Communities for Equity

Top 10 Things to Know about the CFE vs. MHSAA Lawsuit

There were 7 issues of discrimination in the complaint filed in June of 1998. Six were successfully mediated. Only the issue of season alignment went to trial in Sept of 2001.

According to MHSAA documents, girls’ sports were scheduled around pre-existing boys’ sports so as not to compete or inconvenience boys’ athletic programs.

All issues were successfully mediated except the season issue. 6 out of 12 girls’ sports were scheduled in what the court ruled to be harmful seasons while no boys’ sports were scheduled in harmful seasons.

The MHSAA was found to be guilty of discrimination against girls under three separate laws. The Equal Protection Clause of the Fourteenth Amendment, Title IX and the Michigan’s civil rights law: the Elliott Larson Act.

MHSAA was ordered by the court to provide an equitable athletic schedule by either placing all sports in beneficial (traditional seasons) or sharing the burden of harm between genders. MHSAA chose to share the burden by placing boys’ golf and tennis and girls’ swimming and soccer (LP) in harmful seasons.

The MHSAA designed and submitted this plan which the court approved. It is not the plan CFE would have preferred. CFE would have aligned all sports in the beneficial season and eliminated split seasons between the UP and LP.

The MHSAA’s compliance plan will force split seasons between the UP and the LP in golf, tennis, soccer, and swimming for girls and soccer for boys, resulting in these five sports being ineligible to participate in a state championship.

The MHSAA’s compliance plan will still leave 16% of female athletes playing their sport in a harmful season while only 9% of boys will be playing in a harmful season.

The MHSAA’s compliance plan will mean fewer athletic participation opportunities for girls in the winter season with only cut-sports offered to girls while boys have non-cut sport opportunities in all seasons.

The MHSAA has paid their attorneys throughout the 9 year battle. The attorneys for the plaintiffs have yet to receive any fees.

Lawsuit Update

April 2, 2007
The United States Supreme Court Denies the MHSAA’s Petition
The United States Supreme Court denied the Michigan High School Athletic Association’s petition today, thus ending the long legal battle between Communities for Equity and the MHSAA.

The MHSAA’s compliance plan, that will now be in effect, orders the MHSAA to realign the sports seasons. The full responsibility for seasonal implementation and support issues will fall upon school districts. Diane Madsen, named plaintiff states: ”CFE is looking forward to working with school districts in ensuring that they understand their responsibilities under the law.”

“This final ruling,” states plaintiff Jay Roberts Eveland, “has given young men and women in Michigan the opportunity to join together with equal protection and support for maximizing their potential”.

CFE is thankful to those who have supported them throughout the years and is especially grateful to have the support and guidance of dedicated attorneys who understand discrimination and the actions needed to expose illegal activities that erode civil rights.

Ultimately, CFE would like to thank the Michigan athletes who dedicate themselves to their sport and deserve equal treatment. We also thank parents and coaches who stand with us to eliminate the injustice of gender discrimination.

What This Lawsuit Has Proven In The Courts of Law

We have proven that MHSAA is a state actor.
That participation in state tournaments include host sites who have facilities that meet the standards for competition; gyms/ceiling clearance/base lines/soccer fields- that are legitimate/publicity/media coverage/etc.
That two sports have been added for girls.
That the state basketball tournament for girls/boys must be at equal sites.
That the softball state tournament will be run on a legitimate field and not a men’s recreational slow-pitch diamond.
That AD’s and MHSAA’s representative counsel cannot dictate policies that violate laws. They and schools will be held legally responsible.
That media coverage from MHSAA will be equal among the genders. That boys receiving TV coverage will not be the only show.
That the COMPLETE burden of disparity has been placed on the girls and that that will no longer occur with the change in athletic seasons.
And most of all that the young men and women in MI can begin a journey of understanding equality by participating side-by-side and with support to each other. These upcoming athletes will have more opportunities, more support and more visibility.

