CHRISTIAN HERITAGE ACADEMY, a private corporation, Plaintiff-Appellant, v. OKLAHOMA SECONDARY SCHOOL ACTIVITIES ASSOCIATION, a not-for-profit association, Defendant-Appellee, 483 F.3d 1025

BRISCOE, Circuit Judge. Plaintiff Christian Heritage Academy (“Christian Heritage”) filed this action pursuant to 42 U.S.C. § 1983 claiming, in pertinent part, that defendant Oklahoma Secondary School Activity Association’s (“OSSAA’s”) membership requirements for nonpublic schools violated the Equal Protection Clause. The district court granted

summary judgment in favor of OSSAA. Christian Heritage now appeals from that ruling. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand. I. OSSAA is Oklahoma’s state-organized school activities association, which regulates interscholastic activities. For athletics, OSSAA determines athletic divisions, sets eligibility rules, and holds state playoffs and championships. Christian Heritage is a private religious school in Del City, Oklahoma, and well-known for its eight-man football team.

Since it is not an OSSAA member, Christian Heritage cannot participate in the state-organized activities association or compete in the state-organized play-offs or championships. Christian Heritage has applied for OSSAA membership on two occasions, but OSSAA denied its applications, both of which failed to garner majority approval from OSSAA member schools. Christian Heritage has satisfied all other membership requirements, except obtaining majority approval.

OSSAA’s admission requirements for nonpublic schools OSSAA has 471 member schools, and twelve of its members are nonpublic schools (ten of which are private schools and two are Indian schools). Of the private schools, eight are located in suburban areas, while two are in rural areas. The OSSAA Constitution, which governs membership in the. association, applies different application procedures for public and nonpublic schools: a. Membership in the Association shall be open to public schools ... and other schools as approved by the members of the Association. b.

Any secondary school desiring to become a member of the Association is to file with the Executive Secretary a resolution, ... authorizing such membership .... Upon submitting the resolution, and all entry fees or other reports required by the Association, a public school ... shall be admitted to membership. All other schools must be approved by a majority vote of the existing membership and, if approved, must submit all entry fees and reports required to establish membership. OSSAA Const, art. Ill, § 1 (emphases added), App. Vol. 1, at 57.

To be admitted into OSSAA, public schools merely apply, but nonpublic schools must garner approval by majority vote from OSSAA members. When a nonpublic school applies for membership, OSSAA members vote for or against the application. Importantly, however, OSSAA members are provided with, and are subject to, no standards or guidelines in voting. Instead, the ballot simply describes the geographic area where students are immediately eligible for athletics in the nonpublic applicant school by reason of residence. OSSAA’s Rule 8 lists the geographic areas for nonpublic schools that are admitted.

See OSSAA Rule 8, § 1(b), App. Vol. 1, at 72. Thus, when a nonpublic school is admitted into OSSAA, Rule 8 is amended to include its geographic area for eligibility. Pursuant to OS-SAA’s Constitution, any amendment to the rules of the association, including Rule 8, must be approved by a majority vote of the member schools. OSSAA. Const, art. VII, § 2, App. Vol. 1, at 63. Thus, on the same ballot and in one vote, member schools vote simultaneously whether to admit a nonpublic school, and whether to amend Rule 8 to establish its geographic area.

Christian Heritage’s first application On March 4, 1998, Christian -Heritage applied to join OSSAA. Simultaneous with Christian Heritage’s first application to OSSAA, there was controversy surrounding admission of nonpublic schools to OSSAA membership. On March 16, 1998, Perry Adams, the Superintendent of Inola Public Schools, sent a letter and petition to all member schools. Adams’ letter stated that it “has become necessary for us to examine some problems, perceived or real, that have arisen” given the “growing number of nonpublic schools asking and receiving acceptance” to OSSAA. App. Vol. 3, at 506.

Adams’ petition listed five -items concerning “participation and classification of nonpublic schools in OSSAA sanctioned activities,” and it mentioned Christian Heritage by name:

(1) Non-public schools[’] ability to offer financial aid (scholarships) or work student and work assistance programs.

