WILLIAM H. STEELE, District Judge.
This matter comes before the Court on plaintiff's Motion for Preliminary Injunction (doc. 2). The Motion, which has been the subject of extensive briefing on an expedited basis, is now ripe for disposition.
Last November, the Alabama High School Athletic Association adopted a "competitive balance factor" rule to increase by one level the classification of certain private-school members' sports teams with a demonstrated track record of consistent, recent success. St. Paul's Episcopal School stands to be directly affected by this rule in the 2018-2020 classification period with respect to several of its athletic programs, including most notably its football team, which will "level up" from 5A to 6A. After its attempts to persuade the Association to vacate or suspend the rule at two board hearings earlier this year were unsuccessful, St. Paul's filed this civil action against the Association and its Executive Director. The Complaint alleges that the Association violated St. Paul's constitutional rights in three respects (equal protection, substantive due process, procedural due process) and also breached certain obligations and duties in its Constitution, Bylaws and Handbook.
Contemporaneously with the Complaint, St. Paul's filed a Motion for Preliminary Injunction, seeking an order preliminarily restraining and enjoining the Association from enforcing this new competitive balance rule. Given the time-sensitive nature of the relief requested, the parties briefed the matter on an expedited basis. Counsel for both sides are to be commended for preparing comprehensive, well-written, helpful memoranda addressing complex constitutional and factual issues under extraordinary temporal pressure. Regardless of the Court's ultimate determinations about the merits of the theories and arguments presented, the quality of lawyering has been uniformly excellent. The Court's analysis and understanding has benefited greatly from counsel's diligent and thoughtful advocacy.
Upon careful consideration of the parties' arguments and exhibits, the Court concludes that preliminary injunctive relief is not appropriate at this time. A preliminary injunction is an extraordinary and drastic remedy, for which a movant bears a heavy burden of persuasion. In this case, St. Paul's has failed to demonstrate a substantial likelihood of success on the merits. With respect to the equal protection claim, St. Paul's has made an insufficient showing that the Association was motivated by "bare animus" against private schools; therefore, the challenged classification must be evaluated using deferential rational-basis review. Under this standard, the competitive balance rule is presumed constitutional, and must be upheld if any reasonably conceivable set of facts could provide a rational basis for it, even if the rule seems unwise and even though it works to a particular group's disadvantage. The AHSAA has a legitimate interest in promoting competitive balance for its members. The challenged rule could rationally be viewed as furthering that legitimate interest. Indeed, the requisite rational basis may be found in data reflecting private schools' disproportionate and ever-growing success in winning state championships, as well as in the numerous perceived advantages enjoyed by private schools relative to public schools. St. Paul's has not shown a substantial likelihood that it can negate every one of those rational grounds for adoption of the competitive balance rule.
As for plaintiff's substantive due process claim, no substantial likelihood of success has been shown. The property rights identified by St. Paul's are shaky, at best. The proper standard of review for this claim is the same deferential rational-basis test utilized in the equal protection context, so St. Paul's can be no more successful on a substantive due process theory than it can on equal protection. St. Paul's attempt to seek heightened review on the grounds that the Association acted with "deliberate indifference to an extremely great risk of serious injury" cannot succeed (even assuming the legitimacy of that formulation of the standard in this Circuit) because the record does not support a finding that the Association callously, recklessly adopted this rule without heed of dire safety consequences. Next, plaintiff's procedural due process claim fails to provide a sufficient basis for preliminary injunctive relief because the record strongly suggests that the Association provided St. Paul's with ample and constitutionally adequate procedural safeguards, including allowing it to appear before the board twice to make its case against the competitive balance rule before it went into effect. Finally, no preliminary injunctive relief is warranted on St. Paul's state-law declaratory judgment claim because the various "duties" and "obligations" that plaintiff ascribes to the Association either appear not to be required by any contract or mutually explicit understanding, or do not appear to have been breached by passage of the competitive balance rule.
Today's ruling is in many ways a reflection of the daunting hurdle that a plaintiff in St. Paul's position must overcome in order to obtain preliminary injunctive relief. It is not the role of this Court to decide whether the competitive balance rule is the wisest, fairest, best or most efficient way of advancing the objective of promoting competitive balance in interscholastic athletics. Whether the Court thinks it is a good rule or a bad rule is irrelevant. This Court may not substitute its judgment for that of the Association. Moreover, the Alabama Supreme Court has repeatedly emphasized the AHSAA's near-absolute authority in its own affairs. A courtroom is rarely the proper field for competition when it comes to disputes over high-school athletic rules. Alabama courts take a hands-off approach to controversies concerning regulation of high-school athletics, at least in the absence of clear and convincing evidence of fraud, collusion, bias or arbitrariness. It does not appear substantially likely that any of those factors are present here. For these reasons, the Court finds that St. Paul's has not shown a substantial likelihood that the competitive balance rule is unconstitutional, or that it violates the terms of the Association's Constitution, Bylaws and Handbook. The Motion for Preliminary Injunction is properly denied.
