22/2007)
(DISREGARD) Copy of Order sent via U.S. Mail to Ross B. Bricker (bd) Modified text on 4/12/2007 to reflect this entry was docketed in the wrong case (bd, ). (Entered: 04/12/2007)
657 MOTION to intervene (Attachments: # 1 Affidavit Boven# 2 Affidavit Brissette# 3 Affidavit Caine# 4 Affidavit Christman# 5 Affidavit Friedman# 6 Affidavit Kumar# 7 Affidavit Rizk)(Walton, Garry) (Entered:

04/12/2007 04/16/2007 04/17/2007
04/18/2007 04/18/2007
04/19/2007
04/20/2007 04/23/2007
04/23/2007 04/23/2007

04/12/2007)
658 BRIEF in support of MOTION to intervene 657 filed by Garry L Walton(Walton, Garry) (Entered: 04/12/2007)
659 AFFIDAVIT re 657 (of Boven) by movant Michigan High School Tennis Coaches' Association, The (Walton, Garry) Modified text on 4/16/2007 (bd, ). (Entered: 04/16/2007)
660 ORDER that Plaintiffs and Defendant shall respond to the Motion to Intervene 657 not later than May 15, 2007; the Interveners shall file their Reply Brief to the Responses not later than May 29, 2007; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, blb) (Entered: 04/17/2007)
Copy of Order 660 sent via U.S. Mail to Roger E. Warin, Edmund J. Sikorski, Lindsey B. Lang, Marcia D. Greenberger, Kristen Galles, Sarah A. Dunne, Philip L. Cohan, Neena Chaudhry, Barbara Ann Burr, Robin K. Bohnenstengel (bd) (Entered: 04/18/2007)
661 LETTER from Clerk to Attorneys Roger E. Warin, Edmund J. Sikorski, Lindsey B. Lang, Marcia D. Greenberger, Kristen Galles, Sarah A. Dunne, Philip L. Cohan, Neena Chaudhry, Barbara Ann Burr and Robin K. Bohnenstengel regarding mandatory electronic filing (bd) (Entered: 04/18/2007)
663 ORDER REJECTING PLEADING; signed by Magistrate Judge Ellen S. Carmody (Attachments: # 1 Affidavit Boven# 2 Affidavit Brissette# 3 Affidavit Caine# 4 Affidavit Christman# 5 Affidavit Friedman# 6 Affidavit Kumar# 7 Affidavit Rizk)(bd) (Entered: 04/23/2007)
662 LETTER from Supreme Court of the United States that the petition for writ of certiorari is denied (rlw) (Entered: 04/20/2007)
Copy of Order Rejecting Pleading 663 sent via U.S. Mail to Robin K. Bohnenstengel, Barbara Ann Burr, Neena Chaudhry, Philip L. Cohan, Sarah A. Dunne, Kristen Galles, Marcia D. Greenberger, Lindsey B. Lang, Edmund J. Sikorski, Roger E. Warin and to Garry L. Walton with original proposed documents returned to Garry L. Walton (bd) (Entered: 04/23/2007)
664 LETTER from Court to Attorneys Bohnenstengel, Burr, Chaudhry, Philip Cohan, Dunne, Galles, Greenberger, Lang, Sikorski and Warin regarding mandatory electronic filing (bd) (Entered: 04/23/2007)
Copy of Letter 664 sent via U.S. Mail to Robin K. Bohnenstengel, Barbara Ann Burr, Neena Chaudhry, Philip L. Cohan, Sarah A. Dunne, Kristen Galles, Marcia D. Greenberger, Lindsey B. Lang, Edmund J. Sikorski,

04/25/2007 04/25/2007 04/25/2007 05/02/2007 05/02/2007 05/02/2007 05/02/2007 05/04/2007 05/09/2007 05/09/2007 05/14/2007

Roger E. Warin (bd) (Entered: 04/23/2007)
665 STIPULATION and PROPOSED ORDER by movant Michigan High School Tennis Coaches' Association, The (Attachments: # 1 Proposed Order Amended Order Rejecting Pleading)(Walton, Garry) (Entered: 04/25/2007)
666 PROOF OF SERVICE by movant Michigan High School Tennis Coaches' Association, The Stipulation for Entry of Amended Order Rejecting Pleading (Walton, Garry) (Entered: 04/25/2007)
667 PROOF OF SERVICE by movant Michigan High School Tennis Coaches' Association, The re 657 (Walton, Garry) (Entered: 04/25/2007)
668 AFFIDAVIT in support of Motion to Intervene 657 Affidavit of Marc Hage filed by Michigan High School Tennis Coaches' Association, The(Deming, Stuart) (Entered: 05/02/2007)
669 MOTION for order for Early Scheduling Conference by movant Michigan High School Tennis Coaches' Association, The; (Deming, Stuart) (Entered: 05/02/2007)
670 MEMORANDUM in support of Motion for Order 669 Brief in Support of Motion or Request for Early Scheduling Conference filed by Michigan High School Tennis Coaches' Association, The(Deming, Stuart) (Entered: 05/02/2007)
671 CERTIFICATE OF SERVICE by movant Michigan High School Tennis Coaches' Association, The re 669 Motion or Request for Early Scheduling Conference, Supporting Brief, and Affidavit of Marc Hage (Deming, Stuart) (Entered: 05/02/2007)
672 NOTICE Of Stipulation by plaintiff Communities for Equity (Attachments: # 1 Attachment Stipulation)(Pinsky, H.) (Entered: 05/04/2007)
673 AMENDED ORDER REJECTING PLEADING, granting STIPULATION 665 ; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 05/09/2007)
Copy of Order on Stipulation and Proposed Order 673 sent via U.S. Mail to Robin K. Bohnenstengel, Barbara Ann Burr, Neena Chaudhry, Philip L. Cohan, Sarah A. Dunne, Marcia D. Greenberger, Lindsey B. Lang, Edmund J. Sikorski, Roger E. Warin, (bd) (Entered: 05/09/2007)
674 MOTION to withdraw as attorney (by Attorney Philip L. Cohan); with Certificate of Service; by plaintiffs Communities for Equity, Diane Madsen, Jay Roberts-Eveland; (Attachments: # 1 Proposed Order)(bd) (Entered: 05/15/2007)

05/15/2007 05/15/2007 05/15/2007 05/15/2007 05/15/2007 05/15/2007 05/22/2007
05/23/2007 05/23/2007 05/23/2007

675 ORDER granting 674 Philip L. Cohan's motion to withdraw as attorney for plaintiffs; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 05/15/2007)
676 RESPONSE TO MOTION to intervene 657 filed by Michigan High School Athletic Association (Attachments: # 1 Exhibit 1)(Azkoul, William) Modified text on 5/16/2007 (bd, ). (Entered: 05/15/2007)
Copy of Order on Motion to Withdraw as Attorney 675 sent via U.S. Mail to Robin K. Bohnenstengel, Barbara Ann Burr, Neena Chaudhry, Philip L. Cohan, Sarah A. Dunne, Marcia D. Greenberger, Lindsey B. Lang, Edmund J. Sikorski, and Roger E. Warin (acr) (Entered: 05/15/2007)
677 LETTER from Clerk to attorneys Robin K. Bohnenstengel, Barbara Ann Burr, Neena Chaudhry, Sarah A. Dunne, Marcia D. Greenberger, Lindsey B. Lang, Edmund J. Sikorski, and Roger E. Warin regarding mandatory electronic filing requirements (acr) (Entered: 05/15/2007)
678 CERTIFICATE OF SERVICE by defendant Michigan High School Athletic Association re 676 (Azkoul, William) (Entered: 05/15/2007)
679 RESPONSE in opposition to MOTION to intervene 657 filed by Communities for Equity; with Certificate of Service; (Attachments: # 1 Exhibit A - Sample Press# 2 Exhibit B - GR Press Pass Aspirin Compliance Plan# 3 Exhibit C - MHSSA Schedules)(Pinsky, H.) Modified text on 5/16/2007 (bd, ). (Entered: 05/15/2007)
680 REPLY to response to motion 657 filed by Michigan High School Tennis Coaches' Association, The (Attachments: # 1 Supplemental Affidavit of Richard Friedman in Support of Motion to Intervene# 2 Affidavit of Kevin Akin in Support of Motion to Intervene# 3 Affidavit of Craig Capelli in Support of Motion to Intervene# 4 Affidavit of Peter Militzer in Support of Motion to Intervene# 5 Affidavit of Thomas Pullen in Support of Motion to Intervene# 6 Affidavit of Margaret Ruemenapp in Support of Motion to Intervene)(Deming, Stuart) Modified text on 5/23/2007 (bd, ). (Entered: 05/22/2007)
681 NOTICE OF MOTION HEARING regarding motion to intervene 657 set for 7/12/2007 at 09:00 AM at 174 Federal Building, Kalamazoo, MI before Senior Judge Richard Alan Enslen;(Senior Judge Richard Alan Enslen, sas) (Entered: 05/23/2007)
682 PROOF OF SERVICE by movant Michigan High School Tennis Coaches' Association, The Reply Brief, Supplemental Affidavit of Richard Friedman; Akin Affidavit; Capelli Affidavit; Militzer Affidavit; Pullen Affidavit; Ruemenapp Affidavit (Walton, Garry) (Entered: 05/23/2007)
683 LETTER from court to Attorneys Roger E. Warin, Marcia D. Greenberger, Edmund J. Sikorski, Kristen Galles, Neena Chaudhry, Lindsey B. Lang,

05/23/2007 05/23/2007 05/24/2007 05/24/2007 06/07/2007
06/07/2007
06/07/2007 06/07/2007

Sarah A. Dunne, Barbara Ann Burr and Robin K. Bohnenstengel regarding mandatory electronic filing (bd) (Entered: 05/23/2007)
684 AMENDED LETTER from court to Attorneys Warin, Greenberger, Sikorski, Lang, Dunne, Burr and Chaudhry regarding mandatory electronic filing (bd) Modified text on 5/23/2007 (bd, ). (Entered: 05/23/2007)
Copy of Notice of Motion Hearing 681 sent via U.S. Mail to Robin K. Bohnenstengel, Barbara Ann Burr, Neena Chaudhry, Sarah A. Dunne, Marcia D. Greenberger, Lindsey B. Lang, Edmund J. Sikorski, and Roger E. Warin (bd) (Entered: 05/29/2007)
685 ORDER denying 669 motion or request for early scheduling conference; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, blb) (Entered: 05/24/2007)
Copy of Order on Motion for Order 685 sent via U.S. Mail to Robin K. Bohnenstengel, Barbara Ann Burr, Neena Chaudhry, Sarah A. Dunne, Marcia D. Greenberger, Lindsey B. Lang, Edmund J. Sikorski, and Roger E. Warin (acr) (Entered: 05/24/2007)
686 MOTION to intervene, MOTION for order for modification of remedial order, and other relief of certain coaches of Upper Peninsula high school girls soccer teams and certain parents of team members by movants Kelly Jean Bianco, Dave Hodgins, Will Andresen, Dennis West, Michael Parks, Lantz D. Whitfield, Kellie Holmstrom, Holly Conrad, Joseph Limback, Ross Tresedder and Wendy Stolt (bd) Modified text on 6/7/2007 (bd, ). (Entered: 06/07/2007)
687 BRIEF in support of MOTION to intervene MOTION for order (for modification of remedial order, and other relief of certain coaches of Upper Peninsula high school girls soccer teams and certain parents of team members) 686 filed by Kelly Jean Bianco, Dave Hodgins, Will Andresen, Dennis West, Michael Parks, Kellie Holmstrom, Holly Conrad, Joseph Limback, Ross Tresedder, Wendy Stolt, Lantz D. Whitfield (Attachments: # 1 Attachments)(bd) Modified text on 6/7/2007 (bd, ). (Entered: 06/07/2007)
688 MOTION for hearing titled "Motion or Request for Early Scheduling Conference" by movants Kelly Jean Bianco, Dave Hodgins, Will Andresen, Dennis West, Michael Parks, Kellie Holmstrom, Holly Conrad, Joseph Limback, Ross Tresedder, Wendy Stolt, Lantz D. Whitfield; (bd) (Entered: 06/07/2007)
689 BRIEF in support of MOTION for hearing titled "Motion or Request for Early Scheduling Conference" 688 filed by Kelly Jean Bianco, Dave Hodgins, Will Andresen, Dennis West, Michael Parks, Kellie Holmstrom, Holly Conrad, Joseph Limback, Ross Tresedder, Wendy Stolt, Lantz D.

06/07/2007 06/12/2007 06/12/2007 06/12/2007
06/12/2007
06/12/2007 06/12/2007 06/13/2007

Whitfield(bd) (Entered: 06/07/2007)
690 CERTIFICATE OF SERVICE by movants Kelly Jean Bianco, Dave Hodgins, Will Andresen, Dennis West, Michael Parks, Kellie Holmstrom, Holly Conrad, Joseph Limback, Ross Tresedder, Wendy Stolt, Lantz D. Whitfield re 687 , 686 , 688 , 689 (bd) (Entered: 06/07/2007)
691 ORDER that Plaintiffs and Defendant shall respond to 686 & 687 not later than June 26, 2007; Interveners shall file their reply brief to the responses not later than July 3, 2007; denying 688 Interveners' motion for early scheduling conference; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, blb) (Entered: 06/12/2007)
Copy of Order on Motion for Hearing 691 sent via U.S. Mail to Robin K. Bohnenstengel, Barbara Ann Burr, Neena Chaudhry, Sarah A. Dunne, Marcia D. Greenberger, Edmund J. Sikorski (bd) (Entered: 06/12/2007)
693 MOTION to intervene , for Modification of Remedial Order, and Other Relief of Certain Coaches of Upper Peninsula High School Boys Soccer Teams, and Certain Parents of Team Members by movants Kelly Jean Bianco, Dave Hodgins, Will Andresen, David Lucas, Gayle Larson, John T. Fornetti, Monica Erickson, Mary Formolo, Maureen McKindles, Connie J. Tresedder, Kimberly Sirrene, Alan Beck, Todd Chambers; (acr) (Entered: 06/13/2007)
694 BRIEF in support of MOTION to intervene , for Modification of Remedial Order, and Other Relief of Certain Coaches of Upper Peninsula High School Boys Soccer Teams, and Certain Parents of Team Members 693 filed by Kelly Jean Bianco, Dave Hodgins, Will Andresen, David Lucas, Gayle Larson, John T. Fornetti, Monica Erickson, Mary Formolo, Maureen McKindles, Connie J. Tresedder, Kimberly Sirrene, Alan Beck, Todd Chambers (Attachments: # 1 Attachment)(acr) (Entered: 06/13/2007)
695 MOTION for hearing titled "Motion or Request for Early Scheduling Conference" with Brief in Support by movants Kelly Jean Bianco, Dave Hodgins, Will Andresen, David Lucas, Gayle Larson, John T. Fornetti, Monica Erickson, Mary Formolo, Maureen McKindles, Connie J. Tresedder, Kimberly Sirrene, Alan Beck, Todd Chambers; (acr) (Entered: 06/13/2007)
696 CERTIFICATE OF SERVICE by movants Kelly Jean Bianco, Dave Hodgins, Will Andresen, David Lucas, Gayle Larson, John T. Fornetti, Monica Erickson, Mary Formolo, Maureen McKindles, Connie J. Tresedder, Kimberly Sirrene, Alan Beck, Todd Chambers re 695 (acr) (Entered: 06/13/2007)
692 LETTER from court to Robin K. Bohnenstengel, Marcia D. Greenberger,

06/13/2007 06/14/2007 06/14/2007 06/26/2007
06/26/2007
07/03/2007

Barbara Ann Burr, Sarah A. Dunne, Neena Chaudhry and Edmund J. Sikorski regarding mandatory electronic filing (bd) (Entered: 06/13/2007)
697 CLERK'S LETTER to attorney Leonard A. Kaanta regarding e-filing requirement and paper filing 694 , 696 , 693 , 695 (acr) (Entered: 06/13/2007)
698 ORDER that Plaintiffs and Defendant shall respond to 693 & 694 not later than June 26, 2007; Interveners shall file their reply brief to the responses not later than July 3, 2007; denying 695 Interveners' motion for early scheduling conference; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, blb) (Entered: 06/14/2007)
Copy of Order on Motion for Hearing 698 sent via U.S. Mail to Robin K. Bohnenstengel, Barbara Ann Burr, Neena Chaudhry, Sarah A. Dunne, Marcia D. Greenberger, Edmund J. Sikorski (bd) (Entered: 06/14/2007)
699 RESPONSE in opposition to MOTION to intervene MOTION for order (for modification of remedial order, and other relief of certain coaches of Upper Peninsula high school girls soccer teams and certain parents of team members) MOTION for order (for modification of remedial order, and other relief of certain coaches of Upper Peninsula high school girls soccer teams and certain parents of team members) 686 PLaintiff's Joint Opposition to Soccer Motions to Intervene filed by Communities for Equity (Attachments: # 1 Attachment Seasons Charts# 2 Exhibit A - Sample Press Articles# 3 Exhibit B Sample Press Re: Compliance Plan Options# 4 Exhibit C - MHSAA Correspondence & Reports# 5 Exhibit D - MHSAA Correspondence & Reports# 6 Exhibit E - MHSAA Correspondence & Reports)(Pinsky, H.) (Entered: 06/26/2007)
700 RESPONSE TO MOTION to intervene , for Modification of Remedial Order, and Other Relief of Certain Coaches of Upper Peninsula High School Boys Soccer Teams, and Certain Parents of Team Members 693 , MOTION to intervene MOTION for order (for modification of remedial order, and other relief of certain coaches of Upper Peninsula high school girls soccer teams and certain parents of team members) MOTION for order (for modification of remedial order, and other relief of certain coaches of Upper Peninsula high school girls soccer teams and certain parents of team members) 686 filed by Michigan High School Athletic Association (Attachments: # 1 Exhibit Revised 2007-08 Calendar)(Azkoul, William) (Entered: 06/26/2007)
701 REPLY to response to motion 686 filed by Kelly Jean Bianco, Dave Hodgins, Will Andresen, Dennis West, Michael Parks, Kellie Holmstrom, Holly Conrad, Joseph Limback, Ross Tresedder, Wendy Stolt, Lantz D. Whitfield (Anderson, Robert) (Entered: 07/03/2007)

07/03/2007 07/03/2007 07/03/2007 07/03/2007 07/03/2007 07/10/2007 07/10/2007 07/11/2007

702 REPLY to response to motion 686 filed by Kelly Jean Bianco, Dave Hodgins, Will Andresen, Dennis West, Michael Parks, Kellie Holmstrom, Holly Conrad, Joseph Limback, Ross Tresedder, Wendy Stolt, Lantz D. Whitfield (Anderson, Robert) (Entered: 07/03/2007)
703 REPLY to response to motion 695 filed by Kelly Jean Bianco, Dave Hodgins, Will Andresen, David Lucas, Gayle Larson, John T. Fornetti, Monica Erickson, Mary Formolo, Maureen McKindles, Connie J. Tresedder, Kimberly Sirrene, Alan Beck, Todd Chambers (Kaanta, Leonard) (Entered: 07/03/2007)
704 REPLY to response to motion 695 filed by Kelly Jean Bianco, Dave Hodgins, Will Andresen, David Lucas, Gayle Larson, John T. Fornetti, Monica Erickson, Mary Formolo, Maureen McKindles, Connie J. Tresedder, Kimberly Sirrene, Alan Beck, Todd Chambers (Kaanta, Leonard) (Entered: 07/03/2007)
705 CERTIFICATE OF SERVICE by movants Kelly Jean Bianco, Dave Hodgins, Will Andresen, Dennis West, Michael Parks, Kellie Holmstrom, Holly Conrad, Joseph Limback, Ross Tresedder, Wendy Stolt, Lantz D. Whitfield (Anderson, Robert) (Entered: 07/03/2007)
706 CERTIFICATE OF SERVICE by movants Kelly Jean Bianco, Dave Hodgins, Will Andresen, David Lucas, Gayle Larson, John T. Fornetti, Monica Erickson, Mary Formolo, Maureen McKindles, Connie J. Tresedder, Kimberly Sirrene, Alan Beck, Todd Chambers (Kaanta, Leonard) (Entered: 07/03/2007)
707 ATTORNEY APPEARANCE of James Shek on behalf of movants Kelly Jean Bianco, Dave Hodgins, Will Andresen, David Lucas, Gayle Larson, John T. Fornetti, Monica Erickson, Mary Formolo, Maureen McKindles, Connie J. Tresedder, Kimberly Sirrene, Alan Beck, Todd Chambers (Shek, James) (Entered: 07/10/2007)
708 ATTORNEY APPEARANCE of James Shek on behalf of movants Kelly Jean Bianco, Dave Hodgins, Will Andresen, Dennis West, Michael Parks, Kellie Holmstrom, Holly Conrad, Joseph Limback, Ross Tresedder, Wendy Stolt, Lantz D. Whitfield (Shek, James) (Entered: 07/10/2007)
709 SUPPLEMENTAL RESPONSE in opposition to MOTION to intervene MOTION for order (for modification of remedial order, and other relief of certain coaches of Upper Peninsula high school girls soccer teams and certain parents of team members) MOTION for order (for modification of remedial order, and other relief of certain coaches of Upper Peninsula high school girls soccer teams and certain parents of team members) 686 689 Corrected Attachment filed by Communities for Equity (Pinsky, H.) Modified text on 7/12/2007 (bd, ). Modified text/link on 7/16/2007 (bd, ). (Entered: 07/11/2007)

07/11/2007 07/11/2007 07/12/2007 07/12/2007 07/12/2007 07/12/2007 07/12/2007 07/12/2007 07/13/2007 07/13/2007 07/13/2007
07/13/2007 07/13/2007

710 ORDER canceling the 7/12/07 hearing on the Motions to Intervene ; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, sas) (Entered: 07/11/2007)
Copy of Order 710 sent via U.S. Mail to R. Bohnenstengel, B. Burr, N. Chaudhry, S. Dunne (bd) (Entered: 07/11/2007)
711 LETTER from Clerk to attorney B. Burr, N. Chaudhry, S. Dunne and M. Greenberger regarding mandatory electronic filing (bd) (Entered: 07/12/2007)
712 RESPONSE TO MOTION to intervene 657 Addendum filed by Michigan High School Athletic Association (Azkoul, William) (Entered: 07/12/2007)
713 MOTION to stay by movant Michigan High School Tennis Coaches' Association, The; (Walton, Garry) (Entered: 07/12/2007)
714 BRIEF in support of MOTION to stay 713 filed by Michigan High School Tennis Coaches' Association, The(Walton, Garry) (Entered: 07/12/2007)
Copy of Order 710 sent via U.S. Mail to Marcia D. Greenberger (bd) (Entered: 07/12/2007)
715 LETTER from Clerk to attorney Robin K. Bohnenstengel regarding mandatory electronic filing (bd) (Entered: 07/12/2007)
716 CERTIFICATE OF SERVICE by movant Michigan High School Tennis Coaches' Association, The re 713 (Walton, Garry) (Entered: 07/13/2007)
717 OPINION; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, blb) (Entered: 07/13/2007)
718 ORDER denying 657 Michigan High School Tennis Coaches Association, Amy Christman, as next friend of L.C., Richard D. Friedman, as next friend of R.A.F., and Rafat Rizk, as next friend of M.R.'s motion to intervene; denying as moot 713 Michigan High School Tennis Coaches Association, Amy Christman, as next friend of L.C., Richard D. Friedman, as next friend of R.A.F., and Rafat Rizk, as next friend of M.R.'s motion to stay; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, blb) (Entered: 07/13/2007)
719 OPINION; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, blb) (Entered: 07/13/2007)
720 ORDER denying 686 Kelly Jean Bianco, Soccer Coach; Dave Hodgins, Soccer Assistant Coach; Will Andresen, Soccer Coach; Dennis West, Assistant Varisty Soccer Coach; Michael Parks, Assistant Varsity Soccer Coach; Lantz D. Whitfield, Junior Varsity Soccer Coach; Kellie A. Holmstrom, Marquette Area Public School Board Member and as next

