       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206           2       Communities for Equity, et al. v.                No. 02-1127
   ELECTRONIC CITATION: 2004 FED App. 0241P (6th Cir.)           Mich. High Sch. Athletic Ass’n
               File Name: 04a0241p.06
                                                                        Decided and Filed: July 27, 2004
UNITED STATES COURT OF APPEALS                               Before: KENNEDY and GILMAN, Circuit Judges;
              FOR THE SIXTH CIRCUIT                                    SHADUR, District Judge.*
                _________________                                               _________________

COMMUNITIES FOR EQUITY ,         X                                                    COUNSEL
on behalf of itself, its          -
                                  -                      ARGUED: Edmund J. Sikorski, Jr., Ann Arbor, Michigan,
members and all those                                    for Appellant. Kristen Galles, EQUITY LEGAL, Alexandria,
                                  -   No. 02-1127
similarly situated; DIANE         -                      Virginia, for Appellees. ON BRIEF: Edmund J. Sikorski,
MADSEN , on behalf of her          >                     Jr., Ann Arbor, Michigan, William M. Azkoul, AZKOUL &
                                  ,
minor daughters and all those                            AZKOUL, Grand Rapids, Michigan, for Appellant. Kristen
                                  -
similarly situated; and JAY                              Galles, EQUITY LEGAL, Alexandria, Virginia, H. Rhett
                                  -
ROBERTS-EVELAND, on behalf -                             Pinsky, PINSKY, SMITH, FAYETTE & HULSWIT, Grand
                                                         Rapids, Michigan, Neena K. Chaudhry, Marcia D.
of her minor daughter and all     -                      Greenberger, NATIONAL WOMEN’S LAW CENTER,
those similarly situated,         -                      Washington, D.C., for Appellees. Teresa Kwong, Dennis J.
           Plaintiffs-Appellees, -                       Dimsey, UNITED STATES DEPARTMENT OF JUSTICE,
                                  -                      Washington, D.C., for Amicus Curiae.
                                  -
            v.                    -                                             _________________
                                  -
MICHIGAN HIGH SCHOOL              -                                                 OPINION
ATHLETIC ASSOCIATION , INC., -                                                  _________________
                                  -
on behalf of itself and its       -                        RONALD LEE GILMAN, Circuit Judge. Communities for
members,                          -                      Equity—an organization of parents and high school athletes
          Defendant-Appellant. -                         that advocates on behalf of Title IX compliance and gender
                                  -                      equity in athletics— and the individual plaintiffs (collectively,
                                 N                       CFE) brought a class action lawsuit against the Michigan
       Appeal from the United States District Court      High School Athletic Association (MHSAA), arguing that
    for the Western District of Michigan at Marquette.   MHSAA’s scheduling of high school sports seasons in
    No. 98-00479—Richard A. Enslen, District Judge.

                 Argued: June 17, 2004                       *
                                                              The Honorable Milton I. Shadur, United States District Judge for the
                                                         Northern District of Illinois, sitting by designation.

                            1
No. 02-1127           Communities for Equity, et al. v.     3    4      Communities for Equity, et al. v.            No. 02-1127
                       Mich. High Sch. Athletic Ass’n                   Mich. High Sch. Athletic Ass’n

Michigan discriminated against female athletes on the basis        In its findings of fact, the district court painstakingly
of gender. The district court concluded that MHSAA’s             discussed each sport at issue and analyzed why play in the
actions violated the Equal Protection Clause of the Fourteenth   nontraditional season (or, in the case of golf, in the traditional
Amendment to the United States Constitution, Title IX of the     season) harmed female athletes. Id. at 817-36. Among the
Educational Amendments of 1972, and Michigan’s Elliott-          harms found by the district court are the following:
Larsen Civil Rights Act. For the reasons set forth below, we
AFFIRM the judgment of the district court with regard to the            [G]irls’ basketball [is played] in the fall. Forty-eight
plaintiffs’ Equal Protection claim, thus finding no need to          states schedule girls’ basketball in the winter. . . .
reach the Title IX and state-law issues.                                Michigan’s female high school basketball players do
                                                                     not get to participate in “March Madness” or the
                    I. BACKGROUND                                    excitement and publicity surrounding this time period
                                                                     when the rest of the country’s high schools and colleges
A. Factual background                                                are participating in championship basketball
                                                                     tournaments. . . .