The Alabama High School Athletic Association ("AHSAA") is a voluntary association comprising public, private and parochial schools in the State of Alabama. (Savarese Decl. (doc. 24, Exh. B), ¶ 2.) The stated purpose of the AHSAA, which was founded in 1921, is to regulate, coordinate and promote its member schools' interscholastic athletic programs. (Id.) At present, the AHSAA's membership includes 373 public schools and 51 non-public schools, such that non-public schools constitute 13.6% of the Association's total membership. (Id., ¶ 5.) Among those members is plaintiff, St. Paul's Episcopal School, a private school located in Mobile, Alabama. St. Paul's has been a member of the AHSAA since 1976. (Ingram Aff. (doc. 24, Exh. A), ¶ 24 & Exh. A-21.) A bona fide dispute has arisen between St. Paul's and AHSAA relating to certain athletic classification rules adopted by the AHSAA, to-wit: (i) a provision called the "Multiplier Rule" that was adopted in 1999; and (ii) a provision called the "Competitive Balance Factor" that was adopted in November 2017. Plaintiff's pending Motion for Preliminary Injunction seeks an order restraining and enjoining the AHSAA from enforcing the Competitive Balance Factor rule against any of the Association's private school members.
At the beginning of each school year, the AHSAA promulgates the AHSAA Handbook, which compiles its Constitution, Bylaws and current rules and regulations in one location. (Savarese Decl., ¶ 4.) All member schools agree to be bound by the Constitution, Bylaws and rules set forth in the Handbook. (Id., ¶ 6.) The Handbook confirms that "[m]ajor aims of the AHSAA are to serve the needs of its member schools in conducting their interscholastic athletic programs and to assist member schools in reaching the educational objectives as established by their school systems." (Id., ¶ 4 & Exh. B-1 at 94.) According to the AHSAA's Constitution, "[t]he object of this Association shall be to promote pure amateur athletic competition in the high schools of Alabama." (Doc. 24, Exh. B-1 at 16.) The Constitution provides that management of the AHSAA's affairs is vested in a Legislative Counsel and a Central Board of Control. (Id. at 17.) The Central Board "shall have the power to classify member schools into two or more divisions for the purpose of athletic competition," and "shall have authority over any matter related to championship play." (Id. at 20.) The AHSAA Constitution further provides that rulings made by the AHSAA's Executive Director may be appealed to the Central Board, which "has the authority to make the final decision on any case appealed to it." (Id. at 22.)
Pursuant to the Handbook, "High schools are divided into seven classifications (1A, 2A, 3A, 4A, 5A, 6A and 7A) for competition in championship programs." (Id. at 88.) As a general proposition, "Classification is based on Average Daily Membership (ADM) figures furnished by the State Department of Education for the upper three grades plus ninth grade students that are retained in the ninth grade." (Id.) For the 2018-2020 classification period, the relevant ranges of enrollment for AHSAA classification purposes include the following: (i)
In 1999, the AHSAA's Central Board received proposals from five public-school members, requesting that non-public schools be excluded from competing in playoffs and/or state championship games. (Savarese Decl., ¶¶ 10-11.) Under these proposals, postseason play in the AHSAA would effectively be split, with public schools competing against public schools and private schools competing on a separate track against private schools. A stated rationale for these proposals was that "non-public schools can pick and choose their student enrollment whereas public schools cannot." (Id., ¶ 10.) Surveys revealed that these proposals were favored by more than 70% of the Association's members. (Id., ¶¶ 10-11.) In response to the members' concerns over private-school advantages, and in the interest of avoiding a split in postseason play, the Central Board approved an alternate proposal, under which a 1.35 multiplier would be used for each non-public school student to calculate adjusted enrollment for classification purposes (the "Multiplier Rule"). (Id., ¶ 13.) Whereas each public-school student would count as one student for classification purposes, each private-school student would count as 1.35 students. The AHSAA Handbook summarizes this rule as follows: "An index of 1.35 is used to determine the enrollment figure for classifying each private school member. Each private school student counts 1.35 for classification purposes." (Doc. 24, Exh. B-1 at 88.)
