W. KEITH WATKINS, Chief Judge.
Plaintiffs C.M., A.Q., S.G., R.A., J.S., J.R., L.M., and K.R., all minors suing by and through next friends, bring this action against Defendants Governor Robert J. Bentley, State Superintendent of Education Dr. Thomas R. Bice, State Commissioner of Revenue Julie P. Magee, and State Comptroller Thomas L. White, Jr., for declaratory and injunctive relief. In a facial challenge, Plaintiffs allege that the Alabama Accountability Act ("the AAA") violates their right to equal protection under the Fourteenth Amendment. Defendants move to dismiss Plaintiffs' complaint on the grounds that Plaintiffs lack standing and that the case is unripe. Defendants contend that even if Plaintiffs meet jurisdictional requirements, they fail to allege a violation of the Equal Protection Clause. Additionally, Governor Bentley argues that he is not a proper defendant.
The motion to dismiss has been fully briefed and argued orally. (See Docs. #26, 31, 34, 35.) Upon careful consideration of the helpful arguments of counsel, the relevant law, and Plaintiffs' allegations, the court finds that the motion is due to be granted for failure to state a claim upon which relief can be granted.
The court exercises subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. The parties do not contest personal jurisdiction or venue.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the court's subject matter jurisdiction. McElmurray v. Consol. Gov't of Augusta-Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir.2007). On a Rule 12(b)(1) facial attack, the court evaluates whether the plaintiff "has sufficiently alleged a basis of subject matter jurisdiction" in the complaint and employs standards similar to those governing Rule 12(b)(6) review. Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1335 (11th Cir.2013).
When evaluating a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must take the facts alleged in the complaint as true and construe them in the light most favorable to the plaintiff. Resnick v. AvMed, Inc., 693 F.3d 1317,
To place the background in context, an abridged version of Plaintiffs' contentions is important. This is a facial challenge to the AAA; this is not a disparate impact case. No suspect class is involved, but a discrete classification is. The discrete classification upon which Plaintiffs rely is variously stated as those students who cannot afford to escape failing schools (based upon financial circumstances and distance from a participating nonfailing school), or those students who are unable to access a governmental benefit for the same reasons. The cause of the alleged disparity is the AAA's requirement that certain students bear the costs of transportation to transfer from their failing school to a nonfailing school, a potentially disabling factor for many students residing in the largely poor and rural Black Belt region of Alabama. Plaintiffs' complaint is with the terms on which the AAA provides access to nonfailing schools.
Plaintiffs admit there is presently no fundamental right to an effective public education, and that the AAA did not cause the failing schools. The issue of a fundamental right to some minimal quantum of education is in play only for purposes of evaluating the level of judicial scrutiny of Plaintiffs' equal protection claim. There is no stand-alone constitutional claim arising from the State's denial of a right to receive a nonfailing public education.
The injury alleged is purely an equal protection denial: Plaintiffs suffer unequal treatment. The requested remedy is arguably mean: Withdraw benefits from those students who can afford to escape nonfailing schools. The only remedy requested thus far would leave Plaintiffs in exactly the same situation to which they are currently subject, but with the company of their better-situated classmates. The equal treatment requested is, in effect, equally bad treatment.
On February 14, 2013, the Alabama House of Representatives passed H.B. 84, which later became the AAA. The original bill allowed local school systems to seek waivers from certain State Department of Education requirements in order to implement creative educational programs. On February 28, 2013, the State Senate passed an amended version of H.B. 84. A conference committee convened to reconcile the two versions of the bill. Plaintiffs allege that the Republican majority members of the committee conferred without the two minority members, added nineteen pages of new text to the proposed law, and named it the Alabama Accountability Act of 2013.
The revisions to the legislation included provisions defining "failing schools" and authorizing parents of children in failing schools to transfer to nonfailing public and "nonpublic" — i.e., private — schools. The new provisions authorized the issuance of refundable state income tax credits of
The AAA defines "failing school" as
Ala.Code § 16-6D-4(3).
Plaintiffs represent that the value of the tax credit is approximately $3,500. They arrive at this figure because the AAA provides that the tax credit shall be for an amount equal to eighty percent of the average annual state cost of attendance for a public K-12 student during the relevant tax year or the actual cost of attending a nonfailing public school or nonpublic school, whichever is less. Ala.Code § 16-6D-8(a)(1). "Actual cost" is calculated by adding together any tuition amounts or mandatory fees charged by the school as a condition of being enrolled. Id. Thus, if a parent takes advantage of the AAA by transferring his or her child to a nonpublic school and receives the tax credit, the child's failing school retains the remaining twenty percent of state funds "for as long as the parent receives the tax credit," even though the failing school no longer bears the expense of educating the child who transferred. See id.
If the transferring student's parent's income tax liability is less than the credit allowed by law, the parent is entitled to a refund or rebate equal to the balance of the unused credit. Id. The tax credit does not cover the expense of transportation incurred by a parent who elects to transfer his or her child from a failing school to a participating nonfailing public or private school. Of critical importance, if the nearest nonfailing school is a public school in another school system, or, if the parent chooses to send the child to a nonpublic school, the parent bears the cost of transportation. Ala.Code § 16-6D-8(b)(8). But if the child transfers to a nonfailing school within his local school system, "transportation costs to the nonfailing public school [are] the responsibility of the local school system." Id. Admittedly, the AAA's transportation scheme is most useful to and least burdensome for families with broad public school choice offerings within their local school system.
The AAA also creates a scholarship program whereby individual taxpayers may receive tax credits, up to a fixed limit, for total contributions made to scholarship granting organizations during a particular tax year. Ala.Code § 16-6D-9(a)(2). The law further authorizes tax credits to corporate taxpayers for scholarship donations, also subject to certain limits. Id. at § 16-6D-9(a)(3). The AAA imposes various "administrative accountability standards" upon scholarship granting organizations. Id. at § 16-6D-9(b)(1). One requirement is that scholarship granting organizations must "[e]nsure" that scholarship assistance goes "only to students who would otherwise attend a failing school so that the student can attend a nonpublic school or a nonfailing public school." Id. at § 16-6D-9(b)(1)(m). But after September 15th of each year, scholarship funds may be granted to other "low-income eligible students to defray the costs of attending a qualifying school,"
There is one final relevant detail of the AAA: It provides that nonfailing public and nonpublic schools are not required by law to receive any student seeking to take advantage of the AAA by leaving a failing public school. See Ala.Code § 16-6D-8(d)(1). The AAA authorizes public schools, school systems, school districts,
Plaintiffs represent that the AAA disincentivizes nonfailing public schools from receiving transfer students from failing schools because nonfailing public schools naturally wish to minimize their risk of becoming failing schools. Many schools and school systems have announced that they will not accept transfer students from outside their district. And many of the schools and school systems which are refusing to accept transfer students "are adjacent to school systems in which all the public schools (or, in smaller systems, the only public school) serving a particular grade or grades are failing." (Doc. #1, at 11, ¶ 35.) Moreover, Plaintiffs claim that very few nonpublic schools have chosen to comply with the AAA's scholarship program requirements, which has left students in rural areas with even fewer options for transfer.