  At issue in this case is whether MHSAA’s scheduling of                Kristi Madsen said that not being able, as a high school
athletic seasons and tournaments for six girls’                      basketball player, to participate in the “March Madness”
sports—basketball, volleyball, soccer, Lower Peninsula golf,         hype made her feel “[a]ngry. I didn’t like it. Again, the
Lower Peninsula swimming and diving, and tennis— violates            guys get a ton of special perks or attention because it’s
the law. With the exception of golf, all of these sports are         ‘March Madness’ and because they are playing in March,
scheduled during the nontraditional season (meaning a season         during ‘March Madness.’” . . .
of the year that differs from when the sport is typically               Michigan girls have decreased ability to be nationally
played). Cmtys. for Equity v. Michigan High Sch. Athletic            ranked or obtain All-American honors because they play
Ass’n., 178 F. Supp. 2d 805, 807 (W.D. Mich. 2001).                  basketball during the non-traditional fall season. . . .
Although Lower Peninsula girls’ golf is played in the                   [I]t is undisputed that if Michigan girls played
spring—the traditional season for golf—the fall season, when         basketball during the winter season, they would, at the
the boys play, is more advantageous. Id. No boys’ sports are         very least, be on ‘equal footing’ with Michigan boys and
scheduled in nonadvantageous seasons. Id. at 838.                    with girls in the rest of the country with respect to
                                                                     collegiate recruiting. . . .
  Girls have historically played in the less advantageous
seasons because of the way that high school athletics                   In volleyball, the non-traditional season is the
developed in Michigan. MHSAA’s executive director, John              disadvantageous season for girls. . . . Michigan high
Roberts, explained in a 1990 article titled Sports and Their         school girls’ volleyball is played in the winter season.
Seasons, published in MHSAA’s Bulletin, that “[b]oys’ sports            The traditional playing season for women’s volleyball
were in [MHSAA member] schools first and girls’ sports,              is the fall. Forty-eight states play high school girls’
which came later, were fitted around the pre-existing boys           volleyball in the fall. The NCAA schedules women’s
program.” Id. at 815.                                                volleyball in the fall. Although the MHSAA does not
                                                                     currently sponsor boys’ volleyball, the MHSAA’s
                                                                     executive staff and volleyball committee have
No. 02-1127          Communities for Equity, et al. v.        5   6      Communities for Equity, et al. v.           No. 02-1127
                      Mich. High Sch. Athletic Ass’n                     Mich. High Sch. Athletic Ass’n

 recommended that once the sport is adopted, it be played               The NCAA schedules women’s soccer in the fall. . . .
 in the spring when the NCAA schedules men’s                            The MHSAA schedules the boys’ soccer state
 volleyball.                                                          championship tournament in the fall, at the same time
     College volleyball recruiting focuses on the amateur,            that the NCAA schedules men’s soccer. . . .
 private club programs, like those sponsored by an                      The MHSAA’s scheduling of girls’ soccer in the
 organization called the United States Volleyball                     spring in Michigan disadvantages girls in several ways.
 Association (USAV), rather than the high school                      Soccer fields in Michigan are often still frozen or snow-
 programs . . .                                                       covered when the girls’ season starts in the spring, so
     The USAV and AAU, another private club program,                  girls are forced inside for practice and tryouts. Thus, the
 seasons for high school age players to play in their                 regular season starts later than scheduled. As a result,
 amateur programs are from January through June or July.              Michigan girls must play three games a week over the
 MHSAA rules prohibit athletes from participating in                  course of the season to make up postponed games
 USAV or AAU club volleyball during their December                    whereas Michigan boys play two games per week over
 through March high school season.                                    the course of their season.
