From Judge McConnell's separate partial concurrence and partial dissent in Christian Heritage Academy v. Oklahoma Secondary School Activities Ass'n (Apr. 9):
The plaintiff's name may suggest this case is about religion, and in a sense that is true. It is about Oklahoma high school football. And there is only one path to the honor and the glory of interscholastic football competition in Oklahoma: membership in the Oklahoma Secondary School Activity Association (OSSAA). Members of the Association enter the promised land of regularly scheduled games with neighboring schools and the prospect of championship competition with the leading teams in the State; those not of the elect are thrown into the outer darkness of few teams to play against and long bus rides to get to them. For public schools, membership in the OSSAA is sola gratia: all they have to do is knock, and the door is opened unto them. For nonpublic schools, narrow is the gate and difficult is the way. They may be admitted only according to the inscrutable will of a majority vote. The question is whether this violates the Equal Protection Clause.
The substantive question that divides the panel -- and that divides the Tenth Circuit from the New York Court of Appeals -- is also quite interesting.