Order                                                                                         Michigan Supreme Court
                                                                                                    Lansing, Michigan

  December 7, 2011                                                                                      Robert P. Young, Jr.,
                                                                                                                  Chief Justice

  143798 & (14)(15)                                                                                     Michael F. Cavanagh
                                                                                                              Marilyn Kelly
                                                                                                        Stephen J. Markman
                                                                                                        Diane M. Hathaway
                                                                                                            Mary Beth Kelly
  DEPARTMENT OF CIVIL RIGHTS, ex rel                                                                        Brian K. Zahra,
  BELINDA ROBBINS, Next Friend of SANG                                                                                 Justices
  WOO ROBBINS,
           Plaintiff-Appellee,
  v                                                                  SC: 143798
                                                                     COA: 305894
  MICHIGAN HIGH SCHOOL ATHLETIC                                      Lenawee CC: 11-004141-CZ
  ASSOCIATION,
             Defendant-Appellant.
  ____________________________________/

         On order of the Court, the motion for immediate consideration is GRANTED.
  The application for leave to appeal the September 21, 2011 order of the Court of Appeals
  is considered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we
  REMAND this case to the Court of Appeals for consideration as on leave granted of
  whether the trial court abused its discretion by granting plaintiff’s motion for a
  preliminary injunction, Freeman v Mitchell, 198 Mich 207, 210 (1917), after considering
  de novo the following threshold issues: (1) whether the Michigan High School Athletic
  Association (MHSAA) is a “state actor” for purposes of the Fourteenth Amendment and
  42 USC § 1983, see Brentwood Academy v Tennessee Secondary School Athletic Ass’n,
  531 US 288, 303 (2001); (2) whether, under the Elliott-Larsen Civil Rights Act, MCL
  37.2101, et seq., the MHSAA provides a “public service” or constitutes a “place of public
  accommodation,” MCL 37.2301; and (3) whether the MHSAA’s rules categorize persons
  on the basis of an inherently suspect characteristic or jeopardize the exercise of a
  fundamental right; and if not, whether there is a rational basis for the MHSAA’s rules.
  See generally, Nordlinger v Hahn, 505 US 1, 10 (1992). The motion for stay is
  DENIED.

        We do not retain jurisdiction.

        MARILYN KELLY and HATHAWAY, JJ., would deny leave to appeal.




                            I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                      foregoing is a true and complete copy of the order entered at the direction of the Court.
                            December 7, 2011                    _________________________________________
         h1130                                                                  Clerk