     Michigan girls who participate in high school                      The increased number of games per week causes a
 volleyball are not able to participate in USAV club                  greater risk of injury for girls that Michigan boys do not
 volleyball until April, after the MHSAA season has                   face. . . .
 ended, while players in other states have been playing                 Girls’ opportunities for collegiate recruitment are
 club volleyball since January. The MHSAA prohibits                   decreased because college scholarships for soccer are
 students from playing on any team other than a school                awarded in November and April. Recruiters will not have
 team during the MHSAA-defined season in that sport.                  had an opportunity to see female soccer players in
 By the end of the MHSAA season, most of the regional                 Michigan in their senior year of high school before
 and national USAV tournaments have been filled by non-               awarding first-round November scholarships because
 Michigan teams. When there are openings, Michigan                    girls start their competitive season in late March.
 club teams are placed “at the very bottom of the                     Michigan boys play during the fall season and are able to
 tournament where they do not get a chance to compete at              have four years of high school competition for college
 the high levels because they haven’t been competing                  recruiters to consider. . . .
 . . . .” Michigan club teams have difficulty excelling at
 these tournaments because they are becoming                            The court finds that in Michigan, fall is the more
 accustomed to playing with new teammates and a new                   advantageous season for playing high school golf. . . .
 coach while their competitors have already been playing                Lower Peninsula girls’ golf [is played] in the spring
 together for four months. It is therefore more difficult             season. . . .
 for recruiters to evaluate Michigan players at these                   Lower Peninsula boys’ golf used to be in the spring,
 tournaments. . . .                                                   but the MHSAA moved it to the fall season in the 1970s
                                                                      so that boys’ golf teams would have better access to golf
   [T]he Court finds that the spring season is the inferior           courses. The MHSAA scheduled Lower Peninsula girls’
 season, as compared to fall, for playing soccer in                   golf in the spring, which was the season it had previously
 Michigan. . . .
No. 02-1127           Communities for Equity, et al. v.         7   8      Communities for Equity, et al. v.             No. 02-1127
                       Mich. High Sch. Athletic Ass’n                      Mich. High Sch. Athletic Ass’n

 determined was less advantageous when it moved boys’               Id. at 817-36.
 golf.
   In addition, because the NCAA letter of intent signing              In addition to sport-specific harms, the district court found
 date is in early November, Michigan boys have four                 that the scheduling of seasons harmed Michigan girls in ways
 years of golf experience and scores on which to be                 that could be generalized across all sports. For example,
 evaluated. Michigan girls only have three years because            “[w]hen girls are treated unequally as compared to boys, girls
 their season occurs after the letter of intent signing             receive the psychological message that they are ‘second-class’
 date. . . .                                                        or that their athletic role is of less value than that of boys.” Id.
                                                                    at 837.
    The Court finds that the winter season for swimming
 has advantages that outweigh advantages to swimming in               The above-quoted findings are only a fraction of the harms
 fall. . . .                                                        that the district court found are experienced by female athletes
    [T]he Lower Peninsula girls’ swimming and diving                in Michigan because of MHSAA’s scheduling their seasons
 season [is] in the fall.                                           of play at disadvantageous times. A full recounting takes up
    [The] Lower Peninsula boys’ swimming and diving                 30 pages of the district court’s opinion. Id. at 809-39.
 season [is] in the winter.
    [T]he winter season is more advantageous than fall for            MHSAA was founded in 1924 “to exercise control over the
 swimming. For one reason, Michigan boys are able to go             interscholastic athletic activities of all schools of the state
 straight from the high school swimming season to the               through agreement with the Superintendent of Public
 club tournaments, whereas Michigan girls have a gap in             Instruction.” Id. at 810 (quotation marks omitted). MHSAA’s
 competition because their season has ended in                      Articles of Incorporation further illuminate that the purpose
 November. Sectional and regional swim meets for U.S.               of MHSAA is
 Swimming take place in March. The Phillips 66 national
 swim championships are in March/April of each year. In                 to create, establish and provide for, supervise and
 diving, junior nationals are in March, so girls face a gap             conduct interscholastic athletic programs throughout the
 in competition between the end of their fall                           state consistent with [the] educational values of the high
 interscholastic season and open amateur competition. . . .             school curriculums . . .
