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By Bill King

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Snowboarders Cross about the 14th Amendment

Just in time for the February 2014 Sochi Winter Olympics, snow aficionados –of which I am one– will get a taste of Constitutional Law.

It seems after decades of banning snowboarders, someone finally decided that Alta ski resort in Utah shouldn’t be so discriminatory.

Despite there being about 15 other boarder-friendly resorts in the Salt Lake City area, four snowboarders decided that they want to board at that one.  But Alta is one of three U.S. resorts that says “no snowboarders.”  So, the boarders filed suit as a “protected class” citing to the Equal Protection Clause in the 14th Amendment (see subsection (1)).  But while Alta owns its lifts, it sits on government land. That may give rise to a viable claim.

“Because of Alta’s relationship with the government, Alta’s actions must comply with the Constitution’s Equal Protection Clause,” says the boarders’ attorney, Jonathan Schofield. “Alta’s prohibition against snowboarders excludes a particular class of individuals from use and enjoyment of public land based on irrational discrimination against snowboarders, which denies them equal protection under the law as guaranteed by the Fourteenth Amendment.”

Now, this may seem like a frivolous suit, and Con Law geeks (as I liked to call them in law school…mostly out of jealousy) everywhere are jumping to the “boarders aren’t a class!” arguments. But the twist is that the resort operates under a Forest Service Permit which provides that federal lands must remain open to the public for all lawful purposes. So the question is, are snowboarders discriminated against in violation of the permit and the equal protection clause?

The message boards were filled today with anti-boarder hate speech coupled with “snobby skier” name-calling. The crux of the argument comes down to whether or not snowboarders are a protected “class,” a term which has historically been addressed for purposes of bringing equality of race, gender, etc.

Intuitively, this just seems wrong…

As a skier-turned-snowboarder, I can tell you that we are definitely a different class. But I have spent the bulk of my boarding career (11 years) side-by-side with my fellow skiers. So what’s the big deal, Alta? Well, skiers apparently hate the way we ride the snow. Well, I hate the way skiers shoot past my blindside or cut in front of me.

So will the suit have merit? Let’s see…

(with credit to BLM09 on the Livefyre message board who expounded on my point)

It is true that snowboarders are not a suspect class (race, religion, national origin etc) and will, therefore, not enjoy the strict scrutiny analysis enjoyed by such plaintiffs.  However, snowboarders may still qualify for a non-suspect, but purely economic or social classification. And, if so, the court would still review the case under a “minimum rationality standard;” specifically, the court will ask whether the prohibition against snowboarders is “related to a legitimate public interest?”  It may be hard to argue that snowboarders and skiers are not similarly situated, and it will be hard to argue that their prohibition serves an interest that is not at issue with regard to skiers.  Alta and USFS would have to show that it is rational to conclude that snowboarders create public risks/dangers not created by skiers. Setting basic prejudice against snowboarders aside, this will be hard to show.

The counter-argument is that all people are allowed access to the mountain, you just can’t snowboard there, so the owners of the private lift on public property can do what they want. Unfortunately, that may not be true. As mentioned above there are safety reasons typically attached to such rules. For example, we all know that the north side of the HB Pier is reserved for surfers. Or, rather, [cue loudspeaker] “no boards on the south side of the pier!” Is this discriminatory against surfers? Yes. But it also protects the population that doesn’t surf from ugly face and body gashes. There’s a great public interest.

For you non-beachies, this is a black ball flag.

It’s the same reason you can be ticketed for riding your beach cruiser on the Newport Beach boardwalk at faster than 5 mph.  But where’s the argument to protect skiers? Is there evidence of major accidents caused solely by boarders? No. Are there pedestrians walking around the snow? No. Though it was interesting to learn that Alta was one of the first resorts to allow boarders way back when. There were too many accidents (and the elitist sussing snobs complained enough) that they imposed the ban back in the 80s.

In fact, the Alta rule would be like owning the Toll Roads and prohibiting motorcyclists because you “just don’t like the way they look, sound, and drive and they sometimes make car drivers uncomfortable.” Not good enough. Yes, there are laws that limit vehicles -big rigs- usually due to road width or weight-bearing issues. But that’s a safety issue. And if you want to serve the public, you gotta treat ‘em equally.

We’ll probably be in the middle of watching Snowboarder Cross in February when Alta’s motion to dismiss is heard. And when the announcers talk about it, you can thank me for enlightening you.

Happy Sussing/Carving:


[*For those of you ConLaw geeks, here’s some more cerebral material: As for the applicability of the 14th amendment to this issue, it can apply to non-state actors if there is a sufficient nexus between the non-state actor (Alta) and the state (USFS). As this is public property under the regulatory control of the USFS, the nexus is probably sufficient to extend the equal protection clause to these plaintiffs.

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