                                                                   F I L E D
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                                    PU BL ISH
                                                                   April 9, 2007
                   UNITED STATES CO URT O F APPEALS            Elisabeth A. Shumaker
                                                                   Clerk of Court
                              TENTH CIRCUIT



 C HRISTIA N H ER ITA G E
 ACADEM Y, a private corporation,

       Plaintiff-Appellant,
 v.                                                  No. 04-6342
 OKLAHO M A SECONDA RY
 SCHO OL A CTIVITIES
 ASSOCIATION, a not-for-profit
 association,

       Defendant-Appellee.




        A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
            FO R TH E W ESTERN DISTRICT O F O K LAH O M A
                       (D.C. No. CIV-2003-0056-L)


M icheal Salem of Salem Law Offices, Norman, Oklahoma (W illiam D. (Bill)
Graves, Oklahoma City, Oklahoma, and Chris Box, Oklahoma City, Oklahoma,
with him on the briefs), for Plaintiff-Appellant.

M ark S. Grossman (Clyde A. M uchmore, and M ary H. Tolbert with him on the
brief) of Crowe & Dunlevy, a Professional Corporation, Oklahoma City,
Oklahoma, for Defendant-Appellee.


Before BRISCO E, M cW ILLIAM S, and M cCO NNELL, Circuit Judges.


BR ISC OE, Circuit Judge.
      Plaintiff Christian Heritage Academy (“Christian Heritage”) filed this

action pursuant to 42 U.S.C. § 1983 claiming, in pertinent part, that defendant

Oklahoma Secondary School Activity Association’s (“OSSAA’s”) membership

requirements for nonpublic schools violated the Equal Protection Clause. The

district court granted summary judgment in favor of OSSA A. Christian Heritage

now appeals from that ruling. W e exercise jurisdiction pursuant to 28 U.S.C. §

1291, and we reverse and remand.

                                          I.

      OSSA A is Oklahoma’s state-organized school activities association, which

regulates interscholastic activities. For athletics, OSSAA determines athletic

divisions, sets eligibility rules, and holds state play-offs and championships.

      Christian Heritage is a private religious school in Del City, Oklahoma, and

well-known for its eight-man football team. Since it is not an O SSAA member,

Christian Heritage cannot participate in the state-organized activities association

or compete in the state-organized play-offs or championships. Christian Heritage

has applied for OSSAA membership on two occasions, but OSSAA denied its

applications, both of w hich failed to garner majority approval from OSSAA

member schools. Christian Heritage has satisfied all other membership

requirements, except obtaining majority approval.

      OSSAA’s admission requirements for nonpublic schools

      OSSAA has 471 member schools, and twelve of its members are nonpublic

                                         -2-
schools (ten of which are private schools and two are Indian schools). Of the

private schools, eight are located in suburban areas, while two are in rural areas.

      The OSSA A Constitution, which governs membership in the association,

applies different application procedures for public and nonpublic schools:

      a. M embership in the Association shall be open to public schools . . .
      and other schools as approved by the members of the Association.

      b. Any secondary school desiring to become a member of the
      Association is to file with the Executive Secretary a resolution, . . .
      authorizing such membership . . . . Upon submitting the resolution,
      and all entry fees or other reports required by the Association, a
      public school . . . shall be admitted to membership. All other schools
      must be approved by a majority vote of the existing membership and,
      if approved, must submit all entry fees and reports required to
      establish membership.

OSSA A Const. art. III, § 1 (emphases added), App. Vol. 1, at 57. To be admitted

into OSSA A, public schools merely apply, but nonpublic schools must garner

approval by majority vote from OSSAA members.

      W hen a nonpublic school applies for membership, OSSAA members vote

for or against the application. Importantly, however, OSSAA members are

provided with, and are subject to, no standards or guidelines in voting. Instead,

the ballot simply describes the geographic area where students are immediately

eligible for athletics in the nonpublic applicant school by reason of residence. 1



      1
       W henever a nonpublic school applies for membership, it must designate a
geographic area within which students enrolled in the school would be considered
immediately eligible for athletics by reason of residence. Under the Education
                                                                     (continued...)

                                         -3-
OSSAA’s Rule 8 lists the geographic areas for nonpublic schools that are

admitted. See OSSA A Rule 8, § 1 (b), App. Vol. 1, at 72. Thus, when a

nonpublic school is admitted into OSSAA, Rule 8 is amended to include its

geographic area for eligibility. Pursuant to OSSA A’s Constitution, any

amendment to the rules of the association, including Rule 8, must be approved by

a majority vote of the member schools. OSSA A Const. art. VII, § 2, App. Vol. 1,

at 63. Thus, on the same ballot and in one vote, member schools vote

simultaneously whether to admit a nonpublic school, and whether to amend Rule

8 to establish its geographic area.

      Christian Heritage’s first application

      On M arch 4, 1998, Christian Heritage applied to join OSSAA.

Simultaneous with Christian Heritage’s first application to OSSA A, there was

controversy surrounding admission of nonpublic schools to OSSAA membership.

      On M arch 16, 1998, Perry Adams, the Superintendent of Inola Public

Schools, sent a letter and petition to all member schools. Adams’ letter stated

that it “has become necessary for us to examine some problems, perceived or real,



      1
         (...continued)
Open Transfer Act, a student may attend a school district in which a student is not
a resident, provided that the receiving district authorizes the transfer. Okla. Stat.
tit. 70, § 8-103.2; Okla. Stat. tit. 70 § 8-101.2. If a student transfers to a school
district in which he is not a resident, he cannot compete in athletics for one year,
unless the transfer is due to a bona fide change of residence by his parents, or he
can dem onstrate a legitimate hardship. Okla. Stat. tit. 70, § 8-103.2; OSSAA
Rule 8, § 1(b), A pp. Vol. 1, at 72.

                                         -4-
that have arisen” given the “growing number of non-public schools asking and

receiving acceptance” to OSSA A. App. Vol. 3, at 506. Adams’ petition listed

five items concerning “participation and classification of non-public schools in

OSSA A sanctioned activities,” and it mentioned Christian Heritage by name:

      (1) Non-public schools[’] ability to offer financial aid (scholarships)
      or work student and w ork assistance programs.

      (2) Non-public schools[’] district size. (i.e. On M arch 26, 1998 the
      OSSA A will be mailing ballots to membership schools allowing them
      the opportunity to vote to accept or not to accept Christian Heritage
      Academy into the OSSA A. Christian Heritage Academy has
      designated their district boundary lines to include all of M oore Public
      Schools district and all of M idwest City/Del City Public Schools
      district, which have a combined total 9-12 membership of 9,670
      students which are divided into four 6A schools and one 5A school.
      If voted in, Christian Heritage Academy would be a 2A school with a
      9-12 membership of 218 students).

      (3) N on-public student transfer restrictions as related to public
      schools student transfer restrictions (i.e. under current public school
      law a transfer student must be accepted by both receiving and
      sending district. Non-public schools have no such restrictions).

      (4) N on-public school membership audits for verification of OSSAA
      classification.

      (5) Percentage of students w ho participate in OSSAA activities in
      public schools as related to percentage of students participating in
      non-public schools.

Adams’ Petition, App. Vol. 3, at 507. Adams asked member schools to return the

petition to him “[i]f you agree that some of these items need to be addressed.” Id.

at 506. Seventy-two member schools returned petitions to Adams.

      Given the increased controversy concerning the admission of nonpublic

                                         -5-
schools into O SSAA, on M arch 25, 1998, the O SSAA Board of D irectors

discussed “concerns that recently surfaced with public schools regarding OSSA A

non-public schools.” App. Vol. 3, at 503.