                                                                    Id. at 811 (quotation marks omitted). Membership in
   [T]he Court finds that spring is the more advantageous           MHSAA is open to all secondary schools in Michigan. To
 playing season for tennis. . . .                                   join MHSAA, a school district’s board of education must
   [Michigan] girls’ tennis [is played] in the fall.                agree to adopt MHSAA’s rules and regulations “as its own
   Boys’ high school tennis immediately precedes the                and agree[] to primary enforcement of such rules as to its own
 United States Tennis Association (USTA) summer tennis              schools.” Id. (quotation marks omitted). Over 700 Michigan
 tournament circuit, so boys have the advantage of high             schools constitute the membership of MHSAA, more than
 school practice, competition, and coaching before                  80% of which are public. Id. at 810.
 participating in the circuit and are better prepared for the
 summer circuit, where college coaches watch play. . . .
No. 02-1127            Communities for Equity, et al. v.      9    10   Communities for Equity, et al. v.            No. 02-1127
                        Mich. High Sch. Athletic Ass’n                  Mich. High Sch. Athletic Ass’n

  Ticket sales to the state championship tournaments                 State championship tournaments are sponsored by MHSAA
represent 86% of MHSAA’s budget. Id. at 813. MHSAA                 in twelve boys’ sports and twelve girls’ sports. Id. Only
member schools remit substantial portions of the gate receipts     MHSAA-member schools who comply with MHSAA’s rules
from their participation in the tournament events to MHSAA.        and regulations may participate in these tournaments. Id.
Id. Other sources of revenue include tournament concessions,
fees from the registration of game officials, advertising in       B. Procedural background
tournament programs, corporate sponsorship, and royalties
from television and radio broadcasts of MHSAA tournament              In June of 1998, CFE filed the present lawsuit, alleging that
events. Id.                                                        MHSAA discriminated against female athletes. The district
                                                                   court denied two successive motions for summary judgment
  General control over interscholastic athletic policies is        filed by MHSAA. MHSAA then filed a motion to dismiss,
vested in the Representative Council. Id. at 812. Nineteen         which was granted in part, dismissing all of CFE’s
voting members constitute the Council, fourteen of whom are        disparate-impact claims.
elected by member schools, four of whom are appointed by
the Council, and one of whom is a representative of the State        From September 24 through October 4, 2001, the district
Superintendent of Education. Id. All members of the Council,       court conducted a bench trial on the remaining claims. The
with the exception of the representative of the State              court handed down its decision on December 17, 2001,
Superintendent, must be either members of the faculty or           holding that MHSAA’s scheduling of female sports seasons
board of education of MHSAA-member schools. Id.                    violated the Equal Protection Clause of the Fourteenth
Seventeen of the nineteen members of the Council in 2000-          Amendment, Title IX (20 U.S.C. §§ 1681-1688), and
2001 were either employees or representatives of public            Michigan’s Elliott-Larsen Civil Rights Act (Mich. Comp.
schools or public school districts. Id.                            Laws Ann. §§ 37.2101-37.2804). Cmtys. for Equity, 178 F.
                                                                   Supp. 2d at 862.
   The district court found that high school athletic seasons in
Michigan are determined by MHSAA. Id. at 814. MHSAA                  As part of its ruling, the district court enjoined MHSAA
prescribes when practice and competition may start, when           from continuing its current scheduling of interscholastic
competition ends, and the maximum number of games that             athletics seasons in Michigan. The court retained jurisdiction
may be played. Practice outside of the dates set by MHSAA          over the case, ordering MHSAA to submit a Compliance Plan
is prohibited. Member schools are not permitted to engage in       so that an appropriate remedy could be implemented. Id.
any competition after the end of the MHSAA season or the           MHSAA’s initial Compliance Plan was rejected by the court,
end of the state championship tournament in any sport,             but a revised plan was filed by MHSAA in October of 2002
whichever is last. According to MHSAA rules, athletes may          and subsequently approved.