Upon implementation of the Multiplier Rule in 2000, 15 of the AHSAA's 29 non-public school members moved up at least one classification level. (Savarese Decl., ¶ 29.) One of those schools was St. Paul's, which ascended from 4A to 5A in all sports by operation of the Multiplier Rule. Despite being elevated in this manner, St. Paul's continued to excel in interscholastic athletic competition in many sports. For example, in football, St. Paul's has achieved a 165-61 overall record (for a winning percentage of .730) during the 18 seasons it has played at 5A, including 15 trips to the playoffs and state championships in 2007, 2014, 2015, and 2017. (Doc. 24, Exh. A-21.) From 2011-2017, St. Paul's football was particularly dominant against other 5A schools, with a gaudy record of 63-9 (for a winning percentage of .875) in head-to-head competition. (Id.)
More broadly, non-public schools continued to win state championships at a much higher rate than their approximately 13% membership percentage in the AHSAA, even after implementation of the Multiplier Rule. From 2011-2016, AHSAA non-public schools won 38.1% of state championships in boys' sports, and 36.6% of state championships in girls' sports. (Savarese Decl., ¶¶ 15-16.) These outcomes raised substantial questions as to whether the Multiplier Rule went far enough to effectuate competitive balance within the AHSAA. A rational inference drawn from non-public schools' continued outsized success was that inherent advantages accruing to non-public school members were so pronounced that the Multiplier Rule was insufficient to offset those advantages and level the playing field.
The internal and external pressure for AHSAA to take further steps to bring about competitive balance within the Association's ranks intensified in spring 2016, when a bill was introduced in the Alabama legislature that, if passed, would have segregated postseason and championship play, with public schools competing only against public schools and private schools competing only against private schools. (Id., ¶ 19.)
The AHSAA's Central Board was keenly aware of the growing sentiment that the Multiplier Rule was insufficient to remedy perceived competitive imbalances between private schools and public schools. In April 2015, the Central Board formed a committee to study the Multiplier Rule and potential solutions for engendering a competitive balance between public and non-public member schools. (Hardin Aff. (doc. 24, Exh. E), ¶ 3.) Among the Central Board's stated reasons for assembling such a committee were the following concerns about differences between, and advantages and disadvantages of, public schools and private schools: (i) data revealing far higher sport participation percentages at private schools versus public schools; (ii) the disproportionate percentage of state championships won by non-public schools, at roughly triple their AHSAA membership share; (iii) the fact that non-public schools can use a selective process to control enrollment, while public schools cannot; (iv) the ability of non-public schools to cap enrollment, whereas public schools cannot; (v) the fact that certain non-public schools may not face salary constraints for coaching staff and constraints on number of coaching positions; (vi) the fact that certain non-public schools do not operate under budget restraints for facilities, as public schools often do; (vii) the fact that the Alabama Accountability Act provides financial assistance for non-public schools; and (viii) the difference in attendance zones, with non-public schools being able to draw students from multiple public schools' zones, whereas public schools have narrower zones. (Id.)
Pursuant to the Central Board's decision, a 15-member Classification Committee was convened in 2016. Five members of this committee were representatives of non-public schools, including the Committee Co-Chair, Anthony McCall, Athletic Director at The Montgomery Academy, and Tony Havard, Head of School at UMS-Wright in Mobile, Alabama, whose campus is located just two miles from St. Paul's. (Massey Aff. (doc. 24, Exh. D), ¶¶ 3-4.)
On June 15, 2017, the Classification Committee unanimously voted to recommend a plan called the Competitive Balance Factor ("CBF") to the AHSAA Central Board. (Massey Aff., ¶ 11.) In its final form, the CBF included the following salient features: (i) retention of the 1.35 enrollment multiplier for non-public schools; (ii) implementation of a competitive balance factor that takes effect when a non-public school team achieves a threshold level of points based on the team's overall finish for each of the previous three seasons; and (iii) if the total number of points exceeds the designated threshold (which varies depending on the sport) for the previous three years, then that particular team would "level up" one class. (Doc. 1, Exh. B.)
