Communities for Equity, on behalf of itself, its members v. MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION, INC., on behalf of itself and its members

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0241P (6th Cir.)
File Name: 04a0241p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
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.
X
-
-
-
->
,
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
N
No. 02-1127
Appeal from the United States District Court
for the Western District of Michigan at Marquette.
No. 98-00479—Richard A. Enslen, District Judge.
Argued: June 17, 2004
2 Communities for Equity, et al. v.
Mich. High Sch. Athletic Ass’n
No. 02-1127
*The Honorable Milton I. Shadur, United States District Judge for the
Northern District of Illinois, sitting by designation.
Decided and Filed: July 27, 2004
Before: KENNEDY and GILMAN, Circuit Judges;
SHADUR, District Judge.*
_________________
COUNSEL
ARGUED: Edmund J. Sikorski, Jr., Ann Arbor, Michigan,
for Appellant. Kristen Galles, EQUITY LEGAL, Alexandria,
Virginia, for Appellees. ON BRIEF: Edmund J. Sikorski,
Jr., Ann Arbor, Michigan, William M. Azkoul, AZKOUL &
AZKOUL, Grand Rapids, Michigan, for Appellant. Kristen
Galles, EQUITY LEGAL, Alexandria, Virginia, H. Rhett
Pinsky, PINSKY, SMITH, FAYETTE & HULSWIT, Grand
Rapids, Michigan, Neena K. Chaudhry, Marcia D.
Greenberger, NATIONAL WOMEN’S LAW CENTER,
Washington, D.C., for Appellees. Teresa Kwong, Dennis J.
Dimsey, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Amicus Curiae.
_________________
OPINION
_________________
RONALD LEE 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

-- 1 of 10 --

No. 02-1127 Communities for Equity, et al. v.
Mich. High Sch. Athletic Ass’n
3
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.
4 Communities for Equity, et al. v.
Mich. High Sch. Athletic Ass’n
No. 02-1127
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 817-36. 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. . . .
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

-- 2 of 10 --

No. 02-1127 Communities for Equity, et al. v.
Mich. High Sch. Athletic Ass’n
5
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. . . .
6 Communities for Equity, et al. v.
Mich. High Sch. Athletic Ass’n
No. 02-1127
The NCAA schedules women’s soccer in the fall. . . .
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

-- 3 of 10 --

No. 02-1127 Communities for Equity, et al. v.
Mich. High Sch. Athletic Ass’n
7
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 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. . . .
8 Communities for Equity, et al. v.
Mich. High Sch. Athletic Ass’n
No. 02-1127
Id. at 817-36.
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.

-- 4 of 10 --

No. 02-1127 Communities for Equity, et al. v.
Mich. High Sch. Athletic Ass’n
9
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 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.
10 Communities for Equity, et al. v.
Mich. High Sch. Athletic Ass’n
No. 02-1127
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 Elliott-Larsen 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.

-- 5 of 10 --

No. 02-1127 Communities for Equity, et al. v.
Mich. High Sch. Athletic Ass’n
11
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
12 Communities for Equity, et al. v.
Mich. High Sch. Athletic Ass’n
No. 02-1127
actor intentionally discriminated against 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 (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. 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. The Court acknowledged that the analysis
of whether state action existed was a “necessarily fact-bound
inquiry,” id. at 298 (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 (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. 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. 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,

-- 6 of 10 --

No. 02-1127 Communities for Equity, et al. v.
Mich. High Sch. Athletic Ass’n
13
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’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. 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
“such a close nexus between the State and the challenged
action,” Brentwood Academy, 531 U.S. at 295 (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
14 Communities for Equity, et al. v.
Mich. High Sch. Athletic Ass’n
No. 02-1127
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 (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 (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

-- 7 of 10 --

No. 02-1127 Communities for Equity, et al. v.
Mich. High Sch. Athletic Ass’n
15
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.
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
16 Communities for Equity, et al. v.
Mich. High Sch. Athletic Ass’n
No. 02-1127
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.
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 (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. The facts of the present case
are quite different from those of Hernandez.

-- 8 of 10 --

No. 02-1127 Communities for Equity, et al. v.
Mich. High Sch. Athletic Ass’n
17
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. 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 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,
18 Communities for Equity, et al. v.
Mich. High Sch. Athletic Ass’n
No. 02-1127
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

-- 9 of 10 --

No. 02-1127 Communities for Equity, et al. v.
Mich. High Sch. Athletic Ass’n
19
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 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.
20 Communities for Equity, et al. v.
Mich. High Sch. Athletic Ass’n
No. 02-1127
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.

-- 10 of 10 --