_______________________________ 

Michigan Supreme Court 

Lansing, Michigan 

Chief Justice:	 Justices: 

Maura D. Corrigan Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

Clifford W. Taylor 

Robert P. Young, Jr. 

Stephen J. Markman 

FILED JULY 29, 2004 

MARTIN B. BREIGHNER III and 

KATHRYN BREIGHNER, 

Plaintiffs-Appellants, 

v No. 123529 

MICHIGAN HIGH SCHOOL ATHLETIC 

ASSOCIATION, INC., 

Defendant-Appellee. 

BEFORE THE ENTIRE BENCH 

YOUNG, J. 

At issue in this case is whether defendant Michigan 

High School Athletic Association, Inc. (MHSAA), a private, 

nonprofit entity that organizes and supervises 

interscholastic athletic events for its voluntary members, 

is a “public body” as that term is defined at MCL 

15.232(d) of the Freedom of Information Act (FOIA), MCL 

15.231 et seq. Plaintiffs contend that the MHSAA is a 

public body within the meaning of the FOIA because (1) it 

is “primarily funded by or through state or local 
 

authority,” MCL 15.232(d)(iv); (2) it is “created by state 

or local authority,” MCL 15.232(d)(iv); and (3) it is an 

“agency” of a school district, MCL 15.232(d)(iii). 

The trial court held that the MHSAA was “primarily 

funded by or through state or local authority” and that it 

was therefore subject to the FOIA as a public body under § 

232(d)(iv). The Court of Appeals reversed, concluding 

that neither § 232(d)(iv) nor § 232(d)(iii) applied to the 

MHSAA. Because we agree that the MHSAA does not qualify as 

a public body under § 232(d)(iii) or (iv), we affirm. 

I. FACTS AND PROCEDURAL HISTORY 

A. THE MHSAA 

The MHSAA was originally founded in 1924 to exercise 

control over the interscholastic athletic activities of 

all public schools in the state through agreement with the 

State Superintendent of Public Instruction. The MHSAA was 

housed within the Michigan Department of Education, and 

its handbook, rules, and regulations were part of the 

Administrative Code of the state of Michigan. 

In 1972, the MHSAA became an incorporated, nonprofit 

membership organization. In that year, the Legislature 

transferred control of interscholastic athletics from the 

State Board of Education to the individual school boards, 

2
 
 

but retained the status of the MHSAA as the official 

association of the state. See MCL 340.379 (repealed by 

1976 PA 451, § 1851); MCL 380.1289 (before its amendment 

by 1995 PA 289, § 1); MCL 380.1521 (repealed by 1995 PA 

289, § 2).1 In 1995, the Legislature adopted the Revised 

School Code, MCL 380.1 et seq., which repealed and amended 

several statutes. Through the Revised School Code, the 

MHSAA was removed as the “official” organization overseeing 

interscholastic sports. Under MCL 380.11a(4), a school 

district’s membership in any athletic organization remains 

entirely voluntary (school districts “may . . . join 

organizations as part of performing the functions of the 

school district” [emphasis supplied]). 

1 MCL 380.1289(1) provided, until 1995, that “[a]

board of a school district . . . may join an organization,

association, or league which has as its object the 

promotion and regulation of sport and athletic . . .

contests . . . .” Section 1289(2) further provided: 

An association established for the purpose

of organizing and conducting athletic events,

contests, or tournaments among schools shall be 

the official association of the state. The 

association is responsible for the adoption and

enforcement of regulations relative to 

eligibility of pupils in schools for 

participation in interscholastic athletic events,

contests, or tournaments. [Emphasis supplied.] 

3
 
The MHSAA is governed by a representative council made 

up of nineteen voting members, including fourteen members 

elected by member schools, four members appointed by the 

council, and one representative of the state 

superintendent of education. The council has control of 

interscholastic athletic policies, and a five-member 

executive committee makes rules necessary for the control 

and government of interschool activities. 

The MHSAA regulates interscholastic athletic 

competition between member schools and sets standards for 

school membership and eligibility of students to 

participate in interscholastic athletics. Apparently, the 

vast majority of high schools in Michigan are members of 

the MHSAA. Approximately seven hundred Michigan high 

schools are members of the MHSAA and more than eighty 

percent of those schools are public. Member schools pay 

no membership dues and no tournament entry fees. The only 

funds collected from schools are (1) payments for the cost 

of publications provided to a school in excess of the 

quantity already provided to members and (2) meeting 

expenses (for example, the cost of lunch). 

The majority——approximately ninety percent——of the 

MHSAA’s revenues are gate receipts at post-season athletic 

4
 
 

tournaments for football and basketball. The gate receipt 

revenues come directly from the sale of the MHSAA’s tickets 

to members of the public who attend MHSAA-sponsored events. 

In some cases, the MHSAA itself does not sell the tickets, 

but member schools remit to the MHSAA gate receipts 

collected from tickets sold by the schools for the MHSAAsponsored events. 

Because no revenues are derived either during the 

regular season or from most of the tournaments sponsored 

by the MHSAA, the positive cash flow from the football and 

basketball tournaments is used to fund these other 

activities. Services provided by the MHSAA to its members 

include the provision of medical insurance for studentathletes; dissemination of play rule books; organization 

of meetings for coaches and officials; provision of 

several school and officials publications; provision of 

trophies and medals; training; direction and management of 

tournaments; and the services of the MHSAA staff. 

B. PLAINTIFFS’ FOIA PROCEEDINGS 

Plaintiffs are the parents of a high school student 

who was prohibited from participating in a ski meet 

sponsored by the MHSAA because he had previously 

participated in an unsanctioned event in violation of MHSAA 

5
 
rules. Plaintiffs filed a request under the FOIA seeking 

information related to that decision. The MHSAA refused to 

comply with the request, asserting that it was not a 

public body and was therefore not subject to the FOIA. 

The trial court granted summary disposition to 

plaintiffs, holding that the MHSAA is “primarily funded by 

or through state or local authority” within the meaning of 

§ 232(d)(iv) because the vast majority of its funding 

comes from gate receipts at the athletic events it 

sponsors. The trial court held that the gate receipts 

that comprised the majority of the MHSAA’s revenue were 

received “through” the schools because the MHSAA 

essentially “’enjoys the schools’ moneymaking capacity as 

its own,’” quoting Brentwood Academy v Tennessee Secondary 

School Athletic Ass’n, 531 US 288; 121 S Ct 924; 148 L Ed 

2d 807 (2001). 