The Classification Committee chose to recommend the CBF as a means of leveling the playing field and redressing perceived competitive imbalances in the AHSAA between public school and non-public school members. The Committee selected the CBF over other alternatives, such as increasing the 1.35 multiplier to 1.85 or 2.25, because it concluded that the CBF "would more effectively, fairly and accurately address the disproportionate percentage of state championships won by the non-public schools." (Massey Aff., ¶ 13.) Supporting data bears out this conclusion; indeed, the CBF, as designed, will alter the classification of only 85 of 820 (or 10.4%) of all non-public school teams. (Id.)
On July 26, 2017, the Classification Committee Chair, Matt Massey, appeared before the AHSAA's Central Board and explained that the Committee had unanimously recommended adoption of a CBF for the 2018-20 classification period. (Hardin Aff., ¶ 5.) Massey showed that the Committee had engaged in exhaustive and thorough studies, analyses and discussions of various options, after which the Central Board reviewed and debated the recommendation in detail. (Id.) On November 13, 2017, the Central Board met again and further discussed the proposed CBF. (Id., ¶ 6.) The Central Board concluded that the CBF plan was preferable to increasing the multiplier because the latter option would affect a far greater number of non-public member schools. (Id.) On that basis, the Central Board voted unanimously to approve the CBF for the 2018-20 classification period, reasoning that it provided for "fair, equal, competitive opportunities for all schools and not just those that have consistently won in the quarterfinal, semifinal, or championship level in their class." (Id.) The Central Board's stated "hope" is that the CBF will allow all AHSAA teams to "compete on as fair a level of competition as possible." (Id., ¶ 7.) The Classification Committee is scheduled to reconvene at the conclusion of the 2018-2019 school year to review data. (Id., ¶ 8.)
As noted, the CBF plan affected only a small minority (roughly 10%) of non-public member schools' teams. However, the impacts on St. Paul's are far more pronounced. Under the CBF, St. Paul's football, volleyball, boys' golf, boys' and girls' indoor track, boys' and girls' outdoor track, boys' and girls' cross-country, boys' and girls' soccer, boys' and girls' tennis, and boys' and girls' swimming teams all move up one level from 5A to 6A for the 2018-20 classification period. (Doc. 24, Exh. A-14 at 72-75.) St. Paul's other teams, including baseball, softball, and basketball, will remain at the 5A level after application of the CBF. (Id.) Recall that on a "true," unadjusted enrollment basis (excluding the Multiplier Rule's effects), St. Paul's teams would be competing in the 4A classification.
On January 19, 2018, St. Paul's Head of School, N. Blair Fisher, sent an email to Savarese requesting that St. Paul's representatives be allowed to attend the AHSAA's January 31 meeting and "to be placed upon the meeting agenda." (Doc. 24, Exh. B-4.) Fisher indicated that "we would like to gain a better understanding of the recently adopted `Competitive Balance Rule.'" (Id.) At Savarese's request, Fisher re-submitted the request on St. Paul's letterhead dated January 22, 2018. In that letter, Fisher identified the St. Paul's representatives who would be attending, indicated that only he and Athletic Director Steve Mask wished to address the AHSAA Board, stated that St. Paul's wished to have its school counsel attend, and requested access to certain documents and records in advance. (Doc. 24, Exh. B-6.) Savarese responded via letter dated January 23, 2018, that St. Paul's had been placed on the agenda for the January 31 Board meeting, that St. Paul's would be allowed 10-15 minutes to make a presentation, and that only school personnel would be permitted to address the Board. (Doc. 1, Exh. C.) On January 31, St. Paul's representatives Fisher and Mask did, in fact, appear before the Central Board and expressed their concerns about the CBF. (Savarese Decl., ¶ 29.) Upon articulating their objections, Fisher and Mask requested that the CBF be vacated or, at a minimum, that its application be suspended "to allow more time for analysis and thoughtful reconsideration." (Doc. 24, Exh. B-8.)
The AHSAA invited St. Paul's to register an appeal of the adoption of the CBF rule. On February 8, 2018, Fisher again wrote to Savarese to accept that invitation and express St. Paul's desire to lodge an immediate appeal. (Id.) Savarese responded by letter dated February 12, 2018, confirming that St. Paul's request for hearing had been granted and that the matter had been set for March 13, 2018. (Doc. 24, Exh. B-9.) The February 12 letter notified St. Paul's that (i) only the Central Board would hear the appeal; (ii) Article VII of the AHSAA Constitution conferred on the Central Board complete and final jurisdiction over all questions of the Constitution and Bylaws appealed by a member school, and also granted the Central Board the power to classify member schools into divisions for athletic competition; and (iii) St. Paul's would be allowed 10-15 minutes to make its presentation, and only school personnel may address the Board. (Id.)