The Detroit News - April 3, 2007 "Huge change for girls sports"

The Detroit News - April 3, 2007 "Gender-equity suit timeline"

The Grand Rapids Press - April 5, 2007 "Do the right thing"

Women's Sports Foundation Responds to Supreme Court's Decision (pdf)

National Women's Law Center Responds to Supreme Court's Decision (pdf)

Sixth Circuit Court of Appeals Denies MHSAA's Motion Dec. 8, 2006
What an incredible feeling…..The Sixth Circuit Court of Appeals has denied the MHSAA’s motion for an en banc hearing. The Court rejected the MHSAA’s plea that there is any legal issue remaining that would warrant a hearing by all members of the Sixth Circuit Court of Appeals in Cincinnati. We are hopeful that the MHSAA’s will live by their motto: Good Sports are Winner and work to help schools with the implementation rather than spend more money and time on appeal to the United States Supreme Court. Since this case was filed in 1998, over 1 million female athletes have been denied the benefits and opportunities they are guaranteed under the law while the MHSAA defends and prolongs the injustice and discrimination of female athletes.

This is truly a great day as we move closer to ensuring athletic equity for young women in Michigan. We are looking forward to an implementation in the fall of 2007-2008
We have arrived at a very definite point of change -and next fall we will see the results of how schools have prepared for transitioning this state from discriminatory practices to fair and equal treatment of both young women and young men.
To dedicate so much of their effort to this case…we thank Kristen Galles and Rhett Pinsky for walking us through the process.
We hope that schools take seriously their practices of equal treatment as we will be monitoring how programs are run…this is a serious matter and violation of the law is illegal!

Sixth Circuit Court of Appeals Rules for Girls August 16, 2006.
Washington D.C. – The 6th Circuit Court of Appeals reaffirmed an earlier ruling that the Michigan High School Athletic Association (MHSAA) discriminates against female high school athletes by scheduling only their sports in nontraditional and less advantageous seasons, in violation of the U.S. Constitution and Title IX. Read the complete story at National Women's Law Center website.

Sixth Circuit Court of Appeals hearing March 14, 2006.
Oral argumments were heard in the case "CFE vs. MHSAA" on Tuesday March 14. The case was reviewed by a three judge panel,in light of a 2005 Supreme Court ruling that affects how remedies are decided under federal law. An opinion from the Court is expected within 30-60 days.

The Detroit News Editorial by Fred Girard from March 12, 2006

Letter to The Detroit Free Press from Tom Wilson, March 18, 2006

In the spring, at the request of the United States Supreme Court, the gender discrimination case filed by CFE against the MHSAA was remanded back to the Sixth Circuit Court of Appeals. The Sixth Circuit Court of Appeals has been asked to review their decision in light of a Supreme Court ruling in March of 2005. The MHSAA filed an en banc request that would require all Sixth Circuit Court judges to review the original appeal. In July, the Sixth Circuit Court of Appeals denied MHSAA’s request for an en banc hearing and the decision will be reviewed by the same three judges that presided over the appeal in 2004. The Sixth Circuit judges could make a decision without oral arguments but attorneys representing CFE are quick to point out that oral arguments will likely be ordered. CFE is anxiously awaiting a briefing order.

Sixth Circuit Court of Appeals Finds for
Communities for Equity
The Sixth Circuit Court of Appeals in Cincinnnati Ohio issued a decision on July 27, 2004 AFFIRMING the District Court's decision regarding CFE vs. MHSAA. The court opinion can be accessed at www.ca6.uscourts.gov. In summary the court, in a 3-0 ruling said, that the MHSAA violates the 14th amendment, Equal Protection Clause of the United States Constitution in the scheduling of girls high school sports seasons.

CFE's Response to the Decision
We are thrilled that the Sixth Circuit recognized the harms suffered by girls who play sports in disadvantageous seasons, The Court understood that scheduling ONLY girls and NEVER boys in nontraditional seasons is discrimination, plain and simple.

The Court properly found that MHSAA failed to prove any of its alleged reasons for treating girls and boys differently. Moreover, MHSAA failed to prove any connection between participation and seasons. The Court stated that even if MHSAA had done so, it MIGHT only justify different seasons but could NEVER justify ALWAYS putting the girls and NEVER the boys in the bad season. But that is exactly what MHSAA does --each and every time it schedules boys and girls in a different season, it assigns the girls to the inferior season. THAT IS DISCRIMINATION.