The Court of Appeals reversed, holding that the MHSAA 

was not a public body under either § 232(d)(iv) or § 

232(d)(iii). 255 Mich App 567, 581-582, 583; 662 NW2d 413 

(2003). 

The majority first addressed plaintiffs’ argument 

that the MHSAA was “created by state or local authority” 

under § 232(d)(iv). The majority held that, although it 

6
 
was originally created under such authority, the modern 

incarnation of the MHSAA was a unique, private entity that 

had ceased being the official athletic association for the 

state. This unique entity was not “created” by state or 

local authority. 

The majority further rejected the trial court’s 

conclusion that the MHSAA is primarily funded by or through 

state or local authority. The panel noted that the state 

provides no financial resources to fund the MHSAA’s 

activities, and that the MHSAA actually paid fees for the 

use of host facilities. Member schools pay no fees or 

dues to the MHSAA. The MHSAA is a private, nonprofit 

organization that hires and trains its own officials and 

pays its own employees; furthermore, its revenues are 

derived from the sale of its own tickets for its own 

events. The majority further noted that schools are not 

forced to join the MHSAA and that member schools 

voluntarily chose to engage the MHSAA’s services. The 

individual schools have authority over their own 

interscholastic events and have no independent authority 

over the MHSAA. 

Finally, the majority rejected plaintiffs’ argument 

that the MHSAA is an “agent” of the state and therefore 

7
 
subject to the FOIA under § 232(d)(iii). The majority 

looked to Black’s Law Dictionary (7th ed), where “agency” 

was defined as “[a] fiduciary relationship created by 

express or implied contract or by law, in which one party 

(the agent) may act on behalf of another party (the 

principal) and bind that other party by words or actions.” 

The majority further noted that, pursuant to St Clair 

Intermediate School Dist v Intermediate Ed Ass’n, 458 Mich 

540, 558 n 18; 581 NW2d 707 (1998), “an agency 

relationship arises only where the principal ‘has the 

right to control the conduct of the agent with respect to 

matters entrusted to him.’” (citations omitted). The 

majority held that the MHSAA was governed by its board of 

directors, not the individual schools who voluntarily 

became its members. No one school or district could 

control the MHSAA, because it was controlled by its own 

board. Therefore, the majority held, the MHSAA was not an 

“agent” of its member schools. 

Judge Jansen dissented, opining that the public 

policy behind the FOIA favored disclosure and that the MHSAA 

was primarily funded by or through state or local 

authority because its gate receipts came to it only 

through or by means of the schools’ authority to regulate 

8
 
sporting events. Judge Jansen opined that the majority’s 

holding was contrary to two cases, State Defender Union 

Employees v Legal Aid & Defender Ass’n of Detroit, 230 

Mich App 426, 432; 584 NW2d 359 (1998), and Kubick v Child 

& Family Services, 171 Mich App 304; 429 NW2d 881 (1988), 

in which the Court of Appeals had held, respectively, that 

(1) “funded” for purposes of the FOIA definition of “public 

body” meant the receipt of a governmental grant or subsidy 

and (2) funding that amounted to less than half the total 

funding of a corporation did not amount to primary 

funding. Judge Jansen opined that the gate receipts 

remitted to the MHSAA were the functional equivalent of a 

grant or subsidy and that virtually the entire budget of 

the MHSAA came from gate receipts. Finally, Judge Jansen 

opined that the majority’s holding was contrary to the 

Supreme Court’s holding in Brentwood that the Tennessee 

Secondary School Athletic Association (TSSAA), an 

organization that is allegedly analogous to the MHSAA, was 

a state actor for Fourteenth Amendment purposes. 

We granted plaintiffs’ application for leave to 

appeal. 469 Mich 952 (2003). 

9
 
 

II. STANDARD OF REVIEW 

This case involves questions of statutory 

interpretation, which are reviewed de novo. Roberts v 

Mecosta, 466 Mich 57, 62; 642 NW2d 663 (2002). We review 

the trial court’s grant of summary disposition de novo. 

Id. 

III. ANALYSIS 

A. INTRODUCTION 

The FOIA generally requires disclosure, upon written 

request, of public records in the possession of a “public 

body.” MCL 15.233(1). “Public body” is defined in MCL 

15.232(d) as follows: 

(i) A state officer, employee, agency,

department, division, bureau, board, commission,

council, authority, or other body in the 

executive branch of the state government, but

does not include the governor or lieutenant

governor, the executive office of the governor

or lieutenant governor, or employees thereof. 

(ii) An agency, board, commission, or

council in the legislative branch of the state

government. 

(iii) A county, city, township, village,

intercounty, intercity, or regional governing

body, council, school district, special

district, or municipal corporation, or a board,

department, commission, council, or agency 

thereof. 

10
 
(iv) Any other body which is created by

state or local authority or which is primarily

funded by or through state or local authority. 

(v) The judiciary, including the office of

the county clerk and employees thereof when

acting in the capacity of clerk to the circuit

court, is not included in the definition of 

public body. [Emphasis added.] 

B. THE MHSAA IS NOT PRIMARILY FUNDED BY OR THROUGH 

STATE OR LOCAL AUTHORITY 

We agree with and adopt the reasoning of the Court of 

Appeals majority in holding that the MHSAA is not a “public 

body” as that term is defined by MCL 15.232(d)(iv). 

In granting summary disposition for plaintiffs, the 

trial court held that the MHSAA was “primarily funded 

through state or local authority” and thus qualified as a 

public body under § 232(d)(iv). The court, noting that it 

was required to give effect to each word and provision of 

the statute, held that the use of the terms “by” and 

“through” indicated that funds received both directly and 

indirectly would be considered in determining whether an 

entity was a public body under § 232(d)(iv). The court 

concluded that, although the MHSAA did not receive money 

directly from the schools, it “’enjoy[ed] the schools’ 

moneymaking capacity as its own,’” quoting Brentwood, 

supra, and was therefore publicly funded. 