At the March 13 hearing, Fisher and Mask appeared before the Central Board and presented a 38-page PowerPoint presentation, culminating in two specific alternative proposals. (Savarese Decl., ¶ 32.)
Two months after denial of its appeal, St. Paul's filed a 56-page Complaint for Injunctive and Declaratory Relief (doc. 1) against the AHSAA and Savarese (solely in his official capacity) in this District Court. The Complaint asserted three federal constitutional claims against the Association pursuant to 42 U.S.C. § 1983.
In Count II of the Complaint, St. Paul's maintains that defendants deprived it of its constitutional right to substantive due process. To support this theory, St. Paul's pleads that it is entitled to constitutionally protected rights, such as the right to have the AHSAA promulgate rules in a manner that does not substantially increase the risk of harm to student-athletes, the right to have the AHSAA exercise its power to classify in a manner that does not penalize private schools, the right to have the AHSAA create an environment of "pure" competition, the right to have the AHSAA promote private-school and public-school athletic programs equally, the right to have its student-athletes' achievements judged equally with those of student-athletes at public schools, and the right not to be treated unequally from public schools. (Doc. 1, ¶ 143.) St. Paul's posits that these purported "entitlements" were "created by express and/or implied contracts and mutually explicit understandings" between the AHSAA and its constituent member schools. (Id., ¶ 144.)
Count III of the Complaint is framed as a § 1983 claim grounded in procedural due process. In this count, St. Paul's recites the same list of purported "entitlements" set forth in Count II, then alleges that defendants deprived it of those rights "without due process, including notice and an opportunity to be heard at a meaningful time and in a meaningful manner, and by applying the CBF in an ex post facto manner." (Id., ¶ 154.)
Finally, in Count Four of the Complaint, St. Paul's brings a state-law claim for declaratory relief, seeking a declaration that the AHSAA adopted the CBF "in direct violation of the rights, interests, and expectations of its private school members, under the Association Handbook, Constitution, and Bylaws." (Id., ¶ 161.)
Contemporaneously with its Complaint, St. Paul's filed a Motion for Preliminary Injunction and Request for Expedited Hearing (doc. 2). In that Motion, St. Paul's requests three forms of preliminary injunctive relief, to-wit: (i) an order that the AHSAA "be preliminarily restrained, enjoined, and prohibited from enforcing the CBF against any private school member;" (ii) an order that the AHSAA "classify its member schools for the 2018-2020 classification period using true, unadjusted enrollment;"
A preliminary injunction may be entered only if the movant clearly establishes each of the following requirements: "(1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury; (3) that the threatened injury to the plaintiff outweighs the potential harm to the defendant; and (4) that the injunction will not disserve the public interest." Keister v. Bell, 879 F.3d 1282, 1287 (11
"Failure to show any of the four factors is fatal, and the most common failure is not showing a substantial likelihood of success on the merits." American Civil Liberties, 557 F.3d at 1198. Where a plaintiff does not clearly establish a substantial likelihood of success on the merits, the remaining factors need not be considered. See Keister, 879 F.3d at 1288 ("If Mr. Keister is unable to demonstrate a substantial likelihood of success on the merits, we do not need to address the remaining preliminary injunction requirements.") (citation omitted); GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Engineers, 788 F.3d 1318, 1329 (11
In Count I of the Complaint, St. Paul's alleges that "adoption of the CBF, by its design and by its application to private school members only, violates St. Paul's constitutional right to equal protection of the laws under the 14
"Equal-protection claims generally concern governmental classification and treatment that impacts an identifiable group of people differently than another group of people." Foley v. Orange County, 638 Fed.Appx. 941, 944 (11
Even accepting plaintiff's characterization of the Animus Doctrine as accurate, the contention that the CBF must face heightened scrutiny is not persuasive at the preliminary-injunction stage. Record evidence demonstrates the following: (i) the AHSAA is responsible for preserving, maintaining and facilitating competitive balance among its members; (ii) championship data shows that, even after implementation of the Multiplier Rule in 2000, private school members of the AHSAA continued to achieve a disproportionate level of success in interscholastic athletic competition, relative to their public school counterparts; (iii) the AHSAA formed a Classification Committee that spent many months examining the perceived advantages and disadvantages of public and private schools, and considering various alternatives to improve competitive balance, culminating in the CBF; (iv) the CBF, as implemented, affects only 10% of private-school teams, and is thus narrowly drawn to address the specific competitive-balance concerns identified by the AHSAA (i.e., it does not punish or disadvantage private-school members across the board);
That being said, the Court certainly appreciates that the CBF operates to the disadvantage of certain St. Paul's athletic teams, as well as those of certain other private-school members. However, the law recognizes that "[t]he Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons." Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). The Supreme Court "reconcile[s] the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end." Id. Under the rational basis test, "a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous." Id. at 632.