        On M arch 26, 1998, OSSAA mailed ballots to all member schools to vote

on Christian Heritage’s application. The ballot defined Christian Heritage’s

school boundaries as the M id-D el and M oore School Districts, which are two

suburban school districts near Oklahoma City. The ballot stated that Christian

Heritage had 218 students in grades 9-12, which would classify it as a 2A school

in athletics. The ballot had no space to allow a member school to explain its vote

for or against Christian Heritage’s application, and the ballot instructed “PLEA SE

DO NOT ENCLOSE OTHER CORRESPONDENCE W ITH BALLOT.” A pp. Vol.

3, at 505. Christian Heritage prepared a letter advocating its membership, which

was attached to each ballot. The postmark deadline for the ballots was April 13,

1998.

        W ith 184 schools voting against the application, and 153 schools voting for

it, OSSA A denied Christian Heritage’s application in April 1998 because it failed

to garner majority approval. Danny Rennels, OSSAA’s Executive Secretary,

acknowledged that before the “first vote on Christian Heritage, it had become

evident that admission of non-public schools to membership had become more

controversial than in the recent past.” Rennels Aff. ¶ 12, App. Vol. 6, at 1094.

On April 20, 1998, Superintendent Adams forwarded Executive Secretary Rennels

                                          -6-
the seventy-two petitions from member schools who had indicated that the

participation and classification of non-public schools in OSSA A sanctioned

activities needed to be addressed.

      In November 1998, the OSSAA’s B oard of Directors created the Nonpublic

and Public School Relations Committee (“Committee”). The Committee would

investigate member schools’ concerns about nonpublic schools, and it included

public and nonpublic school representatives, including Adams. Some public

schools voiced concerns at area meetings regarding criteria for enrollment,

admission standards, scholarships and recruiting, size of districts for nonpublic

schools, and even distorted enrollment numbers because nonpublic schools “do

not have special education students” included in their average daily membership.

App. Vol. 3, at 532.

      The Committee rejected each of the proffered reasons for denying

membership to nonpublic schools in a Special Report, which was mailed to all

OSSA A members in January 1999. The Committee emphasized that OSSA A rules

prohibit recruiting or providing scholarships for athletics, and that the transfer

rule effectively resolves concerns about a nonpublic school designating its

geographic boundary. The Committee concluded that “communication seems to

be the real problem” because the “fact that the OSSA A Handbook of Rules and

Regulations applies to all schools, public and non-public, doesn’t seem to be fully

grasped.” App. Vol. 3, at 522. Doyle Greteman, Superintendent of Lindsey

                                          -7-
Schools, expressed that “many of those concerns [about nonpublic schools] have

been unfounded.” App. Vol. 3, at 522. The Committee concluded that “there is a

shortage of FA CTS amongst the OSSA A membership and inadequate knowledge

of the OSSAA Administrator’s Handbook.” App. Vol. 3, at 532.

      The Committee observed that member schools had no uniform reason for

their negative feelings tow ard nonpublic schools. In a report to O SSAA’s Board

of Directors and Executive Secretary Rennels, the Committee Chairman

concluded that OSSAA members believed that nonpublic schools have an “unfair

advantage in competition[,] [but] . . . . [t]here is not a great deal of consistency

with regard to exactly what it is that makes the field unlevel.” App. Vol. 3, at

530. The Chairman further stated that “there is not an openness to private schools

in our association,” and he observed “some strong negative feelings” toward

nonpublic schools. App. Vol. 3, at 530.

      The Committee Chairman described a “consistent theme that placed ALL

non-public schools into an unfavored group status,” and he observed “a distrust of

non-public school officials and their programs.” App. Vol. 3, at 530, 532. The

Committee Chairman could identify no reason why member schools would deny

membership to a nonpublic school:

      If w e are not seeing a definite bias and prejudice, then we are
      certainly hearing the frustration of those who perceive inequities.
      W e have yet to be presented with empirical evidence of inherent
      advantages for non-public schools. Therefore we must question why
      any school who would submit to the OSSA A Rules and Regulations

                                           -8-
      would be denied membership.

App. Vol. 3, at 530. The Committee Chairman wondered whether voting schools

“have any facts or information on which to make a responsible vote.” Id. at 531.

      Christian Heritage’s second application

      In August 1999, Christian Heritage again applied for membership.

Christian H eritage reduced the size of its proposed geographic area, because

Executive Secretary Rennels said that the large geographic area may have been

the reason why member schools denied its application. Christian Heritage limited

its geographic area to the M id-Del School District, which is the district in which

Christian Heritage is physically located. Notwithstanding this reduction, or the

member schools’ receipt of the Committee’s Special Report, the second

application failed by a higher margin than the first application: 188 votes against

membership, and 113 votes in favor.

      In November 2000, Christian Heritage Headmaster Ralph Bullard spoke to

OSSAA’s B oard of Directors, asking if there were alternatives to the majority

vote process for admission to membership. OSSA A admitted “being aware that

some member school representatives [we]re opposed to admitting any more non-

public secondary schools located in metropolitan areas into OSSA A membership,

in the belief that such schools may have distinct advantages in competing with

other member schools with similarly sized student populations.” Answer ¶ 22,

App. Vol. 1, at 159. Despite the belief of OSSA A’s member schools that non-

                                         -9-
public schools had advantages, the Committee concluded that the “notion [wa]s a

canard.” App. Vol. 3, at 535.

      According to Executive Secretary Rennels, athletic “success of several of

the non-public school members in the years that Christian Heritage was applying

for membership w as a significant factor in the voting on Christian Heritage’s

applications for membership in 1998 and 1999.” Rennels Aff. ¶ 23, App. Vol. 6,

at 1097. In particular, successful football and basketball teams from nonpublic

schools “contributed to the perception that non-public schools in more highly

populated areas enjoyed an unfair advantage over public schools that would fall

within the same classifications.” Id. ¶ 14, App. Vol. 6, at 1094.

      Procedural history

      On January 10, 2003, Christian Heritage filed this action pursuant to 28

U.S.C. § 1343 and 42 U.S.C. § 1983, seeking declaratory and injunctive relief for

alleged constitutional violations. In February 2003, Christian Heritage amended

its complaint, alleging that OSSAA violated the Equal Protection and Due Process

Clauses of the Fourteenth Amendment and the Free Exercise Clause of the First

Amendment.

      The parties filed cross motions for summary judgment, but Christian

Heritage did not advance any First Amendment argument in its motion for

summary judgment. On September 23, 2004, the district court granted summary

judgment for OSSAA. The district court applied rational basis scrutiny to

                                        -10-
Christian Heritage’s equal protection claim, concluding that OSSAA’s

requirement that nonpublic schools designate a geographic area was a rational

basis for distinguishing between public and nonpublic schools. The district court

concluded that Christian Heritage could not identify any protected liberty or

property interest at stake, and it dismissed Christian Heritage’s due process claim.

Finally, the district court held that Christian H eritage abandoned its First

Amendment claim, and Christian Heritage has not challenged this ruling on

appeal.

                                          II.

      Christian Heritage contends that OSSAA’s requirement of majority

approval for admission of nonpublic schools violates the Due Process and Equal

Protection Clauses of the Fourteenth Amendment, and that OSSA A violated the

Equal Protection Clause in denying its membership application.

      W e review the district court’s grant of summary judgment de novo,

applying the same legal standard as the district court. E.g., Grace United

M ethodist Church v. City of Cheyenne, 427 F.3d 775, 782 (10th Cir. 1999).