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.
No. 02-1127            Communities for Equity, et al. v.      11    12   Communities for Equity, et al. v.            No. 02-1127
                        Mich. High Sch. Athletic Ass’n                   Mich. High Sch. Athletic Ass’n

                       II. ANALYSIS                                 actor intentionally discriminated against the plaintiff because
                                                                    of membership in a protected class.”) (quotation marks and
A. Standard of review                                               citation omitted). As a threshold issue, therefore, we must
                                                                    determine whether MHSAA is a state actor.
  Questions of constitutional interpretation are issues of law,
which we review de novo. Ammex, Inc. v. United States, 367            In determining that MHSAA is a state actor, the district
F.3d 530, 533 (6th Cir. 2004). The district court’s findings of     court relied upon the United States Supreme Court’s decision
fact, on the other hand, will not be set aside unless they are      in Brentwood Academy v. Tennessee Secondary School
determined to be clearly erroneous. Berger v. Medina City           Athletic Association, 531 U.S. 288 (2001). Cmtys. for Equity,
Sch. Dist., 348 F.3d 513, 519 (6th Cir. 2003).                      178 F. Supp. 2d at 846-848. The Brentwood Academy case
                                                                    addressed the issue of whether the Tennessee Secondary
B. Equal Protection                                                 School Athletic Association (TSSAA), which was
                                                                    “incorporated to regulate interscholastic athletic competition
  1. State action                                                   among public and private secondary schools,” engaged in
                                                                    state action when it enforced one of its rules against a member
   The Fourteenth Amendment to the United States                    school. Id. at 290. Because of “the pervasive entwinement of
Constitution provides that “[n]o State shall make or enforce        state school officials in the structure of the association,” the
any law which shall abridge the privileges or immunities of         Court held that TSSAA’s regulatory activity constituted state
citizens of the United States; nor shall any State deprive any      action. Id. at 291. The Court acknowledged that the analysis
person of life, liberty, or property, without due process of law;   of whether state action existed was a “necessarily fact-bound
nor deny to any person within its jurisdiction the equal            inquiry,” id. at 298 (quotation marks omitted), and noted that
protection of the laws.” Pursuant to 42 U.S.C. § 1983,              state action may be found only where there is “such a close
  [e]very person who, under color of any statute,                   nexus between the State and the challenged action that
  ordinance, regulation, custom, or usage, of any State or          seemingly private behavior may be fairly treated as that of the
  Territory or the District of Columbia, subjects, or causes        State itself.” Id. at 295 (quotation marks omitted).
  to be subjected, any citizen of the United States or other          Public schools constituted 84% of TSSAA’s membership,
  person within the jurisdiction thereof to the deprivation         the Court noted, and school faculty and administrators
  of any rights, privileges, or immunities secured by the           provided TSSAA’s leadership. Id. at 298. The Court was also
  Constitution and laws, shall be liable to the party injured       influenced by the fact that TSSAA’s primary revenue source
  in an action at law, suit in equity, or other proper              was gate receipts from tournaments between TSSAA-member
  proceeding for redress . . . .                                    schools. Id. at 299. In conclusion, the Court stated that,
  An entity or individual charged under § 1983 with a                 to the extent of 84% of its membership, the Association
Fourteenth Amendment violation must be a “state actor.”               is an organization of public schools represented by their
LRL Props. v. Portage Metro Hous. Auth., 55 F.3d 1097,                officials acting in their official capacity to provide an
1111 (6th Cir. 1995) (“To state a claim under the Equal               integral element of secondary public schooling. There
Protection Clause, a § 1983 plaintiff must allege that a state        would be no recognizable Association, legal or tangible,
No. 02-1127            Communities for Equity, et al. v.      13    14   Communities for Equity, et al. v.           No. 02-1127
                        Mich. High Sch. Athletic Ass’n                   Mich. High Sch. Athletic Ass’n

  without the public school officials, who do not merely            argument to distinguish itself from TSSAA. We therefore
  control but overwhelmingly perform all but the purely             affirm the determination of the district court that MHSAA is
  ministerial acts by which the Association exists and              a state actor.
  functions in practical terms.
