Let ski areas ban snowboards

A federal judge in Utah has dismissed a lawsuit claiming that there is a constitutional right to go snowboarding on public lands. While I would prefer snowboards be allowed everywhere skis are allowed, I hope that the judge has put an end to the silly notion that bans on snowboards are in the same class as racial discrimination.

The plaintiffs, who organized under the name Wasatch Equality, said that a ban on snowboards on federally owned land is a form of unlawful discrimination. Why? The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, among other things, says that states (later expanded to the federal government) may not “deny to any person within its jurisdiction the equal protection of the laws.” The ban occurs on federal land; therefore, the argument goes, it is unlawful.

Such an argument was always, at best, a stretch, because the clause has usually been in the fore of disputes over race, such as affirmative action.

The case, Wasatch Equality versus Alta Ski Lifts, came at a time when the skier-versus-snowboarder battle is all but dead. Granted, not all skiers welcome snowboarders, but Alta is one of only three lift-served areas in the country that do not allow snowboards on the slopes.

This exclusion, though, has been a burr in the saddle of some riders, including a few people who filed suit against Alta, and the U.S. Forest Service (USFS), whose Wasatch-Cache National Forest hosts the resort. But Judge Benson of the United States District Court for the District of Utah did not agree. On September 23, 2013, Benson dismissed the lawsuit. You can find his 30-page decision (PDF) here.

What did the plaintiffs say?

In brief, the lawsuit argued that the ban on snowboarding violates the federal rights of snowboarders to be as treated just like skiers. That’s the equal-protection argument. It also said that the ban violates the due-process clause of the Fifth Amendment.

What did the judge say?

Here is one non-lawyer’s summation of the five major points that Judge Benson made.

1. The argument about the equal-protection clause fails because the clause applies primarily to units of government. The ban on snowboards is imposed by Alta, a private company, not the Forest Service. It is true that Alta operates on land leased from the U.S. Forest Service, under a permit. But that’s irrelevant, for it’s Alta, not the USFS, that has imposed the ban. “The Forest Service did not encourage the rule,” the judge said, “discourage the rule, agree with the rule, or disagree with the rule; nor was the Forest Service consulted on the appropriateness of the rule.”

2. Let’s pretend, the judge said, that the federal government itself imposed the ban. Should the ban then be thrown out as a violation of the equal protection clause? No. Historically, the courts have applied the Fourteenth Amendment to make sure that government does not act improperly toward people based on who they are — including race and national origin — not what they do, such as go skiing or snowboarding. Courts have also been keen to safeguard the amendment when there’s a question of whether a government is trying to make it difficult for a person to exercise fundamental constitutional rights, such as travel across state lines or vote. [Doesn’t anyone remember the gross violations of voting rights in the 1960s, violations committed with violence?] If there’s a question of whether government is acting in either of these says, courts will examine the law or policy with the strictest of scrutiny. Otherwise, though, courts will be more likely to let a legislature or executive agency do what it wants. This is called the “rational-basis” test, which says, Can anyone make an argument that the there’s a rational basis for what the government is doing? Note that the government need not actually say what its reasoning is.

3. We’ve already established that the claim needs to go against the federal government, and the federal government is not involved. But that’s not the only reason the plaintiffs have no case against the USFS. Under established law and court rulings, the federal government has a lot of leeway in how it manages the land it owns. So if the USFS made the decision about snowboards, that was within its prerogative.

4. Even assuming that there might be a case against the USFS, we then have to ask whether the agency has a rational basis for treating skiing and snowboarding differently. The plaintiffs had to make several long-shot arguments to make a persuasive case that the agency had no rational basis, but they didn’t even try. Worse for them, they actually several reasons for the ban.

5. The plaintiffs allege that the ban is based on dislike towards snowboarders as people. That is, it is based on unfair and even unlawful biases. As the judge said, they “seem to believe that if the animus they allege can be proven,” they win. There are two ways in which animus (motives) might make a difference, but they are irrelevant to the ban on snowboards. First, the law or policy must have something to do with fundamental, unchangeable personal characteristics such as race, or the exercise of a fundamental right. The other scenario would be if there is no conceivable rational basis for the ban. Yet even the plaintiffs agree that the ban is part of Alta’s business model–meaning that it has a rational foundation. Furthermore, the plaintiffs have done nothing to show that Atla’s executives hate snowboarders. “Atla’s snowboard policy bans only snowboards from Alta, not people. It is an equipment restriction only.”

Choice quotes

Here are some passages from the ruling that stood out to me.

“Plaintiffs claim to have a constitutional right to snowboard at the Alta Ski Resort.”

“Plaintiffs have never contended that they belong to a protected class or that snowboarding is a fundamental right. They allege only that Defendants denied them equal protection of the law by treating Plaintiffs differently from ‘similarly situated’ people who wear skis.”

“A business, even a skiing business on Forest Service property, enjoys the right to manage its business pursuant to its preferred business model, even if others disagree with it.”

“People who ride a snowboard tend to have a blind spot because they stand sideways, while skiers do not have the same blind spot because they face downhill.” [I think this is an overblown concern and it’s unfortunate that this made it into the ruling, but again, it supports the ‘rational basis’ test. Remember, that test does not require that the claims be proven true, only offered.]

“The Equal Protection Clause is not a general fairness law that allows everyone who feels discriminated against to bring an action in federal court.”

“There are many forums Plaintiffs can resort to in an attempt to accomplish their goal of snowboarding down the Baldy Chutes of Alta. Seeking an injunction from this court is not one of them.”

Final thoughts

The lawsuit has been ridiculous. The argument that a ban on a piece of equipment is morally equivalent to racism–not mentioned in the lawsuit, perhaps, but offered up regularly on Internet discussion forums–is repugnant. Among other things, this attempt at moral equivalence disgraces the legacy of people who suffered and died to secure the fundamental constitutional right to vote. It’s a good thing that the judge didn’t buy it. Would that more snowboarders agree.

I might enjoy sliding down the slopes of Alta, Deer Valley, or Mad River Glen on my snowboard. But I can’t. That’s fine; those businesses are literally “not my business.” Every business has rules–I can’t set up a bowling lane in a movie theater–and I’m usually free to go elsewhere.

A few ski areas, and some skiers, want a skier-only mountain. Would I take my skis there? Probably not, though I wouldn’t turn down free lift tickets. Are some of the people who patronage ski-only hills acting in part or whole on stereotypes or false information? Probably. But do I approve of the right of people to peacefully gather for their own purposes–purposes that I may not agree with? Most certainly. I’m glad Judge Benson agrees.

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