Summary judgment should be granted “if the pleadings, depositions, answ ers to

interrogatories, and admissions on file, together with affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). “Cross motions

for summary judgment are to be treated separately; the denial of one does not

                                          -11-
require the grant of another.” Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433

(10th Cir. 1979). Even where the parties file cross motions pursuant to Rule 56,

summary judgment is inappropriate if disputes remain as to material facts. Atl.

Richfield Co. v. Farm Credit Bank of W ichita, 226 F.3d 1138, 1148 (10th Cir.

2000). W here the facts are not in dispute and the parties only disagree about

whether the actions were constitutional, summary disposition is appropriate. See

Fed. R. Civ. P. 56(c).

      At the outset, we agree with the district court and conclude that OSSAA is

subject to the Fourteenth Amendment because it is a state actor. See Brentwood

Acad. v. Tenn. Secondary Sch. Athletic Assoc., 531 U.S. 288, 298-99 (2001).

OSSA A’s conduct constitutes state action because of the “persuasive entwinement

of public institutions and public officials in its composition and workings.” Id. at

298. OSSA A members are 98 percent public schools, which is a larger

percentage than that in Brentwood Academy. See 531 U.S. at 298-99 (concluding

that the athletic association was a state actor w here 84 percent of its members

were public schools). All fourteen of OSSAA’s current directors are public

school em ployees, and Oklahoma has authorized OSSAA to determine athletic

eligibility and hold play-off games. See Okla. Stat. tit. 70, § 8-103.2. OSSAA is

subject to the Fourteenth Amendment.

      A. Due Process Clause

      A lthough C hristian H eritage argued before the district court that OSSAA

                                         -12-
violated the Due Process Clause, Christian Heritage has failed to preserve its due

process argument on appeal. While Christian Heritage lists its due process claim

as an issue in its opening brief, it discusses its due process claim in less than one

page of its brief in a section entitled “Introduction to Argument,” and it provides

no other argument and no citations. Aplt. Br. at 27-28. M oreover, Christian

Heritage conceded that it has not identified a property or liberty interest at stake,

which is necessary for advancing a due process claim. See, e.g., Lybrook v.

M embers of Farmington M un. Sch. Bd. of Educ., 232 F.3d 1334, 1341 (10th Cir.

2000).

         W here an appellant lists an issue, but does not support the issue with

argument, the issue is waived on appeal. E.g., Garrett v. Selby, Connor, M addux

& Janer, 425 F.3d 836, 841 (10th Cir. 2005); Abercrombie v. City of Catoosa, 896

F.2d 1228, 1231 (10th Cir. 1990); Jordan v. Bowen, 808 F.2d 733, 736 (10th Cir.

1987) (holding that the appellant abandoned his due process argument on appeal).

“Scattered statements in the appellant’s brief are not enough to preserve an issue

for appeal.” Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1133 n.4 (10th Cir.

2004). W e conclude that Christian Heritage has waived its due process argument.

         B. Equal Protection Clause

         Christian Heritage advances tw o equal protection arguments. First,

C hristian Heritage maintains that Article III, Section 1 of the OSSAA

Constitution violates the Equal Protection Clause because public high schools are

                                           -13-
admitted upon application, but nonpublic schools must obtain majority approval

from OSSAA member schools for admission. See OSSAA Const. art. III, § 1.

Second, Christian Heritage challenges O SSAA’s decisions denying its

membership applications, but admitting other nonpublic high schools.

      The Equal Protection Clause of the Fourteenth Amendment mandates that

“[n]o State shall . . . deny to any person within its jurisdiction the equal

protection of the laws.” U.S. Const. amend. XIV. The parties agree that rational

basis scrutiny applies, as Christian Heritage has not argued that OSSA A’s conduct

targets a suspect class or violates a fundamental right. See, e.g., Schutz v.

Thorne, 415 F.3d 1128, 1135 (10th Cir. 2005).

      1. Equal Protection challenge to Article III, Section 1 of Constitution

      Christian Heritage claims that the requirement in Article III, Section 1 of

OSSA A’s Constitution that nonpublic schools obtain majority approval for

admission violates the Equal Protection Clause because public schools are

admitted automatically upon application. W e hold that, although OSSA A has

identified legitimate purposes for distinguishing between public and nonpublic

schools in regards to their admission to the organization, the requirement in

OSSAA’s C onstitution that nonpublic schools obtain majority approval in order to

be admitted is not rationally related to any of those legitimate purposes.

      The government violates the Equal Protection Clause when it “treats

someone differently than another who is similarly situated” without a rational

                                          -14-
basis for the disparate treatment. Crider v. Bd. of County Comm’rs of Boulder,

246 F.3d 1285, 1288 (10th Cir. 2001) (internal quotation marks omitted). Under

rational basis scrutiny, we will uphold OSSAA’s requirement of majority

approval so long as it is rationally related to a legitimate government purpose or

end. See, e.g., Vacco v. Quill, 521 U .S. 793, 799 (1997); E.SPIRE Commc’ns,

Inc. v. N.M . Pub. Regulation Comm’n, 392 F.3d 1204, 1209 (10th Cir. 2004).

      W e begin by noting that the district court failed to apply rational basis

scrutiny to OSSA A’s requirement of majority approval in Article III, Section I of

OSSA A’s Constitution. Instead, the district court mistakenly applied rational

basis scrutiny to OSSAA’s Rule 8 and Article V II, Section 2 of O SSAA’s

Constitution. Rule 8 lists the geographic areas for the nonpublic schools that

have been admitted. Article VII, Section 2 of OSSA A’s Constitution requires

m ajority approval for changes in the Rules of the Association. See OSSAA

Const. art. VII, § 2, App. Vol. 1, at 63. The district court concluded that

requiring nonpublic schools to obtain approval by a majority vote to amend Rule

8, which lists the geographic areas, did not violate the Equal Protection Clause

because OSSAA had a rational basis for requiring nonpublic schools to designate

a geographic area. W e need not determine whether the district court was correct

in this regard because Christian Heritage has challenged only the referendum

requirement for nonpublic schools in Article III, Section 1.

      A rticle III, Section 1 of O SSAA’s Constitution provides that OSSAA

                                         -15-
membership is open to public schools “and other schools as approved by the

members of the Association.” App. Vol. 1, at 57. In turn, OSSA A’s Constitution

sets forth different application procedures for public and nonpublic schools.

Public schools, upon filing a resolution and paying its fee, “shall be admitted to

membership.” Id. In contrast, nonpublic schools “must be approved by a

majority vote of the existing membership and, if approved, must submit all entry

fees and reports required to establish membership.” Id.

      In determining whether this referendum requirement violates Christian

Heritage’s Equal Protection rights, we begin by concluding that Christian

Heritage is similarly situated to at least some of the public schools that have been

admitted to OSSAA. It is uncontroverted that OSSAA’s Constitution and rules,

including its transfer rule and the prohibition on athletic scholarships and

recruiting, apply equally to public and nonpublic schools. Further, it is

uncontroverted that Christian Heritage agreed to comply with OSSAA’s rules if

admitted. Thus, we define public schools similarly situated to Christian Heritage

as having comparable average daily membership and being located near large

cities. See Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 533 (10th Cir.

1998); Jacobs, Visconsi & Jacobs Co. v. Lawrence, 927 F.2d 1111, 1119 (10th

Cir. 1991). Christian H eritage, if admitted into O SSAA, would have been a C lass

2A school with a membership of 218 students. Christian Heritage is located in

Del City, which is outside of Oklahoma City. Other public schools that have been

                                         -16-
admitted to OSSA A are similarly situated to Christian Heritage in all material

respects. For example, Luther High School is a Class 2A public school located

outside of Oklahoma City with a membership of 251. Crooked Oak High School

is a Class 2A public school in Oklahoma City with a membership of 229. Hominy

High School and M ounds High School are located outside of Tulsa, and they are

in Class 2A with memberships of 224 and 228, respectively.

