LOCAL LITIGATION NOW NATIONAL ISSUE

In June of 1998, when a small, informal Grand Rapids area group filed suit against the Michigan High School Athletic Association which has prevailed in every legal action for 20 years, it may have seemed a mismatch of David and Goliath proportions.

However, what began as an action to force the MHSAA to change the time of year for some of its post-season tournaments (so they would coincide with college seasons), the rules for those tournaments (to be the same as the intercollegiate level), the places the tournaments are played and even the sports for which the tournaments are conducted, has become a lawsuit that could define the scope of the Federal Government's authority in the affairs of privately funded, not-for-profit, voluntary organizations . . . with the MHSAA playing the part of David and the United States Government as Goliath.

The case is not about equity; it's about government control. More precisely, it's about a private organization's institutional integrity to conduct its activities that are not clearly illegal without government intervention.

The plaintiffs advance a theory of equity -- that any difference between girls and boys programs or between high school and college programs is discriminatory - with which no league or statewide association of coaches or administrators in Michigan is in agreement.

The lightning rod for this litigation is that the high schools of Michigan conduct girls basketball in the fall and girls volleyball in the winter, which is opposite intercollegiate seasons and all other states and Canadian provinces except Montana, North Dakota, South Dakota, the smaller high schools of Virginia and the province of Ontario. Obviously, the MHSAA schedules its postseason tournaments to coincide with schools' calendars. A 1999 survey of female student-athletes and five surveys of member schools during the past 25 years demonstrate huge support for the Michigan model.

While Michigan's high school population base ranks seventh or eighth in the nation, depending on the source, Michigan ranks fourth in the number of female high school golfers and tennis players and third in the number of female high school basketball and volleyball players.

The MHSAA argues more than the considerable facts available to support the benefits of the calendar preferred by its member schools. The MHSAA asserts that the association is not subject to Title IX of the 1972 Education Amendments.

The MHSAA bases its argument on the fact that the MHSAA receives no federal funds directly or indirectly, a position affirmed by the US Department of Education Office for Civil Rights in 1982, and by a Federal District Court in Kalamazoo, Mich., in this action last January.

But this Federal District Court also said it doesn't matter whether or not the MHSAA receives federal funds directly or indirectly. The court held that schools which do receive federal funds have ceded control of interscholastic athletics to the MHSAA (notwithstanding that Michigan law prohibits schools from doing so) and that such delegation of authority to the MHSAA subjects the MHSAA to Title IX.

The MHSAA has appealed the District Court's decision to the US Court of Appeals for the Sixth Circuit, and the US Department of Justice is intervening for the plaintiffs to try to preserve this expansive reading of Title IX.

The MHSAA didn't choose and doesn't have the authority - practically or legally -- to dictate what sports local schools will sponsor and when they will conduct those sports. The MHSAA has argued that the plaintiffs had the wrong target for their lawsuit.

But now that the federal government has intervened in the case, it's clear that the intent is to bring even privately funded organizations under the federal government's control.

When Title IX was passed in 1972, it applied only to the specific programs of schools and colleges which were recipients of federal funds. After the United States Supreme Court affirmed that interpretation, the Federal Legislature expanded Title IX to apply to entire institutions whether or not the specific discriminatory act occurred in a federally funded program.

Now, the United States Government is pursuing the interpretation that Title IX not only applies to the institutions which receive federal funds but also to any private organization to which a publicly funded institution belongs, even if that organization does not receive federal funds and even if that organization itself does not have discriminatory policies and procedures, as the US Office of Civil Rights concluded in the case of the MHSAA in 1984.

The MHSAA, David in this drama, is attempting to force the Federal Government to restrain itself within the clear language of Title IX and to force the Federal District Court to restrain itself within the controlling legal precedent of the Sixth Circuit and the United States Supreme Court.

None other than the Michigan Supreme Court stated in 1985 in Woodland v. Michigan Citizens Lobby: "It is the heart of the American libertarian tradition that the individual be given wide rein in structuring his relationships with other individuals, if only because the alternative of close government threatens liberty itself." That liberty is threatened in Michigan high school athletics.

Even during this distraction, the MHSAA continues its pursuits of listening to its constituents and providing for them the best possible post-season tournaments and support services for educational athletics, including these exemplary activities to promote girls interscholastic athletics:

· 12 MHSAA post-season tournaments for girls only and 12 more post-season tournaments for both girls and boys.

· First-in-the-nation Athletic Equity Committee created exclusively by and for a high school athletic association.

· First-in-the-nation Women in Sports Leadership Conference to encourage and equip girls and women in sports vocations and avocations.

If the federal government wants to exercise its muscle, why not strong-arm colleges which televise 40 to 50 men's basketball games for every one women's basketball game, and which televise every one of their Division 1 men's basketball tournament games on CBS and but a few of its Division 1 women's tournament games on ESPN. The MHSAA requires the same network televise both its boys and girls basketball tournaments and air an equal number of games for each gender.

The MHSAA - a small, non-taxpayer funded organization doing admirable things for girls athletics while fighting a huge tax-supported agency looking to increase its power and purpose - is still the wrong target.