Plaintiffs further allege that the AAA negatively impacts the financial position of all public schools, which stand to lose funding as funds are depleted from the ETF to fund tax credits to parents who transfer children to nonfailing schools. And, further, the schools labeled as failing will continue to struggle to excel because students transferring to nonpublic schools take with them, in the form of a tax credit, eighty percent of the funding allocated to the school per student. (See Doc. #1, at 2, ¶ 3 ("The schools in which Plaintiffs are trapped are likely to deteriorate further as their funding is continually diminished over time as a result of the [AAA]. All public schools, whether labeled failing or not, will suffer a reduction in resources, making it more difficult for them to continue to perform at the same level.").)
Plaintiffs aver that seventy-eight public schools in Alabama were officially designated as failing per the AAA. Not surprisingly, these failing schools serve some of the state's poorest students. Plaintiffs claim that thirty of the seventy-eight failing
Plaintiffs C.M., A.Q., and S.G. are "trapped" in Wilcox County's sole public middle school, Camden School of Arts & Technology, which has been designated as failing. (Doc. #1, at 14.) C.M. and A.Q. "struggle" academically, and S.G. has had "critically low" grades. (Doc. #1, at 15-16, ¶¶ 44, 47, 54.) C.M., A.Q., S.G., and their parents all desire that C.M., A.Q., and S.G. excel in school but complain that Camden School of Arts & Technology lacks resources and adequately trained faculty to help them succeed academically.
C.M., A.Q., and S.G. assert that the closest nonfailing public school to which they could transfer is Thomasville Middle School in Clarke County, approximately thirty-four miles from their assigned school and thirty-three miles from their homes. Transferring to Thomasville Middle School would require their parents to commute roughly 120 miles total each day. The next closest nonfailing public middle schools are in Dallas and Lowndes Counties, thirty-six and forty-nine miles away, respectively. C.M., A.Q. and S.G.'s parents complain that they are either completely unable to transport their children or that they would suffer substantial economic hardship to transport their children that many miles each day, five days a week.
Alternatively, C.M., A.Q., and S.G. could enroll in "the least expensive private school within thirty miles" of their assigned school — Wilcox Academy. (Doc. #1, at 20, ¶ 70.) Wilcox Academy reportedly costs $180 per month, exclusive of mandatory fees and incidental costs. C.M., A.Q., and S.G. could not afford the cost of tuition, but even if they could, their parents would not be eligible for a tax credit to reimburse the costs because Wilcox Academy is not participating in the AAA's scholarship program. Thus, C.M., A.Q., and S.G. complain that they are "trapped" in Camden School of Arts & Technology "without meaningful access to a minimally adequate education." (Doc. #1, at 21, ¶ 72.)
Plaintiffs R.A. and J.S. are both middle school students assigned to attend the only public middle school in Russell County's school system, Russell County Middle School, which is a failing school. R.A. struggles academically and has failed several subjects. J.S. has difficulty reading and is repeating eighth grade at his mother's request, even though Russell County School tried to promote J.S. to high school. Both R.A. and J.S. complain that the school and its teachers are inadequate to help them achieve academically.
R.A. and J.S. represent that they could also transfer to Sanford Middle School or Smiths Station Junior High School, both operated by Lee County Board of Education, which are twenty-nine miles and twenty-one miles away, respectively. But R.A. and J.S. represent that Lee County Schools have opted, system-wide, to refuse students seeking transfer under the AAA. Consequently, R.A. and J.S. represent that their parents would have to travel in excess of 120 miles each day to reach a nonfailing public school that would admit them under the AAA.
R.A. and J.S. claim that the least expensive private school within thirty miles of their failing school is Glenwood School, Inc., in Lee County, which charges $5,960 in tuition per year, exclusive of required fees and incidental costs. Glenwood is twenty miles from Russell County Middle School. Glenwood is not participating in the AAA scholarship program, but even if it was, neither R.A. nor J.S. could afford tuition prior to receiving any tax credit. Like the other Plaintiffs, R.A. and J.S. assert that they are "effectively trapped in their assigned failing school without meaningful access to a minimally adequate education." (Doc. #1, at 28, ¶ 104.)
Plaintiffs J.R. and L.M. are assigned to attend the only public middle school serving their grade levels in Barbour County, Barbour County Junior High School. It also is a failing school as defined by the AAA. J.R. does not read at his grade-level, and his grandmother does not believe that he will receive the assistance needed to read at grade-level while enrolled at Barbour County Junior High School. L.M. similarly struggles with reading and writing, and his mother does not believe that Barbour County Junior High School has the resources or personnel to help him achieve his academic goals.
The closest nonfailing public school serving J.R.'s grade level is Banks School in Pike County, operated by the Pike County Board of Education. Banks School is twenty-three miles from J.R.'s failing school and nineteen miles from his home. The closest nonfailing public school serving L.M.'s grade level is Ariton School, a public school operated by the Dale County Board of Education. Ariton School is twenty-seven miles from L.M.'s assigned school and twenty-eight miles from his home. However, L.M. represents that the Dale County Board of Education has chosen to refuse students seeking transfer pursuant to the AAA. Thus, L.M. could potentially transfer to Pike County High School, which is twenty-nine miles from Barbour County Junior High School and thirty miles from his home.
On the whole, J.R. and L.M. feel trapped in their failing public school and are without the means to access an adequate education elsewhere.
K.R. is the only plaintiff not in a middle or junior high school. He is five years old and is assigned to Linden Elementary School, the only public school serving kindergarteners in Linden City School System. His school is a failing school as defined by the AAA. K.R.'s guardian is concerned that K.R. will not receive basic instruction at Linden Elementary School.