      In addition to establishing that it is similarly situated to at least some of the

public school members of OSSA A, Christian Heritage has also demonstrated

disparate treatment. Specifically, public schools are admitted to OSSA A without

having to obtain approval from a majority of OSSAA’s members, w hile nonpublic

schools, even if they satisfy all other requirements for admission, must obtain

majority approval from the members of the association.

      Thus, the only remaining issues are whether OSSA A’s requirement of

majority approval for nonpublic schools has a legitimate purpose, and, if so,

whether it was reasonable for OSSAA to believe that use of this separate

classification for nonpublic schools would promote that purpose. See W estern &

Southern Life Ins. Co. v. State Bd. of Equalization of Cal., 451 U.S. 648, 668

(1981); Pow ers v. Harris, 379 F.3d 1208, 1215 (10th Cir. 2004), cert. denied, 125

S. Ct. 1638 (2005); Save Palisades FruitLands v. Todd, 279 F.3d 1204, 1213-14

(10th Cir. 2002). As to the rational relationship between the classification and

purpose, we require only that the legislative body (in this case, OSSA A itself)

                                         -17-
“could rationally have decided” that its classification “might foster” its purpose.

M innesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466 (1981) (emphasis

omitted). In most cases, the classification and purpose are rationally related. But

“[t]he State may not rely on a classification whose relationship to an asserted goal

is so attenuated as to render the distinction arbitrary or irrational.” City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985); Copelin-Brown v.

N.M . State Personnel Office, 399 F.3d 1248, 1255 (10th Cir. 2005). W e are not

constrained by the parties’ arguments concerning legitimate state purposes. See

Powers, 379 F.3d at 1217.

      W hen there is an inadequate or a nonexistent connection between the

classification and purpose, the Supreme Court has invalidated the classification

under rational basis scrutiny. See Allegheny Pittsburgh Coal Co. v. County

Comm’n of W ebster County, 488 U.S. 336, 344-45 (1989); City of Cleburne, 473

U.S. at 432, 449; Hooper v. Bernarillo County Assessor, 472 U.S. 612, 621-22

(1985) (observing that the statute’s distinction is “not rationally related to the

State’s asserted legislative goal”); W illiams v. Vermont, 472 U.S. 14, 25-27

(1985); Zobel v. W illiams, 457 U.S. 55, 62-65 (1982); U.S. Dep’t of Agric. v.

M oreno, 413 U.S. 528, 536 (1973); U.S. Dep’t of Agric. v. M urry, 413 U.S. 508,

513-514 (1973); Linsdey v. Normet, 405 U.S. 56, 77-79 (1972).

      Similarly, in Copelin-Brown, we struck down a separate classification for

disabled versus non-disabled persons under rational basis review. 399 F.3d at

                                          -18-
1255-56. W e recognized that easing administrative burdens “can be a reason

sufficient to withstand rationality review.” Id. at 1255 (internal quotation marks

omitted). But we concluded that the state’s refusal to give disabled persons post-

termination hearings was not rationally related to the interest in reducing

administrative burdens because the asserted interest was too attenuated. Id. at

1255. W here the record “fail[ed] to present any facts showing that the regulation

in question eased administrative burdens,” we concluded that the distinction

between disabled and non-disabled persons was arbitrary and irrational. Id. at

1255. In addition, we concluded that the suggested goal of preventing stigma was

irrational. Id. at 1255-56.

      Here, OSSAA justifies the requirement of majority approval for nonpublic

schools because nonpublic schools must declare a geographic area for eligibility

purposes. The geographic area is listed in Rule 8, and OSSA A’s Constitution

requires majority approval to amend Rule 8. See OSSA A Const. art. VII, § 2,

App. Vol. 1, at 63. But OSSAA conflates its constitutional provision in Article

III, Section 1, which requires majority approval for admission, with Rule 8, which

requires nonpublic schools to declare a geographic area. Christian Heritage does

not challenge Rule 8. M oreover, OSSAA did not deny Christian Heritage’s

application because it designated a geographic area that was too large. Christian

Heritage reduced its geographic area in its second application and designated only

the district in which it was physically located, but OSSAA still rejected its

                                         -19-
application.

      Aside from Rule 8 and designation of a geographic area, OSSAA suggests

several other possible purposes for the classification between public and

nonpublic schools: “preserving equitable competitive opportunities, preventing

exploitation of student-athletes, and preserving a balance between academics and

athletics.” Aple. Br. at 23. W e agree that these are legitimate government

purposes. Indeed, we can conceive of additional legitimate reasons that an

association such as OSSA A might have for distinguishing between public and

nonpublic schools, including eliminating or reducing the advantages that

nonpublic schools may have in recruiting, the aw arding of scholarships,

transferring for athletic purposes, and distorted average daily membership

because of few er students with disabilities. See Powers, 379 F.3d at 1217 (“[W ]e

are not bound by the parties’ arguments as to what legitimate state interests the

statute seeks to further.”).

      That leaves, how ever, the question of whether it was reasonable for OSSA A

to believe that use of the majority voting requirement would promote these

purposes. 2 W estern & Southern Life, 451 U.S. at 668. W e readily conclude that



      2
        The dissent seems to suggest that any constitutional attack on the
OSSA A’s majority voting requirement must be considered as a due process, rather
than an Equal Protection, challenge. W e disagree. Because OSSA A’s differential
treatment of public and nonpublic applicants is manifested exclusively in the
majority voting requirement, that requirement is clearly subject to an equal
                                                                      (continued...)

                                        -20-
OSSA A could not rationally have decided that the majority voting requirement

would foster any of these purposes. See Clover Leaf Creamery, 449 U.S. at 466.

Although nonpublic schools seeking membership in OSSAA are apparently

allowed, as was Christian Heritage, to prepare letters advocating their

membership, the voting of existing OSSA A members is ultimately unguided and

entirely discretionary. Thus, even where, as here, a nonpublic school seeking

membership has taken appropriate steps to ensure that it will not have a

com petitive advantage over similarly situated public school members of OSSAA ,

its application can be rejected by existing OSSA A members for any reason,

including dislike or distrust. In other w ords, no standards or restrictions are

imposed on existing OSSAA members in casting their votes for or against a

nonpublic school’s application for admission. As a result, we conclude there is a

complete disconnect between the majority voting requirement and the legitimate

purposes that OSSA A and we have identified. 3


      2
       (...continued)
protection challenge.
      3
         The dissent concludes that the connection between the State’s legitimate
interests and the majority voting requirement “is relatively strong.” Dissent at 10.
In support of this conclusion, the dissent asserts that members schools are well
positioned “to determine whether a new applicant is institutionally capable of
meeting OSSA A requirements” and “would adversely affect competitive parity.”
Id. at 11. W e note that the record on appeal by no means conclusively supports
this assertion. In any event, the critical and uncontroverted fact is that OSSA A
imposed no standards, guidelines, or restrictions on its members w hen they were
voting for or against nonpublic school applicants. Indeed, the dissent
                                                                        (continued...)