07/13/2007
07/16/2007 07/18/2007 07/20/2007 07/20/2007 08/17/2007
08/23/2007 08/23/2007 09/04/2007

friend of K.A.C.; Holly Conrad, as next friend of E.C.; Joseph Limback, as next friend of E.M.L.; Ross Tresededer, as next friend of A.J.T.; and Wendy Stolt, as next friend of E.M.S.s motion to intervene; denying 686 motion for order; denying 693 Alan Beck, Boys Varsity Soccer Coach; Todd Chambers, Boys Varisty Soccer Coach; Kelly Jean Bianco, Soccer Coach; Dave Hodgins, Soccer Assistant Coach; Will Andresen, Soccer Coach; David Lucas, as next of friend of A.L.; Gayle Larson, as next friend of G.P.L.; John T. Fornetti, as next friend of D.M.F.; Monica Erickson, as next friend of M.E.; Mary Formolo, as next of friend to C.F.; Maureen McKindles, as next friend of D.F.M.; Connie J. Tresedder, as next of friend of A.J.T.; and Kimerly Sirrene, as next of friend of D.S.s motion to intervene; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, blb) (Entered: 07/13/2007)
Copy of Order on Motion to Intervene, Order on Motion to Stay 718 , Opinion 717 , Opinion 719 , Order on Motion to Intervene, Order on Motion for Order 720 sent via U.S. Mail to Robin K. Bohnenstengel, Marcia D. Greenberger, Sarah A. Dunne, Neena Chaudhry, Barbara Ann Burr (rlw) (Entered: 07/13/2007)
721 MOTION to withdraw as attorney with certificate of service by plaintiffs Communities for Equity, Diane Madsen, Jay Roberts-Eveland; (Attachments: # 1 Proposed Order)(acr) (Entered: 07/18/2007)
722 CLERK'S LETTER to attorney Neena Chaudhry regarding e-filing requirement and paper filing 721 (acr) (Entered: 07/18/2007)
723 ORDER granting 721 Barbara Burr's motion to withdraw as attorney for plaintiffs; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, blb) (Entered: 07/20/2007)
Copy of Order on Motion to Withdraw as Attorney 723 sent via U.S. Mail to Robin K. Bohnenstengel, Barbara Ann Burr, Neena Chaudhry, Sarah A. Dunne, Marcia D. Greenberger (bd) (Entered: 07/20/2007)
724 ORDER that Plaintiffs and Defendant may file supplemental briefing with the Court on the issue of attorneys fees not later than September 4, 2007; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, blb) (Entered: 08/17/2007)
Copy of Order 724 sent via U.S. Mail to R. Bohnenstengel, S. Dunne, M. Greenberger (bd) (Entered: 08/23/2007)
725 LETTER from Clerk to attorney Robin K. Bohnenstengel and Sarah A. Dunne regarding mandatory electronic filing (bd) (Entered: 08/23/2007)
726 RESPONSE in opposition Supplemental Brief in opposition to Plaintiffs' Fee Petition filed by Michigan High School Athletic Association (Azkoul, William) (Entered: 09/04/2007)

09/04/2007 09/04/2007
09/04/2007 09/04/2007 09/04/2007 09/04/2007
09/05/2007 09/11/2007 09/11/2007 09/12/2007 09/14/2007

727 BRIEF by plaintiffs Communities for Equity, Diane Madsen, Jay RobertsEveland Supplemental Fee Petition (Galles, Kristen) (Entered: 09/04/2007)
728 DECLARATION re 727 of Kristen Galles iso Supplemental Fee Petition by plaintiffs Communities for Equity, Diane Madsen, Jay RobertsEveland (Attachments: # 1 Exhibit A# 2Exhibit B Part1# 3 Exhibit B Part2# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E)(Galles, Kristen) (Entered: 09/04/2007)
729 DECLARATION re 727 of Neena Chaudhry iso Supplemental Fee Petition by plaintiffs Communities for Equity, Diane Madsen, Jay RobertsEveland (Attachments: # 1 Exhibit A# 2Exhibit B# 3 Exhibit C)(Galles, Kristen) Modified text on 9/5/2007 (mrs, ). (Entered: 09/04/2007)
730 DECLARATION re 727 of Stephen Drew iso Supplemental Fee Petition by plaintiffs Communities for Equity, Diane Madsen, Jay RobertsEveland (Galles, Kristen) Modified text on 9/5/2007 (mrs, ). (Entered: 09/04/2007)
731 DECLARATION re 727 of H. Rhett Pinsky iso Supplemental Fee Petition by plaintiffs Communities for Equity, Diane Madsen, Jay RobertsEveland (Attachments: # 1 Exhibit A Part1# 2 Exhibit A Part2)(Galles, Kristen) Modified text on 9/5/2007 (mrs, ). (Entered: 09/04/2007)
732 DECLARATION re 727 of Kristen Galles iso Supplemental Fee Petition with original signature by plaintiffs Communities for Equity, Diane Madsen, Jay Roberts-Eveland (Attachments: # 1 Exhibit A# 2 Exhibit B1# 3 Exhibit B2# 4 Exhibit C# 5 Exhibit D)(Galles, Kristen) Modified text on 9/5/2007 (mrs, ). (Entered: 09/04/2007)
733 EX PARTE MOTION for extension of time to file Warin Declaration one day out of time with exhibits A-C by plaintiffs Communities for Equity, Diane Madsen, Jay Roberts-Eveland; (Galles, Kristen) Modified text on 9/6/2007 (rlw, ). (Entered: 09/05/2007)
734 MOTION for extension of time to file response/reply re 727 by defendant Michigan High School Athletic Association; (Azkoul, William) (Entered: 09/11/2007)
735 BRIEF in support of MOTION for extension of time to file response/reply re 727 734 filed by Michigan High School Athletic Association (Attachments: # 1 Exhibit 1)(Azkoul, William) (Entered: 09/11/2007)
736 CERTIFICATE OF SERVICE by defendant Michigan High School Athletic Association re 734 (Azkoul, William) (Entered: 09/12/2007)
737 NOTICE re 734 of concurrence re: defendant's motion for opportunity to respond to supplemental briefing by defendant Michigan High School

09/14/2007 09/24/2007
09/25/2007 09/25/2007 10/01/2007 10/01/2007
10/02/2007 11/30/2007
01/29/2008

Athletic Association (Attachments: #1 Exhibit Certificate of Service)(Azkoul, William) Modified text on 9/17/2007 (rlw, ). (Entered: 09/14/2007)
738 STIPULATION by defendant Michigan High School Athletic Association (Attachments: # 1 Exhibit Certificate of Service)(Azkoul, William) (Entered: 09/14/2007)
739 ORDER approving STIPULATION 738 ; Defendant will file a response to Plaintiffs' supplemental briefing not later than Nov. 30, 2007; Plaintiffs will file a reply within 60 days of the date of Defendant's response; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, blb) (Entered: 09/24/2007)
Copy of Order on Stipulation, 739 sent via U.S. Mail to Robin K. Bohnenstengel, Sarah A. Dunne (rlw) (Entered: 09/25/2007)
740 LETTER from Clerk to attorney Robin K. Bohnenstengel regarding mandatory electronic filing (rlw) (Entered: 09/25/2007)
741 ORDER granting 733 plaintiffs' motion for extension of time to file declaration one day out of time; Declaration of Roger Warin is ACCEPTED for filing; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, blb) (Entered: 10/01/2007)
742 DECLARATION re 727 of Roger E. Warin in support of plaintiffs' supplemental motion for attorney's fees and expenses by plaintiffs Communities for Equity, Diane Madsen, Jay Roberts-Eveland (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(rlw) Modified text on 10/2/2007 (rlw, ). (Entered: 10/02/2007)
Copy of Order on Motion for Extension of Time to File 741 sent via U.S. Mail to Robin K. Bohnenstengel, Sarah A. Dunne (rlw) (Entered: 10/02/2007)
743 REPLY to response to Supplemental Brief and Exhibits In Support of Plaintiffs' Petition for Attorney's Fees and Expenses filed by Michigan High School Athletic Association (Attachments: # 1 Exhibit List of Exhibits# 2 Exhibit 1# 3 Exhibit 1A# 4 Exhibit 1B# 5 Exhibit 2# 6 Exhibit 3# 7 Exhibit 4# 8 Exhibit 5# 9 Exhibit 6# 10 Exhibit 7# 11 Exhibit 8# 12Exhibit 9# 13 Exhibit 10# 14 Exhibit 11# 15 Exhibit 12# 16 Exhibit 13# 17 Exhibit 14# 18 Exhibit 15# 19 Exhibit Certificate of Service)(Azkoul, William) (Entered: 11/30/2007)
744 BRIEF by plaintiffs Communities for Equity, Diane Madsen, Jay RobertsEveland Reply Brief iso Supplemental Fee Petition (Attachments: # 1 Exhibit Exhibits to Reply Brief)(Galles, Kristen) (Entered: 01/29/2008)

01/29/2008 03/31/2008 03/31/2008
03/31/2008 04/14/2008
04/14/2008
04/14/2008
04/29/2008 04/29/2008 05/08/2008 05/19/2008 05/27/2008 07/14/2008

745 DECLARATION of Lindsey Lang by plaintiffs Communities for Equity, Diane Madsen, Jay Roberts-Eveland (Attachments: # 1 Exhibit Exhibits A-C, # 2 Exhibit Exhibits D-E)(Galles, Kristen) (Entered: 01/29/2008)
746 OPINION; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, blb) (Entered: 03/31/2008)
747 JUDGMENT denying 633 defendant's motion to strike; granting in part and denying in part 540 plaintiffs' motion for attorney fees; attorneys' fees and costs are awarded in favor of Plaintiffs and against Defendant Michigan High School Athletic Association in the amount of $4,560,261.93; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, blb) (Entered: 03/31/2008)
Certified Copy of Opinion 746 , Order on Motion for Attorney Fees, Order on Motion to Strike,, 747 sent via U.S. Mail to Sarah A. Dunne, Robin K. Bohnenstengel (rlw) (Entered: 03/31/2008)
748 SUPPLEMENTAL MOTION for attorney fees; with Certificate of Service; by plaintiffs Communities for Equity, Diane Madsen, Jay Roberts-Eveland; (Galles, Kristen) Modified text on 4/15/2008 (bd). (Entered: 04/14/2008)
749 BRIEF in support of Supplemental MOTION for attorney fees 748 ; with Certificate of Service; filed by Communities for Equity, Diane Madsen, Jay Roberts-Eveland(Galles, Kristen) Modified text on 4/15/2008 (bd). (Entered: 04/14/2008)
750 AFFIDAVIT in support of Motion for Attorney Fees 748 Declaration of Lindsey Lang; with Certificate of Service; filed by Communities for Equity, Diane Madsen, Jay Roberts-Eveland(Galles, Kristen) Modified text on 4/15/2008 (bd). (Entered: 04/14/2008)
751 NOTICE OF APPEAL re 747 by defendant Michigan High School Athletic Association (Azkoul, William) (Entered: 04/29/2008)
APPEAL FEE PAID re 751 by defendant Michigan High School Athletic Association in the amount of $455, receipt number 06460000000001228130 (Azkoul, William) (Entered: 04/29/2008)
752 NOTICE of judgment lien with certification by plaintiff Communities for Equity (rlw) (Entered: 05/13/2008)
CASE NUMBER 08-1670 assigned by the Sixth Circuit Court of Appeals to appeal 751 (elc) (Entered: 05/27/2008)
753 PROOF OF SERVICE by plaintiff Communities for Equity re 752 Notice of Judgment Lien (Pinsky, H.) (Entered: 05/27/2008)
754 ORDER that Defendant may file a belated response to Plaintiffs Second

07/15/2008 07/17/2008 07/17/2008 07/17/2008 07/17/2008 07/28/2008
07/30/2008
08/14/2008 08/14/2008
08/15/2008 08/19/2008 08/26/2008

Supplemental Petition for Attorney Fees and Expenses 748 within 14 days from the entry of this Order; Plaintiff may file a reply to Defendants response within 14 days of its filing; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, blb) (Entered: 07/14/2008)
Copy of Order 754 sent via U.S. Mail to Robin K. Bohnenstengel and Sarah A. Dunne (bd) (Entered: 07/15/2008)
755 ORDER that attorney Robin K. Bohnenstengel must register as an electronic filer by 8/18/2008; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 07/17/2008)
756 ORDER that attorney Sarah A. Dunne must register as an electronic filer by 8/18/2008; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 07/17/2008)
Copy of Order Regarding Mandatory E-Filing and Service 755 sent via U.S. Mail to Robin K. Bohnenstengel (dfw) (Entered: 07/18/2008)
Copy of Order Regarding Mandatory E-Filing and Service 756 sent via U.S. Mail to Sarah A. Dunne (dfw) (Entered: 07/18/2008)
757 RESPONSE to Supplemental Motion for attorney fees 748 filed by Michigan High School Athletic Association (Attachments: # 1 Attachment Exhibit List, # 2 Exhibit 1, # 3 Exhibit 2)(Azkoul, William) Modified text on 7/29/2008 (bd). (Entered: 07/28/2008)
758 CERTIFICATE OF SERVICE by defendant Michigan High School Athletic Association re 757 Defendant's Response in Opposition to Plaintiffs' Second Supplemental Petition for Attorney Fees and Expenses (Azkoul, William) (Entered: 07/30/2008)
759 OPINION; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, blb) (Entered: 08/14/2008)
760 JUDGMENT granting 748 plaintiffs' supplemental motion for attorney fees; Judgment is awarded for Plaintiffs and against Defendant Michigan High School Athletic Association in the amount of $94,309.78; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, blb) (Entered: 08/14/2008)
Certified Copy of Opinion 759 , Order on Motion for Attorney Fees 760 sent via U.S. Mail to Robin K. Bohnenstengel and Sarah A. Dunne (bd) (Entered: 08/15/2008)
761 MOTION to withdraw as attorney with certificate of service by Sarah A. Dunne (Attachments: # 1 Proposed Order)(dfw) Modified text on 8/20/2008 (dfw). (Entered: 08/20/2008)
762 ORDER granting 761 motion to withdraw as attorney; Sarah A. Dunne is

08/27/2008 03/25/2009
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hereby withdrawn from the case as counsel of record for the United States; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, blb) (Entered: 08/26/2008)
Copy of Order on Motion to Withdraw as Attorney 762 sent via U.S. Mail to Sarah A. Dunne (bd) (Entered: 08/27/2008)
763 MOTION to SEAL Motion for an Order Approving Settlement Agreement by plaintiff Communities for Equity and by defendant Michigan High School Athletic Association; (Galles, Kristen) Modified text on 3/26/2009 (bd). (Entered: 03/25/2009)
764 MEMORANDUM in support of Motion to Seal 763 filed by Communities for Equity(Galles, Kristen) (Entered: 03/25/2009)
765 PROPOSED ORDER regarding Motion to File Under Seal by plaintiff Communities for Equity and by defendant Michigan High School Athletic Association (Galles, Kristen) Modified text on 3/26/2009 (bd). (Entered: 03/25/2009)
766 NOTICE that this case is reassigned to Chief Judge Paul L. Maloney for all further proceedings pursuant to Administrative Order Number 09-003 ; Senior Judge Richard Alan Enslen no longer assigned to case (bd) (Entered: 03/26/2009)
767 LETTER from Clerk to attorney Timothy A. Fusco regarding mandatory electronic filing (bd) (Entered: 03/26/2009)
Copy of Notice Regarding Reassignment of Case 766 and Mandatory EFiling Letter 767 sent via U.S. Mail to Timothy A. Fusco (bd) (Entered: 03/26/2009)
768 ATTORNEY SUBSTITUTION adding attorney Matthew L. Meyer in the place of Charles R. Gross (Meyer, Matthew) (Entered: 03/26/2009)
769 ORDER denying 763 joint motion to seal ; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, aeb) (Entered: 03/31/2009)
Copy of Order on Motion to Seal 769 sent via U.S. Mail to Timothy A. Fusco (bd) (Entered: 04/01/2009)
770 MOTION for settlement by plaintiff Communities for Equity, defendant Michigan High School Athletic Association; (Galles, Kristen) (Entered: 04/01/2009)
771 PROPOSED ORDER regarding motion to approve settlement agreement by plaintiffs Communities for Equity, Diane Madsen, Jay Roberts-Eveland, defendant Michigan High School Athletic Association (Galles, Kristen) (Entered: 04/01/2009)

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Notice from Chambers: proposed settlement agreement submitted to Court returned to counsel for plaintiffs, Kristen Galles, pursuant to Order 769 (Chief Judge Paul L. Maloney, acr) (Entered: 04/02/2009)
772 ORDER ; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, aeb) (Entered: 04/03/2009)
Copy of Order 772 sent via U.S. Mail to Timothy A. Fusco (bd) (Entered: 04/03/2009)
773 ORDER of USCA re appeal 751 case is dismissed per stipulation of the parties; no mandate to issue (rlw) Modified text on 4/13/2009 (dfw). (Entered: 04/09/2009)
774 SATISFACTION OF JUDGMENT by plaintiffs Communities for Equity, Diane Madsen, Jay Roberts-Eveland (Galles, Kristen) (Entered: 05/03/2010)
775 SATISFACTION OF JUDGMENT - Discharge of Judgment Lien by plaintiffs Communities for Equity, Diane Madsen, Jay Roberts-Eveland (Galles, Kristen) (Entered: 05/03/2010)

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 No. 02-1127
IN THE UNITED STATES COURT OF APPEALS
 FOR THE SIXTH CIRCUIT
 _______________
COMMUNITIES FOR EQUITY, et al.,
Plaintiffs-Appellees
v.
MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION,
Defendant-Appellant _______________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN _______________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
 SUPPORTING APPELLEES AND URGING AFFIRMANCE

_______________
J. MICHAEL WIGGINS Acting Assistant Attorney General
DENNIS J. DIMSEY TERESA KWONG
Attorneys Department of Justice Civil Rights Division Appellate Section – PHB 5012 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 514-4757

TABLE OF CONTENTS


PAGE


INTEREST OF THE UNITED STATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 


QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 


STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 


SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 


ARGUMENT:


I. MHSAA’S ATHLETIC SEASONS SCHEDULE VIOLATES
 EQUAL PROTECTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 


II. MHSAA’S ATHLETIC SEASONS SCHEDULE VIOLATES
 TITLE IX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18


CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25


CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES


PAGE


CASES:
 Alexander v. Sandoval, 532 U.S. 275 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 18
 Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993) . . . . . . . . . . . 14


Brentwood Academy v. Tennessee Secondary Sch. Athletic Ass’n, 
 531 U.S. 288 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10, 12, 13


Butler v. Oak Creek-Franklin Sch. Dist., 172 F. Supp. 2d 1102, 
 (E.D. Wis. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10


Cannon v. University of Chicago, 441 U.S. 677 (1979) . . . . . . . . . . . . . . . . . . . . 18

Communities for Equity v. Michigan High Sch. Athletic Ass’n, 
 80 F. Supp. 2d 729 (W.D. Mich. 2000) . . . . . . . . . . . . . . . . . . . . . . 5, 11-12


Communities for Equity v. Michigan High Sch. Athletic Ass’n, 
 178 F. Supp. 2d 805 (W.D. Mich. 2001) . . . . . . . . . . . . . . . . . . . . . . passim

Craig v. Boren, 429 U.S. 190 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
 Cureton v. NCAA, 198 F.3d 107 (3d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . 20
 Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999) . . . . . . . . . . . . . . . . 23
 Hernandez v. New York, 500 U.S. 352 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14


Horner v. Kentucky High Sch. Athletic Ass’n, 43 F.3d 265 (6th Cir. 1994) . . . . 19
 Kirby v. Michigan High Sch. Athletic Ass’n, 585 N.W.2d 290 (Mich. 1998) . . . 23
 NCAA v. Smith, 525 U.S. 459 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19


- ii ­

CASES (continued):

PAGE

Pederson v. Louisiana State Univ., 213 F.3d 858 (5th Cir. 2000) . . . . . . . . . . . . 23


Personnel Adm’r v. Feeney, 442 U.S. 256 (1979) . . . . . . . . . . . . . . . . . . . . . . . . 14


San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) . . . . . . . . . . . . . . . 9 


United States v. Virginia, 518 U.S. 515 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . 14


CONSTITUTION & STATUTES: United States Constitution:

Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
 Equal Protection Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

20 U.S.C. 1681(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 
 20 U.S.C. 1681(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
 20 U.S.C. 1687 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
 42 U.S.C. 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 
 Education Amendments of 1972, 20 U.S.C. 1681 et seq. (Title IX) . . . . . . passim
 Mich. Comp. Laws § 38.1347 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11


REGULATIONS: 3 C.F.R. 298 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 
 28 C.F.R. 0.51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 
 34 C.F.R. 106.41(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 


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REGULATIONS (continued):

PAGE

34 C.F.R. 106.41(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 


34 C.F.R. Pt. 106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 


44 Fed. Reg. 71,413 (Dec. 11, 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 


OTHER AUTHORITIES: Exec. Order No. 12,250 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 
 Mich. Op. Att’y Gen. No. 6352, 1986 WL 233291 (Apr. 8, 1986) . . . . . . . . . . . 12


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IN THE UNITED STATES COURT OF APPEALS
 FOR THE SIXTH CIRCUIT
 _______________
No. 02-1127
COMMUNITIES FOR EQUITY, et al.,
Plaintiffs-Appellees
v.
MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION,
Defendant-Appellant _______________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
 FOR THE WESTERN DISTRICT OF MICHIGAN
 _______________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
 SUPPORTING APPELLEES AND URGING AFFIRMANCE

_______________
INTEREST OF THE UNITED STATES
This case poses a question regarding the application of the state action
doctrine of the Fourteenth Amendment to a state high school athletic association
that sets rules for athletic programs throughout the State of Michigan. This case
also involves the proper interpretation and application of Title IX of the Education
Amendments of 1972, 20 U.S.C. 1681 et seq., to a high school athletic association.
The Department of Education promulgates regulations interpreting and enforcing
Title IX. 34 C.F.R. Pt. 106. The Department of Justice coordinates the
enforcement of Title IX by executive agencies. Exec. Order No. 12,250, 3 C.F.R.
298 (1981); 28 C.F.R. 0.51. The United States has participated as amicus in this

- 2 ­
case in the district court and in this Court. QUESTIONS PRESENTED
The United States addresses the following issues: 1. Whether the district court erred in finding that MHSAA’s scheduling of girls’ athletic seasons violates the Equal Protection Clause of the Fourteenth Amendment. 2. Whether the district court erred in finding that MHSAA’s scheduling of girls’ athletic seasons violates Title IX of the Education Amendments of 1972.
STATEMENT OF THE CASE 1. The Michigan High School Athletic Association (MHSAA) regulates interscholastic athletics in Michigan secondary schools. MHSAA is comprised of over 700 public and private secondary schools. See Communities for Equity v. Michigan High Sch. Athletic Ass’n, 178 F. Supp. 2d 805, 810 (W.D. Mich. 2001) (citing Tr. Exh. 9(a) at 13 (2000-2001 MHSAA Handbook); Tr. Exh. 12 (1999­ 2000 MHSAA Member School Directory); Tr. Exh. 26 (Michigan Department of Education’s list of public schools)). Eighty percent of MHSAA’s member schools are public schools, and all public secondary schools with interscholastic programs in the State are MHSAA members. Ibid. “To join the MHSAA, a school’s board of education must agree to adopt MHSAA rules and regulations ‘as its own and agree[] to primary enforcement of such rules as to its own schools.’” See id. at 811 (quoting Tr. Exh. 9(a) at 15 (MHSAA Constitution, art. II, § 2)). MHSAA is governed by a Representative Council, consisting of fourteen

- 3 ­

representatives from member schools who are elected by the member schools, four members appointed by the Representative Council, and one representative of the state superintendent of education. See id. at 812 (citing Tr. Exh. 9(a) at 15 (MHSAA Constitution, art. IV, § 1)). During the 2000-2001 academic year, seventeen Representative Council members were representatives of public schools and school districts. Ibid. (citing Tr. Exh. 9(a) at 6-7). MHSAA also has a fivemember Executive Committee, comprised of Representative Council members. Ibid. (citing Stip. Fact 6). The Representative Council has “[g]eneral control of interscholastic athletic policies,” while the Executive Committee has power to “[m]ake all rules necessary for the effective control and government of interschool activities * * *.” Ibid. (citing Tr. Exh. 9(a) at 18). As a whole, MHSAA is responsible for promulgating eligibility and competition rules – including rules prescribing “when practice may begin, when competition may begin, when competition must end, and the maximum number of games that may be played” (id. at 814 (citing Tr. Exh. 9(a) at 54-55 (Regulation II, § 11(A))) – and disciplining member schools for rule violations. Id. at 812.
Historically, MHSAA has scheduled six girls’ sports in seasons that are not the traditional playing season or in a disadvantageous season for those sports. Id. at 817-836. The following girls’ sports are scheduled in a non-traditional season: girls’ basketball is played in the fall instead of the traditional winter season when the boys’ teams play; volleyball is played in the winter o instead of the fall (MHSAA does not currently sponsor boys’ volleyball); soccer is played in the spring instead

- 4 ­

of the fall; tennis is played in the fall instead of the spring; and swimming and
diving in Michigan’s Lower Peninsula is played in the fall instead of the winter. Id.
at 807. In 1990, MHSAA moved girls’ swimming and diving in Michigan’s
Lower Peninsula to the winter to increase sports selections for girls in the winter,
but moved swimming and diving back to the fall when member schools objected.
Id. at 833-834. Although MHSAA scheduled girls’ golf in the Lower Peninsula in
the spring, the traditional season for golf, fall in Michigan is a better season for
playing golf because of Michigan’s climate. Id. at 831-832. “Lower Peninsula’s
boys’ golf used to be in the spring, but the MHSAA moved it to the fall season in
the 1970s so that boys’ golf teams would have better access to golf courses” and
better course conditions, and because the National Collegiate Athletic
Association’s letter of intent signing date is in early November (thus, boys have
four years of golf experience and scores on which to be evaluated while girls have
only three years because their season occurs after the signing date). Ibid.
2. In 1998, parents of female student-athletes and an organization of parents
and students sued MHSAA under the Equal Protection Clause of the Fourteenth Amendment, 42 U.S.C. 1983, and Title IX,1 alleging that MHSAA discriminates
1 Congress enacted Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq., to eliminate gender discrimination in educational institutions. Title IX provides, in pertinent part, that “[n]o person * * * 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). The Department of Education’s regulations expressly apply Title IX’s “program or activity” requirements to educational sports
(continued...)