There are three nonfailing public schools within thirty miles of Linden Elementary School. U.S. Jones Elementary School and Westside Elementary School, both Demopolis City Schools, are sixteen and eighteen miles, respectively, from K.R.'s home and his failing school in Linden. K.R. believes that officials within Demopolis City Schools have chosen not to accept students seeking transfer from outside its school system under the AAA. The next closest nonfailing public elementary school is Uniontown Elementary School in Perry County. Uniontown Elementary School is twenty-seven miles from K.R.'s home and assigned school in Linden.
K.R.'s grandmother, who is his guardian, has a very limited income, and she does not own a car. She cannot travel 108 miles each day to take K.R. to Uniontown Elementary, and she is unable to afford any fees charged as a condition of his enrollment.
The most affordable private school within thirty miles of K.R.'s failing school is Marengo Academy, which charges annual tuition of $4,260, excluding mandatory fees and incidental costs. Marengo Academy is twenty-eight miles from Linden Elementary School. It is not participating in the AAA scholarship program, so even if K.R.'s grandmother could pay his tuition to attend there, she would be ineligible for an AAA tax credit. K.R., like the other Plaintiffs, is effectively trapped in his assigned failing school, unable to transfer to a nonfailing school as allowed by the AAA.
On the basis of these facts, Plaintiffs argue that the AAA leaves them "and as many as four thousand of their peers" stuck in failing public schools, unable to overcome financial and geographical impediments to receiving a nonfailing education in a nonfailing public or nonpublic school. (Doc. #1, at 37, ¶ 148.) They assert that the denial of a minimally adequate education, particularly, the opportunity to become literate, is a denial of the opportunity to enjoy self-expression, communicate with others, and to participate effectively in the American political process. (Doc. #1, at 37, ¶¶ 150-51.) They
Plaintiffs filed this suit on August 19, 2013, pursuant to 42 U.S.C. § 1983, alleging a single count for the AAA's violation of the Equal Protection Clause and seeking declaratory and injunctive relief against the implementation and enforcement of the AAA. Plaintiffs challenge only certain provisions in the AAA as unconstitutional (Doc. #1, at 39) — particularly the school transfer benefit and tax credit
Article III of the U.S. Constitution limits federal courts to deciding cases and controversies. U.S. Const. art. III, § 2. "If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so." DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). Because of the Constitution's case-or-controversy requirement, federal courts have developed a doctrine of standing to test whether cases are in fact justiciable. To have standing, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Id. at 342, 126 S.Ct. 1854 (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)). The plaintiff's alleged injury must be both concrete and particularized and actual or imminent. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). There must be a causal connection
The Supreme Court has conceded that the three concepts of standing are "not susceptible of precise definition." Allen, 468 U.S. at 751, 104 S.Ct. 3315. While "clear [standing] rules developed in prior cases" often facilitate judicial determination of standing, a court must carefully examine the allegations in the complaint "to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted." Id. at 752, 104 S.Ct. 3315.
Defendants do not devote any argument to the proposition that Plaintiffs' circumstantial inability to transfer under the AAA to nonfailing schools is an "injury in fact." (See Doc. #31, at 22-23 (assuming, arguendo, that Plaintiffs allege a concrete injury and attacking the causation and redressability prongs of standing).) The absence of any direct argument from Defendants does not relieve the court of its obligation to inquire whether Plaintiffs' inability to transfer is a cognizable injury. Bochese v. Town of Ponce Inlet, 405 F.3d 964, 975 (11 th Cir.2005) ("[Courts] are obliged to consider questions of standing regardless of whether the parties have raised them."). This is especially true of the injury prong of standing. Am. Energy Solutions, Inc. v. Ala. Power Co., 16 F.Supp.2d 1346, 1350 (M.D.Ala.1998) (identifying injury as "[t]he most important" of the three elements).
The elements of standing "must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan, 504 U.S. at 561, 112 S.Ct. 2130. "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss [the court] presume[s] that general allegations embrace those specific facts that are necessary to support the claim." Id. (alteration omitted). In this case, the complaint thoroughly details Plaintiffs' plight; Plaintiffs' inability to escape their failing schools is a predicament that is palpable and not conjectural.
But the "injury in fact" requirement demands that Plaintiffs allege that they are suffering "an invasion of a legally protected interest." Bochese, 405 F.3d at 980; Lujan, 504 U.S. at 560, 112 S.Ct. 2130; see also Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (supplanting "legally protected interest" phrase with "judicially cognizable interest"). A "legally protected interest" is one "protected by statute or otherwise." Bochese, 405 F.3d at 980 (citing Cox Cable Commc'ns, Inc. v. United States, 992 F.2d 1178, 1182 (11th Cir.1993)). A "judicially cognizable interest" is, in the somewhat cynical words of a Tenth Circuit panel, "the sort of interest that courts think to be of sufficient moment to justify judicial intervention." In re Special Grand Jury 89-2, 450 F.3d 1159, 1172 (10th Cir.2006) (citing Erwin Chemerinsky, Federal Jurisdiction § 2.3.2 at 74 (4th ed.2003)). The Eleventh Circuit holds to the clearer proposition that "[i]f the plaintiff is prosecuting a constitutional claim, ... the injury must
Plaintiffs argue that the AAA "created a benefit" in the form of an opportunity to transfer to nonfailing schools from failing schools. (Doc. #34, at 19-20.) But, they argue, the AAA "impermissibly distinguishes between similarly situated children in the terms on which it offers access to nonfailing schools," thereby depriving Plaintiffs of the benefit of accessing nonfailing schools, in violation of the Equal Protection Clause. (Doc. #34, at 20.)
Plaintiffs' assertions in support of standing sound much like their arguments in opposition to Defendants' 12(b)(6) motion. Courts must be careful not to confuse standing with the merits of a claim. See Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (noting that "standing in no way depends on the merits of the plaintiff's contention that particular conduct is illegal ..."); Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1093 (10th Cir.2006) (explaining that the "far-fetchedness" of a claim "is a question to be determined on the merits" and assuming, for standing purposes, the claim's legal validity where the claim is a judicially cognizable one). Consequently, the court accepts as "judicially cognizable" Plaintiffs' allegation that the AAA violates Plaintiffs' rights to equal protection. Plaintiffs' inability to transfer is an injury in fact.
