Communities for Equity v. Michigan High

459 F.3d 676

COMMUNITIES FOR EQUITY, Plaintiff-Appellee, v. MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION, Defendant-Appellant.

No. 02-1127.

United States Court of Appeals, Sixth Circuit.

Argued: March 14, 2006.

Decided and Filed: August 16, 2006.

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ARGUED:

Maureen E. Mahoney, Latham & Watkins, Washington, D.C., for Appellant. Kristen Galles, Equity Legal, Alexandria, Virginia, for Appellee.

ON BRIEF:

Maureen E. Mahoney, Latham & Watkins, Washington, D.C., for Appellant. Kristen Galles, Equity Legal, Alexandria, Virginia, for Appellee. Brad A. Banasik, Michigan Association of School Boards, Lansing, Michigan, Jonathan E. Lauderbach, Currie Kendall, Midland, Michigan, for Amici Curiae.

Before: KENNEDY, COLE, and GILMAN, Circuit Judges.

GILMAN, J., delivered the opinion of the court, in which COLE, J., joined.

KENNEDY, J. (pp. 699-704), delivered a separate opinion concurring in part and dissenting in part.

OPINION

RONALD LEE GILMAN, Circuit Judge.

Communities for Equity (CFE), a group comprised of parents and high school athletes that advocates on behalf of Title IX compliance and gender equity in athletics, brought a class action lawsuit against the Michigan High School Athletic Association (MHSAA), arguing that MHSAA's scheduling of sports seasons discriminates against female athletes on the basis of gender. The district court concluded that MHSAA's actions violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, Title IX of the Civil Rights Act of 1964, and Michigan's Elliott-Larsen Civil Rights Act. In 2004, this court affirmed the judgment of the district court on the ground that MHSAA's actions violate the Equal Protection Clause. Cmtys. for Equity v. Mich. High School Athletic Ass'n (CFE I), 377 F.3d 504 (6th Cir.2004). The CFE I court did not reach the Title IX or state-law issues.

Following a petition for certiorari filed by MHSAA, the United States Supreme Court vacated the CFE I decision and remanded the case for further consideration. The order, commonly referred to as a grant/vacate/remand order (GVR), directed this court to reconsider the case in light of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005), a case decided in the Court's last term. After reconsideration, and for the reasons set forth below, we again AFFIRM the judgment of the district court.

I. BACKGROUND

The background of this case is thoroughly discussed in the findings of fact of the district court, Communities for Equity v. Michigan High School Athletic Association, 178 F.Supp.2d 805, 807-846 (W.D.Mich.2001), and in CFE I, 377 F.3d at 506-10. CFE's basic complaint is that MHSAA discriminates against female high-school athletes by scheduling girls' sports to play in disadvantageous, nontraditional seasons. Our task is now to reevaluate this claim in light of the Supreme Court's GVR, which provides in relevant part as follows: "Petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Sixth Circuit for further consideration in light of our opinion in Rancho Palos Verdes v. Abrams" Mich. High School Athletic Ass'n v. Cmtys. for Equity, 544 U.S. 1012, 125 S.Ct. 1973, 161 L.Ed.2d 845 (2005).

On remand, MHSAA argues that, based on the Supreme Court's decision in Ranchos Palos Verdes, Title IX provides the exclusive remedy for the alleged violations that bars CFE from seeking additional remedies under 42 U.S.C. § 1983. CFE responds by contending that Rancho Palos Verdes does not apply to the present case and that CFE is therefore entitled to prevail under both Title IX and § 1983.

II. ANALYSIS

A. Standard of review

Constitutional and statutory interpretation questions are issues of law, which we review de novo. Ammex, Inc. v. United States, 367 F.3d 530, 533 (6th Cir. 2004). In contrast, we apply the "clearly erroneous" standard of review to the factual findings of the district court. Berger v. Medina City Sch. Dist., 348 F.3d 513, 519 (6th Cir.2003).

B. The Effect of Rancho Palos Verdes

1. Implications of the GVR

MHSAA relies on the following description of the GVR procedure to argue that the result in CFE I must be altered:

Where intervening developments, or recent developments that we have reason to believe the court below did not fully consider, reveal a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration, and where it appears that such a redetermination may determine the ultimate outcome of the litigation, a GVR order is . . . potentially appropriate.