- 5 ­

against female athletes and curtails their opportunities to participate in athletics.
The complaint also contains a claim under Michigan’s Elliot-Larsen Civil Rights
Act, which prohibits discrimination in the provision of a public service.
In 2000, the district court denied MHSAA’s summary judgment motion,
holding that MHSAA was a state actor for purposes of the Fourteenth Amendment.
See Communities for Equity v. Michigan High Sch. Athletic Ass’n, 80 F. Supp. 2d
729, 742 (W.D. Mich. 2000). The court also held that Title IX applies to any entity
that exercises controlling authority over a “program or activity receiving Federal
financial assistance,” but found a genuine issue of material fact concerning whether
MHSAA exercised such controlling authority over its member schools’ athletic
programs. Id. at 733. Thereafter, the parties settled all claims except for the issue
of whether “MHSAA schedules athletic seasons and tournaments for six girls’
1(...continued)
programs. Specifically, 34 C.F.R. 106.41(a) states that “[n]o person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.” The regulations further state that recipients of federal funds who operate an educational program or activity “shall provide equal athletic opportunity for members of both sexes.” 34 C.F.R. 106.41(c). Factors to be considered in determining whether an institution is complying with Title IX’s mandate of equal athletic opportunity include “[s]cheduling of games and practice time,” and the provision of equipment, supplies, and practice and competitive facilities. Ibid. Disadvantageous playing seasons violate Title IX when the resulting harms are substantial enough to deny equal educational opportunities and benefits in athletics to students of one sex, see Office for Civil Rights, Title IX Policy Interpretation, 44 Fed. Reg. 71,413, 71,418 (1979), and Title IX compliance with respect to scheduling is determined by “comparing the availability, quality, and kinds of benefits, opportunities, and treatment afforded members of both sexes,” id. at 71,415.

- 6 ­

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.” Communities for Equity, 178 F. Supp. 2d
at 807.
3. Following a bench trial, the district court held that MHSAA’s girls’
athletic schedules for volleyball, basketball, soccer, swimming and diving, tennis,
and golf violated the Fourteenth Amendment, Title IX, and state law. Id. at 861­
862. The court also made detailed factual findings that the girls’ sports at issue are
played in seasons that disadvantage girls by, inter alia:
(1) reducing the length of the girls’ playing season, which decreases their playing experience and adversely affects their ability to compete against more experienced female student-athletes for college scholarships, id. at 820 (basketball), 825 (volleyball), 834 (swimming/diving), 836 (tennis); (2) reducing their ability to participate in special promotional events or college games that take place in traditional seasons, id. at 819, 820 (basketball); 826 (volleyball); (3) reducing their ability to be nationally ranked and thereby reducing their college recruiting opportunities, id. at 819-820, 822 (basketball), 826 (volleyball), 830 (soccer); (4) preventing girls from playing in league and club programs where college recruiters often scout new players because those programs are played at the same time as the same high school girls’ sport in Michigan, id. at 824, 826 (volleyball), 830 (soccer); (5) reducing their playing level in league or club programs because there is a gap of several months between their season and the season when the club program begins, id. at 834 (swimming/diving), 836 (tennis); (6) reducing their opportunities for college athletic scholarships because the traditional college recruiting season or signing date takes place earlier in the academic year before the girls’ sport is played in Michigan, id. at 825 (volleyball), 829 (soccer); (7) eliminating the opportunity to play against nearby teams in neighboring States because those States schedule girls’ sports in the

- 7 ­
traditional seasons and, as a result, girls’ teams must travel farther within Michigan in order to play other in-state teams, id. at 820 (basketball), 826 (volleyball); and (8) making it more difficult for the girls’ teams to get sports 
 equipment because schools in other States have already depleted
 supplies, id. at 827 (volleyball). 
 See also id. at 836-839. The court also found that, although girls play golf in the traditional spring season, playing in the fall in Michigan is more advantageous because students can get better tee times, the courses are in better shape, and college recruiting occurs in November. Id. at 807, 832. Lastly, the court found that the discriminatory treatment of female athletes affects the girls’ self-worth and harms boys by sending them a message that girls are inferior. Id. at 836-838. The district court ordered MHSAA to propose a remedial plan. Id. at 862. 4. The district court rejected MHSAA’s proposed Compliance Plan as insufficient for achieving gender equity and ordered MHSAA to submit another proposal. See Aug. 1, 2002, order at 11-12. MHSAA then proposed to move girls’ basketball to the winter; girls’ volleyball to the fall; boys’ soccer in the Upper Peninsula to the spring; girls’ golf in the Lower Peninsula to the fall and boys’ golf in the Lower Peninsula to the spring; and girls’ tennis in the Lower Peninsula to the spring and boys’ tennis in the Lower Peninsula to the fall. See MHSAA’s Amended Compliance Plan, dated Oct. 30, 2002, at 2. The court adopted MHSAA’s Amended Compliance Plan. See Nov. 8, 2002, order at 2.

- 8 ­

SUMMARY OF ARGUMENT
 1. The judgment against MHSAA should be affirmed on equal protection grounds. MHSAA is a state actor under Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531 U.S. 288, 305 (2001), and thus is subject to the Equal Protection Clause of the Fourteenth Amendment. In addition, MHSAA has failed to challenge the district court’s detailed findings concerning how MHSAA’s sports seasons eliminate various opportunities for girls to participate in athletics, such as shorter seasons and their inability to participate in club sports and interstate competitions. Instead, MHSAA incorrectly argues that plaintiffs must show that MHSAA acted with discriminatory animus. It is well established, however, that only discriminatory intent, not animus, is required in proving gender discrimination. Here, MHSAA intentionally treated boys and girls differently by scheduling separate seasons in such a way that girls alone played in disadvantaged seasons. Because MHSAA failed to show how the current seasons schedule is substantially related to an important governmental interest, the Court should affirm the district court’s judgment. 2. Alternatively, the district court correctly held that MHSAA’s scheduling of the girls’ sports seasons at issue violates Title IX. First, MHSAA’s reliance on Alexander v. Sandoval, 532 U.S. 275 (2001), a disparate impact case, is misplaced because the Title IX claim in this case is premised on intentional discrimination. Second, MHSAA should be covered by Title IX under a “ceded controlling authority” theory. Under this theory, when a recipient cedes virtually all

- 9 ­

controlling authority over a program receiving federal financial assistance to another entity, and that entity subjects an individual beneficiary to discrimination under the program, the entity ceded authority violates Title IX. Application of the ceded controlling authority theory is uniquely appropriate in this context, where virtually all controlling authority has been ceded to MHSAA and there has been substantial entwinement of state actors and recipients of federal assistance with MHSAA. The district court’s determination that MHSAA’s members, many of which received federal funding, have ceded controlling authority over their sports seasons schedules to MHSAA is not clearly erroneous. Indeed, MHSAA does not challenge the court’s factual findings; instead, it impermissibly cites evidence that was either excluded or never introduced at trial. Third, the district court did not err in finding that MHSAA intended to treat female athletes differently because of gender by scheduling their seasons to fit around boys’ sports and providing girls unequal athletic opportunities.
ARGUMENT I
MHSAA’S ATHLETIC SEASONS SCHEDULE VIOLATES EQUAL PROTECTION
The court should affirm the judgment on equal protection grounds.2
2
MHSAA incorrectly contends (Br. 23-24) that the constitutional dispute here is whether there exists a constitutional right to participate in high school sports as opposed to unequal treatment. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35, 55 (1973) (stating that although a right to an education is not a
(continued...)

- 10 ­

A. MHSAA contends (Br. 28-32) that it is not a state actor subject to the Equal Protection Clause. In Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531 U.S. 288, 305 (2001), the Supreme Court held that the state high school athletic association in that case, TSSAA, was a state actor for purposes of the Equal Protection Clause. The Court stated that TSSAA’s “nominally private character * * * is overborne by the pervasive entwinement of public institutions and public officials in its composition and workings.” Id. at 298. In finding that TSSAA is a state actor, the Supreme Court relied on the following facts: eightyfour percent of TSSAA’s membership consists of public schools; TSSAA’s bylaws allow member schools to vote on the association’s governing legislative council and board of control among eligible school officials; member schools give sources of their own income (gate receipts at tournaments) along with dues to TSSAA; State Board members have ex officio status to serve on the legislative council and board of control; and TSSAA’s ministerial employees are treated as state mployees for purposes of the state retirement system. Id. at 298-300. In sum, the TSSAA was simply a mechanism by which public school officials acted together to implement interscholastic sports schedules and competition rules. Id. at 299.
2(...continued) constitutional right, once a State provides such a program, it must do so in a manner consistent with the Constitution); see also Butler v. Oak Creek-Franklin Sch. Dist., 172 F. Supp. 2d 1102, 1110 n.3 (E.D. Wis. 2001) (“[A] program of interscholastic sports, after having been provided, must be administered without violation of the Fourteenth Amendment, at least if the case involves an equal protection claim arising from gender-based discrimination.”).

- 11 ­

The district court correctly determined that MHSAA is virtually identical to TSSAA and is a state actor. Like TSSAA, MHSAA was created as a voluntary association whereby public school officials act together to implement interscholastic sports schedules and competition rules statewide; eighty percent of its members are public high schools and every public high school with an interscholastic athletic program in the State is a MHSAA member; the Representative Council and Executive Board are comprised of mostly public school officials; MHSAA’s revenue is derived from gate receipts at tournaments and broadcast fees, money to which the member schools would otherwise be entitled; some MHSAA employees continue to qualify for the state retirement system; and MHSAA has the authority to investigate and penalize its members. See Communities for Equity v. Michigan High Sch. Athletic Ass’n, 178 F. Supp. 2d 805, 847 (W.D. Mich. 2001); see also Mich. Comp. Laws § 38.1347 (MHSAA employees with teaching certificates who started working for MHSAA prior to January 1, 1988, are eligible to participate in the state retirement system).
Before the Supreme Court reversed this Court’s determination that TSSAA was not a state actor, MHSAA had argued that it was very similar to TSSAA. See 178 F. Supp. 2d at 847. But MHSAA now asserts (Br. 29) that it differs from TSSAA because the Michigan Attorney General had issued an opinion that MHSAA is not a state actor. This opinion was excluded at trial and MHSAA does not challenge exclusion of that evidence on appeal. See Mar. 26, 2001, order; see also Communities for Equity v. Michigan High Sch. Athletic Ass’n, 80 F. Supp. 2d

- 12 ­

729, 743-744 (W.D. Mich. 2000) (holding that MHSAA is a state actor for equal protection purposes under the state compulsion and symbiotic relationship tests). Moreover, the Attorney General’s opinion not only preceded Brentwood Academy, but also lacked any legal analysis in support of its assertion that MHSAA is not a state actor. See Opinion No. 6352, 1986 WL 233291 (Apr. 8, 1986).
MHSAA also emphasizes (Br. 31-32) that it has no authority under state law to regulate interscholastic sports and that that power remains with the member schools. The Supreme Court flatly rejected this argument in Brentwood. In that case, when the State of Tennessee originally incorporated TSSAA, it designated, by regulation, that the association be “the organization to supervise and regulate the athletic activities in which the public junior and senior high schools in Tennessee participate on an interscholastic basis.” 531 U.S. at 292. The state Board of Education later removed this designation and simply recognized TSSAA as a voluntary organization that coordinates interscholastic athletics. Id. at 292-293. MHSAA has undergone a similar designation change. When MHSAA was incorporated in 1972, the Michigan Legislature amended the School Code to designate MHSAA as the “official association of the state for the purpose of organizing and conducting athletic events, contests, and tournaments among schools and [decreed that it] shall be responsible for the adoption and enforcement of rules relating to eligibility of athletes in schools for participation in interschool athletic events, contests, and tournaments.” 178 F. Supp. 2d at 811. In 1995, the Michigan Legislature amended the School Code again to remove the official

- 13 ­

designation, but confirmed that school districts were still authorized to “join organizations [such as the MHSAA] as part of performing the functions of the school district.” Ibid. As in Brentwood, the removal of the official designation under state law did not result in any “substantive changes in the structure or operation of the MHSAA or in its relationships with its member schools.” Ibid. Because determining state actor status is “necessarily fact-bound,” Brentwood, 531 U.S. at 298, the change in legal status without any corresponding change in the facts does not preclude finding that MHSAA is a state actor.
B. MHSAA argues (Br. 24-28, 32-38) that it is not liable under the Equal Protection Clause because there is no evidence that MHSAA acted with discriminatory intent, and the district court erred in concluding the current seasons schedule does not maximize participation by girls in Michigan athletics. When a state actor maintains a facial gender classification and that classification, such as MHSAA’s separate sports seasons for girls and boys, is challenged as denying opportunity based on gender, as in this case, the burden shifts to the defendant to show that the classification serves “important governmental objectives and must be substantially related to achievement of those objectives.” See Craig v. Boren, 429 U.S. 190, 197 (1976). Plaintiffs need not show discriminatory animus. See id. at 198-199 (benign gender classifications that are not substantially related to an important governmental interest violate equal

- 14 ­

protection).3 “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.’” United States v. Virginia, 518 U.S. 515, 532-533 (1996). The district court correctly concluded that MHSAA has not carried this heavy burden.
As MHSAA has admitted, it scheduled girls’ sports to fit around boys’ sports. Communities for Equity, 178 F. Supp. 2d at 815 (citing Tr. Exh. 81 at 1 (John Roberts, “Sports and Their Seasons,” 1990-1991 MHSAA Bulletin)). Although MHSAA asserts (Br. 35) that “the original purpose of separate seasons was to maximize participation,” it failed to reconcile, at trial or on appeal, that purported goal with a 1990-1991 article written by its current executive director, John Roberts, about the history of boys’ and girls’ sports in Michigan. Roberts wrote in MHSAA’s Bulletin, which is published regularly during the school year and contains the minutes of all MHSAA committee meetings and official MHSAA policies, that “[b]oys’ sports were in [MHSAA member schools] first and girls’ sports, which came later, were fitted around the pre-existing boys program. While this allowed for the best use of facilities, faculty and officials, it also led to an imbalance of girls’ athletic opportunities across the three seasons of the school
3 The cases MHSAA cites (Br. 5-6 are inapposite because they involve facially neutral – not facially gender-based – classifications, see Hernandez v. New York, 500 U.S. 352, 355 (1991), and Personnel Administrator v. Feeney, 442 U.S. 256, 272 (1979), or do not involve a gender-based classification at all, see Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 271, 273 n.4 (1993).

- 15 ­

year.” 178 F. Supp. 2d at 815 (citing Tr. Exh. 81 at 1). It is plain from this evidence that MHSAA sought to maximize participation in sports only to the extent that the girls’ sports could be scheduled around the seasons in place for boys’ sports rather than, as MHSAA contends here, that it sought to maximize participation for boys and girls.
Indeed, MHSAA did not provide any evidence at trial to explain why, despite MHSAA’s knowledge since the early 1990s that girls’ sports were disadvantaged, MHSAA did not change the girls’ playing seasons to maximize participation. For example, MHSAA was aware in the early 1990s that “girls’ participation opportunities in the winter season were lacking.” Id. at 816 (citing Tr. Exh. 81 at 1). As a result of the lack of winter sports for girls, MHSAA moved girl’s swimming and diving in the Lower Peninsula from the fall to the winter, ibid., but reversed this decision a few months later due to opposition by member schools, ibid. (citing Tr. Exh. 45 at 236; Tr. 1196). Subsequently, the Representative Council considered an internal MHSAA proposal to conduct a comprehensive study of sports seasons, switch the girls’ and boys’ swim seasons in the Lower Peninsula by 2000, move the girls’ volleyball and basketball seasons by 2000, combine boys’ and girls’ golf by 2000, and consider combining boys’ and girls’ tennis by 2000. See id. at 817 (citing Tr. Exh. 95 at 11 (Memorandum Regarding “Pro-Active Approach to Expanding Athletic Opportunities for Girls in the Winter Season,” dated Apr. 23, 1991)). The purpose of the proposal was “to do what is needed for girls, but also * * * to keep the MHSAA in a position of

- 16 ­

choosing its future voluntarily rather than being forced to fight legislated or courtordered changes in the future if something is not done soon.” Ibid. (citing Tr. Exh. 95 at 9). At trial, as the district court noted, MHSAA did not present any evidence that it “studied the sports season issue as recommended” in the memorandum. Ibid. Nor has MHSAA implemented any of the proposed changes contained in the memorandum. Ibid.
Thus, MHSAA’s justification for the current playing seasons falls far short of meeting the Supreme Court’s standard. Even if maximizing participation in sports was the actual purpose of the sports seasons, there would be no actual facilities conflict if the girls’ basketball and volleyball seasons were switched; the gyms today are being used concurrently by boys’ basketball and girls’ volleyball. Id. at 839-842. At most, MHSAA’s asserted justification only explains why boys and girls should play the same sports in different seasons. But the Fourteenth Amendment requires MHSAA to schedule these sports in a manner whereby the burdens (and benefits) of playing in those seasons must be shared by boys and girls. MHSAA has not shown why girls alone should play in disadvantageous seasons in order to maximize participation. And MHSAA has not offered any evidence that boys are disadvantaged in any way by the playing seasons. Golf, the one sport in which boys play in a non-traditional season, actually benefits boys by providing them better access to golf courses than playing in the spring, when girls in the Lower Peninsula play. Id. at 831-832. Although MHSAA faults the district court for placing undue importance on mere “byproducts of participation

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opportunities,” such as “college recruitment and athletic scholarships” (Br. 38), it provided no evidence at trial to show that college recruitment and scholarships are not important to student athletes or that the current seasons schedule does not disadvantage female athletes in these areas.
More importantly, MHSAA has failed to address the district court’s detailed findings concerning how the MHSAA’s sports seasons eliminate various opportunities for girls to participate in athletics, such as shorter seasons and their inability to participate in club sports and interstate competitions. See, supra, at pp. 6-7. MHSAA has also failed to show that the current seasons are substantially related to its goal of maximizing participation. The fact that Michigan’s participation rate is eighth nationwide when it ranks eighth in population does not show a causal link between the seasons schedule and the State’s participation rate for high school female athletes. As the district court noted, it is not surprising that Michigan has a large number of students participating in sports considering that Michigan ranks eighth in population nationwide. 178 F. Supp. 2d at 841-842. Moreover, because many factors aside from seasons (e.g., school funding, number of schools in a State sponsoring a particular sport, cultural attitudes in a State, and weather) affect participation rates, this evidence does not support MHSAA’s contention. Id. at 812. Without more, MHSAA has failed to show that the seasons schedule is substantially related to an important governmental interest.

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II MHSAA’S ATHLETIC SEASONS SCHEDULE VIOLATES TITLE IX If the Court finds no Fourteenth Amendment violation, the Court should
nevertheless affirm the district court’s holding that MHSAA’s seasons schedule violates Title IX. MHSAA raises three arguments concerning plaintiffs’ Title IX claim, all of which are without merit. See Br. 39-46.
A. MHSAA argues (Br. 39-41) that Alexander v. Sandoval, 532 U.S. 275, 293 (2001), precludes finding “a private right of action to enforce federal regulations promulgated under Title VI, and by necessary implication, Title IX.” Not so. In Sandoval, the Supreme Court held that a Title VI regulation prohibiting conduct having a racially discriminatory impact was not privately enforceable because it exceeded the scope of Title VI’s prohibition on intentional discrimination. Id. at 284. Here, plaintiffs’ Title IX claim is premised solely on intentional discrimination; thus, Sandoval’s holding concerning a private cause of action to enforce disparate impact claims is inapposite. Indeed, the Court in Sandoval noted that Congress intended to provide a private cause of action to enforce Title IX. Id. at 279-280 (citing Cannon v. University of Chicago, 441 U.S. 677, 696, 699 (1979)). Because nothing in Sandoval disturbed the availability of a private cause of action to enforce a claim of intentional discrimination, the district court did not err in allowing plaintiffs to pursue their intentional discrimination claim under both Title IX and its implementing regulations. See id. at 284 (“A Congress that intends the statute to be enforced through a private cause of action

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intends the authoritative interpretation of the statute to be so enforced as well.”). B. MHSAA contends (Br. 41-45) that it is not subject to Title IX because
Title IX applies only to recipients of federal assistance and MHSAA does not receive such funding. Although it is true that MHSAA does not receive federal funding, as the United States argued below, a “ceded controlling authority” theory should be an alternative basis from recipient status for establishing Title IX coverage. Under this theory, when a recipient cedes essentially all controlling authority over a program receiving assistance to another entity, and that entity subjects an individual beneficiary to discrimination under the program, the entity ceded authority violates Title IX even though the entity ceded authority is not itself a recipient of federal funding. In NCAA v. Smith, 525 U.S. 459, 469-470 (1999), the only time the Supreme Court has had the opportunity to address the ceded controlling authority theory, it declined to consider this issue as it had not been decided below. Whether Title IX’s prohibition on sex-based discrimination in federally assisted programs extends to an entity to which a recipient has ceded controlling authority over a program is a question of first impression in this circuit. Cf. Horner v. Kentucky High Sch. Athletic Ass’n, 43 F.3d 265, 268-270 (6th Cir. 1994) (applying Title IX to the Kentucky High School Athletic Association, which managed high school interscholastic athletics statewide, because the association, which collected dues from member schools, was an indirect recipient of federal funds).
To date, the Third Circuit is the only court of appeals to have addressed the

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ceded controlling authority theory. See Cureton v. NCAA, 198 F.3d 107 (3d Cir. 1999). In Cureton, which involved a challenge to the NCAA’s minimum SAT requirement, the court held that the NCAA was not an indirect “recipient of Federal funds by reason of * * * its ‘controlling authority’ over programs or activities receiving Federal financial assistance.” Id. at 116, 118. The Third Circuit, contrary to MHSAA’s contention (Br. 44-45), did not reject the validity of the ceded controlling authority theory altogether; rather, it held that the theory did not apply to the facts of Cureton. 198 F.3d at 117-118 (“We emphasize that the NCAA members have not ceded controlling authority to the NCAA by giving it the power to enforce its eligibility rules directly against students.”).
The Court need not wrestle with difficult questions regarding the limits of a ceded controlling authority theory in this case.4 Here, MHSAA’s member schools have ceded to MHSAA virtually all authority in the scheduling of interscholastic sports seasons in Michigan. The district court heard testimony at trial that after MHSAA moved girls’ basketball from the winter to fall, some schools tried to continue playing girls’ basketball in the winter but ultimately had to move the season to the fall because “they ‘didn’t have anybody to compete against.’” 178 F. Supp. 2d at 815. Thus, MHSAA’s effective control over statewide high schools’
4 The United States declines to address whether other factual situations, where less than virtually all controlling authority has been ceded, will trigger Title IX coverage. Nor does the United States take a position on whether a private damages action would be permitted against a non-recipient party who has been ceded virtually all control over a federally funded activity; plaintiffs here seek only injunctive relief.