(2) Non-public schools[’] district size. (i.e. On March 26, 1998 the OSSAA will be mailing ballots to membership schools allowing them the opportunity to vote to accept or not to accept Christian Heritage Academy into the OSSAA. Christian Heritage Academy has designated their district boundary lines to include all of Moore Public Schools district and all of Midwest City/Del City Public Schools district, which have a combined total 9-12 membership of 9,670 students which are divided into four 6A schools and one 5A school. If voted in, Christian Heritage Academy would be a 2A school with a 9-12 membership of 218 students).

(3) Non-public student transfer restrictions as related to public schools student transfer restrictions (i.e. under current public school law a transfer student must be accepted by both receiving and sending district. Non-public schools have no such restrictions).

(4) Non-public school membership audits for verification of OSSAA classification.

(5) Percentage of students who participate in OSSAA activities in public schools as related to percentage of students participating in non-public schools. Adams’ Petition, App. Vol. 3, at 507. Adams asked member schools to return the petition to him “[i]f you agree that some of these items need to be addressed.” Id. at 506. Seventy-two member schools returned petitions to Adams.

Given the increased controversy concerning the admission of nonpublic schools into OSSAA, on March 25, 1998, .the OS-SAA Board of Directors discussed “concerns that recently surfaced with public schools regarding OSSAA non-public schools.” App. Vol. 3, at 503. On March 26, 1998, OSSAA mailed ballots to all member schools to vote on Christian Heritage’s application. The ballot defined Christian Heritage’s school boundaries as the Mid-Del and Moore School Districts, which are two suburban school districts near Oklahoma City.

The ballot stated that Christian Heritage had 218 students in grades 9-12, which would classify it as a 2A school in athletics. The ballot had no space to allow a member school to explain its vote for or against Christian Heritage’s application, and the ballot instructed “PLEASE DO NOT ENCLOSE OTHER CORRESPONDENCE WITH BALLOT.” App. Vol. 3, at 505. Christian Heritage prepared a letter advocating its membership, which was attached to each ballot. The postmark deadline for the ballots was April 13,1998.

With 184 schools voting against the application, and 153 schools voting for it, OSSAA denied Christian Heritage’s application in April 1998 because it failed to garner majority approval. Danny Ren-nels, OSSAA’s Executive Secretary, acknowledged that before the “first vote on Christian Heritage, it had become evident that admission of non-public schools to membership had become more controversial than in the recent past.” Rennels Aff. ¶ 12, App. Vol. 6, at 1094.

On April 20, 1998, Superintendent Adams forwarded Executive Secretary Rennels the seventy-two petitions from member schools who had indicated that the participation and classification of non-public schools in OS-SAA sanctioned activities needed to be addressed. In November 1998, the OSSAA’s Board of Directors created the Nonpublic and Public School Relations Committee (“Committee”). The Committee would investigate member schools’ concerns about nonpublic schools, and it included public and nonpublic school representatives, including Adams.

Some public schools voiced concerns at area meetings regarding criteria for enrollment, admission standards, scholarships and recruiting, size of districts for nonpublic schools, and even distorted enrollment numbers because nonpublic schools “do not have special education students” included in their average daily membership. App. Vol. 3, at 532. The Committee rejected each of the proffered reasons for denying membership to nonpublic schools in a Special Report, which was mailed to all OSSAA members in January 1999.

The Committee emphasized that OSSAA rules prohibit recruiting or providing scholarships for athletics, and that the transfer rule effectively resolves concerns about a nonpublic school designating its geographic boundary. The Committee concluded that “communication seems to be the real problem” because the “fact that the OSSAA Handbook of Rules and Regulations applies to all schools, public and non-public, doesn’t seem to be fully grasped.” App. Vol. 3, at 522. Doyle Greteman, Superintendent of Lindsey Schools, expressed that “many of those concerns [about nonpublic schools] have been unfounded.” App.

Vol. 3, at 522. The Committee concluded that “there is a shortage of FACTS amongst the OSSAA membership and inadequate knowledge of the OSSAA Administrator’s Handbook.” App. Vol. 3, at 532. The Committee observed that member schools had no uniform reason for their negative feelings toward nonpublic schools.

In a report to OSSAA’s Board of Directors and Executive Secretary Rennels, the Committee Chairman concluded that OS-SAA members believed that nonpublic schools have an “unfair advantage in competition!;,][but] .... [t]here is not a great deal of consistency with regard to exactly what it is that makes the field unlevel.” App. Vol. 3, at 530. The Chairman further stated that “there is not an openness to private schools in our association,” and he observed “some strong negative feelings” toward nonpublic schools. App. Vol. 3, at 530.