To bolster their Article III standing, Plaintiffs also allege as a second concrete injury that diminished funds are available to their failing schools as a result of the AAA's enforcement. Plaintiffs claim that the AAA siphons Alabama's education funds for the payment of parent tax credits and diminishes tax revenues by reducing income tax collections from individual and corporate contributors who give funds to scholarship granting organizations. "[A] plaintiff must demonstrate standing for each claim he seeks to press." Davis v. Fed. Election Comm'n, 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737
Defendants contest extensively Plaintiffs' theory that they will be injured by a statewide decrease in public school funding. (See Doc. #1, at ¶¶ 3, 36 (alleging that all public schools, including Plaintiffs' failing schools, stand to lose funding because of the AAA's implementation).) Defendants contend that this alleged injury is "too remote, speculative, and hypothetical to suffice" and "[P]laintiffs have failed to allege how any overall education spending reduction would work a discrete or concrete injury on themselves." (Doc. #31, at 24-25.) Defendants also assert that Plaintiffs' complaint about reduced school funding is "a generalized grievance shared in common with all public school students" statewide. (Doc. #31, at 26 (citing Allen, 468 U.S. at 751, 104 S.Ct. 3315).)
Plaintiffs contend that the reduction in funding to their schools is real and capable of being measured. That may be true, but Plaintiffs do not explain how the AAA's diversion of funds is invasive of their "legally protected interest" in equal protection of the law. See Bochese, 405 F.3d at 980. Diminished school funding may be a real consequence of Defendants' administration of the AAA, but Plaintiffs' alleged funding injury is unmoored from allegations of unequal or disparate treatment. See Cone Corp., 921 F.2d at 1204 ("[T]he [standing] injury must be the deprivation of a constitutional right."); cf. I.L., 739 F.3d at 1273 (finding that "impediments to public education funding arising from racially discriminatory state laws can constitute... injury for purposes of standing" (emphasis added)). In the absence of a connection between the AAA's diversion of state funds and the right to equal protection, Plaintiffs fail to carry their burden of showing a second, distinct "injury in fact" relating to public school funding. The tax credit and school funding allegations of injury are due to be dismissed.
The only surviving injury is Plaintiffs' inability to transfer. Defendants argue that, assuming Plaintiffs have suffered an injury, "[P]laintiffs do not allege that the poor conditions in their schools are `fairly traceable' to enforcement of the [AAA]." (Doc. #31, at 22.) In other words, Defendants and the AAA cannot be blamed for Plaintiffs' preexisting circumstances. Though the AAA defines what a failing school is, Plaintiffs agree that the AAA did not cause the failure of their schools.
Plaintiffs respond that to establish causation for standing purposes, they need only show indirect causation — not proximate cause. (See Doc. #34, at 22 (citing
Defendants' arguments on causation evade Plaintiffs' alleged constitutional harm. The complained-of injury, according to Plaintiffs, is the denial of equal protection, insofar as the AAA creates a right to transfer to a nonfailing school, but makes transfer available to some students on different terms. Other students in different geographical circumstances
Defendants further contend that Plaintiffs' "`we're trapped' theory of injury fails the redressability requirement" of standing. (Doc. #31, at 22.) Defendants propose that granting Plaintiffs the relief they seek — i.e., an injunction prohibiting implementation and enforcement of the AAA — "will not improve [Plaintiffs'] schools or give them an `opportunity to obtain a nonfailing education.'" (Doc. #31, at 23.)
But Plaintiffs counter that an injunction against the AAA's enforcement will remedy their alleged equal protection injury. Plaintiffs posit that they will not be subject to the denial of equal protection once other students are no longer allowed to enjoy the benefits that Plaintiffs are being denied. (See Doc. #34, at 27-28 (citing Heckler, 465 U.S. at 740, 104 S.Ct. 1387 (reasoning that "when the right invoked is that of equal treatment, the appropriate remedy is a mandate of equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class." (internal quotation marks, original emphasis, and citation omitted))).)
Another implied limitation within the Constitution's case-or-controversy requirement is the doctrine of ripeness. The doctrine prevents courts from prematurely adjudicating disputes before the effects of a challenged action have been felt by the plaintiff in a concrete way. Nat'l Park Hospitality Ass'n v. Dep't of Interior, 538 U.S. 803, 807-08, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003). Evaluating whether a plaintiff's claim is ripe requires inquiry into (1) whether the issues are fit for judicial decision and (2) whether withholding consideration would impose hardship upon the parties. Id. at 808, 123 S.Ct. 2026.
Defendants assert that Plaintiffs' case against the enforcement of the AAA is not yet ripe because the AAA's provisions are novel, and thus, Defendants suggest it would be prudent to wait to see what consequences the AAA will have, when, for instance, more private schools choose to participate, or when school leaders in failing schools mobilize themselves to compete, improve, and thereby avoid the consequences of being designated as "failing." "Whatever happens," Defendants contend, Plaintiffs' "own allegations establish that they will not be appreciably worse off by a delayed decision" on the AAA's constitutionality as applied to them. (Doc. #31, at 23.) Plaintiffs respond that their injuries are directly and immediately felt.
As an additional jurisdictional argument, Governor Bentley claims that he is entitled to dismissal from suit based on grounds of sovereign and Eleventh Amendment immunity. To join Governor Bentley to this suit, Plaintiffs must show that he is "responsible for the challenged action" of enforcing or implementing the AAA. Luckey v. Harris, 860 F.2d 1012, 1015 (11th Cir.1988). Governor Bentley must, "by virtue of his office, have some connection with" the enforcement of the allegedly unconstitutional AAA. Id. (quoting Ex parte Young, 209 U.S. 123, 157, 28 S.Ct. 441, 52 L.Ed. 714 (1908)) (quotation marks and alterations omitted). "Whether this connection arises out of general law, or is specially created by the act itself, is not material so long as it exists.'" Id. at 1015-16 (quoting Young, 209 U.S. at 157, 28 S.Ct. 441) (alterations omitted). But Governor Bentley's connection to the AAA cannot be "too attenuated to establish that he is responsible for" its implementation. See Women's Emergency Network v. Bush, 323 F.3d 937, 949 (11th Cir.2003).