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interscholastic athletics is in practice total. And withdrawing from MHSAA would result in not simply girls’ playing fewer games; rather, boys and girls would not be able to compete in interscholastic sports at all because the school’s entire athletic program would be penalized.
The district court’s conclusion that MHSAA exercises controlling authority over its members’ interscholastic athletic programs is further supported by MHSAA’s Handbook, which contains MHSAA’s Constitution and rules and regulations. Id. at 811-814. MHSAA’s rules and regulations establish MHSAA’s power to schedule playing seasons, sanction additional sports, and adopt other competition rules for its member schools. For example, the court’s findings were based on the fact that MHSAA has adopted playing rules and regulations for each MHSAA-sanctioned sport, id. at 811 (citing Tr. Exh. 9(a) at 50 (Regulation II, § 8)); MHSAA must approve of any meet or tournament in Michigan sponsored by nonmember schools and those competitions must be conducted pursuant to MHSAA rules, ibid. (citing Tr. Exh. 9(a) at 47-48 (Regulation II, § 5(A) & Interpretation No. 157)); MHSAA imposes requirements for coaches, id. at 811­ 812 (citing Tr. Exh. 9(a) at 46 (Regulation II, § 3); member schools must use only MHSAA-registered game officials, id. at 812 (citing Tr. Exh. 9(a) at 49 (Regulation II, § 7)); MHSAA determines when seasons begin and end, id. at 814 (citing Tr. Exh. 9(a) at 54-55 (Regulation II, § 11(A))); member schools cannot schedule practice or competitions outside of the dates set by MHSAA, ibid. (citing Tr. Exh. 9(a) at 54-61, 109-110 (Regulation II, § 11(A)); Tr. Exh. 63, 83); member

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schools’ athletes cannot participate in both interscholastic sports and amateur club sports in the same sport in the same season, ibid. (citing Tr. Exh. 14 at 4); and member schools who violate any of MHSAA’s rules are subject to a wide range of penalties, including censure, probation, bans from regular season competition and MHSAA tournaments, forfeiture, and expulsion, id. at 812 (citing Tr. Exh. 9(a) at 78 (Regulation V, § 4)). While member schools belong to athletic leagues, these conferences require that their member schools be members of MHSAA and follow MHSAA’s rules and regulations, id. at 813-814 (citing Tr. 863-864; Tr. 164; Tr. Exh. 222 at 2, 6-9).
MHSAA did not refute this evidence at trial and, on appeal, argues (Br. 5­ 16), mostly by referring to evidence that was not admitted at trial, that MHSAA simply acts according to the preference of the member schools and member schools are not bound by MHSAA’s rules.5 Such assertions are contradicted by the text of MHSAA’s regulations and by the testimony of MHSAA’s own witness at trial, Kathy McGee, the athletic director and basketball coach at a MHSAA member school, who testified that member schools are obligated to follow all of MHSAA’s rules and that “it’s a take it or leave it proposition.” 178 F. Supp. 2d at 813 (citing Tr. 867). Without more, MHSAA has not demonstrated that the district court’s
5 Indeed, throughout its brief, MHSAA inappropriately cites to attachments to its summary judgment motion (see, e.g., Br. 5 (John Roberts Aff.), 6 (Mary Leiker Dep.), 7 (James Glazer Dep.), 8 (Joyce Seals Dep.), 9 (John Roberts Dep., 10 (Jock Ambrose Dep.)) that were never admitted at trial and cannot be the basis for finding clear error.

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findings – based primarily on MHSAA’s own rules and regulations – are clear error. In addition, contrary to MHSAA’s representation (Br. 5, 29-30, 41, 43, 45), the Michigan Supreme Court has found that the member schools have “cede[d] to the MHSAA full authority to regulate interscholastic athletics.” Kirby v. Michigan High Sch. Athletic Ass’n, 585 N.W.2d 290, 296 (Mich. 1998).
C. MHSAA argues (Br. 46) that the district court erred in finding Title IX liability because plaintiffs failed to present any evidence of discriminatory animus. As expressly provided by Title IX’s statutory language and as stated by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629, 641­ 642 (1999), an entity violates Title IX if it excludes persons from participation in, denies persons of benefits, or subjects persons to discrimination because of gender under its programs. See 20 U.S.C. 1681(c), 1687. Thus, plaintiffs need only show that MHSAA “intended to treat [female athletes] differently on the basis of their sex by providing them unequal athletic opportunity.” Pederson v. Louisiana State Univ., 213 F.3d 858, 882 (5th Cir. 2000). Plaintiffs have made this showing.
In concluding that MHSAA violated Title IX, the district court relied on the fact that MHSAA, in an article written by its current executive director, John Roberts, had known since 1990 that MHSAA’s athletic schedule disadvantaged female athletes. 178 F. Supp. 2d at 815 (citing Tr. Exh. 81 at 1 (John Roberts, “Sports and Their Seasons,” 1990-1991 MHSAA Bulletin)). See also, supra, at pp. 14-16. There was also ample evidence showing that the current sports seasons limit girls’ college athletic opportunities, amateur athletic opportunities, high

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school athletic opportunities, and disadvantage girls in other ways that boys do not experience (e.g., increased travel time to games, increased expenses for travel which limit the number of students who could afford to play, playing more games on weeknights, lower perceptions of self-worth and lower expectations for themselves). See id. at 817-839 (detailed findings of disadvantage to girls in each challenged sport due to the seasons schedule). MHSAA does not challenge these findings. Instead, it contends (Br. 16, 36) that the fact that MHSAA ranks eighth in the nation with respect to student participation in sports and that the girls’ sports teams are ranked high nationwide shows that the girls’ athletic seasons are actually advantageous for girls. As discussed, supra, at p. 17, the district court properly rejected this argument because many factors aside from seasons (e.g., school funding, number of schools in a State sponsoring a particular sport, cultural attitudes in a State, and weather) affect participation rates; thus, this evidence does not support MHSAA’s contention. 178 F. Supp. 2d at 812. Accordingly, the Court should affirm the district court’s liability finding under Title IX.

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CONCLUSION
The Court should affirm the district court’s holding that MHSAA’s
scheduling of sports seasons violates the Fourteenth Amendment and Title IX.
Respectfully submitted,
J. MICHAEL WIGGINS Acting Assistant Attorney General
_______________________________ DENNIS J. DIMSEY TERESA KWONG
Attorneys Department of Justice Civil Rights Division Appellate Section – PHB 5012 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 514-4757

CERTIFICATE OF COMPLIANCE
I certify that the attached brief complies with the type-volume limitations of Fed. R. App. P. 29(d) and 32(a)(7)(C). The brief was prepared using WordPerfect 9.0 and contains 6,362 words in Times New Roman, 14-point font.
_______________________________ Teresa Kwong
Attorney

CERTIFICATE OF SERVICE


I hereby certify that on August 15, 2003, two copies of the foregoing BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING APPELLEES AND URGING AFFIRMANCE were served by overnight mail, postage pre-paid, on:


William M. Azkoul
 161 Ottawa Avenue, N.W.
 Suite 111-A
 Grand Rapids, MI 49503


Kristen Galles Equity Legal 10 Rosecrest Avenue
Alexandria, VA 22301

Edmund J. Sikorski
 3300 Washtenaw Avenue
 Suite 240
 Ann Arbor, MI 48104

Allen S. Bush
 Butch, Quinn, Rosemurgy, Jardis,
 Bush, Burkhart & Parks, P.C. 816 Ludington Street Escanaba, MI 49829-3890

Marcia D. Greenberger Neena Chaudhry The National Women’s Law Center 11 Dupont Circle, Suite 800, N.W. Washington, D.C. 20036
Virginia A. Seitz Sidley Austin Brown & Wood, LLP 1501 K Street, N.W. Washington, D.C. 20005

Raymond M. Davis Kirk C. Herald Thrun, Maatsch & Nordberg, P.C. 501 S. Capitol Ave., Suite 500 P.O. Box 40699 Lansing, MI 48901-7899

Kingsley Cotton Freeman, Cotton & Norris, P.C. 33 Bloomfield Hills Parkway, Suite 100 Bloomfield Hills, MI 48304

_______________________________ Teresa Kwong
Attorney

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 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206
File Name: 06a0299p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

COMMUNITIES FOR EQUITY,

X

Plaintiff-Appellee, -

v. MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION,

- No. 02-1127 -,>
 
 -

Defendant-Appellant. -

N

On Remand from the United States Supreme Court. No. 98-00479—Richard A. Enslen, District Judge.

Argued: March 14, 2006

Decided and Filed: August 16, 2006

Before: KENNEDY, COLE, and GILMAN, Circuit Judges.

_________________

COUNSEL

ARGUED: Maureen E. Mahoney, LATHAM & WATKINS, Washington, D.C., for Appellant. Kristen Galles, EQUITY LEGAL, Alexandria, Virginia, for Appellee. ON BRIEF: Maureen E. Mahoney, LATHAM & WATKINS, Washington, D.C., for Appellant. Kristen Galles, EQUITY LEGAL, Alexandria, Virginia, for Appellee. Brad A. Banasik, MICHIGAN ASSOCIATION OF SCHOOL BOARDS, Lansing, Michigan, Jonathan E. Lauderbach, CURRIE KENDALL, Midland, Michigan, for Amici Curiae.

GILMAN, J., delivered the opinion of the court, in which COLE, J., joined. KENNEDY, J. (pp. 20-24), delivered a separate opinion concurring in part and dissenting in part.

_________________

OPINION _________________

RONALD LEE GILMAN, Circuit Judge. 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 Elliott-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), 377 F.3d 504 (6th Cir. 2004). The CFE I court did not reach the Title IX or state-law issues.

1


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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, 544 U.S. 113 (2005), a case decided in the Court’s last term. After reconsideration, and for the reasons set forth below, we again AFFIRM the judgment of the district court.
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, 178 F. Supp. 2d 805, 807-846 (W.D. Mich. 2001), and in CFE I, 377 F.3d at 506-10. CFE’s basic complaint is that MHSAA discriminates against female high-school athletes by scheduling girls’ sports to play in disadvantageous, nontraditional seasons. Our task is now to reevaluate this claim in light of the Supreme Court’s GVR, which provides in relevant part as follows: “Petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Sixth Circuit for further consideration in light of our opinion in Rancho Palos Verdes v. Abrams. . . .” Mich. High School Athletic Ass’n v. Cmtys. for Equity, 125 S. Ct. 1973 (2005).
On remand, MHSAA argues that, based on the Supreme Court’s decision in Ranchos Palos Verdes, Title IX provides the exclusive remedy for the alleged violations that bars CFE from seeking additional remedies under 42 U.S.C. § 1983. CFE responds by contending that Rancho Palos Verdes does not apply to the present case and that CFE is therefore entitled to prevail under both Title IX and § 1983.
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, 367 F.3d 530, 533 (6th Cir. 2004). In contrast, we apply the “clearly erroneous” standard of review to the factual findings of the district court. Berger v. Medina City Sch. Dist., 348 F.3d 513, 519 (6th Cir. 2003).
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. Chater, 516 U.S. 163, 167 (1996) (holding that a GVR is “an appropriate exercise of [the Supreme Court’s] discretionary certiorari jurisdiction”). Subsequent interpretations of that language, however, make clear that a GVR does not indicate, nor even suggest, that the lower court’s decision was erroneous.

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In Stutson v. United States, 516 U.S. 193, 197-98 (1996), for example, the Court issued a GVR directing the Eleventh Circuit to reconsider that case in light of the Supreme Court’s decision in Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993). Focusing on the fact that the Eleventh Circuit did not fully consider whether Pioneer applied, and classifying Pioneer as a “potentially relevant decision[],” 516 U.S. at 197 (emphasis added), the Stutson Court acknowledged that the Eleventh Circuit may “conclude that Pioneer does not apply” and thus reach the same result on remand. Id. at 196.
Other courts have also opined that a GVR does not necessarily indicate that the Supreme Court desires a different result. In Gonzales v. Justices of the Municipal Court of Boston, 420 F.3d 5, 7 (1st Cir. 2005), for example, the First Circuit pondered the implication of a GVR that instructed the court to reconsider an earlier holding in light of a recent Supreme Court decision. After discussing the above-quoted language from Lawrence, the Gonzales court opined:
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 Smith Court said demands a different result.
Id. at 7-8; see also United States v. Norman, 427 F.3d 537, 538 n.1 (8th Cir. 2005) (“The GVR is not the equivalent of a reversal on the merits, however. Rather, the Court remands for the sake of judicial economy—so that the lower court can more fully consider the issue with the wisdom of the intervening development.”). The GVR therefore requires us to consider the effect of Rancho Palos Verdes on the present case, but it does not suggest that the Supreme Court believes that CFE I was wrongly decided.
2. Summary of the Sea Clammers/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 liable 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 Sewerage Authority v. National Sea Clammers, 453 U.S. 1 (1981), is the seminal case discussing the intersection between statutory remedies and § 1983, and it provides the basis for the Supreme Court’s later decision in Rancho Palos Verdes. In Sea Clammers, the plaintiffs were fishermen who worked off the coast of New York and New Jersey. They brought suit under the Federal Water Pollution Control Act (the FWPCA), 33 U.S.C. § 1251, the Marine Protection, Research, and Sanctuaries Act of 1972 (the MPRSA), 33 U.S.C. § 1401, and § 1983,

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alleging a violation of the preceding statutes as a result of damage to fishing grounds caused by polluters dumping sewage and other waste in the ocean. Sea Clammers, 453 U.S. at 4-5.
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. Both statutes contain an express citizen-suit provision, but those provisions authorize private parties to sue only for injunctive relief rather than the monetary relief the plaintiffs in Sea Clammers were seeking. Id.
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. Because Congress enacted “so many specific statutory remedies, including the two citizen-suit provisions” in the FWPCA and the MPRSA, the Court found it “hard to believe that Congress intended to preserve the § 1983 right of action.” Id. at 20. Instead, the Sea Clammers Court emphasized that the nature and extent of the remedies available in the water-pollution statutes clearly indicated that Congress had considered the methods of redress for violations of the statutes and intended the remedies provided in the statutes to be complete. Id. As a result, the Court held that when claiming a violation of the FWPCA and the MPRSA, the remedies authorized in those acts preclude resort to § 1983.
The Court interpreted the Sea Clammers doctrine a few years later in Smith v. Robinson, 468 U.S. 992 (1984). In Smith, the plaintiffs were the parents of a handicapped child who was allegedly being denied a “free appropriate public education.” They brought suit against the school district for relief under the Education of the Handicapped Act (the EHA), 20 U.S.C. § 1400, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment, pursuant to § 1983. Unlike Sea Clammers, which concerned an effort to enlarge a statutory remedy by asserting a claim based on the “and laws” provision of § 1983, the Smith case questioned the ability of plaintiffs to use § 1983 as a vehicle to enforce a constitutional remedy in addition to the remedies available under the EHA. Id. at 1005. Because the Court concluded that the constitutional claims were “virtually identical to their EHA claims,” it framed the issue as whether “Congress intended the EHA to be the exclusive avenue through which a plaintiff may assert those claims.” Id. at 1009.
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. After discussing the “carefully tailored administrative and judicial mechanism set out in the [EHA],” the Court concluded:
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. In other words, Congress intended for the EHA to serve as the exclusive method by which plaintiffs could assert the right to a free appropriate public education, and resort to § 1983 is prohibited. Id. at 1013. Such an intent, according to the Court, was found in the comprehensive procedures and guarantees established in the EHA. Id.

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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. 125 S. Ct. at 1457. Abrams sought injunctive relief under the Telecommunications Act (the TCA), 47 U.S.C. § 327(c)(7), and damages and attorney’s fees under § 1983—essentially using both statutes to enforce the violation of rights created by the TCA. Id. Like the statutes at issue in Sea Clammers and Smith, the TCA itself does not expressly provide for monetary relief. Id. at 1459. Instead, the TCA permits private parties to seek redress through administrative channels and through injunctive relief in the courts. Id.; see also 47 U.S.C. § 332(c)(7). The Court, as it had done in Sea Clammers, 435 U.S. at 20, framed the issue as whether Congress intended the judicial remedy expressly authorized in the TCA to coexist with the alternative remedy authorized in § 1983. Rancho Palos Verdes, 125 S. Ct.. at 1458.
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, 424 F.3d 970, 977-78 (9th Cir. 2005) (characterizing the holding of Rancho Palos Verdes as one focused on the comprehensiveness of the remedy). The Court instead looked to the extent of the remedy authorized by the TCA, reasoning that “the existence of a more restrictive private remedy for statutory violations has been the dividing line between those cases in which we have held that an action would lie under § 1983 and those in which we have held that it would not.” Rancho Palos Verdes, 125 S. Ct. at 1458-59 (noting that both Sea Clammers and Smith “rested upon the existence of more restrictive remedies provided in the violated statute itself”). After engaging in a careful analysis of the legislative history of the TCA and the remedies it expressly provided, id. at 1459-62, the Court concluded that Congress must have intended the TCA remedies to be the exclusive relief available to a plaintiff complaining of a TCA violation. Id. at 1462.
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, 424 F.3d at 978 (noting that the Rancho Palos Verdes Court wanted to prevent § 1983 from serving as an “end run around the enforcement mechanism Congress provided”). The TCA, like the statutes at issue in Sea Clammers and Smith, contains express private remedies for violations of rights granted in those statutes. See Rancho Palos Verdes, 125 S. Ct. at 1458-59, 1462. Because the administrative and judicial remedies authorized in the TCA are detailed, yet more restrictive than the remedies available under § 1983, the Court reasoned that it would contravene Congress’s intent to allow Abrams to recover under both statutes where Congress had provided in the TCA precisely the remedies it considered appropriate. Id. at 1462.
3. Application of the Sea Clammers/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 water- pollution 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.

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In both Sea Clammers and in Rancho Palos Verdes, furthermore, the rights that plaintiffs were asserting were based solely on federal statutory law—in other words, rights created by Congress. Even though the statutes that created the very rights that they were asserting did not authorize monetary damages, the plaintiffs in Sea Clammers and Rancho Palos Verdes sought such damages pursuant to § 1983.
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, 453 U.S. at 14 (“In view of these elaborate enforcement provisions, it cannot be assumed that Congress intended to authorize by implication additional judicial remedies for private citizens suing under [the water-pollution statutes].)” To allow the plaintiffs in such cases to benefit from the additional remedies available pursuant to § 1983 would create an end-run around the substantive statutory remedies and contravene Congress’s intent. See, e.g., Smith, 468 U.S. at 1012 (relying on the Sea Clammers doctrine to hold that “[a]llowing a plaintiff to circumvent the EHA administrative remedies would be inconsistent with Congress’ carefully tailored scheme”). The Court recently reaffirmed its concern in Rancho Palos Verdes when it held that “enforcement [of the TCA] through § 1983 would distort the scheme of . . . limited remedies created by [the TCA].” 125 S. Ct. at 1462.
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, 125 S. Ct. at 1458 (“Thus, the existence of a more restrictive private remedy has been the dividing line between those cases in which we have held that an action would lie under § 1983 and those in which we have held that it would not.”); see also Sea Clammers, 453 U.S. at 20 (“When the remedial devices provided in a particular act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983.”).
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 Palos 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.” 468 U.S. at 1005. The Smith Court held that where the constitutional claims pursuant to § 1983 were “virtually identical” to the statutory claims, the § 1983 claims were precluded because “Congress intended handicapped children with constitutional claims to a free appropriate public education to pursue those claims through the carefully tailored administrative and judicial mechanism set out in the statute.” Id. at 1009.
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

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intended to preclude reliance on § 1983. Id. Recovery under § 1983 is precluded by Smith only if both factors are satisfied. See Smith, 468 U.S. at 1009.
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, 76 F.3d 716, 723 (6th Cir. 1996) (declining to engage in a protracted discussion of the first factor because the second one was not satisfied). So even if we were to hold that CFE’s Title IX claims are “virtually identical” to its claims brought pursuant to § 1983, we would still have to consider whether Congress intended for Title IX to supplant CFE’s constitutional claim pursuant to § 1983. See Smith, 468 U.S. at 1009 (determining that the claims were virtually identical and then considering “whether Congress intended that the EHA be the exclusive avenue through which a plaintiff may assert those claims.”).
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 23. 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:
[W]hile 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 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

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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, 441 U.S. 677, 683 (1979), the only enforcement mechanism expressly authorized in Title IX is the withdrawal of federal funds. Lillard, 76 F.3d at 723. This stands in stark contrast to the water-pollution statutes at issue in Sea Clammers and the EHA at issue in Smith. Those statutes expressly provided “carefully tailored” administrative and judicial remedies clearly indicating that Congress intended plaintiffs seeking redress to use the substantive statute rather than the additional remedies available under § 1983. Sea Clammers, 453 U.S. at 20; Smith, 468 U.S. at 1009. A review of the provisions and legislative history of Title IX, however, led this court to the following conclusion:
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, 76 F.3d at 723 (citation omitted).
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, 125 S. Ct. at 1459 (citing Sea Clammers and Smith, and explaining that the existence of a private judicial remedy is an important factor to consider when attempting to discern congressional intent). Lillard, then, concluded that the remedies afforded in Title IX are insufficient to preclude the pursuit of a remedy under § 1983.
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 23. 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 appears here.” 76 F.3d 716, 723 (6th Cir. 1996) (emphasis added). We therefore do not see the holding as one focused on the first Smith factor, nor the discussion of the second Smith factor as dicta. In fact, the Lillard court engaged in no substantive analysis of the first Smith factor at all, instead dedicating the entirety of the Smith analysis to a discussion of the second factor—whether Title IX provides a remedy comprehensive enough to be exclusive.
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 23, 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. 76 F.3d at 722-23. The “even if” language on which our colleague seizes, then, proves nothing more than that the court had two grounds for concluding that the plaintiffs could seek remedies under both Title IX and § 1983, and that the outcome would have remained the same despite the nature of the underlying claim.

