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Published in Print: May 11, 2005, as High Court Orders New Review of Michigan Title IX Case

High Court Orders New Review of Michigan Title IX Case

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A long-running legal battle over the scheduling of high school girls’ sports in Michigan entered a new round last week as the U.S. Supreme Court sent the gender-equity case back to a federal appeals court for reconsideration.

Though legal technicalities are at issue, how they are resolved could have a broad effect on lawsuits involving Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in education programs that receive federal money.

Last July, a three-judge panel of the U.S. Court of Appeals for the 6th Circuit affirmed a lower-court decision finding that the Michigan High School Athletic Association illegally discriminated against girls by making them play in “nontraditional” seasons that put them at a disadvantage compared with male athletes.

On May 2, the Supreme Court vacated that unanimous decision and directed the Cincinnati-based appeals court to reconsider the Michigan case in light of a recent high court ruling involving a broad federal civil rights statute cited by the plaintiffs.

A spokeswoman for Communities for Equity, a grassroots parents’ group based in Grand Rapids, Mich., expressed disappointment last week. The group’s lawyers predicted, though, that the 6th Circuit court would again side with the plaintiffs and require shifts in which seasons Michigan girls compete in basketball, volleyball, and other sports.

“It’s very likely that the 6th Circuit will look at this [civil rights] case and realize it doesn’t apply, and reaffirm its earlier decision,” said Neena K. Chaudhry, a lawyer with the National Women’s Law Center in Washington who represents the Michigan plaintiffs.

Edmund J. Sikorski Jr., a lawyer for the Michigan High School Athletic Association, began laughing loudly in a telephone interview last week when told of Ms. Chaudhry’s prediction.

“I’m splitting a gut,” he said. “You think the Supreme Court does this for somebody’s health? The world doesn’t operate that way.”

Association officials welcomed the reprieve, even though school administrators in Michigan have worked up alternative sports schedules for the coming school year—an effort that last week’s action threw into limbo.

Seasonal Changes?

Filed in 1998, the Michigan case went to trial in 2001 over whether the association’s scheduling decisions shortchanged girls by curtailing their access to college recruiters, high-quality competition, and other opportunities.

High school girls in Michigan play basketball in the fall and volleyball in the winter, for example, the reverse of most other states. Other sports at issue are golf, soccer, swimming, and tennis.

A U.S. District Court judge in Kalamazoo, Mich., ruled in 2001 that the association had run afoul of the 14th Amendment’s guarantee of equal protection under the law, Title IX, and a state civil rights law.

The plaintiffs had used a federal civil rights law, known as Section 1983, to assert the equal-protection claim. In its March decision in City of Rancho Palos Verdes v. Abrams, the Supreme Court ruled that an individual could not sue a city under Section 1983 when a federal telecommunications statute provided a remedy for a dispute about an antenna.

School districts are often sued under Section 1983, even if other federal education statutes provide potential remedies.

In its appeal to the Supreme Court, the association argued that plaintiffs alleging violations of Title IX cannot pursue Section 1983 claims as well. The 6th Circuit Court panel had upheld the lower court’s ruling on the constitutional grounds and didn’t get into the Title IX claim.

It is that issue—whether plaintiffs in school-related sex-discrimination cases can assert claims under the Constitution as well as Title IX—that the Supreme Court has effectively asked the Cincinnati appeals court to consider.

The athletic association’s lawyers argue that if Section 1983 claims are allowed, then schools could be found liable for even minor differences in programs for girls and boys if officials could not show an “exceedingly persuasive justification” for the distinctions.

Complying with Title IX gives schools enough to worry about, the association argues. “[E]ducational institutions have traditionally relied on compliance with Title IX and its implementing regulations to fulfill their legal obligations,” the association says in its Supreme Court brief.

A Broad Impact?

But lawyers for the Michigan parents argue that Title IX should not be the only legal avenue open, whether in disputes over sports, sexual harassment, or other areas covered by that law. The statute applies only to recipients of federal funds, they note, and some conditions that run afoul of the equal-protection clause may not violate Title IX.

A ruling against the Michigan girls on that issue, especially by the Supreme Court, could have a broad impact, they add.

“It could have far-reaching effects, and we think they could be very damaging,” said Ms. Chaudhry of the National Women’s Law Center.

Recruitment Case Taken

The Supreme Court’s action in Michigan High School Athletic Association v. Communities for Equity (Case No. 04-1021) came as it agreed to review another case that could affect K-12 schools: a dispute over a federal law that penalizes colleges and universities that limit access to military recruiters.

Some analysts said the outcome could affect the enforcement of a separate provision of the federal No Child Left Behind Act that requires public school districts to make student information available to the military. ("Military Recruiters Meet Pockets of Resistance," April 23, 2003.)

In accepting the Bush administration’s appeal in Rumsfeld v. Forum for Academic and Institutional Rights (No. 04-1152), the high court will consider whether higher education institutions are indirectly forced to endorse the U.S. armed forces’ “don’t ask, don’t tell” policy toward homosexuality under a 1994 law known as the Solomon Amendment.

Julie Underwood, the general counsel for the National School Boards Association, said the group was studying the case.

“I see implications for No Child Left Behind, because they really are parallel requirements,” she said.

Vol. 24, Issue 36, Page 28

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