11
 
Although we agree that the statutory terms “by” and 

“through” must each be accorded their unique meanings, and 

that this terminology suggests that even indirect public 

funding might satisfy the requirements of § 232(d)(iv), we 

find persuasive the analysis of the Court of Appeals 

majority: 

We read “by or through” to distinguish

between the different meanings of the word 

“authority,” that is, funding “by” a governmental

authority (an entity) and funding “through”

governmental decision-making authority (the power

to regulate). Under our reasoning, the former

refers to an entity that directly distributes its

financial resources to the disputed organization,

while the latter refers to the disputed

organization indirectly receiving funds through

some action or decision of the governmental body.

[255 Mich App 579-580 (emphasis in original).] 

The MHSAA is funded neither “by” nor “through” a 

governmental authority. As our Court of Appeals held in 

State Defender Union Employees, "funded," as used in § 

232(d)(iv), means “the receipt of a governmental grant or 

subsidy.” The MHSAA is not the recipient of any 

governmental grant or subsidy. The MHSAA’s member schools 

do not distribute their financial resources to the MHSAA; 

nor do the schools indirectly fund the MHSAA through 

allocations of public monies. Rather, the MHSAA——an 

independent, nonprofit corporation——is primarily funded by 

the sale of its own tickets to private individuals who 

12
 
 

 

have voluntarily paid a fee to observe an MHSAA-sponsored 

athletic event. Member schools pay no dues or fees to the 

MHSAA, the MHSAA pays fees for the use of host facilities, 

and it receives no funds from host concessions; thus, the 

state provides absolutely no public resources to the 

[2] MHSAA.

2 The dissent has extracted broad dictionary

definitions of the words “by” and “through” to suggest

that the receipt of any monies “by virtue of” an entity’s

relationship with a state or local governmental body is

sufficient to render that entity “funded by or through

state or local authority.” The dissent’s analysis, aside

from conflating the distinct meanings of the words “by”

and “through,” completely disregards the meaning of the

statutory term “funded.” As we have explained, the word

“funded” does not connote the simple receipt of payment in

return for services or materials provided; it connotes

receipt of an allocation of resources or a subsidization.

See State Defender Union Employees, supra at 432; Random 

House Webster’s College Dictionary (1997). Yet the 

dissent does not even require that an entity doing 

business with the government collect fees for goods or

services in order to qualify as a public body; the

relationship alone seems critical. Such an extreme 

position is neither warranted by the language of the

statute nor fathomable within the bounds of common sense. 

Taken to its logical conclusion, the dissent’s version of

the statute would place within the ambit of § 232(d)(iv)

any contractor or other business that obtains a majority

of its income from sales made or services rendered to 

governmental bodies. See Brentwood, supra at 311 (Thomas,

J., dissenting) (“the [Tennessee Secondary School Athletic

Association’s] ‘fiscal relationship with the State is not

different from that of many contractors performing

services for the government.’”). (citation deleted). 

Consider, for example, the non-profit College Board, which

administers the SAT to hundreds of Michigan students in the

Footnotes continued on following page. 

13
 
 

 

Nor, contrary to the holding of the trial court and 

the opinion of our dissenting colleague, does the MHSAA 

“enjoy[] the schools’ moneymaking capacity as its own.”3 

classrooms of participating public schools each year.

Public school students pay the examination fee directly to

the College Board, but under the dissent’s rationale the

Board would be a “public body” subject to FOIA disclosure 

requirements simply because it derives income “by virtue”

of the fact that the public schools have facilitated an

opportunity for the Board to administer this test in the

schools. 

3

 Our holding today is limited to the specific

question whether the MHSAA is a “public body” within the

meaning of the FOIA. We express no opinion concerning the

relevance of Brentwood, supra, insofar as it may apply to

the due process implications of the actions of the MHSAA.

We have before us no constitutional question and decline

to address whether the MHSAA is a “state actor” for 

purposes of 42 USC 1983 and the Fourteenth Amendment, as

it would be inappropriate to import the concept of and

analysis relevant to state action into our statutory

analysis. Rather, we are constrained to apply the plain

language of the FOIA’s definitional provisions in 

determining whether the MHSAA is subject to the 

requirements of the FOIA. 

While our dissenting colleague acknowledges this 

fact, see post at 9, she nevertheless appears to contend

that the definition of “state actor” under federal law is 

“pertinent” in defining “public body” under the FOIA. 

This is particularly true of Justice Weaver’s focus on

“entwinement” as a relevant inquiry for defining “public

body.” 

There is a rather straightforward answer to the

dissent’s utilization of “state actor” analysis: it is

possible for MHSAA to be a state actor under § 1983 and the

Fourteenth Amendment without being a “public body” under

the FOIA if the Legislature has defined “public body” in a 

manner inconsistent with Fourteenth Amendment 

Footnotes continued on following page. 

14
 
 

 

The MHSAA organizes postseason tournaments, rents the game 

venues and sells tickets for those games. Without the 

MHSAA's leadership and organizational effort, no revenue 

from tournament games would be generated for any entity, 

including MHSAA member schools. In short, MHSAA creates its 

own "market" and revenue therefrom that would otherwise 

not exist without its effort. Finally, it is worth noting 

that member schools have voluntarily relinquished to the 

MHSAA any interest they may have had in ticket sales for 

athletic tournaments sponsored by the MHSAA, and the MHSAA, 

jurisprudence in the FOIA. The dissent apparently cannot

accept the possibility that the Legislature has the 

discretion to define “public body” in any way it chooses;

yet she offers no support for the proposition that the

Legislature was bound by or had in mind the definition of

“state actor” under federal law when it drafted the FOIA. 

And, of course, there is no support for that proposition.

The Legislature was free to define “public body” in the

FOIA as narrowly or broadly as it wished. We give meaning

to the Legislature’s terms while the dissent is in search

of alternate meanings. 

The dissent not only conflates the meaning of “state

actor” under § 1983 and the Fourteenth Amendment with the

definition of a “public body” under the FOIA, but she goes

on to extract from Brentwood the concept that the 

Tennessee Secondary School Athletic Association (TSSAA)

(and, by analogy, the MHSAA) “enjoys the schools’ 

moneymaking capacity as its own.” As stated supra in note 

2, the MHSAA is not “funded” by participating school

districts but provides services in the activities it

conducts and for which it collects gate receipts. 

