A federal judge from the District of Columbia has ruled that the American Sports Council (ASC) lacks standing to pursue claim in which it sought to overturn the applicability of Title IX of the Education Amendments of 1972, 20 U.S.C.S. § 1681 et seq., to high schools.
In so ruling, the court determined that the plaintiff lacked standing. “The grant of a procedural right alone could not serve as the basis for U.S. Const. art. III standing unless the procedures in question were designed to protect some threatened concrete interest of the plaintiff that was the ultimate basis of his standing,” summarized the court.
ASC is a “coalition of coaches, athletes, former-athletes, parents, and fans” organized as a nonprofit in the District of Columbia. Along with its predecessor organization, College Sports Council, the plaintiff has advocated reform or repeal of parts of Title IX.
“Having failed in its prior efforts, the plaintiff petitioned defendants on June 19, 2007, pursuant to the APA, 5 U.S.C. § 553(e), to initiate rulemaking that would ‘rescind existing application of the Three-Part Test to high school athletics.’” On March 27, 2008, former Secretary of Education Margaret Spellings declined the plaintiff’s Petition.
On July 21, 2011 plaintiff filed a complaint for declaratory and injunctive relief seeking “(1) declarations that the defendants’ petition denial violates the APA, 5 U.S.C. § 706(2)(A), (2)(B); (2) an injunction preventing defendants from using the Three-Part Test with respect to high schools; and (3) an injunction requiring the Department to initiate rulemaking in accordance with plaintiff’s Petition.”
The defendants moved to dismiss, claiming the plaintiff lacked standing.
The plaintiff countered that it possessed standing as “(1) an agency petitioner independently injured by defendants’ refusal to grant plaintiff’s requested rulemaking; (2) a representative of members who have purportedly suffered cognizable injury as a result of defendants’ refusal to grant plaintiff’s requested rulemaking; and (3) an organization that has itself suffered a cognizable injury as a result of defendants’ refusal.”
On the first point, the court noted the plaintiff’s reliance on College Sports Council v. Department of Education, 357 F. Supp. 2d 311 (D.D.C. 2005), rev’d per curiam, 465 F.3d 20, 373 U.S. App. D.C. 255 (D.C. Cir. 2007) (“CSC”) — “which is factually similar to this one.” That case, according to the plaintiff, argued for the premise “that standing can be based solely upon the defendants’ denial of its petition.”
This was a reach, according to the judge. “To interpret CSC’s holding and its citation to Nat’l Customs Brokers & Forwarders Ass’n of Amer., Inc. v. United States, 883 F.2d 93, 96, 280 U.S. App. D.C. 21 (D.C. Cir. 1989) to mean that plaintiff has standing based solely on defendants’ denial of its petition would contravene circuit precedent that requires plaintiff to demonstrate an underlying injury to satisfy the requirements of Article III. Consistent with that precedent, this court finds that since petitioners cannot ‘demonstrate an injury in fact, both particularized and concrete, as required by the Constitution, they lack standing to appear before an Article III court. Gettman v. DEA, 290 F.3d 430, 433, 351 U.S. App. D.C. 344 (D.C. Cir. 2002).’”
As for the associational standing argument, the judge found that “without demonstrating that at least one of its purported members has suffered an injury directly caused by the defendants and redressable by the relief requested, the plaintiff cannot claim associational standing.”
Turning to the final theory that the defendants’ actions “caused injury to the organization itself, and that this injury is redressable by a favorable decision from this court,” the court wrote that, “there can be no organizational standing where plaintiff cannot ‘show actual or threatened injury in fact that is fairly traceable to the alleged illegal action and likely to be redressed by a favorable court decision.’ Equal Rights Ctr. v. Post Properties, Inc., 633 F.3d 1136, 1138, 394 U.S. App. D.C. 239 (D.C. Cir. 2011) (quoting Spann v. Colonial Village, Inc., 899 F.2d 24, 27, 283 U.S. App. D.C. 216 (D.C. Cir. 1990)).”
The court continued that the plaintiff’s “failure to allege any facts showing a link between the actions of the third party activist groups and defendants’ denial of its Petition negates a showing of any causation or redressability here. The claim that activist groups filed complaints ‘pursuant to the Department’s failure to clarify that the Three-Part Test does not apply to high school athletics’ is no more than ‘mere unadorned speculation as to the existence of a relationship between the challenged government action and the third-party conduct and will not suffice to invoke the federal judicial power.’ Without showing that its organizational injury is fairly traceable to defendants’ conduct or that such injury is redressable by a favorable decision, plaintiff cannot claim organizational standing.”
The APC was clearly frustrated with the decision, issuing the following statement: “Accordingly, justice has been denied to high school male athletes nationwide who have been and who will continue to be harmed by these unreasonable regulations. But we remain undeterred. The American Sports Council will continue to advocate for reforming Title IX regulations on behalf of the thousands of high school athletes who are denied equal protection under the law because of gender quota enforcement.”
American Sports Council v. United States Department of Education, et al.; D.C.;
Civil Action No. 11-1347 (ESH), 2012 U.S. Dist. LEXIS 41233; 3/27/12
Attorneys of Record: (for plaintiff) Adam R. Pomeroy, PRO HAC VICE, Damien M. Schiff, PRO HAC VICE, Joshua P. Thompson, PACIFIC LEGAL FOUNDATION, Sacramento, CA. (for defendants) Matthew J.B. Lawrence, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC.