CFE is concerned about the misinformation that has been swirling throughout Michigan over the years. Anyone who attended the trial would know how right this court decision is. We hope that school administrators will take the time to read the court's opinion, look at the evidence and realize how harmful their actions have been for girls.

It is time for the MHSAA to stop spending money on attorneys that should instead be going to kids and their athletic programs, and to ensure a smooth transition into a realignment of athletic seasons. It is time for the MHSAA to practice what they preach in their sportmanship campaign,"Be a good winner and a GOOD LOSER." Let's get on with making the transition as soon as possible and as smooth as possible.

Five years from now, everyone will look back and wonder why Michigan was the last state to discriminate against female athletes in this way. It is time for Michigan to move into the 21st Century with the rest of the nation.

Background
After nearly three and a half years of pre-trial litigation, CFE's class action lawsuit against the Michigan High School Athletic Association (MHSAA) for its discriminatory treatment of Michigan's female athletes was tried in late September, 2001, before Federal District Court Judge Richard A. Enslen in Kalamazoo.

The focus at trial was on MHSAA's discrimination against girls by scheduling certain sports in non-traditional or inferior seasons. The lawsuit specifically claimed that MHSAA ". . . knowingly and intentionally schedules female interscholastic athletic seasons and tournaments during different, less advantageous times of the academic year than they schedule male interscholastic athletic seasons and tournaments. . ."

According to CFE, this is a violation of Title IX, which mandates equitable scheduling, including access to "prime time," which covers prime days, times, and seasons. MHSAA has placed six girls' sports in non-traditional or disadvantageous seasons, but does not require boys to play any sports in non-traditional seasons. As a result, girls are harmed in ways that boys are not, including:

Limited opportunities for college athletic scholarships and opportunities to play college sports (whether on scholarship or not);
Limited opportunities for interstate competition, especially for Michigan's Upper Peninsula schools in interstate conferences;
Less recruitment opportunities as a result of NCAA recruiting restrictions that limit the ability of women's college basketball coaches to recruit during the fall, but not the winter. This means that colleges outside Michigan cannot evaluate or contact Michigan girls during much of the fall season even though Michigan girls are virtually the only ones playing basketball at that time;
Less scholarship opportunities, due to the fact that the National Letter of Intent dates for high school athletes to sign for their college scholarships, occur before Michigan girls even start their senior seasons in volleyball and soccer;
Less national attention and recognition. Girl athletes in Michigan miss the opportunity to be named to the All-American teams and their schools aren't in the national rankings because their sports are scheduled in different seasons;
Limited opportunities to play club, USA, AAU, USSF, AYSO, or Olympic Development Programs because they are geared around the seasons in which other states play.

The high school athletic associations in West Virginia, Virginia, Montana, Arizona and South Dakota have all changed their athletic seasons after being sued. Alaska and North Dakota changed their seasons voluntarily. This brings the total number of states that hold (or will hold within the next two years) girls volleyball in the fall and girls basketball in the winter, the same as the NCAA, to 47. Only three states -- Michigan, Hawaii and Rhode Island -- schedule girls' basketball and volleyball in off or "non-traditional" seasons.

The class action suit citing MHSAA with Title IX violations was filed by CFE on behalf of all Michigan high school girls and highlights the experience of female athletes across the state. The Detroit News published an article on August 22, 2001, which reported that girls in Michigan's 33 largest school districts "are routinely shortchanged out of a chance to play athletics." They also found that in Detroit, three out of four athletic scholarships to Michigan universities go to boys.

CFE maintains that girls who are relegated to non-traditional or inferior seasons in order to accommodate boys' seasons receive a message that they are worth less than boys, that their participation and achievement are valued less. They carry this message into adulthood. Girls who are treated inequitably in athletics transfer their diminished expectations in athletics into diminished expectations in their careers.

The Verdict
"Change is the only constant. Hanging on is the only sin." That's the opening quotation of the federal court ruling in favor of Communities for Equity in its class action lawsuit against the Michigan High School Athletic Association (MHSAA) for sex discrimination against high school female athletes.