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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 21-25. 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.” Dissenting Op. at 22.
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, 468 U.S. at 1013-1014, as support for the proposition that “for each constitutional claim, a court must engage in a separate analysis of whether that claim, provided for by a statutory remedy, is precluded from being brought under § 1983. . . .” Dissenting Op. at 22. Although we acknowledge that the Smith Court did in fact contemplate two separate analyses—one concerning the equal protection claim and one concerning the substantive due process claim—the statute at issue in Smith provided express remedies that the Court concluded were carefully tailored so as to preempt recovery for an equal protection violation under § 1983. The Smith Court’s apparent willingness (we say willingness because the Court did not ultimately reach this issue) to conduct a similar analysis as it pertained to substantive due process is not surprising given the clear textual indication of Congress’s intent in the EHA to preempt reliance on § 1983 by affording a comprehensive remedy for equal protection claims, whereas the statutory language may not provide an adequate remedy for other constitutional claims brought pursuant to § 1983.
Lillard’s analysis, however, was based on the fact that “Title IX contains no comprehensive enforcement scheme.” 76 F.3d at 723. The Lillard court did not suggest that the dearth of enforcement provisions in Title IX was relevant to substantive due process claims only, as opposed to equal protection claims or other claims brought pursuant to § 1983. In fact, language in the opinion indicates that the court considered the lack of remedies in Title IX as it pertained to all § 1983 claims. Id. (“[T]here is no evidence in Title IX that Congress intended to foreclose a section 1983 action by providing an exclusive remedy within Title IX.”) (citation and quotation marks omitted).
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, 109 F.3d 1281, 1284 (8th Cir. 1997) (distinguishing Sea Clammers and finding “unpersuasive the [] argument that Title IX contains a sufficiently comprehensive remedial scheme”) (quotation marks omitted); Seamons v. Snow, 84 F.3d 1226, 1234 (10th Cir. 1996) (“We agree with the Sixth Circuit [in Lillard], and conclude that [the plaintiff’s] § 1983 action [to enforce independent constitutional rights] is not barred by Title IX.”). The analysis employed by the Eighth and Tenth Circuits in those cases did not differ from the analysis of Lillard even though those courts were, like in the present case, considering the preemption of equal protection claims pursuant to

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§ 1983. In sum, the question of whether Title IX is comprehensive enough to be exclusive is an inquiry that does not change regardless of the constitutional claim at issue.
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 Lillard, 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 holdingn“that specific statutory remedies displace the general private right of action under 42 U.S.C. § 1983 when they are comprehensive enough to be exclusive”n demonstrates why Lillard is still good law. The Lillard court acknowledged the Sea Clammers doctrine and held that it did not apply to Title IX because Title IX was not comprehensive enough to be exclusive. In other words, the Lillard court found that the dearth of remedies authorized in Title IX, either private or public, indicated that Congress did not intend to preclude recovery under § 1983 when it enacted Title IX. See Lillard, 76 F.3d at 723.
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. 76 F.3d at 723. “[U]nless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision,” Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985), we remain bound by Lillard.
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., 163 F.3d 749, 756-59 (2d Cir. 1998); Waid v. Merrill Area Pub. Sch., 91 F.3d 857, 862-63 (7th Cir. 1996); Pfeiffer v. Marion Ctr. Area Sch. Dist., 917 F.2d 779, 789 (3d Cir. 1990). Unlike this court in Lillard, the Second, Third, and Seventh Circuits declined to distinguish Sea Clammers on the basis that the Title IX cases concerned application of § 1983 to enforce independent constitutional rights rather than federal statutory law. See, e.g., Bruneau, 163 F.3d at 757 (“We see nothing in Sea Clammers that would support a constitutional rights exception.”). Those circuits also held that because the Supreme Court concluded that Title IX contains an implied damages remedy, see Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 76 (1992), Title IX “gives plaintiffs access to the full panoply of

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judicial remedies.” See Waid, 91 F.3d at 862-63 (holding that such access indicates Congress’s intent to preclude reliance on § 1983).
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, 109 F.3d at 1284; Seamons, 84 F.3d at 1234. The fact that the courts of appeal are evenly split on the issue of whether Congress intended Title IX to provide a complete remedy bolsters the conclusion that the GVR in the present case did not imply that this court should reconsider Lillard. Even if the Supreme Court thought Lillard was wrongly decided and attempted to cure the defect through a GVR in the present case, the decisions of the Eighth and Tenth Circuits would be unaffected—meaning that the circuit split would continue.
Because we have determined that Lillard is controlling precedent, we need not extol its virtues in order to reach a decision in the present case. We nevertheless defend Lillard’s approach in response to the great weight that our dissenting colleague gives to Cannon v. University of Chicago, 441 U.S. 677, 689 (1979), in which the Supreme Court held that a private remedy was implicit in Title IX. Dissenting Op. at 24. The dissent also relies on Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 72 (1992), in which the Supreme Court relied on Congress’s silence subsequent to the Cannon decision to hold that Congress “did not intend to limit the remedies available in a suit brought under Title IX.” Id.; Franklin, 530 U.S. at 73. Although Cannon and Franklin relied on implicit evidence of congressional intent rather than the explicit text of Title IX, the dissent reasons that “[t]he [implied] intent found by the Supreme Court. . . should be given the same weight as expressed intent[]”—essentially arguing that the private damages remedy that the Supreme Court read into Title IX satisfies Smith. Dissenting Op. at 24. We respectfully disagree.
Although the Supreme Court read an implied remedy into Title IX in Cannon, 441 U.S. at 689, this implied remedy does not satisfy the second prong of the Smith inquiry. The Supreme Court has made clear that the question of what Congress intended is an inquiry focused on the statute itself. In Smith, for example, the Court referred to the “carefully tailored administrative and judicial mechanism set out in the statute.” 468 U.S. at 1009 (emphasis added). The Rancho Palos Verdes Court also focused on the explicit text of the statute:
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.
544 U.S. at 120-21 (emphasis added). Although the Court later in its decision discusses the “availability of a private judicial remedy”—language that the dissenting opinion adopts—without making the distinction between explicit and implied remedies, the statute at issue in Rancho Palos Verdes (as well as in Sea Clammers and Smith) contains an explicit private remedy. We therefore read Rancho Palos Verdes as extending only to statutes that contain an explicit private remedy that is sufficiently comprehensive for us to infer that Congress intended the remedy to be exclusive.
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

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necessary to achieve the fundamental purpose of Title IX. Cannon, 441 U.S. at 709. Whether Congress intended to create or foreclose a private remedy, as was at issue in Cannon, is decidedly different from the second prong of Smith, which asks whether Congress intended to create an enforcement scheme so comprehensive that it could serve as the exclusive avenue for relief, thus precluding claims under § 1983.
The Supreme Court’s decision in Franklin, 503 U.S. at 66, does not undermine our analysis. Franklin’s conclusion was guided by the traditional presumption that all appropriate remedies may be implied in a statute unless Congress has explicitly indicated otherwise. See id. In other words, the Court relied on Congress’s silence in implying the damages remedy in Franklin. Id. Congressional silence, though sufficient to find an implied remedy, cannot be equated with the carefully tailored remedies present in Sea Clammers, Smith, and Rancho Palos Verdes.
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]. 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].
Rancho Palos Verdes, 544 U.S. at 129 (Stevens, J., concurring in the judgment) (emphasis added). The Smith inquiry, as highlighted by Justice Stevens, is not an offshoot of the inquiry performed in Cannon. See also Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002) (“[W]hether a statutory violation may be enforced through § 1983 is a different inquiry than that involved in determining whether a private right of action can be implied from a particular statute.”).
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., 55 F.3d 1097, 1111 (6th Cir. 1995) (“To state a claim under the Equal Protection Clause, a § 1983 plaintiff must allege that a state actor intentionally discriminated against the plaintiff because of membership in a protected class.”) (citation and

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quotation marks omitted). As a threshold issue, therefore, we must determine whether MHSAA is a state actor.
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, 531 U.S. 288 (2001). Cmtys. for Equity v. Mich. High Sch. Athletic Ass’n, 178 F. Supp. 2d 805, 846-848 (W.D. Mich. 2001). The Brentwood Court addressed the issue of whether the Tennessee Secondary School Athletic Association (TSSAA), which was “incorporated to regulate interscholastic athletic competition among public and private secondary schools,” engaged in state action when it enforced one of its rules against a member school. Brentwood Academy, 531 U.S. at 290. Because of “the pervasive entwinement of state school officials in the structure of the association,” the Court held that the TSSAA’s regulatory activity constituted state action. Id. at 291. The Court acknowledged that the analysis of whether state action existed was a “necessarily factbound inquiry,” and noted that state action may be found only where there is “such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” Id. at 295, 298 (citation and quotation marks omitted).
Public schools constituted 84% of TSSAA’s membership, the Court noted, and public school faculty and administrators provided TSSAA’s leadership. Id. at 298. The Court was further influenced by the fact that TSSAA’s primary revenue source was gate receipts from tournaments between TSSAA member schools. Id. at 299. In conclusion, the Court stated that,
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. The Court also found significant that TSSAA ministerial employees were treated like state employees by virtue of their eligibility for membership in the state retirement system. Id. at 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, 178 F. Supp. 2d at 847. MHSAA, in sum, has failed to present any compelling argument to distinguish itself from TSSAA. We therefore uphold the determination of the district court that MHSAA is a state actor.
2. Denial of equal protection
The Supreme Court has held that “[p]arties who seek to defend gender-based government action must demonstrate an ‘exceedingly persuasive’ justification for that action.” United States v. Virginia, 518 U.S. 515, 531 (1996) (dealing with the admission of women to the Virginia Military Institute, hereafter referred to as V.M.I.). In V.M.I., the Court further explained the state’s burden under the heightened standard for gender-based classifications:

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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 (citation and quotation marks omitted).
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, 178 F.Supp.2d at 850. In addition, the district court noted that MHSAA’s justifications must be “exceedingly persuasive.” Id. MHSAA asserted that the scheduling decisions sought to maximize girls’ and boys’ participation in athletics, arguing that the scheduling system maximizes opportunities for participation “by creating optimal use of existing facilities, officials and coaches, thereby permitting more teams in a sport or more spots on a team.” Id.
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 disadvantageous seasons without increasing the overall use of the facilities.
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.

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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 “[t]here 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., 518 U.S. at 532-33. MHSAA’s justifications for its actions must also be “exceedingly persuasive.” Id.
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, 500 U.S. 352 (1991), are inapposite because they involve facially neutral classifications, rather than facially gender-based classifications. In Hernandez, for example, the Court analyzed a racially neutral explanation for a prosecutor’s exercise of peremptory strikes, noting that “[u]nless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Id. at 360. The facts of the present case are quite different from those of Hernandez, and proof of a discriminatory motive is not necessary.
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 the seasonal scheduling differences on the basis of gender that result in unequal treatment of women in comparison to men is considered disparate treatment. Disparate treatment does not arise from any and all differences in treatment; it occurs only where the offending party “treats some people less favorably than others because of their race, color, religion, sex, or national origin.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (emphasis added). Thus, the reason that scheduling differences properly receive disparate treatment analysis based on facial discrimination is not just because boys and girls are separated, but because they are separated and treated unequally in the scheduling of seasons.
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.

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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, 465 U.S. 555, 574-75 (1984), as being program specific, meaning that Title IX was interpreted as not providing institution-wide coverage. See also Horner v. Kentucky High Sch. Athletic Ass’n, 43 F.3d 265, 271 (6th Cir. 1994) (recounting the history of Title IX). Congress responded to the Supreme Court’s holding in Bell by adding § 1687 to Title IX, which provides in pertinent part as follows:
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 which is extended Federal financial assistance.
Horner, 43 F.3d at 271 (quoting 20 U.S.C. § 1687) (emphasis added by the court).
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.” 43 F.3d at 271 (quoting S. Rep. No. 64, 100th Cong., 2d Sess. 4, reprinted in 1988 U.S.C.C.A.N. 3, 6) (quotation marks omitted).
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 case.”). Our only focus, then, is on whether MHSAA actually violated Title IX.
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

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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, 178 F. Supp. 2d at 856. Horner v. Kentucky High School Athletic Association, 206 F.3d 685, 692 (6th Cir. 2000), relied upon by MHSAA, is inapposite because it addressed a facially neutral policy challenged under a disparate-impact theory. The policy challenged in Horner allowed the introduction of a new sport only if 25% of the member schools indicated a willingness to participate. This is quite different than the explicit gender-based scheduling policy in effect here. We therefore agree with the district court that proof of a discriminatory motive is not required for a Title IX claim based upon disparate treatment, and uphold its judgment in finding that MHSAA is in violation of Title IX.
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 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, 636 F. Supp. 1476, 1479 (E.D. Mich. 1986), where the district court found that a Lions Club qualified as a place of public accommodation providing public services. The Lions Club qualified as “a place of public accommodation” because

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its meetings are held in a public place (a Howard Johnson’s restaurant), the meetings are open to the public, and the volunteer efforts of the Lions Club’s members are made available to the public. Id. As the district court noted, MHSAA sponsors championship athletic tournament events that are held in public places and open to members of the general public. Cmtys. for Equity, 178 F. Supp. 2d at 859. Competitions are also held in public places for which MHSAA facilitates the scheduling.
The district court in Rogers further considered whether the Lions Club provided a “public service.” 636 F. Supp. at 1479. After noting that the Club is a tax-exempt, nonprofit private agency whose stated purpose is to provide volunteer public service through its members, the court concluded that the Club provides a public service. Id. MHSAA is likewise a tax-exempt entity that provides a service to the public—“the organization of interscholastic athletics in the state’s schools.” Cmtys. for Equity, 178 F.Supp.2d at 859. The district court therefore determined that MHSAA qualifies as providing a “public service” under Michigan law.
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, 64 F.3d 1026, 1036 (6th Cir. 1995), for example, to support its argument that it is not a “place of public accommodation.” Sandison, however, is inapposite. Although this court in Sandison held that MHSAA was not a “place of public accommodation” within the meaning of the Americans with Disabilities Act (ADA), that was because the ADA narrowly defines “a place of public accommodation” as a “facility.” Id. The ADA’s definition differs from the broader definition under the Elliott-Larsen Civil Rights Act. Moreover, even if we were to hold that MHSAA is not a “place of public accommodation” under Elliott-Larsen, MHSAA would still be subject to the Act because it provides a “public service.” We therefore uphold the determination of the district court that MHSAA is in violation of Michigan’s Elliott-Larsen Civil Rights Act.
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, 178 F. Supp. 2d at 862. MHSAA was required to submit a compliance plan to the court by June 24, 2002. Id.
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. The Department of Justice noted that “the proposed Compliance Plan would perpetuate sex discrimination by requiring more than three times as many girls as boys to play in disadvantageous seasons and by addressing only sports, with the exception of boys’ golf, offered by less than half of MHSAA’s member schools.”
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

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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, 10 F.3d 1236 (6th Cir. 1993), for example, this court held that “by being a distinct appealable order from which a separate appeal must be taken,” a denial of a motion for new trial
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-6250AA (E.D. Mich. 1983), seeking a declaratory judgment and injunctive relief. Judge Enslen, 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 motion for disqualification in this case, 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 uphold the ruling of the district court denying its motion. See Person v. General Motors Corp., 730 F.Supp. 516, 518-19 (W.D.N.Y. 1990) (stating that a judge’s recusal in a prior case involving a party is not alone sufficient for disqualification in a later case involving that party).
III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.


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__________________________________________________
CONCURRING IN PART, DISSENTING IN PART __________________________________________________
KENNEDY, Circuit Judge, 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 Palo 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, 76 F.3d 716 (6th Cir. 1996), is controlling and thus that the issue of whether Title IX supplants an equal protection claim brought pursuant to § 1983 has already been decided. Yet, the majority fails to distinguish the type of claims brought pursuant to § 1983. In Lillard, the issue was not whether Title IX precluded an equal protection claim, but whether it precluded a substantive due process claim.
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 plaintiff's third Constitutionbased 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 basis of sex...[N]either 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

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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. 468 U.S. 992 (1984). In Smith, the petitioners alleged violations of the Education of the Handicapped Act (“EHA”) and of both equal protection and due process. Tellingly, the Court did not combine the alleged due process and equal protection violations in its discussion of preclusion; rather, the Court was prepared to analyze each claim separately. The Court first found that EHA claims were virtually identical to the claims brought under the Equal Protection Clause and that Congress intended that equal protection claims be precluded. Next, the Court was prepared to separately address “whether the procedural safeguards set out in the EHA manifest Congress’ intent to preclude resort to § 1983 on a due process challenge.” Id. at 1013-1014. However, the Court found such analysis “unnecessary” because, even if the petitioners could maintain a due process challenge, they were not entitled to attorney’s fees. The opinion in Smith illustrated that for each constitutional claim, a court must engage in a separate analysis of whether that claim, provided for by a statutory remedy, is precluded from being brought under § 1983, another statutory remedy.
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 analyses?1 In other words, if the majority’s position is correct, that a holding that Congress did not intend a statute to be the “exclusive avenue” for bringing one type of constitutional claim applies to all constitutional claims brought pursuant to § 1983, then, according to the majority, the Supreme Court was prepared to engage in a meaningless exercise of addressing whether “the procedural safeguards set out in the EHA manifest Congress’ intent to preclude resort to § 1983 on a due process challenge.” Id. According to the majority view, the Court had already decided this issue when it discussed what Congress intended with respect to equal protection claims.
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.

1The 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 9. 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 damages, as what Congress intended and read Title IX to so provide, Congress has provided a statutory remedy for gender-based equal protection claims so that § 1983 is not available for equal protection actions.

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In Lillard this court found the claims at issue were not “virtually identical” to those provided in Title IX. Lillard, 76 F.3d at 723. I agree, as the plaintiff in Lillard alleged sexual harassment and Title IX was designed to target gender discrimination. While I recognize the court in Lillard summarily concluded these claims were not “virtually identical,” that does not take away from the fact that because the claims were so different, there is further reason to assume Congress did not intend to preclude the use of § 1983. Similarly, where the claims are “virtually identical,” as I believe they are in this case, there seems to me more reason to assume Congress intended to preclude use of § 1983 to enforce those claims. Thus, when a court finds the first part of the Smith test is not satisfied (are the claims virtually identical), the answer to the second (did Congress intend that the statute supplant the constitutional claims), seems obvious. It only makes sense to conclude that when a constitutional claim is not virtually identical to the statutory claim, Congress did not intend to preclude the former.
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, 76 F.3d at 724 (emphasis added). More importantly, the court indicated its finding regarding congressional intent was dicta, concluding that, “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, 76 F.3d at 723 (emphasis added).2
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. 468 U.S. at 1009. As discussed, I believe the rights conferred

2The 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, 76 F.3d at 722-723 (citation omitted).

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in Title IX - to be free from discrimination on the basis of sex - are virtually identical to those granted in the Equal Protection Clause. The next issue then, and the one requiring further analysis, is whether Congress intended Title IX to be the “exclusive avenue” for bringing those gender-based equal protection claims. In other words, by enacting Title IX, did Congress intend to preclude reliance on § 1983, a separate statute, to remedy an equal protection violation? Smith, 468 U.S. at 1012.
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, 441 U.S. 677 (1979). In Cannon, the Court found Congress intended to create a private judicial remedy in Title IX and we should not second-guess that holding. The intent found by the Supreme Court, although implied, should be given the same weight as expressed intent. Second, the opinion in Lillard is silent with respect to the fact that after the Supreme Court’s holding in Cannon, but prior to the decision in Lillard, Congress essentially ratified the Supreme Court’s holding in Cannon by subsequently enacting two legislative provisions which did not interfere with the implied right, the Civil Restoration Act of 1987 and the Rehabilitation Act Amendments of 1986. This point was acknowledged by the Supreme Court in Franklin v. Gwinnett County Public Schools, where the Court held a person could receive both compensatory and punitive damages in a private action for sex discrimination. Franklin, 503 U.S. 60, 72 (1992). The Court noted that while Congress had an opportunity to abrogate the implied right of action found in Cannon, it remained silent stating, “[o]ur reading of the two amendments to Title IX enacted after Cannon leads us to conclude that Congress did not intend to limit the remedies available in a suit brought under Title IX,” id., and later that:
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. Thus, I am not persuaded by the argument that because the private right of action in Title IX was implied by the Supreme Court, this court is prevented from finding Congress intended Title IX to supplant gender-based equal protection claims. With this in mind, I now address whether Congress intended to preclude equal protection gender-based §1983 claims.
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 Palo Verdes. 125 S.Ct. 1453 (2005). I agree with the majority’s finding that the case before us is a Smith case rather than a Sea Clammers case in that it deals with both constitutional and statutory rights. Further, I agree that Rancho is a Sea Clammers decision. However, I still believe that we should consider the Court’s holding in Rancho, specifically, the potential reach of the Court’s holding.
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

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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 establishes, a congressional intent to preclude § 1983 relief. We decline to do so.
Rancho Palos Verdes, 125 S.Ct. at 1459 (citations omitted). Because the Court analyzed Sea Clammers (only statutory claims) and Smith (statutory and constitutional claims) and their progeny and found that in both types of cases the pivotal issue was whether the statute at issue provides for a private judicial remedy, the discussion leading up to the establishment of the inference adopted in Rancho suggests that it does not apply solely to Sea Clammers cases. There is an argument that such an inference applies to Smith cases as well. Yet, as this case can be decided under the standard set forth in Smith, I find it unnecessary to apply the Rancho holding to decide this case; however, I believe the reasoning in Rancho suggests we should conclude that Congress, by enacting Title IX, intended to preclude reliance on § 1983 as a remedy for an equal protection claim.
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, 422 U.S. 66, 78 (1975), to hold that Title IX created a private right of action. The second Cort factor asks whether “any indication of legislative intent, explicit or implicit, either to create a remedy or deny on” exists. Id. The court in Cannon found that,“[f]ar from evidencing any purpose to deny a private cause of action, the history of Title IX rather plainly indicates that Congress intended to create such a remedy.” Cannon, 441 U.S. at 694. In Franklin, the Court went on to hold that “Congress did not intend to limit the remedies available in a suit brought under Title IX.” Franklin, 503 U.S. at 72. Finally, in Rancho the Court established the above-discussed inference. Again, while we need not extend the Rancho holding to Smith cases, I believe the reasoning sheds some light on how we should dispose of the case before us. As emphasized by the Supreme Court, the central issue in both Smith and Sea Clammers cases has been, and is, whether the statute at issue provides for a judicial remedy:
[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, 125 S.Ct. at 1459. Title IX, like the statutes at issue in Sea Clammers and Smith, does provide for both a private right of action and for damages. Thus, because the Supreme Court has held Congress intended to create a private judicial remedy in Title IX, and because the non-existence of such a remedy has repeatedly given rise to a finding that Congress did not intend to preclude relief sought through § 1983, I would hold that Congress did intend for Title IX to be the “exclusive avenue” through which a plaintiff may assert a gender-based equal protection claim.

 
 377 F.3d 504 (2004)
COMMUNITIES FOR EQUITY, on behalf of itself, its members and all those similarly situated; Diane Madsen, on behalf of her minor
daughters and all those similarly situated; and Jay Roberts-Eveland, on behalf of her minor daughter and all those similarly situated, Plaintiffs-
Appellees, v.
MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION, INC., on behalf of itself and its members, Defendant-Appellant.
No. 02-1127.
United States Court of Appeals, Sixth Circuit.
Argued June 17, 2004. Decided and Filed July 27, 2004.
505*505 Dennis J. Dimsey (briefed), Teresa Kwong (briefed), U.S. Department of Justice Civil Rights Division, Appellate Section, Washington, DC, Amicus Curiae.
506*506 H. Rhett Pinsky (briefed), Pinsky, Smith, Fayette & Hulswit, Grand Rapids, MI, Kristen Gallee (argued and briefed), Equity Legal, Alexandria, VA, Neena K. Chaudhry (briefed), Marcia D. Greenberger (briefed), National Women's Law Center Washington, DC, for Plaintiff-Appellee.
Edmund J. Sikorski, Jr. (argued and briefed), Ann Arbor, MI, William M. Azkoul (briefed), Azkoul & Azkoul, Grand Rapids, MI, for Defendant-Appellant.
Before: KENNEDY and GILMAN, Circuit Judges; SHADUR, District Judge.[*]
OPINION
GILMAN, Circuit Judge.
Communities for Equity — an organization of parents and high school athletes that advocates on behalf of Title IX compliance and gender equity in athletics — and the individual plaintiffs (collectively, CFE) brought a class action lawsuit against the Michigan High School Athletic Association (MHSAA), arguing that MHSAA's scheduling of high school sports seasons in Michigan discriminated against female athletes on the basis of gender. The district court concluded that MHSAA's actions violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, Title IX of the Educational Amendments of 1972, and Michigan's Elliott-Larsen Civil Rights Act. For the reasons set forth below, we AFFIRM the judgment of the district court with regard to the plaintiffs' Equal Protection claim, thus finding no need to reach the Title IX and state-law issues.