                                         -21-
      The disconnect between the majority voting requirement and any legitimate

purposes identified by OSSAA is clearly borne out in this case. The record is

replete w ith evidence, and O SSAA has in fact acknowledged, that OSSAA

members voted against membership applications from nonpublic schools because

of distrust and/or hostility toward nonpublic schools. For example, more than

seventy member schools returned Adams’ petition listing five areas where

nonpublic schools supposedly had an advantage over public schools, and

OSSAA’s Committee Chairman observed “some strong negative feelings” toward

nonpublic schools and a “consistent theme that placed ALL non-public schools

into an unfavored group status.” A pp. Vol. 3 at 530. Even after the Committee’s

Special Report was circulated, OSSA A members refused to admit Christian

Heritage, and they denied its second application for membership by an even

greater margin than its first application. In short, OSSAA’s refusal to admit

Christian Heritage was motivated in large part by a dislike for nonpublic schools

generally and Christian Heritage in particular. Such a dislike is not a legitimate

state interest, see M oreno, 413 U.S. at 534 (concluding that a “desire to harm a

politically unpopular group cannot constitute a legitimate governmental interest”)




      3
       (...continued)
acknowledges w hen addressing Christian Heritage’s class of one claim that there
is evidence that members schools were allow ed by the O SSAA to vote against
Christian Heritage’s applications on the basis of their “subjective ill will.” Id. at
15.

                                         -22-
(emphasis omitted), and the referendum requirement for nonpublic schools cannot

survive rational basis scrutiny. In other words, because there is no connection

between the Article III, Section 1, classification and any legitimate government

purpose, denying membership to nonpublic schools for failure to garner majority

approval is arbitrary and irrational. See Copelin-Brown, 399 F.3d at 1255.

       OSSA A urges us to follow Archbishop W alsh High School v. Section VI of

the New York State Public High School Athletic Ass’n, Inc., 666 N.E.2d 521

(N.Y. 1996). The plaintiff in Archbishop W alsh, a Catholic high school, sought

admission in a state public high school athletic association, but was denied

membership based on an insufficient number of favorable votes in a member

referendum on its application. Thereafter, the plaintiff filed suit against the

defendant athletic association, claiming that the referendum requirement violated

the Equal Protection Clause. The Court of Appeals of New York, in a divided

vote, affirmed the lower courts’ grant of summary judgment in favor of the

association. In doing so, the Court of Appeals concluded that the majority voting

requirement for admission of a nonpublic school was a “rational screening

process.” Id. at 522, 525. In addition, the Court of Appeals noted that nothing in

the record before it “support[ed] the assertion or speculation that th[e] voting

procedure [wa]s intrinsically arbitrary or a subterfuge masking invidious

discrimination . . . .” Id. at 525.

       As an initial matter, we believe there are several important factual

                                         -23-
differences between our case and Archbishop W alsh. In Archbishop W alsh, the

defendant athletic association was concerned that nonpublic schools could offer

scholarships for athletics and that admitting nonpublic schools would decrease

community spirit. No similar concerns are present here. OSSAA rules prohibit

the aw arding of athletic scholarships and the recruiting of athletes, and these

rules apply to all OSSAA members, including nonpublic schools. Further,

OSSA A requires nonpublic schools to designate a geographic area to determine

eligibility for students, including transfers, and OSSA A classifies schools for

sports according to their average daily membership. Lastly, unlike the situation

in Archbishop W alsh, the record in our case clearly suggests that the voting on

Christian Heritage’s membership applications was, at a minimum, arbitrary and,

at worst, discriminatory.

      Even ignoring these factual differences, we are clearly not bound by, and

indeed respectfully disagree with, the majority holding in A rchbishop W alsh. In

our view, the criticisms of the majority voting requirement expressed by the

dissent in Archbishop W alsh are directly applicable here: “[A]s the voting

mechanism currently stands, there is no possible way to know whether an

applicant was excluded for a reason that would advance the stated goals or for

some other discriminatory purpose. Further, the opportunity for mischief in this

ballot exercise is apparent, since voting members may use that mechanism as a

tool to further their own agendas, discriminatory or not.” Id. at 525-26.

                                         -24-
       W e also reject OSSAA’s assertion that this case is analogous to D enis J.

O’Connell High School v. Virginia High School League, 581 F.2d 81 (4th Cir.

1978). There, the Fourth Circuit concluded that a public high school athletic

association had a rational basis to exclude all nonpublic schools. Id. at 87. The

Fourth Circuit reasoned that excluding all nonpublic schools from membership

was rationally related to the league’s interest in enforcing its eligibility rules

concerning transfer students since private schools had no attendance zones, and

the league was afraid that admitting them w ould make it hard to enforce the

transfer rule. Id. at 85-86.

       In contrast to the league in Denis J. O’Connell, OSSAA’s transfer rule

applies to public and nonpublic schools, and requires nonpublic schools to

designate a geographic area for eligibility purposes. There is no suggestion that

OSSAA has had problems enforcing the transfer rule as regards its ten members

that are private schools. 4

       In sum, we conclude that OSSA A’s majority voting requirement is not

rationally related to a legitimate purpose. W e therefore conclude the district

court erred in denying Christian Heritage’s m otion for summary judgment and in



       4
        Had OSSA A decided not to admit any nonpublic schools, that decision
likely would be supported by Denis J. O’Connell. However, by choosing to allow
nonpublic schools to become members, O SSAA was obligated to ensure that its
membership procedures for those schools were consistent with the Equal
Protection Clause.

                                          -25-
granting OSSAA’s motion on these grounds.

         2. Equal Protection challenge to denial of membership applications

         Christian Heritage also challenges O SSAA’s denial of its membership

applications as violating the Equal Protection Clause. In other words, Christian

H eritage claims it has suffered discrimination as a “class of one.” Because we

have already concluded that Christian Heritage was entitled to summary judgment

on its Equal Protection challenge to A rticle III, Section 1 of O SSAA’s

Constitution, and because Christian Heritage seeks identical relief on both of its

Equal Protection claims, we find it unnecessary to address its “class of one”

claim.

                                           III.

         For the reasons discussed above, the district court erred in denying

Christian Heritage’s motion for summary judgment and granting OSSA A’s motion

for summary judgment with respect to Christian Heritage’s Equal Protection

challenge to A rticle III, Section 1 of OSSAA’s Constitution. Accordingly, we

REV ER SE and R EM A N D to the district court with directions to enter summary

judgment in favor of Christian Heritage on that claim. On remand, the district




                                           -26-
court will determine the appropriate declaratory relief and injunctive relief to

which Christian Heritage is entitled. 5

      REVERSED and REM AND ED.




      5
        On January 11, 2007, OSSA A filed with this court a pleading entitled
“Notice of M odification of Requirement That is Subject of Appeal” (N otice).
Therein, OSSA A alleged that in November 2006, its existing members approved a
new membership rule for nonpublic schools, effective as of July 1, 2007. Under
the new rule, OSSA A alleges, a nonpublic school “could become a member of the
Association by demonstrating compliance with certain criteria,” and without a
“majority vote of the existing member schools . . . .” Notice at 2. Christian
Heritage responds that OSSA A has provided no explanation how or whether the
new rule circumvents Article III, Section 1 of OSSA A’s Constitution which
requires that “[a]ll other schools must be approved by a majority vote of the
existing membership . . . .” Response to Notice at 4. Obviously, the district court
will need to consider the new rule and its requirements in the course of fashioning
appropriate relief for Christian Heritage.

                                          -27-
No. 04-6342, Christian Heritage Acad. v. Okla. Secondary Sch. Activities Ass’n



M cCO NNELL, J., concurring in part and dissenting in part.