Defendants correctly state that promoting competitive balance in high-school athletics is a legitimate government interest. See, e.g., Kite v. Marshall, 661 F.2d 1027, 1030 (5
In its reply brief, St. Paul's focuses on arguing that the perceived "advantages" enjoyed by St. Paul are illusory and that "there are no practical distinctions between public and private schools." (Doc. 30, at 10-16.) However, under rational basis review, "a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data." F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993); see also Cook, 792 F.3d at 1300 ("A law need not be sensible to pass rational basis review; rather, it may be based on rational speculation unsupported by evidence or empirical data.") (citation and internal quotation marks omitted). Having examined data showing that private-school members are experiencing outsized success at the state championship level, the AHSAA was permitted to engage in "rational speculation unsupported by evidence or empirical data" to conclude that private schools' disproportionate success resulted from advantages they enjoyed vis a vis public-school members, such that the classification enacted through the CBF could be said to advance the legitimate state interest of leveling the playing field. The AHSAA "has no obligation to produce evidence to sustain the rationality of a statutory classification." Heller v. Doe by Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). Plaintiff's attempt to quarrel with the empirical validity of each perceived advantage ascribed by the AHSAA to private schools is at odds with these principles.
Besides, even if St. Paul's were correct that negating the validity of the perceived "advantages" to private schools would be sufficient to enjoin enforcement of the CBF on rational-basis review (notwithstanding the baseline evidence that private schools have experienced vastly disproportional success in championship athletic achievement), plaintiff still has not shown a substantial likelihood of success on the merits that might warrant entry of a preliminary injunction on an equal protection theory. Three examples will illustrate the point.
First, defendants identified as a key advantage accruing to private schools the fact that sport participation rates are much higher in AHSAA private schools than in public schools. To that end, defendants point to a study conducted by AHSAA's director of communications showing that, during the 2014-2015 school year, nearly 80% of private-school students participated in school athletics, compared to just 30% of public-school students. (Doc. 24, Exh. A-7; Savarese Aff., ¶ 18.) Plaintiff challenges the study's methodology, but does not effectively cast doubt on the persistence of a significant gap in participation rates.
Second, the AHSAA identified as a competitive advantage enjoyed by private schools their ability to control their enrollment via a selective process, whereas public schools lack such control, as well as the much larger attendance zones for private schools which enable them to accept students from a larger area. (Hardin Aff., ¶ 3.) Plaintiff rails against this purported "advantage," arguing that many public school districts in Alabama also allow open, selective enrollment of students from beyond their geographic boundaries. (Doc. 1, ¶¶ 83-86; doc. 30, at 10-12.) Notwithstanding St. Paul's criticism, it appears rational for the AHSAA to conclude that private schools have greater discretion to shape and mold both the size and the composition of their student bodies than do public schools.
Third, the AHSAA identifies as a competitive advantage for private schools the greater financial resources and fewer budgetary restrictions that "a number of non-public schools" face for facilities and coaching staffs, as compared to public schools. (Hardin Aff., ¶ 3.) In attempting to negate this private-school advantage, St. Paul's points to evidence that four public-school members of AHSAA have recently received multi-million dollar facilities upgrades, that St. Paul's major buildings are more than a quarter-century old, that certain public-school coaches are paid in excess of $100,000, and that St. Paul's is subject to budgetary restrictions in coach staffing and compensation. (Doc. 30, at 15-16.) This kind of anecdotal evidence does not suffice to invalidate a classification on rational-basis review. For aught the record shows, plaintiff's cited examples may be outliers in no way representative of the norm. Moreover, the necessary rational basis may be the product of "rational speculation unsupported by evidence or empirical data." Beach Communications, 508 U.S. at 315.
The conclusion is straightforward: Defendants have identified numerous perceived advantages that private-school members enjoy over their public-school counterparts that may contribute to the observed result of private schools experiencing disproportionate success on the athletic field. Defendants say the CBF was implemented to neutralize those advantages, in furtherance of the legitimate state interest of promoting competitive balance. In order for a preliminary injunction to be appropriate on the equal protection claim, St. Paul's must, by a substantial likelihood, both (i) show that private schools' disproportionate success did not itself provide a rational basis for the CBF rule, and (ii) negate all conceivable competitive advantages for private schools that could have furnished a rational basis for the CBF rule. As demonstrated by the foregoing, St. Paul's has not met this heavy burden.