The Committee Chairman described a “consistent theme that placed ALL nonpublic schools into an unfavored group status,” and he observed “a distrust of nonpublic school officials and their programs.” App. Vol. 3, at 530, 532. The Committee Chairman could identify no reason why member schools would deny membership to a nonpublic school: If we are not seeing a definite bias and prejudice, then we are certainly hearing the frustration of those who perceive inequities. We have yet to be presented with empirical evidence of inherent advantages for non-public schools.

Therefore we must question why any school who would submit to the OSSAA Rules and Regulations would be denied membership. App. Vol. 3, at 530. The Committee Chairman wondered whether voting schools “have any facts or information on which to make a responsible vote.” Id. at 531. Christian Heritage’s second application In August 1999, Christian Heritage again applied for membership. Christian Heritage reduced the size of its proposed geographic area, because Executive Secretary Rennels said that the large geographic area may have been the reason why member schools denied its application.

Christian Heritage limited its geographic area to the Mid-Del School District, which is the district in which Christian Heritage is physically located. Notwithstanding this reduction, or the member schools’ receipt of the Committee’s Special Report, the second application failed by a higher margin than the first application: 188 votes against membership, and 113 votes in favor. In November 2000, Christian Heritage Headmaster Ralph Bullard spoke to OS-SAA’s Board of Directors, asking if there were alternatives to the majority vote process for admission to membership.

OS-SAA admitted “being aware that some member school representatives [we]re opposed to admitting any more non-public secondary schools located in metropolitan areas into OSSAA membership, in the belief that such schools may have distinct advantages in competing with other member schools with similarly sized student populations.” Answer ¶ 22, App. Vol. 1, at 159. Despite the belief of OSSAA’s member schools that non-public schools had advantages, the Committee concluded that the “notion [wa]s a canard.” App. Vol. 3, at 535.

According to Executive Secretary Ren-nels, athletic “success of several of the non-public school members in the years that Christian Heritage was applying for membership was a significant factor in the voting on Christian Heritage’s applications for membership in 1998 and 1999.” Ren-nels Aff. ¶ 23, App. Vol. 6, at 1097. In particular, successful football and basketball teams from nonpublic schools “contributed to the perception that non-public schools in more highly populated areas enjoyed an unfair advantage over public schools that would fall within the same classifications.” Id. ¶ 14, App. Vol. 6, at 1094.

Procedural history On January 10, 2003, Christian Heritage filed this action pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983, seeking declaratory and injunctive relief for alleged constitutional violations. In February 2003, Christian Heritage amended its complaint, alleging that OSSAA violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment and the Free Exercise Clause of the First Amendment. The parties filed cross motions for

summary judgment, but Christian Heritage did not advance any First Amendment argument in its motion for

summary judgment. On September 23, 2004, the district court granted

summary judgment for OS-SAA. The district court applied rational basis scrutiny to Christian Heritage’s equal protection claim, concluding that OS-SAA’s requirement that nonpublic schools designate a geographic area was a rational basis for distinguishing between public and nonpublic schools. The district court concluded that Christian Heritage could not identify any protected liberty or property interest at stake, and it dismissed Christian Heritage’s due process claim.

Finally, the district court held that Christian Heritage abandoned its First Amendment claim, and Christian Heritage has not challenged this ruling on appeal. II. Christian Heritage contends that OS-SAA’s requirement of majority approval for admission of nonpublic schools violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and that OSSAA violated the Equal Protection Clause in denying its membership application. We review the district court’s grant of

summary judgment de novo, applying the same legal standard as the district court. E.g., Grace United Methodist Church v. City of Cheyenne, 427 F.3d 775, 782 (10th Cir.2005).

Summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “Cross motions for

summary judgment are to be treated separately; the denial of one does not require the grant of another.” Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir.1979). Even where the parties file cross motions pursuant to Rule 56,

summary judgment is inappropriate if disputes remain as to material facts. Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir.2000). Where the facts are not in dispute and the parties only disagree about whether the actions were constitutional,

summary disposition is appropriate. See Fed.R.Civ.P. 56(c). At the outset, we agree with the district court and conclude that OSSAA is subject to the Fourteenth Amendment because it is a state actor. See Brentwood Acad. v. Tenn. Secondary Sch. Athletic Assoc., 531 U.S. 288, 298-99, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001). OSSAA’s conduct constitutes state action because of the “persuasive entwinement of public institutions and public officials in its composition and workings.” Id. at 298, 121 S.Ct. 924. OSSAA members are 98 percent public schools, which is a larger percentage than that in Brentwood Academy.