15
 
in turn, is fully responsible for the organization and 

administration of the tournament. 

In this vein, we agree with the reasoning of the 

Court of Appeals in State Defender Union, supra at 432-

433, that 

an otherwise private organization is not “funded

by or through state or local authority” merely

because public monies paid in exchange for goods

provided or services rendered comprise a certain

percentage of the organization's revenue. Earned 

fees are simply not a grant, subsidy, or funding

in any reasonable, common-sense construction of

those synonymous words. Rather, it is clear

that, in the FOIA, funded means something other

than an exchange of services or goods for money,

even if the source of money is a governmental

entity [emphasis in original]. 

The MHSAA, as noted, provides numerous services for its 

member schools, such as medical insurance for students, 

publications, training, and many other benefits that 

schools would not otherwise be in a position to provide. 

Here, even assuming that the private ticket-sale revenue 

at issue somehow passes “through” a governmental entity, 

these funds are received by the MHSAA in exchange for the 

multitude of services it performs for its members, most 

significantly the administration of the tournaments for 

which the tickets are sold. The MHSAA is therefore not 

“funded” by or through a governmental entity within the 

meaning of § 232(d)(iv). 

16
 
C. THE MHSAA IS NOT CREATED BY STATE OR LOCAL AUTHORITY 

Plaintiffs contend that the MHSAA is a “creature” of 

the schools and that it is therefore “created by state or 

local authority” within the meaning of § 232(d)(iv). In 

support of this rather tenuous argument, plaintiffs cite 

Kirby v MHSAA, 459 Mich 23, 39 n 17; 585 NW2d 290 (1998), 

in which this Court stated that the MHSAA “is a creature of 

its members, with no independent authority over schools or 

students. The schools can and should exercise appropriate 

oversight of the MHSAA.” Plaintiffs additionally, and 

inconsistently, argue that the MHSAA is a “de facto public 

body” because it has retained much of the same authority 

that was originally bestowed upon it in 1924: the 

authority to exercise control over the interscholastic 

athletic activities of all high schools of the state. 

Plaintiffs stress that high schools have no practical 

choice but to join the MHSAA if they want to participate in 

interscholastic sports. 

We agree with the Court of Appeals majority that the 

MHSAA is no longer the same entity that was arguably 

“created” by state authority in 1924. Rather, the modern 

incarnation of the MHSAA is a wholly different organization 

from the entity that was at one time legislatively 

17
 
 

designated as the official organization for the regulation 

of interscholastic sports in Michigan and that was housed 

within the Michigan Department of Education. The MHSAA is 

now a private corporation that is wholly self-regulated. 

Membership is, by statute, completely voluntary. See MCL 

380.11a(4) (providing that “[a] . . . school district may 

join organizations as part of performing the functions of 

the school district”). In short, the MHSAA in its current 

form is not “created by state or local authority.” 

We further note that our comment in Kirby—that the 

MHSAA “is a creature of its members, with no independent 

authority over schools or students”—merely lends further 

credence to our conclusion that the MHSAA is not a public 

body. Michigan schools are in no way obligated to join 

the MHSAA, and they remain free to join other athletic 

organizations in lieu of, or in addition to, the MHSAA. 

Member schools do not relinquish authority or decisionmaking capacity to the MHSAA, nor does the MHSAA have any 

independent authority over its members.4 There is simply 

4 Justice Weaver’s assertion that the school districts 

“have delegated the authority to the MHSAA to make policy

decisions,” post at 19, is flatly incorrect. As noted 

above, the school districts have voluntarily assumed the 

athletic eligibility conditions set by the MHSAA. Again,

Footnotes continued on following page. 

18
 
 

 

no basis for concluding that this private corporation is 

“created” by any governmental authority.5 

D. THE MHSAA IS NOT AN AGENCY OF THE SCHOOLS 

Finally, plaintiffs contend that the MHSAA acts as an 

“agent” for its member schools and that it is therefore a 

public body as defined by § 232(d)(iii): 

A county, city, township, village,

intercounty, intercity, or regional governing

body, council, school district, special

district, or municipal corporation, or a board,

department, commission, council, or agency

thereof. [Emphasis added.] 

The Court of Appeals majority and the parties appear 

to have assumed that § 232(d)(iii) includes “agents” of 

enumerated governmental entities in the definition of 

while “entwinement” may be a relevant constitutional 

inquiry for defining who might be a state actor, it has no

relevance to our obligation to give meaning to “public

body” as the Legislature has defined it. 

5

 The dissent’s analysis suffers for placing undue

emphasis on the historical connection between what is now

a private, not-for-profit corporation and its previous

incarnation as a state-controlled entity. See post at 9-

10. This historical connection to the state, however

interesting, is irrelevant to the question currently 

before the Court. At issue is not whether the 1924 

incarnation of the MHSAA is a “public body,” but whether

today’s private corporation composed of voluntary members 

is a “public body” under the FOIA. When one engages in

this inquiry without conflating the present private

corporation with its public ancestor, it is manifest that

the MHSAA is not a “public body” under the FOIA. 

19
 
“public body.” We disagree and believe that there is a 

fundamental difference between the terms “agent” and 

“agency” as the latter term is used in the statute. 

As we have noted on many occasions, a statutory term 

cannot be viewed in isolation, but must be construed in 

accordance with the surrounding text and the statutory 

scheme. 

“Contextual understanding of statutes is 

generally grounded in the doctrine of noscitur a 

sociis: ‘it is known from its associates,’ see

Black's Law Dictionary (6th ed), p 1060. This 

doctrine stands for the principle [of

interpretation] that a word or phrase is given

meaning by its context or setting." . . . 

Although a phrase or a statement may mean one

thing when read in isolation, it may mean 

something substantially different when read in

context. . . . [Sweatt v Dep't of Corrections,

468 Mich 172, 179-180; 661 NW2d 201 (2003)

(citations omitted).] 