U.S. District Court Judge Richard A. Enslen found that MHSAA's scheduling of interscholastic athletic seasons violates Title IX, as well as the federal and state civil rights of Michigan's high school girls by scheduling them to play in disadvantageous or nontraditional seasons. The ruling requires MHSAA to align girls' and boys' sports seasons more equitably in basketball, volleyball, soccer, golf, swimming and tennis by 2003-2004.

In its written opinion on December 17, 2001, the Court detailed MHSAA's history of scheduling girls' sports around the already existing boys sports, citing an editorial by MHSAA executive director Jack Roberts, which admitted that "boys' sports were in schools first and girls' sports, which came later, were fitted around the pre-existing boys' program." It found that none of MHSAA's alleged justifications warranted treating girls differently from boys or scheduling only girls and never boys in disadvantageous seasons. Judge Enslen wrote: ". . . it is the honorable burden and duty of all entities and individuals acting with the power entrusted to them by their fellow citizens to ensure that they treat all American citizens fairly and with due regard to their rights."

The ruling also found in favor of CFE on the underlying legal issues, holding that (1) MHSAA is a state actor that must respect the constitutional rights of constituents, (2) MHSAA must comply with Title IX because it controls the interscholastic athletic programs of its federally funded members, and (3) MHSAA must comply with Michigan's state civil rights laws. MHSAA had argued throughout the litigation that Plaintiffs should have sued MHSAA's member schools rather than MHSAA itself for the discrimination in scheduling.

Sport-Specific Harms Resulting From MHSAA's Current Scheduling of Six Girls' (But No Boys') Teams in Non-Traditional and/or Inferior Seasons

Volleyball in Winter Rather Than Fall
The out-of-season placement of girls' volleyball in the winter (i.e., from December to March), while the rest of the nation plays the sport in its traditional fall season, disadvantages Michigan girls in the following ways:

By lessening their ability to be recruited for and obtain athletic scholarship offers. Because the volleyball season in Michigan has yet to begin, college coaches cannot evaluate Michigan girls prior to the NCAA's early letter of intent signing date in mid-November, which is when the majority of high school athletes commit;

By restricting their opportunities to play in the amateur or private club programs on which college volleyball recruiting is heavily focused. Because MHSAA rules prohibit athletes from participating on club teams during their high school seasons, Michigan girls are unable to play club volleyball until mid-March at the earliest, while girls in other states can do so beginning in January. As a result, teams from outside of Michigan fill most of the regional and national club tournament spots, and if any openings exist, the teams comprised of Michigan girls are relegated to a lower tournament seeding due to their comparative lack of experience;

By limiting their chances to play against a broad base of competition and develop adequate technical skills. Over a four-year span, the shortened club volleyball season described above causes Michigan girls to possess an average of 16 months less competitive training and experience than the girls in 48 other states;

By virtually ensuring that they will not achieve All-American honors and that their high school teams are excluded from national rankings;

By depriving them of opportunities for interstate competition. Girls' volleyball teams in cities located near Michigan's borders are not able to compete against teams in those bordering states, even though such teams are in many cases closer to other Michigan schools;

By making it difficult for them to find specialized shoes and other equipment. Because volleyball is not played in Michigan until after all of the college and high school teams across the country have finished their seasons, Michigan girls often face depleted store inventories;

By preventing them from being able to attend college volleyball matches as a team with their coach. Because MHSAA prohibits such gatherings from taking place outside of the girls' high school season (which, in Michigan, means precisely when every college volleyball match is being held), Michigan girls' volleyball players are denied contemporaneous role models.

Basketball in Fall Rather Than Winter MHSAA's scheduling of girls' basketball in the nontraditional fall season disadvantages Michigan girls:

By reducing their college recruitment and scholarship opportunities. Girls' basketball players in Michigan face NCAA recruiting restrictions that Michigan boys and the girls(and boys) in nearly every other state do not, including "quiet periods" which limit many of the dates that college coaches can recruit and make on-campus visits;

By denying them an equal opportunity to obtain national team rankings or be selected for individual All-American honors;

By preventing them from participating in many prestigious national and club basketball tournaments, as well as other special exhibitions or "shoot outs." Because these tournaments and exhibitions are geared around the season in which the rest of the country's high schools play basketball, Michigan girls not only receive less national attention and recognition, but cannot be seen by college recruiters at such events;