                                                                      2. Denial of Equal Protection
Id. at 299-300. The Court also found significant that TSSAA
ministerial employees were treated like state employees by            The Supreme Court has held that “[p]arties who seek to
virtue of their eligibility for membership in the state             defend gender-based government action must demonstrate an
retirement system. Id. at 300.                                      ‘exceedingly persuasive justification’ for that action.” United
                                                                    States v. Virginia, 518 U.S. 515, 531 (1996) (dealing with the
   MHSAA’s stated purpose, “[t]o create, establish and              admission of women to the Virginia Military Institute,
provide for, supervise and conduct interscholastic athletic         hereafter referred to as VMI). In VMI, the Court further
programs throughout the state,” is virtually identical to that of   explained the State’s burden under the heightened standard
its Tennessee counterpart. See id. at 290. Like TSSAA,              for gender-based classifications:
MHSAA’s membership is composed primarily of public
schools. And, similar to TSSAA, public school teachers,               To summarize the Court’s current directions for cases of
administrators, and officials dominate MHSAA’s leadership.            official classification based on gender: Focusing on the
Another common feature is that the bulk of MHSAA’s                    differential treatment or denial of opportunity for which
revenue comes from ticket sales for state championship                relief is sought, the reviewing court must determine
tournaments. Finally, MHSAA employees who had state                   whether the proffered justification is “exceedingly
teaching certificates were, until January of 1988, considered         persuasive.” The burden of justification is demanding
state employees and were therefore eligible to participate in         and it rests entirely on the State. The State must show at
the state’s retirement system. Employees who started                  least that the challenged classification serves important
working for MHSAA before January of 1988 continue to be               governmental objectives and that the discriminatory
members of the state employees’ retirement system. Cmtys.             means employed are substantially related to the
for Equity, 178 F. Supp. 2d at 813.                                   achievement of those objectives. The justification must
                                                                      be genuine, not hypothesized or invented post hoc in
  We therefore conclude that MHSAA is so entwined with                response to litigation. And it must not rely on overbroad
the public schools and the state of Michigan, and that there is       generalizations about the different talents, capacities, or
“such a close nexus between the State and the challenged              preferences of males and females.
action,” Brentwood Academy, 531 U.S. at 295 (quotation
marks omitted), that MHSAA should be considered a state             Id. at 532-33 (quotation marks and citations omitted).
actor. Tellingly, MHSAA argued earlier in this litigation,
before the Supreme Court reversed this court’s opinion in             The district court analyzed the scheduling of the Michigan
Brentwood Academy, 180 F.3d 758 (6th Cir. 1999), that “the          athletic seasons under VMI’s standard, determining that
nature and function of the MHSAA is virtually identical to          MHSAA had to show that scheduling team sports in different
that of the TSSAA.” Cmtys. for Equity, 178 F. Supp. 2d at           seasons based on gender “serves important governmental
847. MHSAA, in sum, has failed to present any compelling            objectives and that this scheduling is substantially related to
No. 02-1127            Communities for Equity, et al. v.      15    16    Communities for Equity, et al. v.            No. 02-1127
                        Mich. High Sch. Athletic Ass’n                    Mich. High Sch. Athletic Ass’n

the achievement of those objectives.” Cmtys. for Equity, 178        opportunities for participation. MHSAA argues that bare
F.Supp.2d at 850. In addition, the district court noted that        participation statistics “are the link showing that separate
MHSAA’s justifications must be “exceedingly persuasive.”            seasons are substantially related to maximum participation.”