St. Paul's also seeks to establish a likelihood of prevailing on its equal protection claim by arguing that certain public-school members of the AHSAA have also enjoyed outsized success on the athletic field. To that end, St. Paul's points out that certain public-school teams have also achieved consistent success as measured by the CBF.
The fundamental defect with that line of reasoning is that the rational-basis standard does not obligate defendants to implement a solution that amounts to a perfect fit between means and ends, that promotes the proffered state interest (i.e., eradicating competitive imbalance) to the greatest possible extent, or that avoids all inequality. See, e.g., Heller, 509 U.S. at 321 ("A classification does not fail rational-basis review because it is not made with mathematical nicety or because in practice it results in some inequality.") (citations and internal quotation marks omitted); see also Locke, 634 F.3d at 1197 ("Under rational basis review, a court must accept a legislature's generalizations even when there is an imperfect fit between means and ends.") (citation omitted). "The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific." Heller, 509 U.S. at 321 (citation omitted). The AHSAA identified a problem, to-wit: private schools were winning a disproportionate (and growing) percentage of state championships. The AHSAA rationally could have perceived private schools' outsized success to be the product of differences between private schools and public schools. In the interest of furthering its interest in fostering competitive balance, the AHSAA devised the CBF as a means of addressing that problem by requiring the most successful private-school teams to "play up" to a higher level for a discrete period of time. This mechanism appears to bear a rational relationship to the problem it was designed to solve. That the AHSAA may not have undertaken the most comprehensive, ideal or perfect means available to root out all competitive imbalances among its membership in no way destroys the requisite rational nexus between the legitimate state interest (i.e., competitive balance) and the challenged classification (i.e., the CBF) in this case.
More broadly, it bears emphasis that the Court's determination that St. Paul's has not shown a substantial likelihood of success on its equal-protection claim is animated in substantial measure by the deferential legal standard. The Supreme Court has repeatedly instructed that rational-basis review does not authorize lower courts to pass judgment on the wisdom or fairness of a challenged classification. See, e.g., Heller, 509 U.S. at 319 ("We many times have said . . . that rational-basis review in equal protection analysis is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.") (citations and internal quotation marks omitted).
In Count II of the Complaint, St. Paul's alleges a claim for deprivation of its constitutional right to substantive due process. According to St. Paul's, the AHSAA Constitution and Bylaws create a contract between it and the AHSAA, supplemented by "mutually explicit understandings" set forth in the Handbook. On that basis, St. Paul's maintains that constitutionally protected property interests have been created. (Doc. 1, ¶ 144; doc. 30, at 18-19.) The crux of the substantive due process claim is that, by adopting the CBF, the AHSAA deprived St. Paul's of those property rights in a manner that was (i) "not rationally related to a legitimate purpose," and (ii) performed with "a deliberate indifference to, and in conscious disregard of, excessive, known, and clear risks to the health and safety of private school student-athletes." (Doc. 1, ¶¶ 146-47.) To be entitled to a preliminary injunction on a substantive due process theory, St. Paul's must show a substantial likelihood of success on the merits.