In Women's Emergency Network, the Eleventh Circuit rejected the plaintiffs' argument that the Governor of Florida was a proper defendant because he was ultimately responsible for the Department of Highway Safety and Motor Vehicles, the state agency charged by the challenged statute with issuing specialty license plates. Id. at 949. The court explained that "[w]here the enforcement of a statute is the responsibility of parties other than the governor[,]... the governor's general executive power is insufficient to confer jurisdiction." Id. at 949-50.
Plaintiffs argue that various Alabama statutes vest Governor Bentley with the task of preparing the State's general and education budgets each year, and thus, he "is obligated to participate in the implementation of the AAA, generally, and in the determination of how the diversion of funds from the ETF as a result of tax credits paid pursuant to the AAA will be absorbed in Plaintiffs' school systems, specifically." (Doc. #34, at 48.) The AAA's enforcement requires no affirmative action of the Governor, but it demands action from the other named defendants. See generally Ala.Code §§ 16-6D-1-16-6D-10; see also Women's Emergency Network, 323 F.3d at 949-50. And the Governor's statutory authority over the preparation of Alabama's budgets is too attenuated a connection to make him a proper defendant.
Plaintiffs' allegations are sufficient to establish Article III standing, and the case is ripe for review. Therefore, the court assumes jurisdiction and proceeds to the merits of Defendants' motion to dismiss. However, Governor Bentley is not a proper defendant to this action and is due to be dismissed.
Defendants attack Plaintiffs' complaint as failing to state a valid equal protection claim. They assert that the AAA does not discriminate based on any student's family income or geographical location, but even if the AAA discriminates on those bases, the law is justified by its rational relationship to Alabama's legitimate interest in "provid[ing] educational flexibility and state accountability for students in failing schools." Ala.Code § 16-6D-8(a). Defendants argue that Plaintiffs' complaint is due to be dismissed.
Defendants open their 12(b)(6) argument by contending that the AAA makes no attempt to classify students on the basis of their family income or their geographical location. Defendants contend that the AAA's provisions therefore qualify as rules of general applicability that satisfy the constitutional requirement of equal protection without any further inquiry. (Doc. #31, at 28 (citing New York City Transit Auth. v. Beazer, 440 U.S. 568, 588, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979)).) Defendants assert that Plaintiffs "complain of unequal results based not on any government mandate but on their `financial and geographical' circumstances." (Doc. #31, at 29.) Defendants conclude that "[t]his is de facto discrimination" that "is not subject to [judicial] scrutiny." (Doc. #31, at 29 (citation omitted).)
Defendants argue that even if the AAA discriminates against Plaintiffs as alleged, Alabama's governmental interest in providing a nonfailing education to children justifies any discrimination. Defendants
Plaintiffs dispute Defendants' assertion that this case calls for rational basis review. Plaintiffs believe that the AAA "implicates the complete denial of educational rights to a particular class of children," which requires the court to apply a heightened level of scrutiny; thus, they propose that the court must ask whether the AAA "furthers some substantial [state] goal." (Doc. #34, at 45 (citing Plyler v. Doe, 457 U.S. 202, 224, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982)).) Plaintiffs assert, as they allege in their complaint, that their denial of transfer under the AAA deprives them of the opportunity to receive a "minimally adequate education." (Doc. #34, at 35; Doc. #1, at 37, ¶ 150.) Plaintiffs acknowledge that the Supreme Court has not held that public education is a fundamental right, but they represent that the Supreme Court left open the possibility that courts might apply greater judicial scrutiny if a state "failed to provide each student with the opportunity to gain `basic minimal skills.'" (Doc. #34, at 36 (citing San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 37, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973)).) Plaintiffs liken their case to Plyler and argue that their challenge to the AAA calls for a higher level of scrutiny.
Alternatively, Plaintiffs claim that "[t]he AAA's impermissible distinction between Plaintiffs and other children assigned to failing schools constitutes discrimination of an unusual character," and thus, this discrimination "especially require[s] careful consideration." (Doc. #34, at 41 (citing United States v. Windsor, ___ U.S. ___, 133 S.Ct. 2675, 2693, 186 L.Ed.2d 808 (2013); Romer v. Evans, 517 U.S. 620, 632-34, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996)).)
And finally, Plaintiffs respond that even without some form of heightened scrutiny, their equal protection challenge survives rational basis scrutiny because "[e]xcluding Plaintiffs from the [AAA's] transfer benefit ... does not promote" Alabama's "express goals" of advancing educational flexibility and state accountability for students in failing schools. (Doc. #34, at 45.) Rather, Plaintiffs contend that the implementation of the AAA and the effective denial of the AAA's transfer benefits to Plaintiffs are "wholly counterproductive to [the State's] goals." (Doc. #34, at 45.)
In reply, Defendants criticize Plaintiffs for not responding to Defendants' most basic argument that the AAA does not classify anyone on any basis. Defendants assert that Plaintiffs' complaint is replete with legal conclusions, and after these conclusions are eliminated from the pleading, it becomes apparent that Plaintiffs fail to state a claim for relief.
For example, with regard to Plaintiffs' allegations that the AAA denies Plaintiffs the opportunity to enjoy the AAA's benefits and treats Plaintiffs differently than similarly situated students, Defendants contend that the AAA unconditionally makes transfer an option for, and tax credits available to, any family in a failing public school. Defendants posit that "even where the AAA limits these benefits — such as the requirement that parents provide transportation in some circumstances — the limit[ation] does not on its face turn on [a student's] wealth or geograph[ical location]." (See Doc. #35, at 6 (internal citation omitted).) As for Plaintiffs' allegations that the AAA traps them
As for Plaintiffs' arguments for heightened scrutiny, Defendants assert that Plyler's standard was suitable only for the unique facts of that case, and that Windsor and Romer are readily distinguishable. Applying rational basis scrutiny, Defendants argue that Plaintiffs' case must fail because Plaintiffs cannot "negative every conceivable [rational] basis that might support the [AAA]." (Doc. #35, at 15 (citing Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993)).)