Although the noun “agency” may be used to describe a 

business or legal relationship between parties, it is 

wholly evident from the context of § 232(d)(iii) that this 

is not the sense in which that term is used. Section 

232(d)(iii) designates several distinct governmental units 

as public bodies, and proceeds to include in this 

definition any “agency” of such a governmental unit. In 

this specific context, the word “agency” clearly refers to 

a unit or division of government and not to the 

20
 
 

 

relationship between a principal and an agent. Had the 

Legislature intended any “agent” of the enumerated 

governmental entities to qualify under § 232(d)(iii), it 

would have used that term rather than “agency.”6 Thus, we 

reject plaintiffs’ argument that the MHSAA acts as an 

“agent” of its member schools and that it thus qualifies 

as an “agency” under § 232(d)(iii).7 

6 The Department of Labor and Economic Growth, for

example, is a governmental “agency,” but a real estate

office hired to sell governmental property is not a 

governmental “agency.” Indeed, it would defy logic (as

well as the plain language of § 232[d][iii]) to conclude

that the Legislature intended that any person or entity

qualifying as an “agent” of one of the enumerated 

governmental bodies would be considered a “public body”

for purposes of the FOIA. 

7 Moreover, even if we were to conclude that the term

“agency” as used in § 232(d)(iii) includes agents of the

enumerated governmental entities, the MHSAA is an 

independent body that is in no way the “agent” of its

members. As noted by the Court of Appeals majority in

this case, “[i]t is a fundamental principle of hornbook

agency law that an agency relationship arises only where

the principal ‘has the right to control the conduct of the

agent with respect to matters entrusted to him.’” St 

Clair Intermediate School Dist, supra at 557-558 

(citations omitted). The MHSAA is governed by its own

internal board. The individual school members have no 

authority over the actions of the MHSAA. Moreover, by

joining the MHSAA, member schools are required to 

relinquish to the MHSAA complete authority over the rules

and officiating of MHSAA-sponsored athletics. 

21
 
V. CONCLUSION 

The MHSAA, a private, nonprofit organization having a 

wholly voluntary membership of private and public schools, 

is not a “public body” within the meaning of the FOIA and 

is therefore not subject to the FOIA’s provisions. 

Accordingly, we affirm the decision of the Court of 

Appeals. 

Robert P. Young, Jr.

Maura D. Corrigan

Michael F. Cavanagh

Clifford W. Taylor

Stephen J. Markman 

22
 
_______________________________ 

v 

S T A T E O F M I C H I G A N 

SUPREME COURT 

MARTIN B. BREIGNER III AND 

KATHRYN BREIGHNER, 

Plaintiffs-Appellants, 

No. 123529 

MICHIGAN HIGH SCHOOL ATHLETIC 

ASSOCIATION, 

Defendant-Appellee. 

WEAVER, J. (dissenting) 

Plaintiffs in this case seek information pursuant to 

the Freedom of Information Act (FOIA), MCL 15.231 et seq., 

regarding how the Michigan High School Athletic 

Association, Inc. (MHSAA), determines which alpine ski 

races and racers are sanctioned from or for participation. 

The MHSAA disqualified plaintiffs’ son from competing with 

his public high school ski team during the 2002 season 

because he skied in one race that the MHSAA did not 

sanction. 

The question in this case is whether the MHSAA is a 

public body that must comply with the disclosure 

requirements of the FOIA. Until the revision of the public 

school code by 1995 PA 289, there was no dispute that the 
MHSAA was subject to the FOIA. However, the majority holds 

that the 1995 revision of the school code insulated the 

MHSAA from public scrutiny previously available under the 

FOIA. I disagree and would hold that the MSHAA is a public 

body subject to the FOIA because it is both created by and 

primarily funded by or through public school districts. 

I 

The FOIA was enacted to continue the common-law right 

Michigan citizens have traditionally possessed to access 

government documents. See Walen v Dep’t of Corrections, 443 

Mich 240, 253; 505 NW2d 519 (1993) (RILEY, J. concurring in 

part); Evening News Ass'n v Troy, 417 Mich 481, 494-495; 

339 NW2d 421 (1983) (discussing Michigan's established 

history of requiring public agency disclosure). As Nowack v 

Auditor General, 243 Mich 200, 203-204; 219 NW 749 (1928) 

explained: 

If there be any rule of the English common

law that denies the public the right of access to

public records, it is repugnant to the spirit of

our democratic institutions. Ours is a government

of the people. Every citizen rules. . . . 

Undoubtedly, it would be a great surprise to the

citizens and taxpayers of Michigan to learn that

the law denied them access to their own books for 

the purpose of seeing how their money was being

expended and how their business was being

conducted. There is no such law and never was 

either in this country or in England. Mr. Justice

MORSE was right in saying: 

"I do not think that any common law ever

obtained in this free government that would deny 

2
 
to the people thereof the right of free access

to, and public inspection of, public records."

Burton v. Tuite, 78 Mich 363, 374 (7 LRA 73) [44

NW 282 (1889)]. 

There is no question as to the common-law

right of the people at large to inspect public

documents and records. The right is based on the

interest which citizens necessarily have in the

matter to which the records relate. 

This right to access provides the policy foundation 

underlying the FOIA. “The FOIA was enacted to continue 

this tradition of openness.” Walen, supra at 254 (Riley, 

J.). 

The FOIA specifically provides that 

all persons . . . are entitled to full and

complete information regarding the affairs of 

government and the official acts of those who

represent them as public officials and public

employees, consistent with this act. The people

shall be informed so that they may fully

participate in the democratic process. [MCL

15.231(2).] 

The FOIA subjects “public bodies” to its public records 

disclosure requirements. MCL 15.235. The FOIA provides 

several definitions of “public body,” any one of which 

subjects an entity to the FOIA’s public record disclosure 

requirements. MCL 15.232(d)(iv) defines one sort of 

public body as “[a]ny other body which is created by state 

or local authority or which is primarily funded by or 

through state or local authority.” I would hold that the 

MHSAA is a public body because it is both “created by state 

3
 
or local authority” and “primarily funded by or through 

state or local authority.” 

Statutory language is to be read according to its 

ordinary and generally accepted meaning. Tryc v Michigan 

Veterans’ Facility, 451 Mich 135; 545 NW2d 642 (1995). If 

the language at issue is plain and unambiguous, we assume 

the Legislature intended its plain meaning and enforce the 

statute as written. Lorencz v Ford Motor Co, 439 Mich 370, 

376; 483 NW2d 844 (1992). It is appropriate to refer to a 

dictionary to discern a statute’s plain meaning. State ex 

rel Wayne Co Prosecuting Attorney v Levenberg, 406 Mich 

455, 465-466; 280 NW2d 810 (1979). 