As a threshold matter, plaintiff's showing on Count II suffers from a substantial logical gap. It is well-settled that "there is generally no substantive due process protection for state-created property rights." Kentner v. City of Sanibel, 750 F.3d 1274, 1279 (11
Assuming the property rights identified by St. Paul's are subject to substantive due process protection, the next steps are to define precisely what those property rights are and to determine whether plaintiff has shown a substantial likelihood that a deprivation has occurred. It is well-settled that an individual has a protected property interest when he has "a legitimate claim of entitlement" to a government benefit, which claim of entitlement must "come from an independent source," such as a statute, a regulation, "an express or implied contract, . . . or a mutually explicit understanding." Barnes v. Zaccari, 669 F.3d 1295, 1303 (11
Even if plaintiff had made a showing of a deprivation of protected property rights, preliminary injunctive relief on a substantive due process theory would remain inappropriate. "Like equal protection claims, substantive due process claims are subject to rational basis review, so long as they do not infringe fundamental rights and are not discriminatory." Leib v. Hillsborough County Public Transp. Com'n, 558 F.3d 1301, 1308 (11
As an alternative to arguing that the CBF violates substantive due process because it flunks rational basis review, St. Paul's pleads a theory that its substantive due process rights were violated because the AHSAA "acted . . . with a deliberate indifference to, and in conscious disregard of, excessive, known, and clear risks to the health and safety of private school student-athletes" in adopting the CBF. (Doc. 1, ¶ 147.) In so doing, plaintiff invokes a line of authority holding that even in the absence of fundamental rights, "substantive due process nonetheless protects against the arbitrary and oppressive exercise of government power. . . . Executive action is arbitrary in a constitutional sense when it `shocks the conscience.'" Waldman v. Conway, 871 F.3d 1283, 1292 (11
Nonetheless, plaintiff maintains that the "shocks the conscience" standard may still be met here pursuant to the Eleventh Circuit's Waddell decision. The panel in that case opined that in non-custodial settings, "a substantive due process violation would, at the very least, require a showing of deliberate indifference to an extremely great risk of serious injury to someone in Plaintiffs' position." Waddell, 329 F.3d at 1306. Omitted from plaintiff's discussion is that Waddell also cautioned that it was not ruling out the possibility that "the correct legal threshold . . . is actually far higher," and that the standard articulated therein "may well be too low a point." Id. at 1306 n.5.
To be clear, the Court need not — and does not — make a definitive ruling at this time about whether the CBF does or does not expose St. Paul's student-athletes to a greater risk of injury by "levelling up" plaintiff's football program to the 6A classification (as opposed to the 4A classification it would hold based solely on enrollment, unadjusted by the Multiplier Rule or the CBF). What the Court does conclude is that St. Paul's has not shown that it is substantially likely to succeed on its substantive due process cause of action. On its face, defendants' adoption of the CBF does not appear to satisfy the rigorous shock-the-conscience test, and the record does not appear substantially likely to support a finding that the AHSAA acted with "deliberate indifference to an extremely great risk of serious injury" in passing the rule.
Count III of the Complaint alleges violations of procedural due process. Relying on the same purported property rights identified in the context of Count II (substantive due process), St. Paul's pleads that defendants "depriv[ed] St. Paul's of its aforementioned constitutionally protected rights without due process, including notice and an opportunity to be heard at a meaningful time and in a meaningful manner, and by applying the CBF in an ex post facto manner." (Doc. 1, ¶ 154.)
On its face, Count III appears in conflict with the facts.
In its reply brief, St. Paul's clarifies that its objection is not to the amount or type of process received, but to its timing. Plaintiff cites authority for the proposition that constitutional deprivations generally must be preceded by notice and an opportunity to be heard, whereas in this case St. Paul's received no process
Given this flexibility and the primacy of "meaningful time" and "meaningful manner" principles, the Court does not adopt plaintiff's argument that failure to provide notice and an opportunity to be heard before the AHSAA adopted the CBF rule amounts to a per se violation of procedural due process. Rather, case law teaches that "[t]he need for some form of predeprivation hearing is determined from balancing the competing interests at stake." Bailey v. Board of County Com'rs of Alachua County, Fla., 956 F.2d 1112, 1123 n.12 (11
Viewed through the lens of these principles, the record facts do not show that St. Paul's has a substantial likelihood of success on its procedural due process claim. The AHSAA adopted the CBF in November 2017; however, this rule was not set to go into effect until the 2018-2019 school year. By all appearances, adoption of the CBF changed nothing for St. Paul's in the short term. All of its teams remained classified as 5A for the remainder of the 2017-2018 academic year, spanning six months after the CBF's adoption. St. Paul's received notice of the rule and availed itself of an opportunity to be heard in January 2018, followed by an appeal in March 2018. It appears that these hearings were furnished to St. Paul's at a meaningful time and that St. Paul's was afforded a full, fair opportunity to be heard in a meaningful manner. Had St. Paul's succeeded in persuading the Central Board to jettison or suspend the CBF rule in January or March 2018, then St. Paul's would not have sustained any ill effects whatsoever from the CBF. It would never have had to play a single football game (or compete in any other sport) in the 6A classification. The challenged rule simply would never have affected, much less injured, St. Paul's. Given that the process afforded to St. Paul's was thus adequate (from a timing standpoint) to forestall any harm arising from the November 2017 adoption of the CBF in the event of a favorable hearing result, there does not appear to be a persuasive argument that St. Paul's was deprived of an opportunity to be heard at a meaningful time (i.e., that the process provided to St. Paul's was untimely in some way).
For the foregoing reasons, the Court is of the opinion that St. