THE MHSAA'S POSITION

On the Law
1. The MHSAA is not a "recipient" of federal funds directly or indirectly and therefore is not subject to the contract requirements of Title IX.

The federal district court agreed with the MHSAA's non-recipient status, but disagreed with the MHSAA, Michigan Supreme Court and Michigan Attorney General in finding that recipient schools have ceded authority for interscholastic athletics to the MHSAA; and, although schools pay no money to the MHSAA, the District Court held that the MHSAA is subject to the contract requirements of Title IX.

2. The MHSAA is not a "state actor" for purposes of Fourteenth Amendment analysis.

The federal district court disagreed with the MHSAA and specifically refused to follow the law set forth by the Sixth Circuit of the US Court of Appeals.

On the Facts
1. The Michigan model not only does not discriminate, it is a system preferred by the vast majority of stakeholders - including more than 70% of female student-athletes, more than 80% of member schools, most media, every statewide association of coaches and administrators, and every league and conference - because it has proven that Michigan schools' scheduling of seasons actually enhances participation, coaching, officiating, media coverage and facility usage (and, incidentally, visibility for higher education opportunities).

2. There has been no evidence presented during this case or before of any harm to any person as a result of the MHSAA's policy to conduct post-season tournaments in only the most popular high school sports and to do so in the season most popular for sponsoring schools and to do so with competition rules most popular for the high school level rather than rules of college organizations.

The federal magistrate in this case concluded this case is about a cause, not real people. It is a cause with which very few people agree and, because there has been no harm, a cause for which there is no remedy.

On Title IX
The following was published in the MHSAA Bulletin in February 1996, nearly two-and-a-half years before this lawsuit commenced.

“Title IX Compliance Made Simple”
We are sometimes asked to provide informal guidance or even make speeches about Title IX. It's a little awkward for the Michigan High School Athletic Association to comply with such requests.
In the first place, the MHSAA is not itself subject to Title IX because, as even the Region V Office for Civil Rights of the U.S. Department of Education determined in 1982, the "MHSAA does not receive federal financial assistance."
Secondly, the MHSAA has no authority with respect to Title IX: no authority to enforce Title IX or even to interpret the Title IX regulations. For the MHSAA to interpret Title IX regulations for the Office for Civil Rights would be no more appropriate than for OCR to interpret MHSAA regulations for us. The OCR has no authority or responsibility for our regulations; and the MHSAA has no authority or responsibility for OCR's regulations.
So we don't seek opportunities to give advice or invitations to speak; but when we are asked about Title IX, we try to be consistent in offering some pretty simple but still pretty sage advice.
We think that common sense and the golden rule answer most questions about Title IX compliance.
While OCR may not always use common sense in making and enforcing Title IX regulations, schools can avoid most complaints and investigations by applying the golden rule and common sense.
If schools make sure people of either gender are treated the way we ourselves would like to be treated, there would never have been need for any civil rights laws, much less any affirmative action laws. If the golden rule had guided us as a people and a nation, we would have done what was right long before anyone saw the need for intrusive legislation.
So how does this actually work in the nine areas of compliance which OCR has identified for Title IX compliance?
In the accommodation of the athletic interests and abilities of boys and girls, we would ask the boys and girls what they wanted, put ourselves in their places, and try to do everything possible to accommodate them. Fairness and common sense would not allow us to deny opportunities to either gender, even if it meant providing more opportunities to the gender that already has more participants. We wouldn't look at the number of participants regardless of interest, we would look at the number of participants in the context of their interest and try to accommodate the interest equally, even if that meant more participants of one gender than another because it was clearly demonstrated there was more interest by that gender than the other.
With respect to equipment and supplies, we would never limit one gender to resources that were inferior to the other gender. Fairness and common sense would dictate that each gender would have the same quantity and quality equipment and supplies, based on the number of participants and appropriate to the sports involved.
With respect to scheduling of games and practice time, schools would ask the participants what they needed and they wanted. Some coaches and athletes may prefer or require practicing right after school, others after dinner; some might prefer playing games on week nights, others on weekends. When consensus of needs and desires is established, we should do everything possible to accommodate those, of course, in the context of being able to arrange adequate competition (i.,e., other schools) to play.
Regarding travel and per diem allowance, fairness and common sense dictate that there be no difference in the policies for boys and girls teams. Fair is fair. Treat others the way you would want to be treated.
With respect to coaches, fairness and common sense dictate that we get the best possible coaching for both boys and girls. And we compensate them according to the objective demands of their jobs.
With respect to locker rooms, practice and competitive facilities, there is nothing to justify treating boys and girls differently. Access to the better locker rooms and practice facilities and game facilities should be equal for boys and girls. The golden rule simply demands it.
With respect to medical and training facilities and services, no one could justify anything less for one gender versus the other. In addition to fairness and common sense, legal liability demands it.
With respect to publicity, we need to make the same efforts on behalf of both boys and girls because they're certainly making the same efforts to be team members. We can't demand any particular result of our publicity, because we don't control the air waves and sports pages; but fairness and common sense demand that we make the same effort on behalf of the boys and girls programs.
With respect to support services, such as administrative assistance and secretarial and clerical assistance, our efforts should be comparable for boys and girls.
If we ask ourselves if we would want to be treated like the boys in this program or the girls in that program, and we can't answer "yes," then we need to make changes in that program. Common sense demands it. The golden rule requires it.
That's Title IX compliance made simple. Perhaps too simple for some, but if we start with this simplicity, we can answer most of our own questions without seeking advice from a private organization like the MHSAA or a governmental entity like OCR.