      The plaintiff’s name may suggest this case is about religion, and in a sense

that is true. It is about Oklahoma high school football. And there is only one

path to the honor and the glory of interscholastic football competition in

Oklahoma: membership in the Oklahoma Secondary School Activity Association

(O SSAA). M embers of the Association enter the promised land of regularly

scheduled games w ith neighboring schools and the prospect of championship

com petition w ith the leading teams in the State; those not of the elect are throw n

into the outer darkness of few teams to play against and long bus rides to get to

them. For public schools, membership in the O SSAA is sola gratia: all they have

to do is knock, and the door is opened unto them. For nonpublic schools, narrow

is the gate and difficult is the way. They may be admitted only according to the

inscrutable will of a majority vote. The question is whether this violates the

Equal Protection Clause.

      I cannot agree with the majority that the OSSAA rule automatically

admitting public schools but requiring majority approval for nonpublic schools

fails rational-basis review, and I therefore dissent from Part II.B.1. I would reach

a similar result, however, by finding that Christian Heritage has suffered

discrimination as a “class of one.” See Vill. of Willowbrook v. Olech, 528 U.S.

562, 564-65 (2000) (per curiam). Christian Heritage has intentionally been
excluded from the OSSA A even as other small nonpublic schools have been

admitted. The only reason the OSSAA advanced for this differential treatment,

concern over the size of the geographic district chosen by Christian Heritage, is

flatly contradicted by the record. M oreover, assuming that a class-of-one claim

requires a showing of subjective ill will— a question we need not resolve in this

case— summary judgment in favor of the O SSAA was inappropriate because

Christian Heritage has submitted evidence from which a reasonable factfinder

might conclude that its exclusion from the OSSA A was a product of animus or

hostility against nonpublic schools.

      I therefore concur in the judgment under a class-of-one theory. 1


    I. The Equal Protection Challenge to Requiring Nonpublic Schools to
           Obtain M ajority Support for Admission to the OSSAA

      Christian Heritage challenges the OSSAA’s disparate treatment of public

and nonpublic schools as a violation of the Equal Protection Clause. Public

schools can obtain membership automatically by paying a fee and filing any other

required reports. Nonpublic schools, by contrast, “must be approved by a

majority vote of the existing membership” in addition to satisfying the fee and

reporting requirements. OSSAA Const. art. III, § 1(b), A pp. Vol. 1, at 57.


      1
        I also agree that Christian Heritage waived its due process argument by
failing to brief it on appeal. Because the argument is waived, I do not consider it
necessary or appropriate to comment on whether Christian Heritage has
“identified a property or liberty interest at stake.” See M aj. O p. 13.

                                         -2-
Because Christian Heritage concedes that nonpublic schools do not form a suspect

class and are not otherwise entitled to heightened scrutiny, we apply ordinary

rational-basis review, asking whether “there is a rational relationship between the

disparity of treatment and some legitimate governmental purpose.” Heller v. Doe,

509 U.S. 312, 320 (1993).

      That standard is highly deferential. Under rational-basis review, a

classification enjoys “a strong presumption of validity,” and the challenging party

must negate “‘every conceivable basis which might support it.’” FCC v. Beach

Commc’ns, Inc., 508 U.S. 307, 314–15 (1993) (quoting Lehnhausen v. Lake Shore

Auto Parts Co., 410 U.S. 356, 364 (1973)). Because the courts “never insist[]

that a legislative body articulate its reasons for enacting a statute,” it does not

matter w hether an asserted rational basis actually motivated the classification.

U.S. R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980). A classification does

not fail rational-basis review merely because it is over- or under-inclusive,

lacking “‘mathematical nicety.’” Dandridge v. Williams, 397 U.S. 471, 485

(1970) (quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911)).

In other words, a rational classification may be predicated on a generalization,

even if that generalization “is subject to exceptions.” Lofton v. Sec’y of Dep’t of

Children & Fam ily Servs., 358 F.3d 804, 822–23 (11th Cir. 2004). Finally, we

may not “speculate as to whether some other scheme could have better regulated

the evils in question.” Powers v. Harris, 379 F.3d 1208, 1217 (10th Cir. 2004).

                                           -3-
The question is w hether the classification rationally relates to a legitimate

government purpose, not whether it is the best or exclusive means of

accomplishing that purpose.

      The OSSAA argues that the distinction between public and nonpublic

schools serves its interest in “preserving equitable competitive opportunities.”

Appellee’s B r. 23. Surely that is a legitimate state purpose. High school athletic

associations exist not only to crow n champions, but to further students’

educations and their development as individuals. See OSSAA Const. art. II, §

2(a), App. 57 (setting forth the objectives of the OSSA A, which include “[t]he

promotion of important educational and cultural values, attitudes, appreciations,

and skills”). Football and basketball are no fun— and are thus less valuable as an

educational and developmental experience— if one school or small group of

schools defeats everyone else in competition, year after year. Indeed, the goal of

approximate competitive parity has become a driving force even at the

professional level. See Tom Pedulla, NFL Dynasties Go “Way of Dinosaurs,”

USA Today, Jan. 24, 2003, at 1A (“For leagues, parity is the holy grail of sports.”

(internal quotation marks omitted)).

      It may be wrong, but it is not irrational, for the OSSA A to believe that

nonpublic schools, as a class, enjoy unfair competitive advantages. A petition

distributed in M arch 1998 by a public-school superintendent identified five

potential advantages: (1) “Non-public schools[’] ability to offer financial aid

                                          -4-
(scholarships),” (2) “Non-public schools[’] district size”; (3) “Non-public

schools[’] student transfer restrictions”; (4) “Non-public schools[’] membership

audits for verification of OSSAA classification”; and (5) “Percentage of students

who participate in OSSA A activities.” App. 1137. The record suggests other

possible advantages as well, including superior facilities and coaching staffs,

selectivity of admissions, grade school athletic programs, parental support, and

financing. Id. at 535–36.

      W hatever the reasons, it is evident that nonpublic schools as a class, in

Oklahoma and throughout the country, have a track record of exceptionally strong

athletic performance. During the run-up to Christian Heritage’s application,

Bishop M cGuinness Catholic H igh School, one of twelve nonpublic schools

admitted to the OSSA A, won the boys Class 4A basketball championship for four

years straight, from 1998 to 2001. Nonpublic schools make up just 2% of the

OSSAA’s 471 members, but between 1995 and 2003, they won 15% of boys

basketball championships, over 20% of boys and girls cross country

championships, and a whopping 69% of volleyball championships. During the

same period, nonpublic schools also won a disproportionate share of state

championships in spring baseball, fast-pitch softball, boys and girls golf, and boys

and girls track. A survey of high school athletic associations conducted in 1999

reveals that nonpublic schools have enjoyed similar competitive success in other

states: in Indiana, “[p]rivate school[s] w in an inordinate number of state

                                         -5-
championships”; in Hawaii, “[b]asically, private schools have been winning more

state championships than the public schools”; in New York, “[s]chools are getting

frustrated that the Parochial and Private schools are winning our State

Championships in many sports”; in South Carolina, “private schools . . . seem to

win the state championships”; in Oregon, there has been “friction” due to

“increased successes that private schools are having in our state championship.”

Id. at 544–45.

      It is not irrational for the public schools that make up the vast majority of

OSSAA members to vote for measures designed to ensure that athletic

competition in Oklahoma not be dominated by schools that enjoy what they

consider to be inherent and unfair advantages. See Archbishop Walsh High Sch.

v. Section VI of the N.Y. State Pub. High Sch. Athletic Ass’n, 666 N.E.2d 521,

523–24 (N.Y. 1996) (upholding a similar nonpublic school admission rule against

an equal protection challenge); Denis J. O’Connell High Sch. v. Va. High Sch.