See 531 U.S. at 298-99, 121 S.Ct. 924 (concluding that the athletic association was a state actor where 84 percent of its members were public schools). All fourteen of OSSAA’s current directors are public school employees, and Oklahoma has authorized OSSAA to determine athletic eligibility and hold play-off games. See Okla. Stat. tit. 70, § 8-103.2. OSSAA is subject to the Fourteenth Amendment. A. Due Process Clause Although Christian Heritage argued before the district court that OSSAA violated the Due Process Clause, Christian Heritage has failed to preserve its due process argument on appeal.

While Christian Heritage lists its due process claim as an issue in its opening brief, it discusses its due process claim in less than one page of its brief in a

section entitled “Introduction to Argument,” and it provides no other argument and no citations. Aplt. Br. at 27-28. Moreover, Christian Heritage conceded that it has not identified a property or liberty interest at stake, which is necessary for advancing a due process claim. See, e.g., Lybrook v. Members of Farmington Mun. Sch. Bd. of Educ., 232 F.3d 1334, 1341 (10th Cir.2000). Where an appellant lists an issue, but does not support the issue with argument, the issue is waived on appeal. E.g., Garrett v. Selby, Connor, Maddux & Janer, 425 F.3d 836, 841 (10th Cir.2005); Abercrombie v.

City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990); Jordan v. Bowen, 808 F.2d 733, 736 (10th Cir.1987) (holding that the appellant abandoned his due process argument on appeal). “Scattered statements in the appellant’s brief are not enough to preserve an issue for appeal.” Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1133 n. 4 (10th Cir.2004). We conclude that Christian Heritage has waived its due process argument. B. Equal Protection Clause Christian Heritage advances two equal protection arguments. First, Christian Heritage maintains that

Article III,

Section 1 of the OSSAA Constitution violates the Equal Protection Clause because public high schools are admitted upon application, but nonpublic schools must obtain majority approval from OSSAA member schools for admission. See OSSAA Const, art. Ill, § 1. Second, Christian Heritage challenges OSSAA’s decisions denying its membership applications, but admitting other nonpublic high schools. The Equal Protection Clause of the Fourteenth Amendment mandates that “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV.

The parties agree that rational basis scrutiny applies, as Christian Heritage has not argued that OSSAA’s conduct targets a suspect class or violates a fundamental right. See, e.g., Schutz v. Thorne, 415 F.3d 1128, 1135 (10th Cir.2005). 1. Equal Protection challenge to

Article III,

Section 1 of Constitution Christian Heritage claims that the requirement in

Article III,

Section 1 of OS-SAA’s Constitution that nonpublic schools obtain majority approval for admission violates the Equal Protection Clause because public schools are admitted automatically upon application. We hold that, although OSSAA has identified legitimate purposes for distinguishing between public and nonpublic schools in regards to their admission to the organization, the requirement in OSSAA’s Constitution that nonpublic schools obtain majority approval in order to be admitted is not rationally related to any of those legitimate purposes.

The government violates the Equal Protection Clause when it “treats someone differently than another who is similarly situated” without a rational basis for the disparate treatment. Crider v. Bd. of County Comm’rs of Boulder, 246 F.3d 1285, 1288 (10th Cir.2001) (internal quotation marks omitted). Under rational basis scrutiny, we will uphold OSSAA’s requirement of majority approval so long as it is rationally related to a legitimate government purpose or end. See, e.g., Vacco v. Quill, 521 U.S. 793, 799, 117 S.Ct. 2293, 138 L.Ed.2d 834 (1997); E.SPIRE Commc’ns, Inc. v. N.M. Pub.

Regulation Comm’n, 392 F.3d 1204, 1209 (10th Cir.2004). We begin by noting that the district court failed to apply rational basis scrutiny to OSSAA’s requirement of majority approval in

Article III,

Section I of OSSAA’s Constitution. Instead, the district court mistakenly applied rational basis scrutiny to OSSAA’s Rule 8 and

Article VII,

Section 2 of OSSAA’s Constitution. Rule 8 lists the geographic areas for the nonpublic schools that have been admitted.