II 

Public school districts are expressly listed as public 

bodies under the statute. MCL 15.232(d)(iii). Moreover, 

the provision of interscholastic athletics has long been 

and now remains a proper function of public school 

districts, and the MHSAA’s relationship with the public 

schools in the provision of interscholastic athletics is 

firmly established. 

A 

The MHSAA is ”Created By” School Districts 

Under 1923 PA 237, the superintendent of public 

instruction was delegated the authority to supervise and 

4
 
 

 

control interscholastic athletic activities. The MHSAA was 

first organized in 1924 for the purpose of coordinating and 

regulating interscholastic athletic activities.1 Within the 

first year of its creation, the MHSAA presented a 

“Suggested Set of Standards and Practices of Athletic 

Administration.” Regarding these standards, the 

superintendent of public instruction wrote: 

Any athletic program to be worth having at

all must contribute something to the educational

value to its board. To do that it must be the 

result of the cooperative effort on the part of

the superintendent, principal, althletic 

director, and student body. Complete control of

the program must remain in the school itself.

Any set of standards and practices must guide all

these various groups.[2] 

Until 1972, the MHSAA was apparently “housed within the 

Michigan Department of Education, and its Executive 

Director was known as the ‘State Director of Athletics.’” 

Communities for Equity v Michigan High School Athletic 

Ass’n, 178 F Supp 2d 805, 810-811 (WD Mich, 2001). The 

1

 Since the founding of the MHSAA the state 

superintendent of public instruction has been as an exofficio member of the Representative Council that governs

the MHSAA. See, Lewis L. Forsythe, Athletics in Michigan

High Schools—The First Hundred Years, (Prentice-Hall, Inc

1950), which documents the development of high school 

athletics and the creation of organizations to coordinate

interscholastic athletics since 1848. 

2 Id. at 172. 

5
 
 

MHSAA’s handbook, rules, and regulations were part of the 

Michigan Administrative Code. Id. at 811. 

In 1972, the School Code was amended and the authority 

over interscholastic athletics was moved from the State 

Board of Education to individual school districts. Id. 

The Legislature expressly provided that school districts 

could join “an organization, association or league which 

has as its object the promotion of sport . . . and 

regulation of athletic . . . contests . . . .” Former MCL 

340.379. Although the statute did not expressly 

designate the MHSAA as the official organization for 

interscholastic athletics, it did provide that “An 

association established for the purpose of organizing and 

conducting athletic events, contests, or tournaments among 

schools shall be the official association of the state.” 

Id. (emphasis added). It has been assumed that the 

Legislature was referencing the MHSAA. See Communities for 

Equity, supra at 811. 

Also in 1972, the MHSAA reorganized as a private notfor-profit corporation. The MHSAA’s purpose remained 

essentially unchanged after 1972. As stated in the 1972 

articles of incorporation, the MHSAA was intended 

to create, establish and provide for, supervise

and conduct interscholastic athletic programs

throughout the state consistent with the 

6
 
 

 

educational values of the high school curriculums

[sic]. . . .[3] 

As under the former law, membership in the MHSAA was 

voluntary. Nevertheless, once a school district joins the 

MHSAA, it was and is bound by the MHSAA’s rules.4 

There is no express mention of athletics in the school 

code as revised in 1995. The law now simply authorizes 

school districts to “join organizations as part of 

performing the functions of the school district.” MCL 

380.11a(4) (emphasis added). However, the Revised School 

Code further provides that the powers of school districts 

are not diminished “[u]nless expressly provided in the 

3

 This description is from the MHSAA’s April 18, 1972,

articles of incorporation. 

4

 When a school district joins the MHSAA, it must

annually adopt the MHSAA membership resolution. That 

resolution provides that the school district: 

Accepts the Constitution and By-Laws of 

[MHSAA] and adopts as its own the rules,

regulations and interpretations (as minimum 

standards), as published in the current HANDBOOK 

and qualifications as published in the BULLETIN 

as the governing code under which the said 

school(s) shall conduct its program of 

interscholastic activities and agrees to primary

enforcement of said rules, regulations,

interpretations and qualifications. In addition,

it is hereby agreed that schools which host or

participate in the association’s meets and 

tournaments shall follow and enforce all 

tournament policies and procedures. 

7
 
 

 

amendatory act . . . .” MCL 380.11a(9). Thus, it can be 

concluded that the provision of athletics remains a proper 

function of school districts. It is also undisputed that 

the MHSAA remains the primary statewide organization that 

coordinates the interscholastic athletics for public school 

districts in Michigan.5 

Given this history, the majority’s suggestion that the 

MHSAA is “a wholly different organization from the entity 

that was at one time legislatively designated as the 

official organization for the regulation of interscholastic 

sports in Michigan and that was housed within the Michigan 

Department of Education,” ante at 18, is inaccurate. As 

noted above, the MHSAA was not expressly named in the 

statute as the “official” state interscholastic 

organization after 1972. Further, the majority suggests 

that the “voluntary” nature of membership in the MHSAA is a 

new reality under the 1995 Revised School Code. This is 

not true. Membership has always been and remains 

voluntary. At any point since 1924, a school district 

could decide to not participate in interscholastic 

athletics and to not join the MHSAA. 

5

 The MHSAA’s comprehensive control that it has 

retained over interscholastic athletics is reviewed in 

Communities for Equity, supra at 810-814. 

8
 
 

School districts allow the MHSAA to coordinate sports 

events because the MHSAA is the dominant statewide 

organization of interscholastic athletics, and failure to 

join and comply with the MHSAA rules would effectively 

prevent the schools from participating in interscholastic 

athletics. Moreover, the MHSAA’s written materials 

demonstrate that the MHSAA is intertwined with the school 

districts. Specifically included in the MHSAA’s eligibility 

guidelines are requirements that the student athlete passes 

at least twenty credit hours and not have been enrolled in 

more than eight semesters in high school.6 Thus, not only 

is the MHSAA involved in the athletic activities of the 

students, it also establishes rules concerning the 

scholastic performance of the student athletes. 

As noted in Communities for Equity, supra at 811, the 

1995 amendment of the Revised School Code, “resulted in no 

substantive changes in the structure or operation of the 

MHSAA or in its relationships with its member schools.” 