League, 581 F.2d 81, 85-88 (4th Cir. 1978) (upholding blanket exclusion of all

nonpublic schools from public athletic association).

      The majority nonetheless concludes “that OSSA A’s majority voting

requirement is not rationally related to a legitimate purpose.” M aj. Op. 26. It

reaches this judgment for essentially two reasons.

      First, the majority points to various O SSAA rules prohibiting athletic

scholarships and recruiting and requiring transfer students to refrain from

                                         -6-
competition for a year. Id. at 23. Because these rules effectively counteract the

supposed advantages nonpublic schools may enjoy, the majority says, the more

draconian remedy of excluding nonpublic schools unless they can summon a

majority vote for admission is unnecessary and irrational. That argument does

not w arrant a finding of unconstitutionality.

      To begin with, the availability of “some other scheme” to address the

problem is irrelevant on rational-basis review. Powers, 379 F.3d at 1217. Even if

OSSA A rules better address— or even fully address— the competitive advantages

enjoyed by nonpublic schools, that does not make the majority voting requirement

irrational. State actors are free, under the Equal Protection Clause, to adopt

blunderbuss procedures rather than narrowly tailored regulations, or to enact

redundant policies that serve the same legitimate state purpose. See Mass. Bd. of

Retirement v. M urgia, 427 U.S. 307, 316 (1976) (per curiam) (acknowledging that

by adopting a mandatory age limit of 50 years for uniformed police officers,

rather than “individualized testing after age 50,” the State “perhaps has not

chosen the best means to accomplish [its] purpose,” but holding that “w here

rationality is the test, a State ‘does not violate the Equal Protection Clause merely

because the classifications made by its laws are imperfect’” (quoting Dandridge,

397 U.S. at 485)). 2


      2
          The majority distinguishes Archbishop W alsh, which is on all fours w ith
                                                                        (continued...)

                                           -7-
         M oreover, there is reason to believe that the OSSAA rules do not fully

address the competitive advantages enjoyed by nonpublic schools. OSSA A rules

do nothing to rectify imbalances in admissions selectivity, in financing, in

facilities or coaching between public and nonpublic institutions. Although some

individual OSSA A members may not consider these advantages “unfair,” see App.

526 (noting that “ability to pay” constrains private-school admissions and that

public school districts in “[v]ibrant communities” also provide “donations,

support and comparable sacrifices” for athletics), OSSA A as an association is free

to reach a different conclusion. It is not irrational for the OSSA A to adopt case-

by-case applications as a backstop to generally applicable but difficult-to-police

rules.



         2
        (...continued)
this case, on the ground that the O SSAA rules regarding geographic areas,
transfers, athletic scholarships, and recruiting eliminate the concerns that
underlay the New York rule upheld in that case. See M aj. Op. 23-24. This is
tantamount to holding that a state athletic association is constitutionally required
to adopt a more narrowly tailored rule— a proposition flatly inconsistent with
precedents governing rational-basis review. See M urgia, 427 U.S. at 316;
Powers 379 F.3d at 1217. Oddly, the majority distinguishes Denis J. O’Connell
on the opposite ground that it involved an even less narrowly tailored rule than
the OSSAA rule in this case, namely, a blanket exclusion of nonpublic schools.
M aj. O p. 25. All three cases— this case, Archbishop W alsh, and Denis J.
O’Connell— involve the same concerns about nonpublic schools, which the
majority concedes are rational. Somehow the majority concludes that it is
rational to exclude all nonpublic schools, and rational to adopt rules designed to
eliminate the supposed unfair advantages of nonpublic schools, but irrational to
adopt the intermediate course of subjecting the admission of nonpublic schools to
a majority vote. I find these distinctions wholly unconvincing.

                                           -8-
      Second, the majority asserts that the member-voting procedure is

“complete[ly] disconnect[ed]” from any legitimate purpose OSSA A may be trying

to achieve. M aj. Op. 21. The majority opinion complains that “there is no

possible way to know [in a referendum voting system] whether an applicant was

excluded for a [valid] reason . . . or for some other discriminatory purpose.” M aj.

Op. 24 (quoting Archbishop W alsh, 666 N.E.2d at 525 (Titone, J., dissenting)).

This argument, however, pertains most directly to due process rather than equal

protection, and the plaintiffs failed to preserve their due process claim. The U.S.

Supreme Court has in other contexts questioned policy enforcement through

referendum voting— but as a due process problem. And it is worth noting that the

Court ultimately found the mechanism constitutionally valid. City of Eastlake v.

Forest City Enters., Inc., 426 U.S. 668, 675 (1976) (rejecting contention that a

citywide referendum on zoning laws constituted a deprivation of due process

because “voters were given no standards to guide their decision” and “no

mechanism existed, nor indeed could exist, to assure that the voters would act

rationally”). Recast as an equal protection claim, the majority’s argument sweeps

too broadly. If a voting mechanism is completely disconnected from legitimate

state ends simply because we cannot be sure why voters make the decisions they

do, no vote by secret ballot will survive rational-basis review in an equal

protection challenge.




                                         -9-
       Surely the majority does not mean to suggest that referenda are per se

irrational. Perhaps it means, instead, that given the potential for abuse, final

OSSA A approval ought not to have been entrusted to public schools, which have

a vested interest in the outcome. Yet this too is a due process rather than an equal

protection argument. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825 (1986)

(holding that the D ue Process C lause bars trial by potentially biased judges);

Ward v. Vill. of M onroeville, Ohio, 409 U.S. 57, 60 (1972) (elaborating the due

process test for bias); Tumey v. Ohio, 273 U.S. 510, 523 (1927) (trial by judges

who have a “direct, personal, substantial pecuniary interest” in the case violates

the D ue Process Clause). In any event, whether the state has adopted the best

possible means of enforcing its policy is not the issue before us. Powers, 379

F.3d at 1217. W e must determine whether the enforcement mechanism selected

bears some rational connection to the state interest at issue. Given that the State

may refuse to admit nonpublic schools automatically, M aj. Op. 14, someone must

decide for each nonpublic applicant whether admittance is appropriate. Some

person or group of persons must vote. Perhaps the State was unw ise to entrust

that vote to the majority of OSSAA members, but there is hardly a “complete

disconnect” between the majority voting requirement and the State’s legitimate

interests.

       Indeed, the connection is relatively strong. M ember schools are familiar

with the actual operation of the OSSA A guidelines: they must implement the rules

                                         -10-
day-to-day. M oreover, they are familiar with the competitive balance among

member schools at any one time. They arguably are therefore better positioned

than an O SSAA staff employee, for example, or any other person lacking hands-

on experience administering OSSA A’s rules, to determine whether a new

applicant is institutionally capable of meeting OSSAA requirements. They are

also well suited to judge whether a new entrant would adversely affect

competitive parity. True, this exercise of discretion by member schools is, like

all exercises of discretion, open to abuse. But that potential for abuse does not

render the voting mechanism as a whole irrational.

      Besides the problems inherent in referendum voting, the majority contends

that the O SSAA voting requirement is irrational for another reason— because

many OSSAA member schools harbor an irrational “distrust” or “hostility”

towards nonpublic schools. M aj. Op. 22. The majority points to the fact that

even after Christian Heritage submitted a revised application responding to the

supposed concerns of member schools, the Association denied Christian Heritage

admittance a second time. Id. But this fact, though admittedly troubling, does

not impugn the rationality of the voting mechanism. Instead, it calls into question

the treatment Christian Heritage received relative to other similarly situated

applicants. Put another way, it suggests the Association discriminated against the

plaintiff as a class-of-one. But a class-of-one allegation constitutes a separate

claim and necessitates a separate inquiry. The only question here is whether the

                                         -11-
OSSAA’s majority-voting requirement, on its face, rationally serves a legitimate

public purpose. W.& S. Life Ins. Co. v. State Bd. of Equalization of Cal., 451

U.S. 648, 668 (1981). Because I believe that the answer is “yes,” I would affirm

the judgment of the district court rejecting the challenge to OSSA A voting

procedures.

