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Conference Call summarizes the roughly 15 percent of all non-pauper petitions that are the most likely candidates for certiorari. The Supreme Court’s jurisdiction is almost entirely discretionary, and justices in recent years have annually selected roughly 80 petitions from the approximately 7,500 that are filed. Conference Call is prepared by the law firms Akin Gump Strauss Hauer & Feld and Howe & Russell, which together publish the Supreme Court weblog. Tom Goldstein, who is the head of Supreme Court litigation for Akin Gump, selects the petitions from the docket of non-pauper petitions. Various attorneys for the firms then prepare summaries of the cases. If either firm is involved in a case mentioned in this column, that fact will be disclosed.
During the early 1970s, the growing popularity of female athletics led to a dramatic increase in the number of high school girls participating in school-sponsored sports. While this increased participation was generally regarded as a positive development, it often created logistical problems for school officials, who found themselves having to deal with greater numbers of athletes and teams without a concomitant increase in the availability of facilities, coaches, and referees. The Michigan High School Athletic Association responded to these logistical problems by scheduling certain sports in different seasons for the girls’ and boys’ teams — for example, it designated girls’ basketball as a fall sport, while boys continued to play basketball in the more traditional winter season. According to Communities for Equity, a group that advocates on behalf of Title IX compliance and gender equity in sports, the athletic association’s scheduling decision violates the girls’ constitutional and statutory rights. Whether MHSAA’s scheduling decision is constitutional is just one of the issues implicated by Michigan High School Athletic Association Inc. v. Communities for Equity (No. 06-1038), which the Supreme Court will consider at its private conference on March 30. The case presents two questions: Whether differences in single-sex programs are constitutional unless the plaintiff can prove either discriminatory animus or that the programs are substantially unequal overall; and whether Title IX of the 1972 Education Amendments is the exclusive remedy for gender discrimination by federal fund recipients in their athletic programs. In 1998, Communities for Equity — whose membership is comprised of parents and high school athletes — filed a class action in federal district court against MHSAA. Communities for Equity alleged that MHSAA’s scheduling of selected girls’ sports in disadvantageous, nontraditional seasons constitutes unlawful gender discrimination in violation of Title IX, the Equal Protection Clause of the Fourteenth Amendment as enforced through 42 U.S.C.�1983, and Michigan’s Civil Rights Act. After a bench trial, the court ruled in favor of Communities for Equity on each of its claims, and the 6th Circuit affirmed the judgment of the district court. Notably, the United States participated as amicus curiae in support of CFE’s position in the proceedings before the district court and the 6th Circuit. MHSAA filed a petition for certiorari, which the Court granted to remand the case for further consideration in light of its 2005 decision in Rancho Palos Verdes v. Abrams, which held that Congress intended the Telecommunications Act to be the exclusive relief available to a plaintiff complaining of a violation of the act. On remand, the 6th Circuit reviewed the line of cases that originated with Middlesex County Sewerage Authority v. National Sea Clammers — in which the Court held that plaintiffs could not use Section 1983 to enforce federal statutory laws when the acts themselves contained “unusually elaborate enforcement provisions” clearly indicating that Congress intended the remedies provided in the acts to be complete — and culminated with Rancho Palos Verdes, which the 6th Circuit read as extending only to statutes containing an explicit private remedy sufficiently comprehensive to imply that Congress intended the remedy to be exclusive. In applying this line of cases to Title IX, the 6th Circuit emphasized that the key inquiry is whether Congress intended Title IX’s remedies to be exclusive. The 6th Circuit concluded that Title IX does not contain an explicit private remedy sufficiently comprehensive to indicate that Congress intended the remedy to be exclusive. And notwithstanding the Supreme Court’s holding in Cannon v. University of Chicago that a private remedy was implicit in Title IX, the 6th Circuit further held that CFE was not precluded from seeking relief under Section 1983. Turning to the merits of CFE’s equal protection claim, the 6th Circuit held that because MHSAA’s scheduling decision was a facially gender-based classification, CFE was not required to show that a discriminatory animus motivated the decision. Instead, the burden fell on MHSAA to show that the discriminatory scheduling served important governmental objectives and was substantially related to the achievement of those objectives. Concluding that MHSAA