Id. (quotation marks omitted). MHSAA asserted that the              (Emphasis added.) But a large gross participation number
scheduling decisions were designed to maximize girls’ and           alone does not demonstrate that discriminatory scheduling of
boys’ participation in athletics, arguing that the scheduling       boys’ and girls’ athletic seasons is substantially related to the
system maximizes opportunities for participation “by creating       achievement of important government objectives.
optimal use of existing facilities, officials and coaches,
thereby permitting more teams in a sport or more spots on a           MHSAA also contends that it cannot be liable under the
team.” Id.                                                          Equal Protection Clause because there is no evidence that
                                                                    MHSAA acted with discriminatory intent. It points out that
  Conceding that MHSAA’s logistical concerns were                   “[t]here is no evidence that MHSAA [] scheduled [] sports
important, the district court concluded that MHSAA had              seasons because of ‘sexual stereotypes’ or as a result of any
failed to demonstrate, pursuant to the standards set forth in       discriminatory purpose or intent.” This argument appears to
VMI, that discriminatory scheduling was “‘substantially             confuse intentional discrimination—i.e., an intent to treat two
related’ to the achievement of those asserted objectives.” Id.      groups differently—with an intent to harm. As stated above,
at 850-51. MHSAA’s reliance upon anecdotal and “weak                Equal Protection analysis requires MHSAA to show that its
circumstantial” evidence was found insufficient to carry its        disparate treatment of boys and girls “serves ‘important
burden. The district court also pointed out that even if            governmental objectives and that the discriminatory means
MHSAA had sufficiently proven the point about athletic-             employed’ are ‘substantially related to the achievement of
participation opportunities, “that would not justify forcing        those objectives.’ ” VMI, 518 U.S. at 533.
girls to bear all of the disadvantageous playing seasons alone
to solve the logistical problems.” Id. at 851.                        Disparate treatment based upon facially gender-based
                                                                    classifications evidences an intent to treat the two groups
  On appeal, MHSAA reiterates its argument made below               differently. VMI imposes no requirement upon CFE to show
that the purpose of separate athletic seasons for boys and girls    that an evil, discriminatory motive animated MHSAA’s
is to maximize opportunities for athletic participation.            scheduling of different athletic seasons for boys and girls.
MHSAA asserts that statistics showing that Michigan has a           The cases that MHSAA cites to the contrary, such as
higher number of female participants in high school athletics       Hernandez v. New York, 500 U.S. 352 (1991), are inapposite
than most states satisfies the requirements of VMI. An              because they involve facially neutral classifications, rather
“unavoidable consequence of separate teams,” according to           than facially gender-based classifications. In Hernandez, for
MHSAA, “was accommodation of twice the number of teams,             example, the Court analyzed a racially-neutral explanation for
games and participants.”                                            a prosecutor’s exercise of peremptory strikes in picking a
                                                                    jury, noting that “[u]nless a discriminatory intent is inherent
  The evidence offered by MHSAA, however, does not                  in the prosecutor’s explanation, the reason offered will be
establish that separate seasons for boys and girls—let alone        deemed race neutral.” Id. at 360. The facts of the present case
scheduling that results in the girls bearing all of the burden of   are quite different from those of Hernandez.
playing during disadvantageous seasons—maximizes
No. 02-1127           Communities for Equity, et al. v.     17    18   Communities for Equity, et al. v.            No. 02-1127
                       Mich. High Sch. Athletic Ass’n                  Mich. High Sch. Athletic Ass’n

  In sum, we do not find that MHSAA’s justification for its         reverse two girls’ seasons with two boys’ seasons from
scheduling practices is “exceedingly persuasive” in meeting         among golf, tennis, swimming, and soccer; and in the
the heightened standard required by VMI for the gender-based        Upper Peninsula, keep combined seasons in golf and
classifications. See VMI, 518 U.S. at 532-33. We therefore          swimming and reverse seasons in either tennis or soccer;
affirm the district court’s grant of relief to CFE on the Equal     or otherwise treat the Upper Peninsula the same as the
Protection claim.                                                   Lower Peninsula; or (3) reverse girls’ basketball and
                                                                    volleyball; and in both peninsulas, combine seasons in
C. Compliance Plan                                                  two sports, and reverse seasons in one of the two
                                                                    remaining sports at issue.
