Before: Edwards and Henderson, Circuit Judges, and
Williams, Senior Circuit Judge.
On Petition for Rehearing
Upon consideration of appellants' petition for rehearing, it is
ORDERED that the petition be denied.
A per curiam statement is attached.
A statement of Senior Circuit Judge WILLIAMS dissenting from the denial of rehearing is also attached.
Appellants have petitioned for rehearing and rehearing en banc. On the record at hand, 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.
As an initial matter, we note that appellants have offered nothing but unadorned speculation to support their claim that a favorable decision from this court 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, 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 dissent's attempt to distinguish Washington Legal Foundation is perplexing. The dissent argues that Washington Legal Foundation can be distinguished, on the ground that Washington Legal Foundation involved only claims of statutory violations, "whereas here plaintiffs allege Constitutional violations of which the private educational institutions could not possibly be guilty." The problem with this argument is that it is premised on the faulty assumption that a plaintiff may avoid the dictates of Washington Legal Foundation merely by reciting constitutional provisions that obviously do not reflect the gist of the complaint. This is an untenable proposition, as this case demonstrates.
The heart of appellants' claim in this case is that universities have taken actions that violate Title IX and Title IX's implementing regulations. It is clear beyond dispute that appellants' asserted injuries arise solely from the universities' actions allegedly taken in derogation of Title IX. Indeed, the "constitutional violations" allegedly committed by public educational institutions involve no substantive claims beyond those that would otherwise be cognizable under Title IX.
As the dissent concedes, appellants have consistently maintained that, in subscribing to Department of Education enforcement policy interpretations, the universities have themselves adopted unlawful policies and engaged in unlawful activities. See, e.g., Appellants' Br. at 8 ("When a school cuts or caps a team solely to comply with gender proportionality, it discriminates in violation of Title IX, 29 U.S.C. § 1681(a), the Title IX regulations, 34 C.F.R. § 106.41(a), and (for public schools) the Equal Protection Clause of the Fourteenth Amendment."). In short, 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 ...