    II. The Class-of-O ne Challenge to C hristian H eritage’s Rejection as a
                           M ember of the OSSAA

      Although I cannot regard as irrational the O SSAA’s decision to require

nonpublic, but not public, schools to obtain majority support for admission to the

Association, I would hold that Christian Heritage Academy has submitted

evidence from which a reasonable jury could infer that its exclusion from the

Association violates the Equal Protection Clause, as interpreted by the Supreme

Court in Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam).

      H aving decided to admit at least some nonpublic schools to the OSSAA ,

the organization must have a lawful and rational basis for its decisions. The

OSSAA is an agency of the state, see Brentwood Acad. v. Tenn. Secondary Sch.

Athletic Ass’n, 531 U.S. 288, 298 (2001), and therefore cannot grant or w ithhold

the privilege of participating in the public benefit of its programs on an arbitrary

or invidious basis. As an arm of the state, the OSSAA cannot pick and choose its

members like a fraternity or a private club.




                                        -12-
      Under the Supreme Court’s opinion in Olech, 528 U.S. at 564, a plaintiff

may state a “class of one” equal protection claim by alleging that it “has been

intentionally treated differently from others similarly situated and that there is no

rational basis for the difference in treatment.” The OSSA A has admitted other

nonpublic schools that are materially identical to Christian Heritage: of similar

size, located in comparable suburban areas, and— so far as the record

discloses— sharing the same competitive advantages as other nonpublic schools.

The only reason for this differential treatment offered by the OSSAA, both in its

brief and under persistent questioning at oral argument, is that members may have

harbored concerns about the geographic district identified in Christian Heritage’s

application.

      Two factors undercut this explanation. First, the OSSA A has admitted

comparable nonpublic schools, both in urban and suburban areas, with identical or

even larger geographic districts. Second, after its 1998 application was defeated

by a vote of 153-184, Christian Heritage attempted to address members’ concerns

by shrinking its proposed geographic district. Yet its 1999 application was

defeated by an even more lopsided vote of 113-188. Far from explaining the

decision, Christian Heritage’s geographic district tends to show that the exclusion

was arbitrary. W ith no other explanation offered by the OSSAA, see Jicarilla

Apache Nation v. Rio Arriba County, 440 F.3d 1202, 1211 n.4 (10th Cir. 2006)

(declining to consider a possible rational justification in a class-of-one case where

                                         -13-
the defendants did not raise it in court), it appears that Christian Heritage has

been “intentionally treated differently from others similarly situated” without any

rational basis. I therefore w ould reverse the judgment of the district court

granting summary judgment for the OSSAA.

      There is (or has been) uncertainty in this and other courts over whether the

plaintiff in a class-of-one equal protection suit must show that its discriminatory

treatment was motivated by some form of subjective malice, vindictiveness, or ill

will, in addition to being arbitrary and irrational. See Jennings v. City of

Stillwater, 383 F.3d 1199, 1210–11 (10th Cir. 2004) (describing but not resolving

the issue). The Supreme Court in Olech held that allegations of “irrational and

wholly arbitrary” action state a claim under a class-of-one theory, “quite apart

from the Village’s subjective motivation.” Olech, 528 U.S. at 565 (internal

quotation marks omitted). It therefore declined to consider the role that

“subjective ill w ill” might play in a class-of-one claim. Id. (internal quotation

marks omitted). In a separate opinion, not commanding a majority, Justice Breyer

concurred specifically on the ground that the plaintiffs alleged that the defendants

took “vindictive action” resulting from “illegitimate animus” and “ill will.” Id. at

566 (Breyer, J., concurring) (internal quotation marks omitted). On two

occasions, this Court has adopted Justice Breyer’s suggestion and has rejected

class-of-one claims in the absence of evidence of subjective ill w ill. M IM ICS,

Inc. v. Vill. of Angel Fire, 394 F.3d 836, 848–49 (10th Cir. 2005); Bartell v.

                                         -14-
Aurora Pub. Sch., 263 F.3d 1143, 1148–49 (10th Cir. 2001). 3

      On the facts of this case, it is not necessary to wade into this doctrinal

morass. Christian Heritage has raised a genuine issue of material fact as to

whether the denial of its applications for membership in the OSSA A was

motivated by subjective ill will. Various O SSAA reports indicate that its

members harbored “strong negative feelings” toward nonpublic schools, and

“placed ALL non-public schools into an unfavored group status.” App. 530. One

document explicitly suggests that “bias and prejudice” might have motivated

opposition to nonpublic schools’ admission. Id. W hether or not these statements

are tantamount to party admissions, as Christian Heritage claims, they serve as



      3
        Other courts of appeals have divided on the question. One circuit
appeared to reject a requirement of subjective ill w ill, see Jackson v. Burke, 256
F.3d 93, 97 (2d Cir. 2001) (per curiam) (“To be sure, proof of subjective ill will
is not an essential element of a ‘class of one’ equal protection claim.”), but has
since called its early statements “merely dicta” and determined that the question
remains open, Bizzarro v. M iranda, 394 F.3d 82, 88 (2d Cir. 2005). Another has
explicitly construed Olech as requiring subjective animus, see Hilton v. City of
Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000) (“gloss[ing]” Olech as requiring
animus), although subsequent panels have attempted to change course, see Racine
Charter O ne, Inc. v. Racine Unified Sch. Dist., 424 F.3d 677, 683–84 (7th Cir.
2005) (noting competing lines of cases within the circuit and reserving the
question). Two courts of appeals have adopted an approach similar to that of the
majority, recognizing two or three types of class-of-one claims, only one of which
requires subjective ill w ill. See M ikeska v. City of Galveston, 451 F.3d 376, 381
& n.4 (5th Cir. 2006); TriH ealth, Inc. v. Bd. of Comm’rs, Hamilton County, 430
F.3d 783, 788 (6th Cir. 2005). But see Shipp v. M cM ahon, 234 F.3d 907, 916 (5th
Cir. 2000) (holding that Olech requires “illegitimate animus or ill-will”),
overruled in part on other grounds, M cClendon v. City of Columbia, 305 F.3d 314
(5th Cir. 2002) (en banc).

                                        -15-
sufficient evidence at summary judgment to allow a jury to conclude that ill will

or vindictiveness actually motivated the decision. Thus we need not resolve

whether subjective ill will is an essential element of a class-of-one claim;

Christian Heritage prevails under any formulation. The best course, I think, is to

follow our decisions in Jicarilla and Jennings by reserving the question for a case

in which the outcome actually matters. See Jicarilla, 440 F.3d at 1210 (holding

that “it is not necessary to resolve” whether animus is “a necessary condition for

a class-of-one claim” because “it is not a sufficient one”); Jennings, 383 F.3d at

1211–12 (noting that the plaintiff “could not prevail” if subjective ill will is

required, but “not rest[ing] our decision on that ground”).

                                   III. Conclusion

      I C ON C U R in the reversal of the district court’s grant of summary

judgment to the OSSAA. I respectfully DISSENT from the equal protection

analysis of Part II.B.1 which culminates in a grant of summary judgment for

Christian Heritage. Instead, I would remand to the district court for further

proceedings on Christian Heritage’s class-of-one claim.




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