The MHSAA was created by school districts that came 

together in 1924 to organize interscholastic athletics, and 

the organization of interscholastic athletics remains the 

6

 <http://www.mhsaa.com/administration/eligibility.pdf>

(accessed July 28, 2004). 

9
 
 

MHSAA’s purpose. When school districts join the MHSAA 

through annual resolutions passed by the school boards, 

they adopt the MHSAA’s constitution, by-laws, rules and 

regulations “as their own.”7 Therefore, under the FOIA the 

MHSAA should be treated as a “public body” because it is 

“created by state or local authority.” 

The United States Supreme Court case of Brentwood 

Academy v Tennessee Secondary School Athletic Ass’n, 531 US 

288; 121 S Ct 924; 148 L Ed 2d 807 (2001), supports the 

conclusion that the MHSAA is a public body that was created 

by state or local authority. In Brentwood, the United 

States Supreme Court held that the Tennessee Secondary 

School Athletic Association (TSSAA) was a state actor 

subject to constitutional limitations. While it is 

unnecessary to decide whether the MHSAA is a state actor to 

determine whether the MHSAA is subject to the FOIA, the 

Brentwood Court’s discussion of the TSSAA is of interest 

and relevant to this case because of the TSSAA’s 

similarities to the MHSAA. In Brentwood, the TSSAA, like 

the MHSAA, was a not-for-profit corporation that was formed 

7

 As we have noted before, the MHSAA is a “creature of 

its members”. Kirby v MHSAA, 459 Mich 23, 39 n 17; 585 NW2d

290 (1998). 

10
 
 

to oversee the interscholastic sports programs among public 

and private high schools in the state. The TSSAA imposed 

sanctions against plaintiff Brentwood Academy based on 

recruiting violations. In finding that the TSSAA was a 

state actor, the United States Supreme Court noted that 

“the nominally private character of the Association is 

overborne by the pervasive entwinement of public 

institutions and public officials in its composition and 

workings. . .” Id. at 298. Brentwood also noted the 

TSSAA’s membership consisted of predominantly public 

schools, its revenue came from its membership dues and gate 

receipts from tournaments held at member schools, state 

officials were given ex officio status on the legislative 

council, and TSSAA employees were eligible for the state 

employees retirement system. Id. at 298-300.8 It is 

8

 Interestingly, the United States District Court, in

Communities for Equity, supra subsequently held that, under

the United States Supreme Court decision in Brentwood, the 

facts presented in Communities for Equity necessitated a 

finding that the MHSSA was a state actor. Id. at 847. 

The United States District Court explained: 

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 from gate receipts from tournaments held

Footnotes continued on following page. 

11
 
 

notable that before the United States Supreme Court in 

Brentwood reversed the Sixth Circuit’s conclusion that the 

TSSAA was not a state actor, the MHSAA argued that it was 

“very similar in structure” to the TSSAA and “that the 

nature and function of the MHSAA is virtually identical to 

that of the TSSAA.” See Communities for Equity, supra at 

846-847. To suggest that an entity like the MHSAA could be 

a state actor, but not also a “public body” under the FOIA 

would undercut the stated purpose of the FOIA that “[a]ll 

persons . . . are entitled to full and complete information 

regarding the affairs of government . . . .” MCL 

15.231(2). 

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 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 as the Supreme Court recognized that a

mechanism 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 of the MHSAA. [Id. at 847.] 

12
 
 

B 

The MHSAA is Primarily Funded

by or through School Districts 

The MHSAA is “primarily funded” as a result of its 

relationship with the public school districts. The 

majority definition of “funded” as narrowly pertaining only 

to “the receipt of a governmental grant or subsidy,” ante 

at 9, 12, defies common sense. The majority’s definition 

originates in a Court of Appeals decision9

 that first cites 

a dictionary definition of “fund” (as a verb), and then 

skips to a synonym, “subsidize,” that the panel discovered 

in a thesaurus. Apparently preferring “subsidize” to 

“fund,” even though the term “fund” was used by the 

Legislature,10 the panel then turned to a dictionary 

definition of “subsidy” (a noun) and discovered that a 

“subsidy” is defined as “a direct financial aid furnished 

by a government . . . [or] any grant or contribution of 

money.” Thus, by mixing verbs and nouns and substituting 

words for those employed by the Legislature, the panel 

9

 For its definition of “funded,” the majority relies

on an interpretation conceived in State Defender Union 

Employees v Legal Aid and Defender Ass’n of Detroit, 230

Mich App 426; 584 NW2d 359 (1998), a decision written by

the author of the majority opinion while serving on the

Court of Appeals. 

10 Apparently the panel also preferred “subsidize” over

other common synonyms of “fund” such as “endow” or 

“finance.” Webster’s Collegiate Thesaurus (1976). 

13
 
 

creatively narrowed “is . . . funded” under the statute to 

mean the “receipt of a government grant or subsidy.” While 

it is appropriate to refer to dictionary definitions to 

understand the ordinary meaning of words, it is not 

appropriate to pick and choose among synonyms that may only 

have “nearly the same” or “similar”11 meaning and substitute 

those for the words specifically employed by the 

Legislature. 

I would conclude, that a “fund” can be understood to 

be “money available for use” so that when something “is 

funded” it is provided for “by a fund,” i.e. by “money 

available for use . . .” Webster’s New World Dictionary 

(3d ed). Michigan public schools represent eighty percent 

of the MHSAA’s membership and approximately ninety to 

ninety-five percent of the MHSAA’s funding is from gate 

receipts from postseason athletic tournaments for football 

and basketball involving public school teams. Without the 

voluntary participation of the public school districts in 

the MHSAA organized interscholastic athletic season and 

postseason tournaments, as well as the school districts’ 

relinquishment of the gate receipts to MHSAA, it would 

11 Webster’s, supra, defining “synonym” and 

“synonymous.” 

14
 
 

 

cease to exist because its primary source of money 

available for its use would disappear. 