Plaintiffs have alleged that the AAA "treat[s] differently" Alabama schoolchildren assigned to failing schools "who are in all relevant respects alike." Lofton v. Sec'y of Dep't of Children & Family Servs., 358 F.3d 804, 818 (11th Cir.2004) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992)). This is the essence of an equal protection claim. See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (describing the Equal Protection Clause as a directive "that all persons similarly situated should be treated alike"). Defendants are correct that if the AAA does not classify or otherwise make distinctions among students assigned to failing schools, there is nothing to scrutinize under any standard. See Beazer, 440 U.S. at 588, 99 S.Ct. 1355 (noting that a government rule of general applicability to all persons "satisfies the equal protection principle without further inquiry"); Christy v. Hodel, 857 F.2d 1324, 1331-32 (9th Cir.1988) (requiring that plaintiff show that a law "classifies persons in some manner" before the law can be subjected to "any form of review").
Upon review of the allegations in the complaint and of Sections 8 and 9 of the AAA, it is apparent that the AAA treats some students assigned to failing schools differently than it treats others. For example, with regard to the burden of transportation, Section 16-6D-8(b)(8) provides that
(emphasis added). The burden of transportation to a nonfailing public school does not exist for families who live in more populous areas of Alabama with larger "local school systems" from which those families may select a nonfailing public school. But the AAA does burden with transportation
Another example is the AAA's treatment of students assigned to failing schools who, by necessity, must look outside their local school system for a nonfailing public school, vis-à-vis students assigned to failing schools who have alternative nonfailing public school offerings within their local school system. The first category of students may be denied admission by sister school systems. Ala.Code § 16-6D-8(b)(5) and (d)(1)-(2). But the latter category of students has statutorily protected public school choice options within his or her local school system. Id. at § 16-6D-8(b)(4).
It does not matter that there may be reasons for these distinctions. What matters at this point is that there are facially discriminatory provisions of the AAA that are susceptible to scrutiny. All students assigned to schools designated as failing by the AAA are similarly situated to one another. But some students are treated differently with respect to transportation costs if their own local school system has no nonfailing options, and potentially, upon a sister school system's refusal to admit them when their local school is failing. These are, as Plaintiffs claim, geographically based classifications, not in the sense that the AAA expressly discriminates against a particular rural area like the Black Belt or favors metropolitan areas, but in the sense that the AAA treats students differently on the basis of whether they live within a district with nonfailing public school options or a district with no nonfailing public school options.
There is no doubt that living in a rural part of Alabama necessarily requires additional family income for transportation to a school outside of a student's local community. Yet no wealth-based classification is apparent on the face of the challenged portions of the AAA. See Ala.Code §§ 16-6D-8 and 16-6D-9. Plaintiffs allege that they cannot afford to transfer on the AAA's terms and argue that the AAA "predictably burden[s]" them and others in their circumstances. (Doc. #34, at 46.) But Plaintiffs offer no authority — and the court is aware of none — that a law is facially discriminatory simply because it, in effect, burdens various classes of people (e.g., the rich and the poor) differently. That argument implicates a disparate impact theory, which Plaintiffs have expressly disavowed.
Furthermore, even if a disparate impact theory were at stake, it would be difficult to identify the families assigned to failing schools that are wholly incapable of bearing the expense of transportation to another school or the advancement of private school tuition prior to receipt of an income tax credit. A distinction based upon "those who can and those who cannot" escape failing schools because of their income, (see Doc. #1, at ¶¶ 3, 148), is incapable of meaningful, objective analysis. The variables are legion — e.g., rural versus urban, rural versus small town, availability of school alternatives, variable distances to schools, relative wealth of the community and individuals, community population, location of nonpublic schools, cooperativeness of nonfailing public and nonpublic schools, size and circumstances of family, the location or roads and bridges, and a host of other factors.
Ultimately, with respect to the facial challenge to the AAA, Plaintiffs are unable to adequately identify an income-based
Having determined that Plaintiffs plausibly allege that AAA classifies them in some way, the next question is what level of scrutiny should apply. It is undisputed that geographical location is not a suspect classification. But Plaintiffs theorize their inability to transfer constitutes a denial of a minimally adequate, nonfailing education, and they claim that such an education is a "quasi-fundamental right" pursuant to Plyler. (Doc. #34, at 38.) And because something almost as sacred as a fundamental right is at stake, Plaintiffs argue that their equal protection claim invites a higher level of judicial scrutiny than rational basis review. The question presented is whether Plaintiffs have pleaded facts that could support an equal protection claim subject to a higher level of scrutiny than rational basis review.
Plyler addressed a Texas law that authorized local school districts to deny enrollment in their public schools to children not lawfully present in the United States. 457 U.S. at 205, 102 S.Ct. 2382. The Supreme Court acknowledged that the Texas legislature normally should be entitled to "substantial latitude to establish classifications" in social legislation. Id. at 216, 102 S.Ct. 2382. Nevertheless, the Court refused to apply rational-basis scrutiny to the statute. While acknowledging Rodriguez's holding that education is not a fundamental right protected by the Constitution, id. at 221, 102 S.Ct. 2382 (citing Rodriguez, 411 U.S. at 35, 93 S.Ct. 1278), the Court reasoned that neither is education "merely some governmental `benefit' indistinguishable from other forms of social welfare legislation," id. After discussing the obvious virtues of education, both for individuals and for society at large, the Court reasoned that where a state undertakes to provide an education, it "is a right which must be made available to all on equal terms." Id. at 223, 102 S.Ct. 2382 (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954)). The Court then applied heightened or intermediate scrutiny, requiring that Texas demonstrate that the statute in question furthered a substantial state goal. Id. at 224, 102 S.Ct. 2382. Texas failed to offer a substantial state interest justifying its absolute denial of public education to the plaintiffs, and the Supreme Court held that the statute violated the Equal Protection Clause. Id. at 230, 102 S.Ct. 2382.