I. BACKGROUND
A. Factual background
At issue in this case is whether MHSAA's scheduling of athletic seasons and tournaments for six girls' sports — basketball, volleyball, soccer, Lower Peninsula golf, Lower Peninsula swimming and diving, and tennis — violates the law. With the exception of golf, all of these sports are scheduled during the nontraditional season (meaning a season of the year that differs from when the sport is typically played). Cmtys. for Equity v. Michigan High Sch. Athletic Ass'n., 178 F.Supp.2d 805, 807 (W.D.Mich.2001). Although Lower Peninsula girls' golf is played in the spring — the traditional season for golf — the fall season, when the boys play, is more advantageous. Id. No boys' sports are scheduled in nonadvantageous seasons. Id. at 838.
Girls have historically played in the less advantageous seasons because of the way that high school athletics developed in Michigan. MHSAA's executive director, John Roberts, explained in a 1990 article titled Sports and Their Seasons, published in MHSAA's Bulletin, that "[b]oys' sports were in [MHSAA member] schools first and girls' sports, which came later, were fitted around the pre-existing boys program." Id. at 815.
In its findings of fact, the district court painstakingly discussed each sport at issue and analyzed why play in the nontraditional season (or, in the case of golf, in the traditional season) harmed female athletes. Id. at 817-836. Among the harms found by the district court are the following:
[G]irls' basketball [is played] in the fall. Forty-eight states schedule girls' basketball in the winter....
507*507 Michigan's female high school basketball players do not get to participate in "March Madness" or the excitement and publicity surrounding this time period when the rest of the country's high schools and colleges are participating in championship basketball tournaments....
Kristi Madsen said that not being able, as a high school basketball player, to participate in the "March Madness" hype made her feel "[a]ngry. I didn't like it. Again, the guys get a ton of special perks or attention because it's `March Madness' and because they are playing in March, during `March Madness.'"...
Michigan girls have decreased ability to be nationally ranked or obtain All-American honors because they play basketball during the non-traditional fall season....
[I]t is undisputed that if Michigan girls played basketball during the winter season, they would, at the very least, be on `equal footing' with Michigan boys and with girls in the rest of the country with respect to collegiate recruiting....
In volleyball, the non-traditional season is the disadvantageous season for girls.... Michigan high school girls' volleyball is played in the winter season.

The traditional playing season for women's volleyball is the fall. Forty-eight states play high school girls' volleyball in the fall. The NCAA schedules women's volleyball in the fall. Although the MHSAA does not currently sponsor boys' volleyball, the MHSAA's executive staff and volleyball committee have recommended that once the sport is adopted, it be played in the spring when the NCAA schedules men's volleyball.
College volleyball recruiting focuses on the amateur, private club programs, like those sponsored by an organization called the United States Volleyball Association (USAV), rather than the high school programs ...
The USAV and AAU, another private club program, seasons for high school age players to play in their amateur programs are from January through June or July. MHSAA rules prohibit athletes from participating in USAV or AAU club volleyball during their December through March high school season.
Michigan girls who participate in high school volleyball are not able to participate in USAV club volleyball until April, after the MHSAA season has ended, while players in other states have been playing club volleyball since January. The MHSAA prohibits students from playing on any team other than a school team during the MHSAA-defined season in that sport. By the end of the MHSAA season, most of the regional and national USAV tournaments have been filled by non-Michigan teams. When there are openings, Michigan club teams are placed "at the very bottom of the tournament where they do not get a chance to compete at the high levels because they haven't been competing...." Michigan club teams have difficulty excelling at these tournaments because they are becoming accustomed to playing with new teammates and a new coach while their competitors have already been playing together for four months. It is therefore more difficult for recruiters to evaluate Michigan players at these tournaments....
[T]he Court finds that the spring season is the inferior season, as compared to fall, for playing soccer in Michigan....
The NCAA schedules women's soccer in the fall....
508*508 The MHSAA schedules the boys' soccer state championship tournament in the fall, at the same time that the NCAA schedules men's soccer....
The MHSAA's scheduling of girls' soccer in the spring in Michigan disadvantages girls in several ways. Soccer fields in Michigan are often still frozen or snow-covered when the girls' season starts in the spring, so girls are forced inside for practice and tryouts. Thus, the regular season starts later than scheduled. As a result, Michigan girls must play three games a week over the course of the season to make up postponed games whereas Michigan boys play two games per week over the course of their season.
The increased number of games per week causes a greater risk of injury for girls that Michigan boys do not face....
Girls' opportunities for collegiate recruitment are decreased because college scholarships for soccer are awarded in November and April. Recruiters will not have had an opportunity to see female soccer players in Michigan in their senior year of high school before awarding first-round November scholarships because girls start their competitive season in late

March. Michigan boys play during the fall season and are able to have four years of high school competition for college recruiters to consider....
The court finds that in Michigan, fall is the more advantageous season for playing high school golf....
Lower Peninsula girls' golf [is played] in the spring season....
Lower Peninsula boys' golf used to be in the spring, but the MHSAA moved it to the fall season in the 1970s so that boys' golf teams would have better access to golf courses. The MHSAA scheduled Lower Peninsula girls' golf in the spring, which was the season it had previously determined was less advantageous when it moved boys' golf.
In addition, because the NCAA letter of intent signing date is in early November, Michigan boys have four years of golf experience and scores on which to be evaluated. Michigan girls only have three years because their season occurs after the letter of intent signing date....
The Court finds that the winter season for swimming has advantages that outweigh advantages to swimming in fall....
[T]he Lower Peninsula girls' swimming and diving season [is] in the fall.
[The] Lower Peninsula boys' swimming and diving season [is] in the winter.
[T]he winter season is more advantageous than fall for swimming. For one reason, Michigan boys are able to go straight from the high school swimming season to the club tournaments, whereas Michigan girls have a gap in competition because their season has ended in November. Sectional and regional swim meets for U.S. Swimming take place in March. The Phillips 66 national swim championships are in March/April of each year. In diving, junior nationals are in March, so girls face a gap in competition between the end of their fall interscholastic season and open amateur competition....
[T]he Court finds that spring is the more advantageous playing season for tennis....
[Michigan] girls' tennis [is played] in the fall.
Boys' high school tennis immediately precedes the United States Tennis Association (USTA) summer tennis tournament circuit, so boys have the advantage 509*509 of high school practice, competition, and coaching before participating in the circuit and are better prepared for the summer circuit, where college coaches watch play....
Id. at 817-836.
In addition to sport-specific harms, the district court found that the scheduling of seasons harmed Michigan girls in ways that could be generalized across all sports. For example, "[w]hen girls are treated unequally as compared to boys, girls receive the psychological message that they are `second-class' or that their athletic role is of less value than that of boys." Id. at 837.
The above-quoted findings are only a fraction of the harms that the district court found are experienced by female athletes in Michigan because of MHSAA's scheduling their seasons

of play at disadvantageous times. A full recounting takes up 30 pages of the district court's opinion. Id. at 809-39.
MHSAA was founded in 1924 "to exercise control over the interscholastic athletic activities of all schools of the state through agreement with the Superintendent of Public Instruction." Id. at 810 (quotation marks omitted). MHSAA's Articles of Incorporation further illuminate that the purpose of MHSAA is
to create, establish and provide for, supervise and conduct interscholastic athletic programs throughout the state consistent with [the] educational values of the high school curriculums...
Id. at 811 (quotation marks omitted). Membership in MHSAA is open to all secondary schools in Michigan. To join MHSAA, a school district's board of education must agree to adopt MHSAA's rules and regulations "as its own and agree[ ] to primary enforcement of such rules as to its own schools." Id. (quotation marks omitted). Over 700 Michigan schools constitute the membership of MHSAA, more than 80% of which are public. Id. at 810.
Ticket sales to the state championship tournaments represent 86% of MHSAA's budget. Id. at 813. MHSAA member schools remit substantial portions of the gate receipts from their participation in the tournament events to MHSAA. Id. Other sources of revenue include tournament concessions, fees from the registration of game officials, advertising in tournament programs, corporate sponsorship, and royalties from television and radio broadcasts of MHSAA tournament events. Id.
General control over interscholastic athletic policies is vested in the Representative Council. Id. at 812. Nineteen voting members constitute the Council, fourteen of whom are elected by member schools, four of whom are appointed by the Council, and one of whom is a representative of the State Superintendent of Education. Id. All members of the Council, with the exception of the representative of the State Superintendent, must be either members of the faculty or board of education of MHSAA-member schools. Id. Seventeen of the nineteen members of the Council in 2000-2001 were either employees or representatives of public schools or public school districts. Id.
The district court found that high school athletic seasons in Michigan are determined by MHSAA. Id. at 814. MHSAA prescribes when practice and competition may start, when competition ends, and the maximum number of games that may be played. Practice outside of the dates set by MHSAA is prohibited. Member schools are not permitted to engage in any competition after the end of the MHSAA season or the end of the state championship tournament in any sport, whichever is last. According to MHSAA rules, athletes 510*510 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.
State championship tournaments are sponsored by MHSAA in twelve boys' sports and twelve girls' sports. Id. Only MHSAA-member schools who comply with MHSAA's rules and regulations may participate in these tournaments. Id.

B. Procedural background
In June of 1998, CFE filed the present lawsuit, alleging that MHSAA discriminated against female athletes. The district court denied two successive motions for summary judgment filed by MHSAA. MHSAA then filed a motion to dismiss, which was granted in part, dismissing all of CFE's disparate-impact claims.
From September 24 through October 4, 2001, the district court conducted a bench trial on the remaining claims. The court handed down its decision on December 17, 2001, holding that MHSAA's scheduling of female sports seasons violated the Equal Protection Clause of the Fourteenth Amendment, Title IX (20 U.S.C. §§ 1681-1688), and Michigan's ElliottLarsen Civil Rights Act (Mich. Comp. Laws Ann. §§ 37.2101-37.2804). Cmtys. for Equity, 178 F.Supp.2d at 862.
As part of its ruling, the district court enjoined MHSAA from continuing its current scheduling of interscholastic athletics seasons in Michigan. The court retained jurisdiction over the case, ordering MHSAA to submit a Compliance Plan so that an appropriate remedy could be implemented. Id. MHSAA's initial Compliance Plan was rejected by the court, but a revised plan was filed by MHSAA in October of 2002 and subsequently approved.
II. ANALYSIS
A. Standard of review
Questions of constitutional interpretation are issues of law, which we review de novo. Ammex, Inc. v. United States, 367 F.3d 530, 533 (6th Cir.2004). The district court's findings of fact, on the other hand, will not be set aside unless they are determined to be clearly erroneous. Berger v. Medina City Sch. Dist., 348 F.3d 513, 519 (6th Cir.2003).
B. Equal Protection
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." Pursuant to 42 U.S.C. § 1983,
[e]very 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 liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

An entity or individual charged under § 1983 with a Fourteenth Amendment violation must be a "state actor." LRL Props. v. Portage Metro Hous. Auth., 55 F.3d 1097, 1111 (6th Cir.1995) ("To state a claim under the Equal Protection Clause, a § 1983 plaintiff must allege that a state actor intentionally discriminated against 511*511 the plaintiff because of membership in a protected class.") (quotation marks and citation omitted). As a threshold issue, therefore, we must determine whether MHSAA is a state actor.
In determining that MHSAA is a state actor, the district court relied upon the United States Supreme Court's decision in Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001). Cmtys. for Equity, 178 F.Supp.2d at 846-848. The Brentwood Academy case addressed the issue of whether the Tennessee Secondary School Athletic Association (TSSAA), which was "incorporated to regulate interscholastic athletic competition among public and private secondary schools," engaged in state action when it enforced one of its rules against a member school. Id. at 290, 121 S.Ct. 924. Because of "the pervasive entwinement of state school officials in the structure of the association," the Court held that TSSAA's regulatory activity constituted state action. Id. at 291, 121 S.Ct. 924. The Court acknowledged that the analysis of whether state action existed was a "necessarily fact-bound inquiry," id. at 298, 121 S.Ct. 924 (quotation marks omitted), and noted that state action may be found only where there is "such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself." Id. at 295, 121 S.Ct. 924 (quotation marks omitted).
Public schools constituted 84% of TSSAA's membership, the Court noted, and school faculty and administrators provided TSSAA's leadership. Id. at 298, 121 S.Ct. 924. The Court was also influenced by the fact that TSSAA's primary revenue source was gate receipts from tournaments between TSSAA-member schools. Id. at 299, 121 S.Ct. 924. In conclusion, the Court stated that,
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, 121 S.Ct. 924. The Court also found significant that TSSAA ministerial employees were treated like state employees by virtue of their eligibility for membership in the state retirement system. Id. at 300, 121 S.Ct. 924.
MHSAA's stated purpose, "[t]o create, establish and provide for, supervise and conduct interscholastic athletic programs throughout the state," is virtually identical to that of its Tennessee counterpart. See id. at 290, 121 S.Ct. 924. Like TSSAA, MHSAA's membership is composed primarily of public schools. And, similar to TSSAA, public school teachers, administrators, and officials dominate MHSAA's leadership. Another common feature is that the bulk of MHSAA's revenue comes from ticket sales for state championship tournaments. Finally, MHSAA employees who had state teaching certificates were, until January of 1988, considered state employees and were therefore eligible to participate in the state's

retirement system. Employees who started working for MHSAA before January of 1988 continue to be members of the state employees' retirement system. Cmtys. for Equity, 178 F.Supp.2d at 813.
We therefore conclude that MHSAA is so entwined with the public schools and the state of Michigan, and that there is 512*512 "such a close nexus between the State and the challenged action," Brentwood Academy, 531 U.S. at 295, 121 S.Ct. 924 (quotation marks omitted), that MHSAA should be considered a state actor. Tellingly, MHSAA argued earlier in this litigation, before the Supreme Court reversed this court's opinion in Brentwood Academy, 180 F.3d 758 (6th Cir.1999), that "the nature and function of the MHSAA is virtually identical to that of the TSSAA." Cmtys. for Equity, 178 F.Supp.2d at 847. MHSAA, in sum, has failed to present any compelling argument to distinguish itself from TSSAA. We therefore affirm the determination of the district court that MHSAA is a state actor.
2. Denial of Equal Protection
The Supreme Court has held that "[p]arties who seek to defend gender-based government action must demonstrate an `exceedingly persuasive justification' for that action." United States v. Virginia, 518 U.S. 515, 531, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (dealing with the admission of women to the Virginia Military Institute, hereafter referred to as VMI). In VMI, the Court further explained the State's burden under the heightened standard for gender-based classifications:
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, 116 S.Ct. 2264 (quotation marks and citations omitted).
The district court analyzed the scheduling of the Michigan athletic seasons under VMI'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, 178 F.Supp.2d at 850. In addition, the district court noted that MHSAA's justifications must be "exceedingly persuasive." Id. (quotation marks omitted). MHSAA asserted that the scheduling decisions were designed to maximize girls' and boys' participation in athletics, arguing that the scheduling system maximizes opportunities for participation "by creating optimal use of existing facilities, officials and coaches, thereby permitting more teams in a sport or more spots on a team." Id.

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 VMI, 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 its burden. The district court also pointed out that even if MHSAA had sufficiently proven the 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.
513*513 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 VMI. An "unavoidable consequence of separate teams," according to MHSAA, "was accommodation of twice the number of teams, games and participants."
The evidence offered by MHSAA, however, 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 argues that bare participation statistics "are the link showing that separate seasons are substantially related to maximum participation." (Emphasis added.) 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 contends 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 "[t]here 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 boys and girls "serves `important governmental objectives and that the discriminatory means employed' are `substantially related to the achievement of those objectives.'" VMI,518 U.S. at 533, 116 S.Ct. 2264.
Disparate treatment based upon facially gender-based classifications evidences an intent to treat the two groups differently. VMI 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, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), are inapposite because they involve facially neutral classifications, rather than facially gender-based classifications. In Hernandez, for example, the Court analyzed a racially-neutral explanation for a prosecutor's exercise of peremptory strikes in picking a jury, noting that "[u]nless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." Id. at 360, 111 S.Ct. 1859. The facts of the present case are quite different from those of Hernandez.

In sum, we do not find that MHSAA's justification for its scheduling practices is "exceedingly persuasive" in meeting the heightened standard required by VMI for the gender-based classifications. See VMI, 518 U.S. at 532-33, 116 S.Ct. 2264. We therefore affirm the district court's grant of relief to CFE on the Equal Protection claim.
C. Compliance Plan
Upon 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, 178 F.Supp.2d at 862. MHSAA 514*514 was required to submit a Compliance Plan to the court by June 24, 2002. Id.
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. The Department of Justice noted that "the proposed Compliance Plan would perpetuate sex discrimination by requiring more than three times as many girls as boys to play in disadvantageous seasons and by addressing only sports, with the exception of boys' golf, offered by less than half of MHSAA's member schools."
In August of 2002, the district court rejected MHSAA's proposed plan as not achieving equality. The court 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. The amended plan was approved by the court the following month.
MHSAA contends that the district court erred in rejecting MHSAA's initial Compliance Plan. Before we can address the merits of this argument, however, we must determine whether appellate jurisdiction exists to hear the issue.
CFE argues that MHSAA failed to appeal the Compliance Plan order, pointing out that 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 its initial Compliance Plan in August of 2002.
The appellate courts lack jurisdiction over issues that are the subject of post-judgment motions, such as a motion for a new trial, when arguments in those motions are not

included in a Notice of Appeal. In United States v. Warner, 10 F.3d 1236 (6th Cir.1993), for example, this court held that "by being a distinct appealable order from which a separate appeal must be taken," a denial of a motion for new trial
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.
MHSAA did not file an amended Notice of Appeal following the district court's rejection of the initial Compliance Plan. We therefore conclude that this court lacks jurisdiction to consider MHSAA's argument concerning the 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 515*515 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. See Person v. General Motors Corp., 730 F.Supp. 516, 518-19 (W.D.N.Y.1990) (stating that recusal in a prior case involving a party is not alone sufficient for disqualification in a later case involving that same party).
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court on the basis that MHSAA's actions regarding the scheduling of girls' sports seasons in Michigan violated the Equal Protection Clause of the Fourteenth Amendment.
[*] The Honorable Milton I. Shadur, United States District Judge for the Northern District of Illinois, sitting by designation.

 
 137 F.Supp.2d 910 (2001)
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.
April 6, 2001.
911*911 H. Rhett Pinsky, Pinsky, Smith, Fayette & Hulswit, Grand Rapids, MI, Marcia D. Greenberger, Washington, DC, Kristen Galles, Alexandria, VA, Neena Chaudhry, Barbara A. Burr, Washington, DC, for Plaintiffs.
Carole D. Bos, Bos & Glazier, Grand Rapids, MI, Edmund J. Sikorski, Ann Arbor, MI, William M. Azkoul, Azkoul & Azkoul, Grand Rapids, MI, for Defendants.
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, Chief Judge.
This matter is before the Court on the United States' Motion in Limine Relating to Prior Investigations by the Department of Education's Office for Civil Rights and any Evidence or Testimony Relating to Same. Plaintiffs have joined in this Motion. The Court grants in part and denies in part the United States' Motion.
The United States seeks to exclude the following evidence: (1) all documentation relating to the United States Department of Education Office for Civil Rights' ("OCR") investigation of the Michigan High School Athletic Association ("MHSAA") in 1982-1984; (2) all documentation relating to the lawsuit Michigan High Sch. Athletic Ass'n v. Bell, No. No. 83CV-6250-AA (E.D.Mich.1983); (3) all documentation relating to OCR's investigation of the scheduling of girls' interscholastic sports season in a South Dakota school district; and (4) all testimony by Harry Orris, any current of former OCR official, or any other witness relating to items (1) through (3).
Legal Standards
According to Federal Rule of Evidence 401, "`[r]elevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. "All relevant evidence is admissible, except as otherwise provided ... by

these rules .... Evidence which is not relevant is not admissible." Fed.R.Evid. 402. "Although relevant, evidence may be excluded if its 912*912 probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403.
The OCR Investigation from 1982 and the 1984 Statements of Findings
The documentation that the United States seeks to exclude consists of a July 6, 1982 OCR letter to the MHSAA and March 1, 1984 OCR letters and statements of findings as to certain MHSAA member schools.
The July 6, 1982 OCR letter concerns OCR's investigation into complaints of discrimination on the basis of sex, race, and handicap against the MHSAA. The letter states: "Based on the information currently available to OCR, we have determined that the MHSAA does not receive Federal financial assistance. We are therefore closing the complaint against the MHSAA at this time. It is possible that the complaint could be reopened if other information regarding recipient status were received by OCR."
The March 1, 1984 OCR letters are addressed to five Michigan school districts and to the State Department of Education. These letters contain identical content and refer to OCR's investigation into the school districts' alleged discrimination in violation of Title IX by adopting the rules and regulations of MHSAA. The letters indicate that the OCR "concluded that schools and school districts can operate interscholastic athletic programs within the rules of [MHSAA] and in compliance with the requirements of Title IX." The letters also states that they should not be construed to cover "any other issues regarding compliance with ... Title IX."
Each March 1, 1984 letter included a statement of findings prepared by OCR. The statements addressed the scheduling of sports seasons, whether MHSAA's method of electing members to its Representative Council violated Title IX, and whether MHSAA was required to implement a grievance procedure for athletes under Title IX. The statements address the scheduling of sports seasons, including the limitation of opportunities for interstate competition in girls' basketball and volleyball. The OCR found that "no teams of either sex were scheduled to play against teams from other states," and the scheduling of sports in different seasons did not have "any adverse effects upon the students in" the five districts being addressed. OCR specifically mentioned that adverse effects could exist in other districts.
The statement of findings also addressed whether the season scheduling limited the girls' opportunities to be recruited by colleges. OCR addressed recruiting under the Association for Intercollegiate Athletics for Women ("AIAW"), which is now defunct. At the time, the AIAW permitted its member schools to hold try-outs for prospective student athletes at any time during the year, and as a result, the OCR found that this allowed Michigan female athletes to try-out at any time and allowed coaches to scout female athletes throughout the scheduled season.

OCR also considered the National Collegiate Athletic Association's ("NCAA") recruiting rules because many AIAW schools had joined the NCAA by 1984. The NCAA recruiting rules in effect in 1984 differ from those in place now. For example, in 1984, Division I women's basketball coaches were permitted to evaluate prospective recruits from June 15 through August 1. Under current NCAA rules, college coaches can spend a maximum of 40 days between October 8 and February 28 evaluating prospective recruits. Based on the NCAA rules in effect in 1984, the OCR found that sports scheduled outside of their traditional seasons had not "presented 913*913 any problems in scouting or recruiting females."
The United States argues that this information is not relevant because the factual and legal bases of the prior investigation are different than the case at issue. For example, the OCR investigations from 1982—1984 were much narrower than the instant case because the prior investigation only focused on five schools. As a result, its findings only addressed those five schools, whereas the instant case incorporates the entire MHSAA. The OCR finding that five particular school districts in 1982 did not violate Title IX does not necessarily mean that the MHSAA does not violate Title IX today. In addition, the OCR based its former conclusion on the fact that the MHSAA did not receive federal financial assistance. This Court, however, has already held that "any entity that exercises controlling authority over a federally funded program is subject to Title IX, regardless of whether that entity is itself a recipient of federal aid." Comms. for Equity v. Mich. High Sch. Athletic Ass'n, 80 F.Supp.2d 729, 733 (W.D.Mich. 2000). In addition, the United States asserts that the changes in female athletics since the OCR's investigation make the 1982-1984 findings irrelevant because if faced with the same complaint today, the OCR would conduct a new investigation.
Defendants argue that this information is relevant to show how scheduling sports tournaments in different seasons for boys and girls expands the opportunities for girls and to rebut any assertion that the Department of Justice's ("DOJ") involvement in this case shows that the DOJ believes the MHSAA has violated Title IX. Regarding the scheduling of tournaments, Defendants argue that the OCR has thoroughly investigated this issue and did not find any violations or negative impacts, and these findings and conclusions are relevant on the same issue today. Defendants also assert that it should be allowed to introduce this evidence to tell the trier of fact that the government has investigated this issue previously and has determined that no violation occurred.
The Court does not find this information to be relevant as it does not make the existence of any consequential fact more or less probable. Contrary to Defendants' assertion, the OCR did not conclude that the MHSAA did not violate Title IX, it merely closed the complaint because the MHSAA did not receive federal financial assistance. This Court has already ruled that MHSAA need not receive federal financial assistance to be subject to Title IX. Similarly, in 1984, the OCR only reported that the five school districts in question were not, at that moment, violating Title IX. The 1984 statements of findings did not even mention the MHSAA. Such evidence is not relevant regarding whether the MHSAA is violating Title IX today. In addition, the OCR conducted its investigation under AIAW rules and old NCAA rules. The AIAW is now defunct, and the NCAA has changed its rules. Thus, any findings made under those rules are irrelevant in this case. Therefore, the OCR information,

including the July 6, 1982 letter and the March 1, 1984 statements of findings are inadmissible because they are irrelevant under Rule 402.
The Defendants' argument that this evidence is necessary to rebut any presumption that the trier of fact will be misled by the DOJ's presence at trial is not persuasive. Plaintiffs' allegations do not reference the OCR nor do they state that the OCR has determined the MHSAA has violated Title IX. In addition, the United States does not intend to argue that OCR has determined the MHSAA has violated Title IX or that OCR has formed any conclusions about this case.[1] Defendants 914*914 also point out that Plaintiffs' initial trial exhibit list includes other OCR findings. The Plaintiffs, in the Proposed Pretrial Order, indicated that they no longer included OCR findings as exhibits. In addition, the parties can submit an instruction explaining that the jury should not presume that the MHSAA has violated Title IX based on the United States' participation in this case.
MHSAA v. OCR Litigation
The United States also seeks to exclude any evidence from the case, Michigan High Sch. Athletic Ass'n v. Bell, No. 83-CV-6250-AA (E.D.Mich.1983). In that case, the MHSAA sought declaratory judgment that the Department of Education was without jurisdiction to apply Title IX to high school athletic programs. On March 30, 1984, the parties stipulated to dismissal of the lawsuit.
In their Brief, the United States claims that this lawsuit is not relevant, but does not state why. In their Reply, the United States argues that the Bell case is not relevant for the same reasons that the OCR information is not relevant. It also claims that the evidence is inadmissible hearsay under Federal Rule of Evidence 803(8)(C). Rule 803(8)(C) excepts from hearsay "factual findings resulting from an investigation made pursuant to authority granted by law." The United States contends that the case file from the Bell case does not contain factual findings because the parties stipulated to a dismissal without any ruling on the merits.
Defendants argue the Bell case is relevant for the same reasons they contend the OCR information is relevant. That is, Defendants argue that the Bell case provides a historical background for the trier of fact and should be allowed to show that the DOJ is asserting a position contrary to the agency it represents. Defendants also claim that the United States' hearsay objection is not pertinent because the dismissal is not being offered for the truth of the matter asserted and is an admission by the OCR. Defendants offer no support for either of these arguments, and furthermore, do not inform the Court why the Bell case is being offered.
This Court finds that the Bell case is not relevant because it does not make a consequential fact more or less probable. The Bell case occurred almost 20 years ago. In addition, it originated with an action for declaratory judgment on an issue this Court has already decided: whether the MHSAA is subject to Title IX. Any information from an action attempting to state otherwise is not relevant to the instant case and must be excluded pursuant to Rule 402.