Lawrence v. Chater, 516 U.S. 163, 167, 116 S.Ct. 604, 133 L.Ed.2d 545 (1996) (holding that a GVR is "an appropriate exercise of [the Supreme Court's] discretionary certiorari jurisdiction"). Subsequent interpretations of that language, however, make clear that a GVR does not indicate, nor even suggest, that the lower court's decision was erroneous.

In Stutson v. United States, 516 U.S. 193, 197-98, 116 S.Ct. 600, 133 L.Ed.2d 571 (1996), for example, the Court issued a GVR directing the Eleventh Circuit to reconsider that case in light of the Supreme Court's decision in Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). Focusing on the fact that the Eleventh Circuit did not fully consider whether Pioneer applied, and classifying Pioneer as a "potentially relevant decision[]," 516 U.S. at 197, 116 S.Ct. 600 (emphasis added), the Stutson Court acknowledged that the Eleventh Circuit may "conclude that Pioneer does not apply" and thus reach the same result on remand. Id. at 196, 116 S.Ct. 600.

Other courts have also opined that a GVR does not necessarily indicate that the Supreme Court desires a different result. In Gonzalez v. Justices of the Municipal Court of Boston, 420 F.3d 5, 7 (1st Cir.2005), for example, the First Circuit pondered the implication of a GVR that instructed the court to reconsider an earlier holding in light of a recent Supreme Court decision. After discussing the above-quoted language from Lawrence, the Gonzalez court opined:

It is important to remember, however, that a GVR order is neither an outright reversal nor an invitation to reverse; it is merely a device that allows a lower court that had rendered its decision without the benefit of an intervening clarification to have an opportunity to reconsider that decision and, if warranted, to revise or correct it. . . . Consequently, we do not treat the Court's GVR order as a thinly-veiled direction to alter our course; rather, the order recognizes—as do we—that the Smith decision is pertinent and requires us to determine whether anything that the Smith Court said demands a different result.

Id. at 7-8; see also United States v. Norman, 427 F.3d 537, 538 n. 1 (8th Cir.2005) ("The GVR is not the equivalent of a reversal on the merits, however. Rather, the Court remands for the sake of judicial economy—so that the lower court can more fully consider the issue with the wisdom of the intervening development."). The GVR therefore requires us to consider the effect of Rancho Palos Verdes on the present case, but it does not suggest that the Supreme Court believes that CFE I was wrongly decided.

2. Summary of the Sea Clammers/Rancho Palos Verdes doctrine

In order to analyze the issue highlighted by the GVR, a brief summary of § 1983 and the line of cases on which Rancho Palos Verdes relied is essential. The key language of 42 U.S.C. § 1983 provides in relevant part as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .

For plaintiffs, then, § 1983 serves as a vehicle to obtain damages for violations of both the Constitution and of federal statutes.

Middlesex County Sewerage Authority v. National Sea Clammers, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981), is the seminal case discussing the intersection between statutory remedies and § 1983, and it provides the basis for the Supreme Court's later decision in Rancho Palos Verdes. In Sea Clammers, the plaintiffs were fishermen who worked off the coast of New York and New Jersey. They brought suit under the Federal Water Pollution Control Act (the FWPCA), 33 U.S.C. § 1251, the Marine Protection, Research, and Sanctuaries Act of 1972 (the MPRSA), 33 U.S.C. § 1401, and § 1983, alleging a violation of the preceding statutes as a result of damage to fishing grounds caused by polluters dumping sewage and other waste in the ocean. Sea Clammers, 453 U.S. at 4-5, 101 S.Ct. 2615.

The substantive statutes at issue in Sea Clammers—the FWPCA and the MPRSA—authorize the Administrator of the Environmental Protection Agency (EPA) to seek civil and criminal penalties for violations of the acts, and permitted "any interested person[]" to seek judicial review of the Administrator's actions regarding the issuance of pollutant discharge permits and the establishment of pollution standards. Id. at 13-14, 101 S.Ct. 2615. Both statutes contain an express citizen-suit provision, but those provisions authorize private parties to sue only for injunctive relief rather than the monetary relief the plaintiffs in Sea Clammers were seeking. Id.

The Sea Clammers Court focused on Congress's intent, and held that the plaintiffs could not use § 1983 as a vehicle to enforce federal statutory laws where the acts themselves contained "unusually elaborate enforcement provisions." Id. at 13, 101...