Article VII,

Section 2 of OSSAA’s Constitution requires majority approval for changes in the Rules of the Association. See OSSAA Const, art. VII, § 2, App. Vol. 1, at 63. The district court concluded that requiring nonpublic schools to obtain approval by a majority vote to amend Rule 8, which lists the geographic areas, did not violate the Equal Protection Clause because OSSAA had a rational basis for requiring nonpublic schools to designate a geographic area. We need not determine whether the district court was correct in this regard because Christian Heritage has challenged only the referendum requirement for nonpublic schools in

Article III,

Section 1.

Article III,

Section 1 of OSSAA’s Constitution provides that OSSAA membership is open to public schools “and other schools as approved by the members of the Association.” App. Vol. 1, at 57. In turn, OSSAA’s Constitution sets forth different application procedures for public and nonpublic schools. Public schools, upon filing a resolution and paying its fee, “shall be admitted to membership.” Id. In contrast, nonpublic schools “must be approved by a majority vote of the existing membership and, if approved, must submit all entry fees and reports required to establish membership.” Id.

In determining whether this referendum requirement violates Christian Heritage’s Equal Protection rights, we begin by concluding that Christian Heritage is similarly situated to at least some of the public schools that have been admitted to OS-SAA. It is uncontroverted that OSSAA’s Constitution and rules, including its transfer rule and the prohibition on athletic scholarships and recruiting, apply equally to public and nonpublic schools. Further, it is uncontroverted that Christian Heritage agreed to comply with OSSAA’s rules if admitted.

Thus, we define public schools similarly situated to Christian Heritage as having comparable average daily membership and being located near large cities. See Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 533 (10th Cir.1998); Jacobs, Visconsi & Jacobs Co. v. Lawrence, 927 F.2d 1111, 1119 (10th Cir.1991). Christian Heritage, if admitted into OS-SAA, would have been a Class 2A school with a membership of 218 students. Christian Heritage is located in Del City, which is outside of Oklahoma City.

Other public schools that have been admitted to OSSAA are similarly situated to Christian Heritage in all material respects. For example, Luther High School is a Class 2A public school located outside of Oklahoma City with a membership of 251. Crooked Oak High School is a Class 2A public school in Oklahoma City with a membership of 229. Hominy High School and Mounds High School are located outside of Tulsa, and they are in Class 2A with memberships of 224 and 228, respectively.

In addition to establishing that it is similarly situated to at least some of the public school members of OSSAA, Christian Heritage has also demonstrated disparate treatment. Specifically, public schools are admitted to OSSAA without having to obtain approval from a majority of OSSAA’s members, while nonpublic schools, even if they satisfy all other requirements for admission, must obtain majority approval from the members of the association.

Thus, the only remaining issues are whether OSSAA’s requirement of majority approval for nonpublic schools has a legitimate purpose, and, if so, whether it was reasonable for OSSAA to believe that use of this separate classification for nonpublic schools would promote that purpose. See Western & Southern Life Ins. Co. v. State Bd. of Equalization of Cal., 451 U.S. 648, 668, 101 S.Ct. 2070, 68 L.Ed.2d 514 (1981); Powers v. Harris, 379 F.3d 1208, 1215 (10th Cir.2004), cert. denied, 544 U.S. 920, 125 S.Ct. 1638, 161 L.Ed.2d 476 (2005); Save Palisade FruitLands v. Todd, 279 F.3d 1204, 1213-14 (10th Cir.2002).

As to the rational relationship between the classification and purpose, we require only that the legislative body (in this case, OS-SAA itself) “could rationally have decided” that its classification “might foster” its purpose. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981) (emphasis omitted). In most cases, the classification and purpose are rationally related. But “[t]he State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” City of Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 446, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Copelin-Brown v. N.M. State Personnel Office, 399 F.3d 1248, 1255 (10th Cir.2005). We are not constrained by the parties’ arguments concerning legitimate state purposes. See Powers, 379 F.3d at 1217. When there is an inadequate or a nonexistent connection between the classification and purpose, the Supreme Court has invalidated the classification under rational basis- scrutiny. See Allegheny Pittsburgh Coal Co. v.

County Comm’n of Webster County, 488 U.S. 336, 344-45, 109 S.Ct. 633, 102 L.Ed.2d 688 (1989); City of Cleburne, 473 U.S. at 432, 449, 105 S.Ct. 3249; Hooper v. Bernalillo County Assessor, 472 U.S. 612, 621-22, 105 S.Ct. 2862, 86 L.Ed.2d 487 (1985) (observing that the statute’s distinction is “not rationally related to the State’s asserted legislative goal”); Williams v. Vermont, 472 U.S. 14, 25-27, 105 S.Ct. 2465, 86 L.Ed.2d 11 (1985); Zobel v. Williams, 457 U.S. 55, 62-65, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982); U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 536, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973); U.S.

Dep’t of Agric. v. Murry, 413 U.S. 508, 513-514, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973); Lindsey v. Normet, 405 U.S. 56, 77-79, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972). Similarly, in Copelin-Brown, we struck down a separate classification for disabled versus non-disabled persons under rational basis review. 399 F.3d at 1255-56. We reedgnized that easing administrative burdens “can be a reason sufficient to withstand rationality review.” Id. at 1255 (internal quotation marks omitted).

But we concluded that the state’s refusal to give disabled persons post-termination hearings was not rationally related to the interest in reducing administrative burdens because the asserted interest was too attenuated. Id. at 1255. Where the record “fail[ed] to present any facts showing that the regulation in question eased administrative burdens,” we concluded that the distinction between disabled and non-disabled persons was arbitrary and irrational. Id. at 1255. In addition, we concluded that the suggested goal of preventing stigma was irrational. Id. at 1255-56.

Here, OSSAA justifies the requirement of majority approval for nonpublic schools because nonpublic schools must declare a geographic area for eligibility purposes. The geographic area is listed in Rule 8, and OSSAA’s Constitution requires majority approval to amend Rule 8. See OSSAA Const, art. VII, § 2, App. Vol. 1, at 63. But OSSAA conflates its constitutional provision in

Article III,

Section 1, which requires majority approval for admission, with Rule 8, which requires nonpublic schools to declare a geographic area. Christian Heritage does not challenge Rule 8. Moreover, OSSAA did not deny Christian Heritage’s application because it designated a geographic area that was too large. Christian Heritage reduced its geographic area in its second application and designated only the district in which it was physically located, but OSSAA still rejected its application.

Aside from Rule 8 and designation of a geographic area, OSSAA suggests several other possible purposes for the classification between public and nonpublic schools: “preserving equitable competitive opportunities, preventing exploitation of student-athletes, and preserving a balance between academics and athletics.” Aple. Br. at 23. We agree that these are legitimate government purposes.

Indeed, we can conceive of additional legitimate reasons that an association such as OSSAA might have for distinguishing between public and nonpublic schools, including eliminating or reducing the advantages that nonpublic schools may have in recruiting, the awarding of scholarships, transferring for athletic purposes, and distorted average daily membership because of fewer students with disabilities. See Powers, 379 F.3d at 1217 (“[W]e are not bound by the parties’ arguments as to what legitimate state interests the statute seeks to further.”).

That leaves, however, the question of whether it was reasonable for OSSAA to believe that use of the majority voting requirement would promote these purposes. Western & Southern Life, 451 U.S. at 668, 101 S.Ct. 2070. We readily conclude that OSSAA could not rationally have decided that the majority voting requirement would foster any of these purposes. See Clover Leaf Creamery, 449 U.S. at 466, 101 S.Ct. 715.

Although nonpublic schools seeking membership in OS-SAA are apparently allowed, as was Christian Heritage, to prepare letters advocating their membership, the voting of existing OSSAA members is ultimately unguided and entirely discretionary. Thus, even where, as here, a nonpublic school seeking membership has taken appropriate steps to ensure that it will not have a competitive advantage over similarly situated public school members of OSSAA, its application can be rejected by existing OSSAA members for any reason, including dislike or distrust.

In other words, no standards or restrictions are imposed on existing OSSAA members in casting their votes for or against a nonpublic school’s application for admission. As a result, we conclude there is a complete disconnect between the majority voting requirement and the legitimate purposes that OSSAA and we have identified. The disconnect between the majority voting requirement and any legitimate purposes identified by OSSAA is clearly borne out in this case.