  Upon finding that MHSAA’s scheduling of high school
athletic seasons violated the Equal Protection Clause of the      MHSAA selected the second option in the amended
Fourteenth Amendment, Title IX, and Michigan’s Elliott-           Compliance Plan that it filed with the district court in October
Larsen Civil Rights Act, the district court ordered MHSAA to      of 2002. The amended plan was approved by the court the
“bring its scheduling of the seasons of high school sports into   following month.
compliance with the law by the 2003-2004 school year.”
Cmtys. for Equity, 178 F. Supp. 2d at 862. MHSAA was                MHSAA contends that the district court erred in rejecting
required to submit a Compliance Plan to the court by June 24,     MHSAA’s initial Compliance Plan. Before we can address
2002. Id.                                                         the merits of this argument, however, we must determine
                                                                  whether appellate jurisdiction exists to hear the issue.
  After MHSAA filed its proposed Compliance Plan, CFE
and the Department of Justice filed responses, arguing that         CFE argues that MHSAA failed to appeal the Compliance
MHSAA’s plan failed to remedy the inequities that existed in      Plan order, pointing out that MHSAA’s January 2002 Notice
the scheduling of Michigan’s high school athletics seasons.       of Appeal references only the opinion, judgment, and
The Department of Justice noted that “the proposed                injunctive order entered in December of 2001. MHSAA did
Compliance Plan would perpetuate sex discrimination by            not file an amended Notice of Appeal following the district
requiring more than three times as many girls as boys to play     court’s rejection of its initial Compliance Plan in August of
in disadvantageous seasons and by addressing only sports,         2002.
with the exception of boys’ golf, offered by less than half of
MHSAA’s member schools.”                                            The appellate courts lack jurisdiction over issues that are
                                                                  the subject of post-judgment motions, such as a motion for a
  In August of 2002, the district court rejected MHSAA’s          new trial, when arguments in those motions are not included
proposed plan as not achieving equality. The court offered        in a Notice of Appeal. In United States v. Warner, 10 F.3d
MHSAA three options:                                              1236 (6th Cir. 1993), for example, this court held that “by
                                                                  being a distinct appealable order from which a separate appeal
  (1) combine all sports seasons so both sexes’ teams play        must be taken,” a denial of a motion for new trial
  in the same season . . . and move girls’ volleyball to its
  advantageous season of fall; or (2) reverse girls’                is subject to the requirement that the appeal be taken
  basketball and volleyball; and in the Lower Peninsula,            within ten days from the docketing of the district court’s
No. 02-1127            Communities for Equity, et al. v.      19   20    Communities for Equity, et al. v.            No. 02-1127
                        Mich. High Sch. Athletic Ass’n                   Mich. High Sch. Athletic Ass’n

  order. Absent an appeal within this time, or an extension        See Person v. General Motors Corp., 730 F. Supp. 516, 518-
  from the district court for filing the notice of appeal, this    19 (W.D.N.Y. 1990) (stating that recusal in a prior case
  court, being without authority to extend the time for            involving a party is not alone sufficient for disqualification in
  filing a notice of appeal, will lack the jurisdiction to hear    a later case involving that same party).
  the appeal.
                                                                                       III. CONCLUSION
Id. at 1240.
                                                                     For all of the reasons set forth above, we AFFIRM the
  MHSAA did not file an amended Notice of Appeal                   judgment of the district court on the basis that MHSAA’s
following the district court’s rejection of the initial            actions regarding the scheduling of girls’ sports seasons in
Compliance Plan. We therefore conclude that this court lacks       Michigan violated the Equal Protection Clause of the
jurisdiction to consider MHSAA’s argument concerning the           Fourteenth Amendment.
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.