Plaintiffs insist that their case is analogous to Plyler, but Plyler is dissimilar in significant ways. Texas sought to completely withhold the benefit of public schooling from "a discrete class of children not accountable for the disabling status." 457 U.S. at 223, 102 S.Ct. 2382. Plaintiffs argue that they are not to blame for their poverty or their geographic isolation. Further, they assert that they belong to an identifiable class of "children assigned to failing schools in failing islands" of the State where there are "no grade-appropriate nonfailing schools." (Doc. #34, at 13.) It is possible to identify a discrete class of Alabama students who are stuck in failing public school systems. It is also possible to identify those families who will be responsible for transportation costs. However, as explained previously, it is not possible to identify and classify a discrete group of children whose families "cannot afford" to escape their failing schools on the AAA's terms, and that is how Plaintiffs
Plaintiffs also liken their situation to Plyler by averring that they are enduring a "complete denial of education" in their failing schools. (Doc. #34, at 10, 35.) The quality of education in their failing schools is substandard by the very terms of the AAA itself. (Doc. #34, at 36 ("Defendant Bice acknowledged that Plaintiffs are being denied an education when he designated their schools as `failing' based on the criteria specified in the AAA."); see also Doc. #34, at 15-16 (citing the complaint's allegations that Plaintiffs' teachers are not teaching them and that Plaintiffs are not given personal access to resources such as books and laboratory equipment).) On these grounds, Plaintiffs declare that they are no better off than the children in Plyler. (See Doc. #34, at 35 ("Plaintiffs are, indeed, being denied an education. Plaintiffs' schools do not offer students minimally adequate instruction....").) But this line of argument highlights precisely the Plaintiffs' conundrum in defining a discrete class. The complained-of injury afflicts all students in failing schools, not just those who "cannot escape" failing schools. The argument is self-defeating; it undermines Plaintiffs' own definition of Plaintiffs' discrete classification.
Upon consideration of Plaintiffs' allegations and arguments, the court must conclude that their case is not similar to Plyler because Plaintiffs have not alleged facts supporting any inference that they are altogether without a state-provided education because of the AAA, and because Plaintiffs' suggestion of a discrete class fails by definition. What is more, Plyler was an exceptional case of denial of all educational benefits to a very specific class. See Kadrmas v. Dickinson Pub. Schools, 487 U.S. 450, 459, 108 S.Ct. 2481, 101 L.Ed.2d 399 (1988) ("We have not extended [Plyler's] holding beyond the unique circumstances that provoked its unique confluence of theories and rationales." (internal quotation marks and citations omitted)). The facts here, while lamentable, are not so extreme as to extend the heightened scrutiny applied in Plyler.
Plaintiffs further contend that the Supreme Court in Rodriguez "recognized, and left open, the possibility that a state educational system that failed to provide each student with the opportunity to gain `basic minimal skills' would trigger greater judicial scrutiny." (Doc. #34, at 36 (quoting Rodriguez, 411 U.S. at 38, 93 S.Ct. 1278) (emphasis added).) It is true that in Papasan v. Allain, 478 U.S. 265, 284, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986), the Supreme Court remarked that Rodriguez "did not ... foreclose the possibility that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either the right to speak or the right to vote." (internal quotation marks and alterations omitted). On the basis of this open question, Plaintiffs speculate that the "identifiable quantum of education," protected by the Constitution is at least the caliber of instruction available at transfer schools made accessible to some Alabama students by the AAA. (See Doc. #1, at 37, ¶ 150 ("The AAA abandons Plaintiffs in failing schools that deny them access to a minimally adequate education, which, in turn, deprives Plaintiffs of meaningful opportunities for self-expression, communication with others, and ultimately the tools for effective participation in the American political process.").)
This court will not presume to set that definition by allowing Plaintiffs' claim to proceed under the theory that they are receiving less than the "basic minimal skills" to which they are constitutionally entitled. For these reasons, Plaintiffs' equal protection challenge to the AAA is not entitled to a heightened level of scrutiny afforded by Plyler or alluded to by Rodriguez.
Windsor, which recently invalidated Section 3 of the federal Defense of Marriage Act, and Romer, which struck down a Colorado constitutional amendment prohibiting state governmental protection of homosexual persons, both held that "discriminations of an unusual character" require closer judicial scrutiny than ordinary rational basis scrutiny. Windsor, 133 S.Ct. at 2693; Romer, 517 U.S. at 633, 116 S.Ct. 1620. In Windsor, the Court reasoned that Congress had deviated "from the usual tradition of recognizing and accepting state definitions of marriage." 133 S.Ct. at 2693.
Plaintiffs contend that, like DOMA and Colorado's Amendment 2, the AAA is unusually discriminatory in that it expresses the Alabama Legislature's "antipathy toward failing public schools and the children abandoned by the AAA" within the failing schools. (Doc. #34, at 41.) This antipathy is evidenced, Plaintiffs claim, by the AAA's utility to wealthier families who can afford to take advantage of the AAA's transfer and tax credit options as well as the AAA's allowance for scholarship granting organizations to award taxpayer-donated scholarship funds to any student, not just students attempting to escape failing schools, after September 15th each year. The AAA is "unusual," they say, in two aspects: (1) the AAA's "perverse operation" of "denying benefits to those children most in need" of benefits; and (2) the
Plaintiffs' complaint is devoid of allegations supporting the inference that the Alabama Legislature discriminated in an unusual manner against Plaintiffs. Plaintiffs do allege that the AAA's passage was the product of partisan politics in the Alabama Legislature, but that can be said of most legislation, regardless of the state and the party with a majority. Plaintiffs point to no aspect of the AAA that suggests the Legislature harbored animus toward some children (i.e., the poorer) in failing schools, but not others (i.e., the wealthier). Most significantly, unlike the AAA, the laws at issue in Romer and Windsor involved explicit provisions directed toward very specific classes of people, thereby singling out clearly identifiable groups (homosexual persons) for differential treatment. Here, the AAA affects a broad class of students of all income levels who live within geographically demarcated local school systems. Nothing about this classification suggests animus or a peculiar effort to discriminate. For these reasons, Plaintiffs' claim does not warrant the more "careful consideration" or scrutiny that the Court applied in Windsor or Romer.
Having concluded that Plaintiffs' equal protection claim is not entitled to a heightened level of scrutiny, the court finds that the claim is subject to rational basis review. In the absence of plausible allegations that a state law burdens a fundamental right, "the Equal Protection Clause requires only that [a state] classification be rationally related to a legitimate state interest." Lofton, 358 F.3d at 804. The court may dismiss Plaintiffs' complaint pursuant to Rule 12(b)(6) "when, on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action." Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir.1993). Whether a statute survives rational basis scrutiny is a question of law. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1578 (11th Cir.1989).