OCR's Investigation in South Dakota
The United States is attempting to exclude evidence relating to the OCR's recent investigation of alleged discrimination in interscholastic athletics against a single school district in South Dakota. Defendants listed a July 15, 1998 letter from an OCR official to Sioux Falls School District 49-5 as a trial exhibit. The letter references a complaint that this school district discriminated against female athletes in violation of Title IX by scheduling some girls' sports in nontraditional seasons. The letter states that OCR's investigation "disclosed no tangible harm to female athletes in the current season from the scheduling of events."
In June 2000, a group of students sued the South Dakota High School Activities Association ("SDHSAA"), alleging that the current playing seasons violate Title IX and the Fourteenth Amendment. Pederson 915*915 v. South Dakota High Sch. Activities Ass'n, No. 00-4113 (D.S.D.2000). In December 2000, a consent decree was entered, and the SDHSAA agreed to schedule girls' basketball and volleyball in their traditional seasons.
The United States briefly argues that the investigation of a single South Dakota school district is irrelevant to whether the MHSAA violates Title IX. In response, Defendants briefly argue that the South Dakota investigation is relevant. Neither side addresses this point thoroughly enough for the Court. Therefore, the Court, for its own reasons, finds the South Dakota investigation relevant.
Differences between the South Dakota investigation and this case certainly exist. For example, the OCR is not currently investigating the MHSAA, and the South Dakota investigation involved one district whereas this case involves every district that is a member of MHSAA. These differences, however, do not mean that the information from South Dakota will not help the trier of fact determine if the MHSAA violated Title IX. The behavior complained about in both instances, the scheduling of girls' sports seasons, is the same. In addition, this investigation is much more current than the investigation previously addressed. Moreover, should the United States attempt to argue that the OCR would have ruled against the MHSAA on a complaint about its scheduling, the OCR's letter in the South Dakota investigation may help the trier of fact determine whether this is true. The parties can use the OCR letter to establish both similarities and differences between that investigation and this case, all of which may help the trier of fact decide whether the MHSAA's scheduling of girls' sports violates Title IX. Therefore, the OCR's investigation into the South Dakota school district is relevant and therefore admissible pursuant to Rules 401 and 402.
Testimony by Harry Orris and Other OCR Officials
The United States also attempts to exclude any testimony by Harry Orris and other current or former OCR officials, or any other witness, relating to the documents sought to be excluded.
As the Court is excluding the OCR's 1982 letter and 1984 statements of findings, all testimony relating to these documents is also excluded. This follows because the Court

found those particular documents irrelevant. In addition, all testimony relating to the Bell case is excluded because it is irrelevant.
Because the Court has not excluded the documents relating to the South Dakota investigation, it will not exclude testimony relating to that investigation.
Statements by OCR Officials in Seattle
In its Reply, the United States seeks to exclude testimony about OCR's investigation concerning interscholastic sports seasons and recruitment in Hawaii. As the United States has raised this for the first time in their Reply, Defendants have not had an opportunity to respond. This issue is not properly raised in a Reply, nor is it properly before the Court.
Conclusion
For the foregoing reasons, the Court grants in part and denies in part the United States' Motion. An Order consistent with this Opinion will follow.
[1] Should the United States attempt to argue this, this Order will not apply, and Defendants will be allowed to introduce the evidence hereby excluded. The Plaintiffs, by virtue of joining this Motion, are hereby forbidden from making this argument.

 
 2007 WL 5830967 Only the Westlaw citation is currently available.
United States District Court, W.D. Michigan,
Southern Division.
COMMUNITIES FOR EQUITY, et al., Plaintiffs, v.
MICHIGAN HIGH SCHOOL, ATHLETIC ASSOCIATION, et al., Defendants.
No. 1:98-CV-479. |
May 2, 2007.
Attorneys and Law Firms
H. Rhett Pinsky, Pinsky, Smith, Fayette & Hulswit, Grand Rapids, MI, Lindsey B. Lang, Roger E. Warin, Steptoe & Johnson LLP, Marcia D. Greenberger, Neena K. Chaudhry, National Women’s Law Center, Washington, DC, Kristen M. Galles, Equity Legal, Alexandria, VA, Robin K. Bohnenstengel, University of Baltimore Law School, Baltimore, MD, for Plaintiffs.
EDmund J. Sikorski, Jr., Edmund J. Sikorski, Jr. PC, Ann Arbor, MI, William M. Azkoul, William Azkoul, P.C., Carole D. Bos, Bos & Glazier, PLC, Grand Rapids, MI, for Defendant.
OPINION
RICHARD ALAN ENSLEN, Chief Judge.
*1 This matter is before the Court on Defendants’ Motion in Limine to Exclude the Testimony by Plaintiffs’ Expert Witnesses Donna Lopiano, Christine Grant, Virgil Hooe, and Mary Witchger. Defendants generally argue that these witnesses cannot qualify as experts, and their purported testimony is unreliable. The Court grants in part and denies in part Defendants’ Motion.
RELEVANT LAW
1. Standard of Review This Court has wide discretion on whether to admit the testimony of an expert witness. See United States v.

Tocco, 200 F.3d 401, 418 (6th Cir.2000). Expert testimony need not be “necessary” to be admissible; rather, it must reasonably assist the trier of fact in understanding the evidence or determining a matter in issue. See U.S. v. Browner, 173 F.3d 966, 969-70 (6th Cir.1999). The task of the trial judge under this Rule is to ensure that the expert’s testimony rests on both a reliable foundation and is relevant to the task at hand. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
The Sixth Circuit has adopted a four-factor test to uphold the admission of expert testimony: (1) a qualified expert; (2) testifying on a proper subject; (3) which is in conformity to a generally accepted explanatory theory; and (4) the probative value of which outweighs its prejudicial effect. See U.S. v. Moses, 137 F.3d 894, 899 (6th Cir.1998). The qualification of a witness to testify is a preliminary question of law. See id.
2. Applicable Federal Rules of Evidence Federal Rule of Evidence 702 states that a witness qualified as an expert by “knowledge, skill, experience, training, or education, may testify ... in the form of an opinion or otherwise” if it will “assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702.
Federal Rule of Evidence 703 allows an expert’s testimony to be based on facts or data perceived by the expert or made known to the expert at or before the hearing. Fed.R.Evid. 703. In addition, if the facts relied upon by the expert are of a type reasonably relied upon by experts in the particular field when forming opinions, the facts need not be admissible in evidence. Id.
Furthermore, Federal Rule of Evidence 704 allows an expert, with an exception pertaining to criminal cases, to testify in the form of an opinion that “embraces the ultimate issue to be decided by the trier of fact.” Fed.R.Evid. 704.
APPLICATION
1. Donna Lopiano Dr. Lopiano testified in deposition that she has been the executive director for the Women’s Sports Foundation (“WSF”) since 1992. Prior to that, Dr. Lopiano served as an in-house gender equity advisor for the Texas University Interscholastic League. Dr. Lopiano testified that a nexus and interrelationship exists between WSF and

1

the National Women’s Law Center (“Center”), which represents Plaintiffs in the present action. The WSF refers potential legal clients to the Center, and the Center serves as an affiliate member and advisory board member of WSF. WSF works with one of Plaintiffs’ attorneys “on a daily basis.” Dr. Lopiano also testified.that she has trained investigators from the Office of Civil Rights of the U.S. Department of Education (“OCR”), and she served as a special advisor to OCR during the 1970s to help write and apply OCR’s 1979 Policy Interpretation and 1980 Investigators’ Manual. Dr. Lopiano has previously testified in Title DC cases, including landmark athletic cases, and she said that she has always found gender discrimination against the defendants in those cases.
*2 Dr. Lopiano further testified that she had not previously reviewed Title DC or other gender equity issues pertaining to high school athletics in Michigan. She stated that she has not published any articles relating to Michigan athletics, nor has she attempted contact with Michigan residents. Dr. Lopiano stated that one of Plaintiffs’ attorneys asked her to serve as an expert witness and give her opinion on the following issues: (1) whether equitable participation opportunities exist for high school girls participating in Michigan High School Athletic Association (“MHSAA”)-sponsored tournaments in Michigan; (2) whether the playing seasons and contest rules discriminatorily impact high school girls; (3) whether facilities used for MHSAA girls’ tournaments are comparable to those used for MHSAA boys’ tournaments; and (4) whether MHSAA tournament publicity and promotion are comparable for Michigan boys and girls.
Dr. Lopiano testified that Title DC requires that participation opportunity be calculated by participation slot rather than by team and based this opinion on a document summary purporting to represent the number of Michigan girls and boys in state high school championship sports participating in MHSAA tournaments over an eight-year period. Dr. Lopiano received this summary from one of Plaintiffs’ counsel. Dr. Lopiano also based her opinions on a 50-state summary document of the playing seasons, which had been given to her by Plaintiffs’ counsel.
Dr. Lopiano stated that she had not reviewed the MHSAA Handbook or other MHSAA publications but had relied on Plaintiffs’ counsel’s responses to her own inquiries into contest rules and other statements contained in MHSAA publications. Regarding, the alleged disparity in facilities used for boys and girls, Dr. Lopiano stated that her sole source of information underlying this opinion had come from Plaintiffs’ counsel. Similarly, Dr. Lopiano based her opinion on the disparity in scheduling between boys and girls on Plaintiffs’ counsel’s statements.

Defendants argue that Dr. Lopiano’s expert testimony must be excluded because her opinions (1) are colored by bias, (2) lack reliability, (3) are not characterized by the employment of intellectual rigor, and (4) impermissibly reach legal conclusions regarding Defendants’ alleged liability under Title IX.
The Court has studied Dr. Lopiano’s resume and finds that she may testify as an expert witness. Dr. Lopiano holds three degrees in Physical Education, including Doctor of Philosophy (“Ph.D.”). She has worked in various roles within athletics, including Director of Intercollegiate Athletics for Women at the University of Texas at Austin. Furthermore, she has received various honors within her field, and she has also published numerous articles. In addition, Dr. Lopiano has provided written or oral testimony in numerous Title IX cases.1
Defendants argue that Dr. Lopiano should not be able to testify because her opinions are unreliable, and they are not the result of “intellectual vigor.” The Court notes that much of the data on which Dr. Lopiano relies was supplied by Defendants to Plaintiffs, who then passed it on to Dr. Lopiano. Furthermore, as noted by Federal Rule of Evidence 703, an expert’s opinion may be based on facts known to the expert or on facts made known to the expert before or at a hearing. In addition, these facts need not be admissible if they are of a type normally relied upon by experts in the relevant field. Fed.R.Evid. 703. Thus, Defendants’ arguments hold no merit.
*3 As for Defendants’ claim of bias, this may or may not be true. This, however, goes to the weight of the evidence and not its admissibility. See Evans v. Brigano, 1995 WL12286 at *3 (6th Cir. Jan. 12, 1995) (quoting Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)). Defendants are free to question Dr. Lopiano about her perceived bias. Indeed, Defendants are free to question Dr. Lopiano about all of the arguments they have presented in their Motion.
Dr. Lopiano’s expert opinion may assist the trier of fact in determining whether the MHSAA discriminates against its female athletes and their participation opportunities. Dr. Lopiano may also provide assistance on an appropriate remedy, if necessary. The Court does not know of, and neither does the law provide, a reason to exclude Dr. Lopiano as an expert witness.
2. Christine Grant Dr. Grant was deposed in June 1999. Dr. Grant worked as director of women’s athletics for the University of Iowa
2

for nearly 30 years until her recent retirement. Dr. Grant has also served as special advisor to the OCR during the late 1970s and helped write OCR’s 1979 Policy Interpretation. In addition, Dr. Grant has testified in cases where a defendant is accused of discriminating against female athletes. Her testimony in such cases has always been in support of the plaintiffs and has always involved athletics at the collegiate level.
Dr. Grant testified that the MHSAA determines when sports are played and serves as an agent for its member schools, but Dr. Grant also testified that she knew of no facts to substantiate these statements. Everything Dr. Grant knows about interscholastic athletics in Michigan she derived from reading Plaintiffs’ Amended Complaint, which she relied upon as truthful. Dr. Grant further testified that she based her opinions regarding intentional discrimination upon the Amended Complaint and her sense that it “seem[ed] a little unusual that [new] sports have not been added” since 1982 or 1983.
Dr. Grant has testified in other cases where those plaintiffs were represented by some of the same attorneys representing Plaintiffs in this case. Dr. Grant stated that she has based her opinions on statements made to her by these attorneys. Although Dr. Grant stated that she feared Michigan girls were missing out on competition at the conference tournaments that cross state lines, she had no facts with which to support her opinion.
Defendants raise the same arguments against Dr. Grant testifying as they do against Dr. Lopiano. Mainly, Defendants argue that Dr. Grant lacks the qualifications to render expert testimony as to interscholastic athletics.
The Court has studied Dr. Grant’s resume and finds that she, too, may testify as an expert witness. Dr. Grant has obtained her Ph.D. in Administration and Physical Education. She has served on various committees relating to sports, has given presentations regarding gender and sports, has published numerous articles in the area of sports, has acted as a consultant for many colleges, and has given expert testimony in court and before various commissions. Although Dr. Grant’s expertise is widely in the area of intercollegiate athletics, this does not preclude her from testifying as an expert witness in this case. Rather, Defendants may cross-examine Dr. Grant in effort to show her weaknesses, if any, in dealing with interscholastic athletics. That is, Defendants’ arguments go to the weight to be given Dr. Grant’s testimony and not its admissibility.
*4 Moreover, Dr. Grant may assist the trier of fact in understanding how a high school’s athletic program can affect a girl’s opportunity to play at the collegiate level.

Dr. Grant may also help the trier of fact understand the concept of “emerging sports” as it relates to girls’ athletics. In addition, Dr. Grant’s knowledge of the OCR’s Policy Interpretation may assist the trier of fact in assessing whether Defendants discriminate in violation of Title IX.
Again, Dr. Grant’s basis for her opinion may rest upon information given to her in preparation for this case. This does not necessarily mean that this data or information is not the type normally relied upon by experts exploring Title DC violations in high school athletics. Defendants may cross-examine Dr. Grant to determine this or reveal any other weaknesses in her testimony. Therefore, the Court will allow Dr. Grant to testify as an expert witness.
3. Virgil Hooe Mr. Hooe, a high school volleyball coach in Anchorage, Alaska, was deposed in July 1999. He has never served as an expert witness in another case, nor has he published in the area of volleyball or reviewed documents pertaining to this case.
Plaintiffs retained Mr. Hooe to testify regarding the change in volleyball seasons in Alaska and how this has affected interscholastic volleyball in Alaska and the availability of collegiate scholarships. Mr. Hooe stated that the change in the volleyball season had not resulted in increased college volleyball scholarships being offered, although he remained hopeful that this would happen in the future.
The Court has examined Mr. Hooe’s resume and finds it to be lacking of the credentials normally possessed by an expert. Although Mr. Hooe has vast coaching experience, he does not have the same type of education, publications, or previous experience in gender equity and Title DC cases as the Drs. Lopiano and Grant Nothing indicates that Mr. Hooe has special skills, knowledge, or training sufficient to render him an expert in this case. The Court cannot find and does not find that Mr. Hooe is qualified to testify as an expert witness. See U.S. v. Moses, 137 F.3d 894, 899 (6th Cir.1998) (the qualification of a witness to testify is a preliminary question of law).
Mary Witchger Ms. Witchger was deposed in July 1999. Ms. Witchger was instrumental in convincing the Minnesota High School League to sanction a girls’ ice hockey tournament. Plaintiffs expect Ms. Witchger to testify that this action “legitimized” girls’ ice hockey and led to an “explosion of
3

opportunity and participation.”
Ms. Witchger has no knowledge regarding how the MHSAA is set up and has not reviewed any documents relating to this case. Ms. Witchger stated that she intended to give the following opinions: (1) the interest in girls’ ice hockey amongst Michigan high school girls has grown; and (2) Michigan high schools have an obligation to provide girls with an equal opportunity to compete in ice hockey. Ms. Witchger stated that within the two weeks preceding her deposition, she spoke with a number of individuals and young girls who play ice hockey in Michigan, and this constitutes the basis of her knowledge of girls’ ice hockey in Michigan.
*5 Ms. Witchger was dissatisfied with the reason offered by high school athletic directors when explaining why schools do not field girls’ ice hockey teams. Ms. Witchger, however, did not know of any Michigan high school athletic directors who has articulated these reasons to her. Similarly, Ms. Witchger knew of no high school athletes or their parents who expressed frustration over these high school athletic directors’ “unwillingness” to sponsor high school girls’ ice hockey teams. Furthermore, Ms. Witchger could not name one Michigan athlete who has expressly stated that she has been denied an athletic opportunity.
Ms. Witchger testified about Minnesota’s high schools and their girls’ ice hockey tournament. She stated that Minnesota has recorded a noticeable growth in girls’ ice hockey since the Minnesota high school athletic association began sponsoring a post-season tournament. Ms. Witchger also stated that she believed that Michigan would experience similar growth.
The Court has found nothing within the record indicating that Ms. Witchger should be considered an expert witness. Plaintiffs make much of the fact that Ms. Witchger convinced Minnesota’s MHSAA equivalent to sanction a girls’ ice hockey tournament. This alone, however, does not qualify Ms. Witchger as an expert. Nothing indicates that the task she undertook was of the type normally done by those widely considered experts. Furthermore, nothing indicates that Ms. Witchger now serves in some sort of administrative role through which she would consistently see the interaction between gender, discrimination, and sports. Although not necessary to be considered an expert, Ms. Witchger has not published in this area, consulted in this area, nor has she obtained any formal education in this area. This, in coordination with her limited experience, precludes the Court from considering her an expert witness.

CONCLUSION For the foregoing reasons, the Court grants in part and denies in part Defendants’ Motion in Limine.
An Order consistent with this Opinion will follow.
ORDER
In accordance with an Opinion filed this day;
IT IS HEREBY ORDERED that Defendants’ Motion in Limine to Exclude the Testimony by Plaintiffs’ Expert Witnesses Donna Lopiano, Christine Grant, Virgil Hooe, and Mary Witchger (Dkt. No. 315) is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that Donna Lopiano and Christine Grant will be permitted to testify as expert witnesses, and Virgil Hooe and Mary Witchger will not be permitted to testify as expert witnesses.
OPINION
This matter is before the Court on Defendants’ Motion in Limine to Exclude Application of [the Office of the Civil Rights] Inter-Collegiate Athletic Policy Interpretation (Policy Interpretation). Defendants claim that the Office of Civil Rights’ (“OCR”) Policy Interpretation2 (1) does not apply to interscholastic athletics, (2) is unconstitutional as it violates the equal protection clause, and (3) is not effective because it was not signed by the President. The Court denies the Motion.
*6 The Court is unsure as to why Defendants have filed this as a Motion in Limine because they fail to make any argument for exclusion based on the Federal Rules of Evidence. This Court has previously stated that motions in limine allow the Court to make preliminary rulings as to the admissibility of evidence. See Donnelly Corp. v. Gentex Corp., 918 F.Supp. 1126, 1130 (W.D.Mich.1996). The Court does not interpret Defendants’ Motion as one seeking resolution of an evidentiary matter. Rather, the Motion seems to be requesting the Court indicate what law it will apply to this case. This alone warrants dismissal of the Motion. Given the tortured history of this case, however, the Court will address Defendants’ claims briefly but will not indicate what law it will apply.

4

1. Does the Policy Interpretation Apply to Interscholastic Athletics? Defendants argue that the Policy Interpretation does not apply to interscholastic athletics because the Policy Interpretation makes specific references indicating it is to apply to intercollegiate athletics. While it is true that the Policy Interpretation is meant to apply to intercollegiate athletics, the Policy Interpretation specifically states that its principles “will often apply to club, intramural, and interscholastic athletic programs,” which are also covered by regulation. 44 Fed.Reg. at 71,413. Thus, the Policy Interpretation explicitly states that it may apply to interscholastic athletics. Moreover, the Sixth Circuit has held that the Policy Interpretation applies to interscholastic athletics. Horner v. Kentucky High Sch. Athletic Ass’n, 43 F.3d 265, 273 (6th Cir.1994) (citing Williams v. Sch. Dist. of Bethlehem, PA., 998 F.2d 168, 171 (3rd Cir.1993)).
Defendants’ reliance on footnote one of the Policy Interpretation is misplaced. The language on which Defendants rely states that “club teams will not be considered to be intercollegiate teams ...” 44 Fed.Reg. at 71, 413-14 n.1. Defendants argue that this language makes the Policy inapplicable to interscholastic athletics. The Court disagrees. The footnote does not mention interscholastic athletics and appears to be differentiating between intercollegiate club and varsity teams.
Based on this, Defendants’ argument that the Policy Interpretation should be excluded because it does not apply to interscholastic athletics must fail.
2. Is the Policy Interpretation Unconstitutional? Defendants argue that the Policy Interpretation is unconstitutional because it violates the equal protection clause. To support their argument, Defendants rely on the dissenting opinion in Cohen v. Brown, 101 F.3d 155, 188 (1st Cir.1996). In the dissent, Chief Judge Torruella concludes that the three-prong test the Policy Interpretation advocates for determining compliance with participation opportunities under Title DC is quota-based and contrary to the equal protection clause. See id., at 195 (citing Adarand v. Pena, 515 U.S. 200, 209-10, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995)).
*7 The Court again disagrees with Defendants’ argument and reliance on Cohen. Various Circuit Courts of Appeal have upheld the validity of the Policy Interpretation and have applied it when determining Title DC athletic claims. See Pederson v. Louisiana State Univ., 213 F.3d 858, 879 (5* Cir.2000); Neal v. Bd. of Trustees of California State Univs., 198 F.3d 763, 771 (9th Cir.1999);

Boulahanis v. Bd. of Regents, 198 F.3d 633, 637-38 (7th Cir.1999); Cohen, 101 F.3d at 637-38; Horner, 43 F.3d at 273; Roberts v. Colorado State Bd. of Ag., 998 F.2d 824, 828 (10th Cir.1993), Williams, 998 F.2d at 171. The Court, therefore, will not exclude the Policy Interpretation based on Defendants’ argument that it is unconstitutional.
3. Is the Policy Interpretation Effective? Defendants argue that the Policy Interpretation is not effective because it was not signed by the President. Defendants cite to the district court’s decision in Pederson and claim that it stands for the proposition that the Policy Interpretation must have been signed by the President to be effective. Pederson v. Louisiana State Univ., 912 F.Supp. 892, 910 (M.D.La.1996) (“[The Policy Interpretation] was never approved by the president. The Policy Interpretation does not have the binding effect of those rules, regulations or orders authorized by 20 U.S.C. § 1682.”).
First, the Court finds no reason why the Policy Interpretation must be signed by the President as it is only a guideline to interpret Title IX and not a rule, regulation, or order. See Cohen, 879 F.Supp. at 199. Second, the Pederson court still relied on the Policy Interpretation when analyzing the plaintiffs’ claims, even though it noted that it had not been submitted to the President for approval. Pederson, 910 F.Supp. at 910-12. Therefore, this argument does not justify excluding the Policy Interpretation.
Defendants have not produced a reason, evidentiary or otherwise, to exclude the Policy Interpretation. Thus, the Court denies its Motion in Limine.
An Order consistent with this Opinion will follow.
ORDER
In accordance with the Opinion entered this day;
IT IS HEREBY ORDERED that Defendants’ Motion in Limine to Exclude Application of OCR Inter-Collegiate Athletic Policy Interpretation (Dkt. No. 302) is DENIED.
All Citations
Not Reported in F.Supp.2d, 2007 WL 5830967
5

Footnotes

1

Examples of the cases in which Dr. Lopiano provided testimony are: Pederson v. Louisiana State University, 213 F.3d

858 (5th Cir.2000); Cohen v. Brown University, 101 F.3d 155 (1st Cir.1996); Roberts v. Colorado State Bd. of

Agriculture, 998 F.2d 824 (10th Cir.1993).

