Law Review Note Addresses the Michigan Seasons Case

The Vanderbilt Journal of Entertainment and Technology Law's current issue (9 Vand. J. Ent. & Tech. L. 861) includes a Note by Jane Heffernan called Changing Seasons, Changing Times: The Validity of Nontraditional Sports Seasons Under Title IX and the Equal Protection Clause. Heffernan writes:

The combination of holdings over almost ten years of litigation in the Communities for Equity v. MHSAA cases has led to an excessively high standard of scrutiny that is applied broadly to virtually any decision made between male and female athletic programs. By holding the MHSAA liable under both Title IX and Section 1983, the court treated the scheduling decisions as facial gender classifications, which require intermediate scrutiny by the court, thus creating a presumption of discrimination and shifting the burden to the defendant athletic association to prove a substantial governmental interest. As one of the first major in-depth cases involving Title IX and Equal Protection compliance in interscholastic athletic programs, this case and the approach taken by the Sixth Circuit in Communities for Equity will most likely have major implications regarding the decisions made nationally, not just for interscholastic athletics, but also quite possibly reaching into the classrooms themselves.

Heffernan fears that Communities for Equity hamstrings schools by requiring them to treat their girls' and boys' programs exactly the same:

Once the decision to have separate teams for males and females is made, there must be some flexibility within the Equal Protection Clause analysis for decisions to be made with regard to the teams without those decisions being further classified as gender-based. Under the Sixth Circuit's approach, any decision made in which the gender-based teams do not mirror each other will necessarily treat girls and boys differently and thus become subject to potential equal protection claims.

I don't think that Communities for Equity applies to "virtually any decision" or goes so far as to require teams to "mirror each other." Different conditions are fine, as long as the difference isn't discriminatory. The fact that MHSAA scheduled separate seasons for girls and boys in six sports did not violate Title IX or the Equal Protection Clause. It could have easily defended a decision to, say, schedule one sex's basketball season in fall and the other one in winter, even under intermediate scrutiny, on the rationale that doing so would better ensure sufficient access to facilities, coaching, equipment, whatever. What the court said MHSAA could not defend was the fact that in all six of its decisions to separate the seasons for boys and girls, girls got stuck with the less advantageous season. To me, that's not "excessive" scrutiny, that's appropriate scrutiny.