The record is replete with evidence, and OSSAA has in fact acknowledged, that OSSAA members voted against membership applications from nonpublic schools because of distrust and/or hostility toward nonpublic schools. For example, more than seventy member schools returned Adams’ petition listing five areas where nonpublic schools supposedly had an advantage over public schools, and OSSAA’s Committee Chairman, observed “some strong negative feelings” toward nonpublic schools and a “consistent theme that placed ALL non-public schools into an unfavored group status.” App. Vol. 3 at 530.

Even after the Committee’s Special Report was circulated, OSSAA members refused to admit Christian Heritage, and they denied its second application for membership by an even greater margin than its first application. In short, OSSAA’s refusal to admit Christian Heritage was motivated in large part by a dislike for nonpublic schools generally and Christian Heritage in particular.

Such a dislike is not a legitimate state interest, see Moreno, 413 U.S. at 534, 93 S.Ct. 2821 (concluding that a “desire to harm a politically unpopular group cannot constitute a legitimate governmental interest”) (emphasis omitted), and the referendum requirement for nonpublic schools cannot survive rational basis scrutiny. In other words, because there is no connection between the

Article III,

Section 1, classification and any legitimate government purpose, denying membership to nonpublic schools for failure to garner majority approval is arbitrary and irrational. See Copelin-Brown, 399 F.3d at 1255. OSSAA urges us to follow Archbishop Walsh High School v.

Section VI of the New York State Public High School Athletic Ass’n, Inc., 88 N.Y.2d 131, 643 N.Y.S.2d 928, 666 N.E.2d 521 (1996). The plaintiff in Archbishop Walsh, a Catholic high school, sought admission in a state public high school athletic association, but was denied membership based on an insufficient number of favorable votes in a member referendum on its application. Thereafter, the plaintiff filed suit against the defendant athletic association, claiming that the referendum requirement violated the Equal Protection Clause. The Court of Appeals of New York, in a divided vote, affirmed the lower courts’ grant of

summary judgment in favor of the association. In doing so, the Court of Appeals concluded that the majority voting requirement for admission of a nonpublic school was a “rational screening process.” Id. at 522, 525. In addition, the Court of Appeals noted that nothing in the record before it “support[ed] the assertion or speculation that th[e] voting procedure [wa]s intrinsically arbitrary or a subterfuge masking invidious discrimination.... ” Id. at 525. As an initial matter, we believe there are several important factual differences between our case and Archbishop Walsh.

In Archbishop Walsh, the defendant athletic association was concerned that nonpublic schools could offer scholarships for athletics and that admitting nonpublic schools would decrease community spirit. No similar concerns are present here. OSSAA rules prohibit the awarding of athletic scholarships and the recruiting of athletes, and these rules apply to all OSSAA members, including nonpublic schools.

Further, OSSAA requires nonpublic schools to designate a geographic area to determine eligibility for students, including transfers, and OSSAA classifies schools for sports according to their average daily membership. Lastly, unlike the situation in Archbishop Walsh, the record in our case clearly suggests that the voting on Christian Heritage’s membership applications was, at a minimum, arbitrary and, at worst, discriminatory. Even ignoring these factual differences, we are clearly not bound by, and indeed respectfully disagree with, the majority holding in Archbishop Walsh.

In our view, the criticisms of the majority voting requirement expressed by the dissent in Archbishop Walsh are directly applicable here: “[A]s the voting mechanism currently stands, there is no possible way to know whether an applicant was excluded for a reason that would advance the stated goals or for some other discriminatory purpose. Further, the opportunity for mischief in this ballot exercise is apparent, since voting members may use that mechanism as a tool to further their own agendas, discriminatory or not.” Id. at 525-26. We also reject OSSAA’s assertion that this case is analogous to Denis J.

O’Connell High School v. Virginia High School League, 581 F.2d 81 (4th Cir.1978). There, the Fourth Circuit concluded that a public high school athletic association had a rational basis to exclude all nonpublic schools. Id. at 87. The Fourth Circuit reasoned that excluding all nonpublic schools from membership was rationally related to the league’s interest in enforcing its eligibility rules concerning transfer students since private schools had no attendance zones, and the league was afraid that admitting them would make it hard to enforce the transfer rule. Id. at 85-86. In contrast to the league in Denis J.