By depriving them of the chance to play basketball during "March Madness." Because their seasons have ended in December, Michigan girls (but not boys) are unable to benefit from all of the publicity and excitement generated at that time of year by the basketball tournaments being held at the national collegiate and high school levels. Instead, girls' basketball players in Michigan are forced to play while the public's attention is devoted almost exclusively to boys' football;

By preventing interstate competition. Michigan girls, but not boys, are prevented from competing against the basketball teams in other states who play in the traditional winter season;

By causing them to lose additional skill development, practice and coaching time. Michigan girls have a high school basketball season that is approximately three weeks shorter than the boys' season.

Golf in Spring Rather Than Fall The placement of lower peninsula girls' golf in the spring harms Michigan's female golfers:

By causing them to have only three years of experience and golf scores on which to be evaluated by college recruiters, because their senior season starts after the national letter of intent signing date in November;

By giving them less access to golf courses than their male counterparts who play in the fall. Michigan girls face increased competition from the general public for tee times in the spring that the boys do not ;

By forcing them to play when the State's golf courses are in poor physical condition. Michigan girls, but not boys, are more likely to practice and play on frozen, muddy and/or ungroomed courses;

By denying them the benefit that Michigan boys possess of going straight from extended summer play into their high school golf season. The fact that Michigan girls do not have the same ability to achieve and maintain low golf scores further lessens their chances of being recruited for a spot on college golf teams.

Soccer in Spring Rather Than Fall MHSAA's scheduling of high school girls' soccer in the spring, while boys play soccer in the fall, harms Michigan girls as follows:

By significantly diminishing their opportunities for college recruitment. Since college soccer scholarships are awarded in November, before the girls' soccer season starts, Michigan girls have no chance to be seen and evaluated by recruiters during their senior year;

By depriving them of opportunities to participate in club soccer programs. The club soccer season in Michigan takes place in the spring, while the girls are already playing for their high school teams;

By preventing them from participating in the regional and national youth soccer tournaments, as well as Olympic development camps, that are tied to the spring club season;

By denying them an equal opportunity to play in elite camps or shoot-outs, to obtain national team rankings, or be selected for individual All-American honors;

By denying them the ability to play soccer against schools in bordering states such as Ohio and Indiana (whose girls' seasons are in the fall);

By causing them to face inclement weather conditions that boys' soccer players do not. In the spring, Michigan's soccer fields are often frozen and/or snow-covered at the start of the season, forcing the girls inside for practice and team tryouts. Because the regular season is also likely to begin later than as originally scheduled, girls may be compelled to play as many as three matches per week (and thereby increase their risk of injury) in order to make up for those games that were postponed due to the weather.

Swimming & Diving in Fall Rather Than Winter The placement of lower peninsula girls' swimming and diving in the fall disadvantages Michigan girls:

By denying them the ability that boys have of going straight from their high school swimming and diving seasons to national, Olympic development and/or open amateur meets. Instead, Michigan girls face a four-month gap in competition prior to these important events;

By causing them to miss some U.S. Swimming Club competitions altogether;

By giving them fewer opportunities to practice and compete. Michigan girls have a swimming and diving season in the spring that is two weeks shorter than the boys' winter season.

Tennis in Fall Rather Than Spring MHSAA's scheduling of girls' tennis in the nontraditional fall season (i.e., until mid-October) harms Michigan girls:

By limiting their opportunities to practice and compete in preparation for national amateur and/or Olympic development programs. Michigan girls are prevented from playing competitive high school tennis during the months leading up to the United States Tennis Association's summer tournament circuit, which is where college coaches evaluate play. Michigan boys, by contrast, are better prepared for the USTA circuit because they play tennis in the sport's traditional spring season;

By causing them to lose further skill development and coaching time, since the girls' tennis season is approximately 20 days shorter than the boys' season;

By forcing Michigan girls, but not boys, to make the adjustment to playing college tennis in a different season;

By preventing them from attending college tennis matches together as a team. Unlike their male counterparts, Michigan's female tennis players are denied same-gender college role models as a result of the inferior season in which they are scheduled to play

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