Applying the rational basis test involves two steps: (1) identifying a legitimate governmental purpose that the Alabama Legislature hypothetically could have been pursuing when it passed the AAA; and (2) determining whether a conceivably rational basis exists for the Legislature to believe that the AAA would further
Plaintiffs respond that "the AAA necessarily furthers [its stated] purpose, if at all, only for those students able to transfer from designated failing schools ... and does so at the expense of other children's education." (Doc. #34, at 44.) They further argue that "[e]xcluding [them] from the transfer benefit offered by the AAA does not promote educational flexibility or state accountability for them." (Doc. #34, at 45.) Thus, Plaintiffs are critical not only of the AAA's scheme of providing educational alternatives to students in failing schools, but especially of the AAA's failure to provide meaningful alternatives to them. Plaintiffs' attack centers on the AAA's provision requiring that transferring families provide their own transportation to nonpublic schools and public schools in other school systems. See Ala.Code § 16-6D-8(b)(8) ("If a parent enrolls a student in a nonpublic school or in a nonfailing public school within another local school system, regardless of whether that system provides transportation services for other enrolled students, transportation of the student shall be the responsibility of the parent."). Plaintiffs also criticize the AAA's proviso that "[n]othing in [the AAA] shall be construed to force any public school, school system, or school district or any nonpublic school, school system, or school district to enroll any student" seeking transfer from a failing school. See id. at § 16-6D-8(d)(1); see also id. at § 16-6D-8(b)(5) and (d)(2) (permitting schools and schools systems to develop "terms and conditions" for receipt of transferring students).
Even after the focus of scrutiny is narrowed to these specific provisions, a legitimate state purpose for § 16-6D-8(b)(8) and (d)(1) is readily apparent. In Alabama, as in most states, resources for education, not to mention other state-provided services, are scarce. As Defendants put it, "any disparity in the reach of [the AAA's] provisions is due ... to sheer necessity, given limited public and private resources." (Doc. #31, at 38.) It is conceivably rational that the Legislature purposed not to burden schools or school systems with the expense of enrolling, educating, and transporting students seeking escape from non-system schools designated as failing by the AAA. The transportation and enrollment provisions in the AAA furthered its purpose of not saddling nonfailing schools with the expense of admitting, educating, and transporting additional students. The court should not overturn "[s]ocial and economic legislation" like the AAA "unless the [law's] varying treatment of different groups or persons is so unrelated
The court has already determined that Plaintiffs lack standing to protest the diversion of education funds to grant tax credits to families transferring to nonpublic schools and to taxpayers who make donations to scholarship granting organizations. See supra Section IV.A.1.a.ii. But assuming that Plaintiffs have standing to challenge this aspect of the AAA, the State's redirecting of state funds is rationally related to the Legislature's express dual purposes of providing all students in failing schools with the flexibility to leave their assigned, failing schools and holding failing schools accountable for the poor quality of education that the Legislature has defined as failing. A dispute with the Legislature's policy choice and the means of the policy's implementation is due to be resolved at the ballot box.
The shortcomings of public education in places like Alabama's Black Belt are likely as real as Plaintiffs have alleged. The shortcomings of the AAA are also manifest. Plaintiffs' attorneys are commended for their efforts to ensure that their clients receive an education superior to the one they currently receive in schools the State has deemed failing. But in the absence of discrimination against a suspect class or interference with a defined, constitutional right, the AAA is entitled to this court's deferential review.
As the Supreme Court explained in Rodriguez, "every [state] reform that benefits some more than others may be criticized for what it fails to accomplish. But ... it [is] plain that, in substance, the thrust of the [AAA] is affirmative and reformatory, and, therefore, should be scrutinized under judicial principles sensitive to the nature of [Alabama's] efforts" to improve the quality of education available to its children. 411 U.S. at 39, 93 S.Ct. 1278; see also Nordlinger, 505 U.S. at 10, 112 S.Ct. 2326 ("As a general rule, legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality." (internal quotation marks omitted)). Because Plaintiffs cannot properly identify themselves as discrete victims of unconstitutional treatment, and because Plaintiffs have not alleged facts sufficient to overcome the presumption that any distinction or classification created by the AAA is rationally related to legitimate state interests, Plaintiffs' complaint is due to be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for Plaintiffs' failure to state an equal protection claim upon which relief can be granted.
On the basis of the foregoing analysis, it is ORDERED that Defendants' motion to dismiss (Doc. #26) is GRANTED.
Defendants admit that the AAA requires the State to divert funds from the ETF to a new fund for payment of parent tax credits. But they point out that even when a parent takes advantage of the AAA and transfers his or her child to a nonpublic school, thereby becoming entitled to an AAA-created tax credit, "the student's old, failing school will be allocated [twenty] percent of the State's average yearly cost for educating a public school student. By the complaint's logic, this amount allocated to the failing school is $875." (Doc. #31, at 16 (citations omitted).) Defendants explain that a failing school thus will receive more money per pupil if some of its students transfer to nonpublic schools. (See Doc. #31, at 16.) Plaintiffs do not challenge Defendants' math in the opposition briefing, but they explain that other significant sources of funding from the federal government are lost when failing public schools lose students to private schools.
Defendants reject Plaintiffs' "stigmatization" argument and reply that the Supreme Court has held that "[s]tigmatic injury ... accords a basis for standing only to those persons who are personally denied equal treatment by the challenged discriminatory conduct." (Doc. #35, at 10 (citing Allen, 468 U.S. at 755, 104 S.Ct. 3315).) It is true, as Allen and other cases make clear, that a plaintiff claiming to have suffered a stigmatic injury must show that he or she has been "personally subject[ed] to" alleged discrimination. Allen, 468 U.S. at 755, 104 S.Ct. 3315. The court declines to consider Plaintiffs' alleged stigmatic injury for a more basic reason. Plaintiffs have alleged no facts in their pleading suggesting that Defendants' enforcement of the AAA stigmatizes them.
The court has previously disposed of the diversion of tax funds argument as not stating a cognizable constitutional injury.
Plaintiffs do not directly address Defendants' analysis in their responsive briefing, which leads Defendants to deduce in their reply brief that Plaintiffs are pursuing a claim of facial discrimination. At oral argument, Plaintiffs affirmed that their claim is a facial challenge.
"While [a court] therefore must take as true all of the complaint's allegations and reasonable inferences that follow, [it must] apply the resulting `facts' in light of the deferential rational basis standard. To survive a motion to dismiss for failure to state a claim, a plaintiff must allege facts sufficient to overcome the presumption of rationality that applies to government classifications." Id. at 460. The court approaches Defendants' motion to dismiss with these principles in mind.