2

Interpretation of Title IX Education Amendments of 1972, 44 Fed.Reg. 71413 (Dec. 11, 1979) (to be codified at 45

C.F.R. pt. 86).

6

 
 2007 WL 9221306 Only the Westlaw citation is currently available.
United States District Court, W.D. Michigan, Southern Division.
COMMUNITIES FOR EQUITY, et al., Plaintiffs, v.
MICHIGAN HIGH SCHOOL, Athletic Association, et al., Defendants.
No. 1:98–CV–479. |
May 2, 2007.
Attorneys and Law Firms
H. Rhett Pinsky, Pinsky, Smith, Fayette & Hulswit, Grand Rapids, MI, Lindsey B. Lang, Roger E. Warin, Steptoe & Johnson LLP, Marcia D. Greenberger, Neena K. Chaudhry, Washington, DC, Kristen M. Galles, Equity Legal, Alexandria, VA, Robin K. Bohnenstengel (CWNS), University of Baltimore Law School, Baltimore, MD, for Plaintiffs.
Edmund J. Sikorski, Jr., Edmund J. Sikorski, Jr. PC, Ann Arbor, MI, Timothy A. Fusco, Miller Canfield Paddock & Stone PLC, Detroit, MI, William M. Azkoul, William Azkoul, P.C., Carole D. Bos, Bos & Glazier, PLC, Grand Rapids, MI, for Defendants.
OPINION
ENSLEN, Chief J.
*1 This matter is before the Court on Defendants’ Motion in Limine to Exclude Application of [the Office of the Civil Rights] Inter–Collegiate Athletic Policy Interpretation (Policy Interpretation). Defendants claim that the Office of Civil Rights’ (“OCR”) Policy Interpretation1 (1) does not apply to interscholastic athletics, (2) is unconstitutional as it violates the equal protection clause, and (3) is not effective because it was not signed by the President. The Court denies the Motion.
The Court is unsure as to why Defendants have filed this as a Motion in Limine because they fail to make any argument for exclusion based on the Federal Rules of Evidence. This Court has previously stated that motions in limine allow the Court to make preliminary rulings as

to the admissibility of evidence. See Donnelly Corp. v. Gentex Corp., 918 F.Supp. 1126, 1130 (W.D.Mich.1996). The Court does not interpret Defendants’ Motion as one seeking resolution of an evidentiary matter. Rather, the Motion seems to be requesting the Court indicate what law it will apply to this case. This alone warrants dismissal of the Motion. Given the tortured history of this case, however, the Court will address Defendants’ claims briefly but will not indicate what law it will apply.
1. Does the Policy Interpretation Apply to Interscholastic Athletics? Defendants argue that the Policy Interpretation does not apply to interscholastic athletics because the Policy Interpretation makes specific references indicating it is to apply to intercollegiate athletics. While it is true that the Policy Interpretation is meant to apply to intercollegiate athletics, the Policy Interpretation specifically states that its principles “will often apply to club, intramural, and interscholastic athletic programs,” which are also covered by regulation. 44 Fed.Reg. at 71,413. Thus, the Policy Interpretation explicitly states that it may apply to interscholastic athletics. Moreover, the Sixth Circuit has held that the Policy Interpretation applies to interscholastic athletics. Horner v. Kentucky High Sch. Athletic Ass’n, 43 F.3d 265, 273 (6th Cir.1994) (citing Williams v. Sch. Dist. of Bethlehem, PA., 998 F.2d 168, 171 (3rd Cir.1993)).
Defendants’ reliance on footnote one of the Policy Interpretation is misplaced. The language on which Defendants rely states that “club teams will not be considered to be intercollegiate teams ...” 44 Fed.Reg. at 71,413–14 n. 1. Defendants argue that this language makes the Policy inapplicable to interscholastic athletics. The Court disagrees. The footnote does not mention interscholastic athletics and appears to be differentiating between intercollegiate club and varsity teams.
Based on this, Defendants’ argument that the Policy Interpretation should be excluded because it does not apply to interscholastic athletics must fail.
2. Is the Policy Interpretation Unconstitutional? Defendants argue that the Policy Interpretation is unconstitutional because it violates the equal protection clause. To support their argument, Defendants rely on the dissenting opinion in Cohen v. Brown, 101 F.3d 155, 188 (1st Cir.1996). In the dissent, Chief Judge Torruella concludes that the three-prong test the Policy Interpretation advocates for determining compliance with

participation opportunities under Title DC is quota-based and contrary to the equal protection clause. See id., at 195 (citing Adarand v. Pena, 515 U.S. 200, 209–10, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995)).

Interpretation] was never approved by the president. The Policy Interpretation does not have the binding effect of those rules, regulations or orders authorized by 20 U.S.C. § 1682.”).

*2 The Court again disagrees with Defendants’ argument and reliance on Cohen. Various Circuit Courts of Appeal have upheld the validity of the Policy Interpretation and have applied it when determining Title DC athletic claims. See Pederson v. Louisiana State Univ., 213 F.3d 858, 879 (5th Cir.2000); Neal v. Bd. of Trustees of California State Univs., 198 F.3d 763, 771 (9th Cir.1999); Boulahanis v. Bd. of Regents, 198 F.3d 633, 637–38 (7th Cir.1999); Cohen, 101 F.3d at 637–38; Horner, 43 F.3d at 273; Roberts v. Colorado State Bd. of Ag., 998 F.2d 824,828 (10th Cir.1993), Williams, 998 F.2d at 171. The Court, therefore, will not exclude the Policy Interpretation based on Defendants’ argument that it is unconstitutional.

First, the Court finds no reason why the Policy Interpretation must be signed by the President as it is only a guideline to interpret Title IX and not a rule, regulation, or order. See Cohen, 879 F.Supp. at 199. Second, the Pederson court still relied on the Policy Interpretation when analyzing the plaintiffs’ claims, even though it noted that it had not been submitted to the President for approval. Pederson, 910 F.Supp. at 910–12. Therefore, this argument does not justify excluding the Policy Interpretation.
Defendants have not produced a reason, evidentiary or otherwise, to exclude the Policy Interpretation. Thus, the Court denies its Motion in Limine.

3. Is the Policy Interpretation Effective? Defendants argue that the Policy Interpretation is not effective because it was not signed by the President. Defendants cite to the district court’s decision in Pederson and claim that it stands for the proposition that the Policy Interpretation must have been signed by the President to be effective. Pederson v. Louisiana State Univ., 912 F.Supp. 892,910 (M.D.La.1996)(“[The Policy

An Order consistent with this Opinion will follow.
All Citations Not Reported in F.Supp.2d, 2007 WL 9221306

Footnotes

1

Interpretation of Title JX Education Amendments of 1972, 44 Fed.Reg. 71413 (Dec. 11, 1979)(to be codified at 45

C.F.R. pt. 86).

 
 2007 WL 2078753 Only the Westlaw citation is currently available.
United States District Court, W.D. Michigan,
Southern Division.
COMMUNITIES FOR EQUITY, et al., Plaintiffs, v.
MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION, Defendant.
No. 1:98-CV-479. |
July 13, 2007.
Attorneys and Law Firms
Philip L. Cohan, Piper, Marbury, Rudnick & Wolfe LLP, Roger E. Warin, Steptoe & Johnson, Barbara A. Burr, Neena Chaudhry, Marcia D. Greenberger, Washington, DC, Kristen Galles, Alexandria, VA, Robin K. Bohnenstengel, Piper, Marbury, Rudnick & Wolfe LLP, Baltimore, MD, Lindsey B. Lang, H. Rhett Pinsky, Pinsky, Smith, Fayette, Hulswit, Grand Rapids, MI, for Plaintiffs.
Edmund J. Sikorski, Ann Arbor, MI, William M. Azkoul, Law Offices of William Azkoul, P.C., Carole D. Bos, Bos & Glazier, Grand Rapids, MI, for Defendant.
OPINION
RICHARD ALAN ENSLEN, Senior United States District Judge.
*1 This matter is before the Court on the Motion to Intervene pursuant to Federal Rule of Civil Procedure 24(a) filed by the Michigan High School Tennis Coaches’ Association (“MHSTeCA”), Amy Christman, as next friend of L.C., Richard D. Friedman, as next friend of R.A.F., and Rafat Rizk, as next friend of M.R. (collectively, “Tennis Applicants”). This Motion has been fully briefed and the Court discerns no reason for oral argument. See W.D. MICH. LCIVR 7.2(d).
I. BACKGROUND The procedural posture of this class action lawsuit is a

known quantity to this Court, the parties, lawyers, and to the public through media reports. This action began nine years ago in June 1998. In 2001, the Court determined that Defendant Michigan High School Athletic Association’s scheduling of the interscholastic athletic seasons in Michigan violated the Equal Protection Clause of the Fourteenth Amendment, Title IX, 20 U.S.C. § 1681, and Michigan’s Elliot-Larsen Civil Rights Act, Mich. Comp. Law. §§ 37.2101-37.2804. See Cmtys. for Equity v. Mich. High Sch. Ath. Ass’n, 178 F.Supp.2d 805 (W.D.Mich.2001). The Court enjoined Defendant from its current scheduling and ordered it to submit a Compliance Plan rescheduling sports seasons to comply with the law. Id. at 862. On November 8, 2002, this Court approved Defendant’s Amended Compliance Plan. See also Cmtys. for Equity v. Mich. High Sch. Ath. Ass’n, 377 F.3d 504, 506-11 (6th Cir.2004) (recounting a thorough summary of the case). The case then spent the next five years winding its way through the appellate process.
Most recently, after being twice affirmed by the Sixth Circuit Court of Appeals, the Supreme Court denied Defendant certiorari on April 2, 2007. Shortly following that denial, the present Applicants filed their Motion to Intervene seeking to modify the Compliance Plan to maintain the Lower Peninsula high school girls’ tennis season during the fall. On June 7, 2007, a second Motion to Intervene was filed by certain coaches of Upper Peninsula high school girls’ soccer teams and certain parents of team members, as next friends, seeking to modify the Compliance Plan to maintain girls’ soccer in the Upper Peninsula during the spring season. On June 12, 2007, a third Motion to Intervene was filed by certain coaches of Upper Peninsula high school boys’ soccer teams and certain parents of team members, as next friends, seeking to modify the Compliance Plan to maintain boys’ soccer in the Upper Peninsula during the fall season.1
II. LEGAL STANDARDS Pursuant to Federal Rule of Civil Procedure 24(a), “Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” The Sixth Circuit has held that pursuant to Rule 24(a), a proposed intervenor must show: (1) the motion is timely; (2) the proposed intervenor has a substantial interest in

the action; (3) that interest is likely to be impaired by the disposition of the lawsuit; and (4) the existing parties cannot adequately protect that interest. Bradley v. Miliken, 828 F.2d 1186, 1191 (6th Cir.1987); Jordan v. Mich. Conference of Teamsters Welfare Fund, 207 F.3d 854, 862 (6th Cir.2000). It is an applicant’s burden to demonstrate these four prongs and if any one of these criteria is not established, the motion must be denied. Stupak-Thrall v. Glickman, 226 F.3d 467, 471 (6th Cir.2000) (quoting Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir.1989)); see also Linton v. Comm’r of Health & Env’t, 973 F.2d 1311, 1317 (6th Cir.1992).
III. LEGAL ANALYSIS *2 After consideration and review, the Court finds the Tennis Applicants have failed to show their interests were not represented during the action and have failed to show their motion is timely.
A. Timeliness A Court has discretion to determine whether a motion is timely and such timeliness is determined within the context of all relevant circumstances of the case. See NAACP v. New York, 413 U.S. 345, 365, 93 S.Ct. 2591, 37 L.Ed.2d 648 (1973); Mich. Ass’n for Retarded Citizens v. Smith, 657 F.2d 102, 105 (6th Cir.1981); Bradley, 828 F.2d at 1191. The following factors should be considered when determining whether a motion is timely: (1) the point to which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenors knew or should have known of their interest in the case; (4) the prejudice to the original parties due to the proposed intervenors’ failure to promptly intervene after they knew or reasonably should have known of their interest in the case; and (5) the existence of unusual circumstances militating against or in favor of intervention. Stupak-Thrall, 226 F.3d at 473.
In regard to the first factor, the present case is currently post-judgment, having been affirmed by the Sixth Circuit on two separate occasions. The action has been litigated for nine years and the Compliance Plan is just now within months of implementation. This factor weighs heavily against a finding of timely intervention. See Mich. Ass’n for Retarded Citizens, 657 F.2d at 105 (holding motion to intervene was untimely where 20 months had passed since litigation began and one month since entry of judgment); Jordan, 207 F.3d at 862 (holding failure to intervene before final judgment rendered motion to intervene untimely).

The second factor, the purpose for which intervention is sought, also militates against a finding of timely intervention. Tennis Applicants contend most ardently their purpose is to achieve the “optimal” season for girls to play tennis and seek for the Court to hold the most advantageous season for girls’ tennis in the Lower Peninsula is the fall rather than the spring. Stated another way, Tennis Applicants seek for the Court to make new findings of fact and participate in the remedial process. In United States v. Tennessee, 260 F.3d 587, 593 (6th Cir.2001), the Sixth Circuit held that where the proposed intervenors’ purpose in intervention was to participate in future remedial proceedings, such a purpose weighed against finding intervention was timely. The present situation is similar as Tennis Applicants seek to participate in a remedial process which was completed in 2002 and has not yet been enacted. Therefore, the Court finds this factor strongly weighs against a finding of timely intervention.
The Court finds the third factor, the length of time preceding the application during which the proposed intervenors knew or should have known of their interest in the case, does not favor timeliness. The Tennis Applicants argue they have intervened at the first opportunity as they could not have anticipated their children’s interests in the action when the case began. In light of the extensive media attention and its duration, the Court finds it completely unpersuasive that resident parents were without knowledge of this litigation or its potential to effect the high school interscholastic scheduling.2 The Sixth Circuit has held that “several newspaper articles” were sufficient to apprise proposed intervenors of their rights before a consent decree entered. Stotts v. Memphis Fire Dep’t, 679 F.2d 579, 583 (6th Cir.1982); NAACP v. New York, 413 U.S. 345, 366-67, 93 S.Ct. 2591, 37 L.Ed.2d 648 (1973) (holding it was reasonable for a lower court to conclude applicants knew or should have known of the pendency of the action because of an informative newspaper article and public commentary); see also Johnson v. City of Memphis, 73 Fed.App. 123 (6th Cir.2003) (unpublished) (motion to intervene after summary judgment was untimely where newspaper articles should have apprised applicants of their interest). In the present action, the media attention was much more extensive, and all important decisions were posted on the Court’s internet site to provide public notice. Defendant also disseminated information to its member schools through bulletins and meetings. The Tennis Applicants did or should have known of their interest at least during 2001 when the case was proceeding to trial and before the Compliance Plan was formed.
*3 The fourth factor also weighs against finding Tennis Applicants’ Motion to Intervene timely. It is clear that to

allow intervention at this stage presents a prejudice to both Plaintiffs and Defendant. The remedy would be delayed in its implementation, girls would have at least another season of discriminatory scheduling, and the expense in re-litigating these issues would continue to rise exponentially. Tennis Applicants contend the fact the Compliance Plan has not yet been enacted obviates any prejudice. This argument ignores the practicality of what Tennis Applicants seek-to modify a balanced and equitable Compliance Plan. As Defendant laboriously detailed in its briefing, the Compliance Plan was not created by chance or without the extensive involvement of its member schools. Tennis Applicants wish to modify one aspect of the Compliance Plan and ignore the fact that to allow such a change would necessitate Defendant reevaluating the entire Compliance Plan and again seeking information from its member schools.3 This process would not only delay implementation of the remedy but also increase costs to all parties. Further, the Court notes that to allow this Motion to Intervene would likely create a slippery slope in which other individuals unhappy with scheduling of other sports will seek to modify the Order, delaying the implementation of the Compliance Plan. Tennis Applicants stated in briefing that Plaintiffs’ fear that “hordes of litigants will descend on the Court, and all the results of litigation will be undone ... is fanciful.” (Reply at 7.) However, just a few short weeks later, this Court received two more motions to intervene seeking to modify the Compliance Plan. In light of the likelihood of delay and increased costs and litigation, this factor weighs against timeliness.
Finally, although there are some factors which make this case unique, including the indefinite nature of the remedy, this does not weigh in favor of Tennis Applicants so as to show their motion is timely at this post-judgment juncture.
Therefore, in weighing all the factors, the Court finds that Tennis Applicants’ Motion to Intervene is untimely and must be denied. Stupak-Thrall, 226 F.3d at 471.
B. Representation of Interests The Court further notes that even had Tennis Applicants’ Motion to Intervene been found to be timely, their Motion must be denied because they have failed to show their interests were not adequately protected by the parties.
The Court recognizes that adequate representation is presumed when the proposed intervenor and one of the parties have the same objective and also when a government entity purports to represent their interest. Bradley, 828 F.2d at 1192 (“An applicant for intervention fails to meet his burden of demonstrating inadequate

representation when no collusion is shown between the representatives and an opposing party, when the representative does not have or represent an interest adverse to the proposed intervenor, and when the representative has not failed in its fulfillment of his duty.”); see also United States v. Hooker Chems. & Plastics Corp., 749 F.2d 968, 987 (2d Cir.1984) (“The mere existence of disagreement over some aspects of the remediation necessary to abate the hazard does not demonstrate a lack of capacity on the part of the government as parens patriae to represent its constituents fairly and faithfully.”)
*4 Tennis Applicants argue neither Plaintiffs nor Defendant represented their interests during the litigation. Tennis Applicants claim the evidence to support this assertion is the fact that there was little time devoted to fact finding on the issue of girls’ tennis and the fact that the Tennis Applicants construe their interest as being an interest in having the most advantageous Tennis season. The Court first notes that Tennis Applicants have a substantial interest in playing sports and taking part in a non-discriminatory system which balances the inequities between both boys’ and girls’ athletics. See e.g., Bradley v. Pinellas County Sch. Bd., 165 F.R.D. 676 (M.D.Fla.1994) (holding that intervention to serve an individual interest is inappropriate in a school desegregation case). Tennis Applicants do not have a substantial interest in playing a particular sport in what they believe is the most desirable season. To this end, the Court finds the interests of girls’ tennis were represented in the action by Plaintiffs who sought to end discrimination and who represented all future and current female athletes in Michigan high schools. The motivation behind the Court-ordered remedy was to achieve equity in the schedule between girls’ and boys’ sports. However, such equity does not translate into girls having the advantageous season for every sport; rather, the Compliance Plan sets forth a schedule in which boys and girls equally share the burden for playing in disadvantageous seasons. The Court specifically set forth in its Findings of Fact that spring was the advantageous season for girls’ tennis. Cmtys. for Equity, 178 F.Supp.2d at 836. The Court notes that “disagreement over litigation strategy or individual aspects of a remediation plan does not, in and of itself, establish inadequacies of representation.” Bradley, 828 F.2d at 1192. Although Plaintiffs did not advocate for the season which Tennis Applicants now argue is the advantageous season, such a disagreement cannot show Plaintiffs failed to represent Tennis Applicants interest in achieving a non-discriminatory athletic scheduling system. Moreover, the United States was allowed to participate as “litigating amicus” on behalf of all of Michigan’s high school girls, and also participated after the trial during the Compliance Plan process. This representation further indicates that

Tennis Applicants’ interests in achieving a non-discriminatory athletic scheduling system were adequately represented throughout the action. Bradley, 828 F.2d at 1192
One could also argue that Tennis Applicants’ specific viewpoint that girls’ tennis should remain in the fall was represented through Defendant. Defendant submitted in its Findings of Fact that 16 other states sponsor girls’ tennis in the fall and Michigan rates seventh in participation, and argued generally that girls’ sports scheduling (including tennis) should remain unchanged. (Def.’s Proposed Findings of Fact at ¶ 13.) Further, Tennis Applicant MSHTeCA had one of its own members on Defendant’s witness list, and was listed to testify at trial, although she did not actually give testimony. Therefore, the Court finds that Tennis Applicants’ interests were adequately represented to this Court. Although Tennis Applicants may now disagree with the outcome as to girls’ tennis, this disagreement does not

justify their intervention.
IV. CONCLUSION *5 Therefore, this Court finds that Tennis Applicants’ Motion to Intervene as a right must be denied as Tennis Applicants have failed to show that such Motion is timely and have failed to show that their interests were not adequately protected by the parties to the action. An Order consistent with this Opinion shall issue.
All Citations Not Reported in F.Supp.2d, 2007 WL 2078753

Footnotes

1

The Court will address the Tennis and Soccer Motions for Intervention separately.

2

As for the MSHTeCA, the Tennis Applicants admit it was involved and kept abreast of the litigation during the entire

action. To the extent Tennis Applicants argue MSHTeCA’s inability to pay for counsel justifies their delay despite their

knowledge, the Court is unpersuaded. As Plaintiffs’ point out, they themselves have litigated this matter through pro

bono counsel for the past nine years.

3

The Court recognizes that any switch in the Compliance Plan at this stage would be extremely prejudicial to the female

athletes who have already made their decisions regarding what sports they will pursue based on the Compliance Plan

schedule and also to Defendant who would face the daunting task of rescheduling. Michigan High School Athletic

Association spokesman John Johnson has stated to the media, “The proverbial window of opportunity [for change in

the Compliance Plan] is nearly slammed shut.” Jeff Arnold, Friedman contends that Tennis should not change

seasons, ANN ARBOR NEWS (July 11, 2007). Tennis Coach Tom Pullen is credited with stating that to “switch back

now would be a ‘nightmare’... and that to reverse the schedule again would be problematic.” Id.

This issue is also evident in Defendant’s last minute addendum filed on July 12, 2007, which seeks to modify its

position as to what sports could and should be stayed if Tennis Applicants are granted relief, given the “passage of

time” and the fact that “it is neither practical nor possible for schools to revert back to the prior schedule in all six

sports.” (Add. at 2.)

 
 544 U.S. 1012
MICHIGAN HIGH SCHOOL ATHLETIC ASSN., INC., ON BEHALF OF ITSELF AND ITS MEMBERS v.
COMMUNITIES FOR EQUITY, ON BEHALF OF ITSELF, ITS MEMBERS, AND ALL OTHERS SIMILARLY SITUATED, ET AL.
No. 04-1021.
Supreme Court of United States.
C. A. 6th Cir. Motions of Michigan Interscholastic Athletic Administrators Association, Michigan Association of School Boards, Basketball Coaches Association of Michigan, and National Federation of State High School Associations for leave to file briefs as amici curiae granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Rancho Palos Verdes v. Abrams, ante, p. 113. Reported below: 377 F. 3d 504.
!