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Wednesday, August 21, 2013

Seriously? quote of the day

From a public statement by the Fairfield County (OH) School District, announcing it would allow a 12-year-old girl to play football rather than defend its ban (which it never explained) in litigation that the ACLU threatened to bring on the girl's behalf:

"We have no intent of competing with the deep pockets of the ACLU in any litigation situation in order to secure a favorable judgment," the district said in a statement. "Therefore, we will allow female participation in contact sports."

Really? The ACLU has deep pockets? The ACLU's pockets for litigation are lined with the money it recovers from idiotic governments--like Franklin Fairfield County--when it successfully challenges pointless-but-unconstitutional like this one. Still, it's a nice piece of demagoguery that might play well with the public. And the school district is not necessarily alone--Justice Scalia expressed similar beliefs about public-interest groups wielding superior  financial resources to overwhelm governments in § 1983 litigation.

I do agree with one commentator, who noted that such a statement indicates the district still does not support the girl's efforts, is not convinced she is legally entitled to play, and potentially not willing to give her the backing she needs (that is, the same backing as all other players get). We may not be done with this story.

Posted by Howard Wasserman on August 21, 2013 at 09:13 PM in Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink


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This may actually not be too far from reality. Compared with public school districts, my mom's dog would probably have deep pockets.

Posted by: Patrick Luff | Aug 21, 2013 9:39:42 PM

Fairfield County (where this occurred) and Franklin County (which you mention as "idiotic" in your second paragraph) are different counties. Franklin County may also be idiotic, but has not been sued by the ACLU recently as far as I can tell. Unless you mean Franklin County, MO, which has.

Posted by: anon | Aug 21, 2013 9:46:56 PM

Patrick raises a fair point, I think.

Posted by: Orin Kerr | Aug 21, 2013 10:12:46 PM

Maybe we can distinguish the public school district not having the money to litigate from the ACLU having deep pockets, a loaded term that hints at the other side having an unearned or ill-gotten advantage. And to the extent the ACLU has an advantage, it is one bestowed on it by Congress.

Posted by: Howard Wasserman | Aug 21, 2013 10:17:46 PM

My comment was of course very much tongue-in-cheek. I suspect that in reality, the district received the legal advice that it didn't have a constitutional leg to stand on, but it was politically preferable to blame the ACLU rather than admit that the law required the result.

Posted by: Patrick Luff | Aug 21, 2013 10:40:03 PM

Howard, I've never thought that "deep pockets" suggests "unearned or ill-gotten advantage." In context, I read it just to mean "has the ability to litigate with little consideration of cost." Patrick, I didn't see that your comment was tongue in cheek, but then I confess I don't know anything about the budget of Fairfield County or the merits of the case. My mistake.

Posted by: Orin Kerr | Aug 22, 2013 12:19:36 AM

Orin, any mistake is due to my own imprecision. I was being tongue-in-cheek about the dog; I don't doubt that the ACLU has more to spend on litigation than Fairfield County. But regardless of whether the ACLU or anyone else has deep pockets (and I will remain agnostic for now on the content of that phrase), if it is the case that the district has a tight budget, then all the more reason it should not adopt constitutionally dubious policies that open it up to litigation.

Posted by: Patrick Luff | Aug 22, 2013 2:04:05 AM

The reality is that some folks have the money to fully litigate claims, and other do not. So what? The touchstone in due process is formal equality in the law. Today that works to establish default on this side of the "v", and tomorrow it means that some class action versus Walmart won't proceed. So folks on both sides of the political aisle have stuff to complain about.

Posted by: AndyK | Aug 22, 2013 10:33:21 AM

"Justice Scalia expressed similar beliefs about public-interest groups wielding superior financial resources to overwhelm governments in § 1983 litigation."

The best recent description of Scalia's honesty is the two opinions recently released. In Shelby v. DoJ, he voted to overturn a law (overriding the standards set by Congress). In the DOMA case, he railed against SCOTUS daring to overturn a law passed by Congress - not in the particular, but the fact that SCOTUS 'dared' to assert itself over Congress.

Posted by: Barry | Aug 22, 2013 10:41:31 AM

I'm confused as to why someone would think that this is a clearly unconstitutional policy. The Ohio governing body for high school athletics has adopted the following policy:

Girls may play on a boys team if there is no girls team or if the overall opportunities for interscholastic competition are less for girls.
A girl that is a member of a boys team shall follow all contests rules and regulations regarding the sport as specified for the boys.
Boys may not play on girls teams unless the overall opportunities for interscholastic competition for boys are less than for girls and the competing schools mutually agree.

My understanding is that everyone agrees that each element of this policy is permissible under the federal constitution and under Title IX. If that's the case, then it's obviously permissible in some circumstances to treat girls and boys sports opportunities differently, and so there's nothing obviously unconstitutional about this policy.

Posted by: Thomas | Aug 22, 2013 12:45:11 PM

The district at issue is apparently the Liberty Union Thurston School District http://www.abc6onyourside.com/shared/news/features/top-stories/stories/wsyx_liberty-unionthurston-school-district-allow-girl-play-football-25649.shtml. It has a total enrollment of under 2000 students

Hence, I am guessing that the ACLU (which, after all, often relies on pro bono counsel) indeed has deeper pockets than does the school district. Still, the press release is moronically phrased - what the District really means is that it cannot afford to litigate the issue (especially given that, if they lose a 1983 action, they will have to pay the defendant's legal fees). Its dig at the ACLU is infantile.

Posted by: Gordon Danning | Aug 22, 2013 4:10:34 PM

Saying that it's obviously unconstitutional to ban girls from boys football seems as wrong as saying that it's unconstitutional to have separate restrooms for boys and girls. Sure, there might be marginal cases now and then, but it's absurd to say that a general rule is unconstitutional.

Posted by: WT | Aug 23, 2013 1:26:42 PM

Petty statement but humans do that from time to time.

One of the links has this:

"Superintendent Paul Matthews contends that the policy doesn’t violate any gender equality laws because the district offers other opportunities for girls to participate in sports. While Matthews might be right that the district’s policy doesn’t specifically violate Title IX, it does ignore that there are more than 1,500 girls playing high school football across the country."


The AP link there also digs the hole deeper by citing the policy as: noting "We have opportunities for girls, but those opportunities do not include contact sports." That's seems a tad outrageous -- it is not that she cannot play on a boys' football team. It is that girls don't have "contact" sports at all to play on. Why not?

Posted by: Joe | Aug 23, 2013 10:58:13 PM

Maybe someday someone will explain to me why boys' teams have to let girls play but girls' teams (field hockey, basketball, volleyball, whatever) don't have to let boys play. I seem to be missing something here.

Posted by: Doug | Aug 24, 2013 10:18:36 PM

In sketchiest terms, the argument is that the median male athlete has physical/athletic advantages--size, strength, speed, jumping ability--over the median female athlete. That median male athlete would likely dominate on a team of females, perhaps in a way that would injure someone (which has been the case with HS boys playing field hockey against HS girls). It would be a (relatively) rare and unique girl who can play with boys, so the problem of median athletic advantages dominating is less. Then it becomes a question of whether this one girl is good enough to play, an individualized coaching decision more likely (although certainly not entirely likely) to be driven more by a desire to win than by ideology.

With respect to this case, the challenge was to the district's decision. The district never offered any reason for not allowing the girl to play, although it also seems to have a blanket ban on girls playing contact sports. If you offer no reason for a ban, you are going to lose in court. A general ban on contact sports probably is not going to win, either.

Posted by: Howard Wasserman | Aug 25, 2013 9:08:35 AM

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