failed to satisfy its burden, the court of appeals affirmed the district court’s holding with regard to CFE’s equal protection claim as well as the group’s Title IX and state law claims. Represented by Maureen Mahoney of Latham & Watkins, MHSAA again sought certiorari from the 6th Circuit’s decision in CFE’s favor. In its current petition, it argues that CFE failed to challenge the only gender classification implicated in the case — the decision made in the early 1970s to have separate sports teams for boys and girls. The implementation of that decision, MHSAA contends, does not classify anyone by gender and is constitutional unless the plaintiff proves discriminatory intent. MHSAA further argues that certiorari is warranted in light of the deep circuit split over whether Title IX is the exclusive federal remedy for claims of gender discrimination in athletics. Lastly, MHSAA urges the Court to grant review in the case to provide much-needed guidance to members of the educational community and any other state officials who must administer gender-segregated programs or facilities. Represented by Kristen Galles of Equity Legal, CFE urges the Court to deny certiorari. Depicting the case as arising in a “distinctive factual and procedural scenario,” it contends that the case is a poor vehicle for deciding the equal protection issue. Specifically, it explains, in light of the lower courts’ rulings on CFE’s Title IX and state law claims, the disposition of the equal-protection claim is not outcome-determinative. CFE also opposes certiorari on the ground that Congress did not intend Title IX to displace CFE’s right to bring a parallel action under Section 1983. Finally, CFE argues, review is not warranted because, contrary to MHSAA’s characterization, the case does not present any issue of national importance and involves facts that are “unique and unlikely to recur” in light of MHSAA being the only state high school athletic association in the nation that still schedules girls but not boys in disadvantageous seasons. The Supreme Court may announce whether it will hear the case as early as April 2. — Troy D. Cahill
OTHER CASES UP FOR REVIEW INCLUDE THE FOLLOWING: Conference of March 23 •�06-477, Banda-Ortiz v. Gonzales (5th Circuit) Whether a timely filed motion to reopen removal proceedings before the Board of Immigration Appeals does not toll an alien’s previously established voluntary departure period, such that a grant of voluntary departure will virtually always require the forfeiture of an alien’s statutory right to seek reopening of the removal proceedings. •�06-694, United States v. Williams (11th Circuit) Whether Section 2252A(a)(3)(B) of Title 18 (regulating child pornography) is overly broad and impermissibly vague, and thus facially unconstitutional. •�06-863, Fausey v. Hiller (Supreme Court of Pennsylvania) Whether the due process clause is violated when a court orders grandparent visitation over a fit parent’s objection, where the grandparent has not proved by clear and convincing evidence that such an order is necessary to prevent harm or potential harm to the child. •�06-995, Dane Investments v. H&R Block (5th Circuit) Whether “manifest disregard of the law” is the only acceptable nonstatutory ground for federal courts to use in vacating National Association of Securities Dealers public investor arbitration awards, or whether other nonstatutory grounds, such as “unconscionable results,” are acceptable as independent grounds for vacatur. •�06-1034, Smook v. Minnehaha County, S.D. (8th Circuit) Whether the Fourth Amendment prohibits a policy that requires a strip search of all juveniles brought to a juvenile detention facility without regard to individualized considerations, such as the individual’s circumstances, the alleged offense, or whether individualized suspicion exists to believe that the juvenile is carrying or concealing weapons or contraband. Conference of March 30 •�05-1623, Tilton v. Buckley (9th Circuit) Whether “clearly established federal law” requires the California courts to apply state contract law to a plea-bargain claim. •�06-808, Doe v. United States (Federal Circuit) Whether the government can deny a person a statutory entitlement based on failure to satisfy a regulatory requirement that the government itself deliberately refused to fulfill. •�06-1085, Ayers v. Freitag (9th Circuit) Whether Title VII of the Civil Rights Act of 1964 supports a female prison guard’s action for sexual harassment against a state prison when the action is based on an allegedly hostile work environment caused by prisoners’ lewd sexual misconduct. •�06-1195, Boumediene v. Bush; 06-1196, Al Odah v. United States (D.C. Circuit) Whether the Military Commissions Act of 2006 validly stripped federal courts of jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station at Guant�namo Bay; whether the petitioners’ habeas corpus petitions, which establish that the United States government has imprisoned the petitioners for more than five years, demonstrate unlawful confinement requiring the grant of habeas relief or, at least, a hearing on the merits. (Expected to be considered.)

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