The National Wrestling Coaches Association (NWCA) has lost again in the D.C. Circuit for the U.S. Court of Appeals, which denied a request for a rehearing, en banc, of its appeal from a lower court’s decision.
The NWCA had alleged specifically that Title IX and subsequent interpretations of the gender equity law by the U.S. Department of Education (DOE) had led to the shuttering of men’s minor sports programs throughout the nation.
In the latest decision, there was a lone dissenting judge whose opinion overshadowed the thoughts of the majority. In fact, the majority wrote that “there is no reason for the panel to revisit this case and there is no valid basis justifying en banc consideration of this matter. We offer this brief statement merely to respond to an argument raised in the dissenting statement.”
In short, the majority found no reason to believe that “a favorable decision from this court (for the plaintiffs) would redress their alleged injuries. The Supreme Court has made it clear that plaintiffs cannot rely on such speculation to satisfy the redressability prong of standing. The opinion for the court in this case invokes this well-established principle of law. See Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 936-40 (D.C. Cir. 2004).
“The opinion for the court also makes it clear that, even if appellants had standing to pursue their claims in this case, the availability of a private cause of action directly against universities bars this lawsuit against the agency. Id. at 945-46. The court’s decision in Washington Legal Foundation v. Alexander, 299 U.S. App. D.C. 353, 984 F.2d 483 (D.C. Cir. 1993), is controlling on this point, and appellants have never been able to clear the hurdle of this precedent.”
The dissenting judge, among other things, challenged the majority’s interpretation of Washington Law Foundation, arguing that the case should be inapplicable.
Why?
“First, WLF involved only claims of statutory violations, whereas here plaintiffs allege Constitutional violations of which the private educational institutions could not possibly be guilty. As the private universities and colleges do not have the capacity to violate the Constitution, claims of such violations can run only against the Department (and/or state colleges and universities), and there is no remedy against the private institutions at all, much less an adequate one,” wrote the dissenting judge.
“More important, in WLF and kindred cases the agency was accused only of failing to stop or penalize illegal behavior by educational institutions. Here, by contrast, the agency is charged with bullying those institutions into adopting unlawful practices.
“Whereas it is quite logical to have plaintiffs obtain relief through actions directly against wrongdoers when the agency’s only role is neglect, it makes little sense to extend WLF to a context where the agency itself is, as alleged here, the driving force behind the illegality. In effect, the majority ruling here would have the courts scotch the snake, not kill it.”
The majority pointed to the fact that “the appellants have argued throughout this litigation that, in adhering to the Department’s enforcement policy interpretations, the universities have engaged in intentional discrimination that Title IX prohibits. This being the case, Washington Legal Foundation is obviously controlling, because appellants have a private cause of action directly against the universities to seek redress for any proscribed acts of sex discrimination committed by the universities.”
It added that “this case surely cannot be distinguished from Washington Legal Foundation, as the dissent argues, on the ground that the agency here ‘is charged with bullying [the educational] institutions into adopting unlawful practices.’
“The only thing the Department has done here is issue non-binding enforcement policy interpretations, which is hardly evidence of ‘bullying.'” National Wrestling Coaches Association et al. v. Department of Education; No. 03-5169; D.C. Cir.; 10/8/04
Attorneys of Record: (for appellants) Lawrence J. Joseph. (for appellee) Thomas M. Bondy, attorney, DOJ; Peter D. Keisler, assistant attorney general; Roscoe C. Howard, Jr. and Mark B. Stern.