However, the question remains whether the MHSAA’s gate 

receipt funding is derived “by or through” public school 

districts. There are many inapplicable definitions of the 

terms “by” and “through.” But in the context of MCL 

15.232(d)(iv), the most applicable definition of “by” in 

Webster’s addresses the term as used to express permission 

or sanction. In that sense, “by” is defined as “with the 

authority or sanction of [by your leave].”12 The applicable 

definitions of “through” in Webster’s are “by means of 

[through her help]” and “as a result of; because of [done 

through error].”13 Id. 

Thus, the plain meaning approach to “by” or “through” 

in the context of the statute at issue is whether the gate 

receipts amount to funding that the MHSAA receives with the 

authority or sanction of the school districts or by means 

12 In Black’s Law Dictionary (6th ed), “by” is 

similarly defined as “[t]hrough the means, act, agency or

instrumentality of.” 

13 In Black’s, supra, “through” is defined similarly as

“[b]y means of, in consequence of, by reason of [and] [b]y

the intermediary of; in the name or as the agent of; by the

agency of; because of.” 

15
 
 

of, as a result of, or because of the school districts. I 14

would hold that because the MHSAA receives its primary 

funding as with the authority of (by) and as a result of 

(through) the voluntary membership of public school 

districts in the MHSAA and the school districts’ voluntary 

participation in the interscholastic athletic seasons and 

postseason tournaments organized by the MHSAA, the MHSAA is 

primarily funded “by or through” the schools and is a 

public body under MCL 15.232(d)(iii) of the FOIA. 

Rather than look at the plain meaning of the words at 

issue, the majority suggests that the terms “by” and 

“through” must refer to different kinds of governmental 

authority. The majority adopts the analysis of the Court 

of Appeals and concludes that “by” refers to an entity that 

directly distributes its financial resources to the 

disputed organization. The majority then says “through” 

refers to the disputed organization indirectly receiving 

funds through some action or decision of the governmental 

14 The terms “by” and “through” are often combined in 

the phrase “by and through.” Garner, A Dictionary of

Modern Legal Usage (2d ed), described “by and through” as

“typical LEGALESE” that “can be replaced with either by or

through.” MCL 8.3a (emphasis added) provides that “[a]ll

words and phrases shall be construed and understood 

according to the common and approved usage of the language

. . . .” Thus, the majority’s assertion that these words

in this context must each be accorded “its unique meaning,”

ante at 11, is incorrect. 

16
 
body. Ante at 11-12. However, to understand the statute, 

it is not necessary to engraft concepts of direct and 

indirect funding or to conclude that the Legislature 

intended to reference different kinds of governmental 

authority when it only used the term authority once. The 

majority’s approach defies the plain language of the 

statute and unduly constricts the definitions of “public 

body” and of “funded.” 

In Brentwood, the Unite States Supreme Court addressed 

the nature of gate receipts received by a similar state 

school athletic organization for its organization and 

sponsorship of public school athletic tournaments and 

stated: 

Unlike mere public buyers of contract 

services, whose payments for services rendered do

not convert the service providers into public

actors, . . . the schools here obtain membership

in the service organization and give up sources

of their own income to their collective 

association. The Association . . . exercises 

the authority of the predominantly public schools

to charge admission to their games; the 

Association does not receive this money from the

schools, but enjoys the moneymaking capacity as

its own. [Brentwood, supra at 299.] 

Like the TSSAA, the MHSAA is more than a public contractor 

exchanging payments for services. By collecting gate 

17
 
 

 

receipts at tournaments, the MHSAA enjoys the schools’ 

moneymaking capacity as its own.15 

This underscores the conclusion that the MHSAA 

receives its primary funding “by or through” the schools’ 

authority. The majority argues that the MHSAA “creates its 

own ‘market,’” and stresses that without the MHSAA’s effort 

“no revenue from tournament games would be generated for 

any entity, including MHSAA member schools.” Ante at 12-

13, 15. The majority thus concludes that the MHSAA is 

merely a service provider and that the gate receipts are 

simply fees paid for services. 

However, as noted above, the MHSAA is not simply in a 

situation where the organization provides a fee for a 

particular service. True, the MHSAA does organize 

interscholastic seasons and postseason tournaments. It 

also provides medical insurance, publications, and training 

to its members. However, schools do not join the MHSAA or 

allow it to sell tickets to events featuring student 

athletes simply because the MHSAA provides medical 

insurance, publications, or training. As already 

explained, school districts allow the MHSAA to coordinate 

15 Justice Thomas’s dissenting perspective regarding

the relationship of the association to the schools in

Brentwood did not prevail. The majority’s citation of it,

ante at 13 n 2, is not persuasive. 

18
 
events and relinquish related gate receipts to the MHSAA 

because the MHSAA is the dominant statewide organization of 

interscholastic athletics, and failure to join and comply 

with MHSAA rules would effectively prevent the schools from 

participating in interscholastic athletics. 

It should be noted that the MHSAA is distinguishable 

from ordinary service providers to the schools. The school 

districts have delegated the authority to the MHSAA to make 

policy decisions. These decisions are within the proper 

function of school districts to regulate athletics, MCL 

380.11a(4); MCL 380.11a(9), such as athletic eligibility 

and training, participation in outside sports activities 

and required scholastic achievement for participating 

athletes. This intertwinement between the MHSAA and the 

school districts makes the MHSAA subject to the FOIA where 

an ordinary service provider would not be. 

II 

Conclusion 

It has been and remains the submission of public 

school districts to the rules and regulations of the MHSAA 

that allows the MHSAA to exist. It can thus be concluded 

that the MHSAA was created by the school districts. MCL 

15.232(d)(iv). It is similarly by and through the MHSAA’s 

relationship with the schools that it may sell tickets for 

19
 
tournaments featuring public school athletes. It follows 

that the gate receipts the MHSAA receives for those events 

are received “by or through” the authority of the schools 

as those words are used in MCL 15.232(d)(iv). The purpose 

of the FOIA is to allow citizens to fully participate in 

the democratic process regarding the affairs of government 

and the official acts of those who represent them. MCL 

15.231(2). The school districts have effectively delegated 

the responsibility for those official acts, as they pertain 

to school athletics, to the MHSAA by repeatedly adopting 

its rules as their own. 

Thus, both to follow the language of the FOIA and 

remain true to the purpose behind its enactment, I would 

hold that the MHSAA is a public body that must comply with 

the disclosure requirements of the FOIA. 

Elizabeth A. Weaver 

Marilyn Kelly 

20