O’Connell, OSSAA’s transfer rule applies to public and nonpublic schools, and requires nonpublic schools to designate a geographic area for eligibility purposes. There is no suggestion that OSSAA has had problems enforcing the transfer rule as regards its ten members that are private schools. In sum, we conclude that OSSAA’s majority voting requirement is not rationally related to a legitimate purpose. We therefore conclude the district court erred in denying Christian Heritage’s motion for

summary judgment and in granting OS-SAA’s motion on these grounds. 2. Equal Protection challenge to denial of membership applications Christian Heritage also challenges OS-SAA’s denial of its membership applications as violating the Equal Protection Clause. In other words, Christian Heritage claims it has suffered discrimination as a “class of one.” Because we have already concluded that Christian Heritage was entitled to

summary judgment on its Equal Protection challenge to

Article III,

Section 1 of OSSAA’s Constitution, and because Christian Heritage seeks identical relief on both of its Equal Protection claims, we find it unnecessary to address its “class of one” claim. III. For the reasons discussed above, the district court erred in denying Christian Heritage’s motion for

summary judgment and granting OSSAA’s motion for

summary judgment with respect to Christian Heritage’s Equal Protection challenge to

Article III,

Section 1 of OSSAA’s Constitution. Accordingly, we REVERSE and REMAND to the district court with directions to enter

summary judgment in favor of Christian Heritage on that claim. On remand, the district court will determine the appropriate declaratory relief and injunctive relief to which Christian Heritage is entitled. REVERSED and REMANDED. . Whenever a nonpublic school applies for membership, it must designate a geographic area within which students enrolled in the school would be considered immediately eligible for athletics by reason of residence. Under the Education Open Transfer Act, a student may attend a school district in which a student is not a resident, provided that the receiving district authorizes the transfer.

Okla. Stat. tit. 70, § 8-103.2; Okla. Stat. tit. 70 §8-101.2. If a student transfers to a school district in which he is not a resident, he cannot compete in athletics for one year, unless the transfer is due to a bona fide change of residence by his parents, or he can demonstrate a legitimate hardship. Okla. Stat. tit. 70, § 8-103.2; OSSAA Rule 8, § 1(b), App. Vol. 1, at 72. . The dissent seems to suggest that any constitutional attack on the OSSAA's majority voting requirement must be considered as a due process, rather than an Equal Protection, challenge. We disagree.

Because OSSAA’s differential treatment of public and nonpublic applicants is manifested exclusively in the majority voting requirement, that requirement is clearly subject to an equal protection challenge. . The dissent concludes that the connection between the State’s legitimate interests and the majority voting requirement "is relatively strong.” Dissent at 1041. In support of this conclusion, the dissent asserts that members schools are well positioned "to determine whether a new applicant is institutionally capable of meeting OSSAA requirements” and "would adversely affect competitive parity.” Id. at 1041.

We note that the record on appeal by no means conclusively supports this assertion. In any event, the critical and un-controverted fact is that OSSAA imposed no standards, guidelines, or restrictions on its members when they were voting for or against nonpublic school applicants. Indeed, the dissent acknowledges when addressing Christian Heritage’s class of one claim that there is evidence that members schools were allowed by the OSSAA to vote against Christian Heritage's applications on the basis of their “subjective ill will.” Id. at 1043. .

Had OSSAA decided not to admit any nonpublic schools, that decision likely would be supported by Denis J. O’Connell. However, by choosing to allow nonpublic schools to become members, OSSAA was obligated to ensure that its membership procedures for those schools were consistent with the Equal Protection Clause. . On January 11, 2007, OSSAA filed with this court a pleading entitled "Notice of Modification of Requirement That is Subject of Appeal” (Notice). Therein, OSSAA alleged that in November 2006, its existing members approved a new membership rule for nonpublic schools, effective as of July 1, 2007.

Under the new rule, OSSAA alleges, a nonpublic school “could become a member of the Association by demonstrating compliance with certain criteria,” and without a "majority vote of the existing member schools....” Notice at 2. Christian Heritage responds that OSSAA has provided no explanation how or whether the new rule circumvents

Article III,

Section 1 of OSSAA's Constitution which requires that "[a]ll other schools must be approved by a majority vote of the existing membership. ...” Response to Notice at 4. Obviously, the district court will need to consider the new rule and its requirements in the course of fashioning appropriate relief for Christian Heritage.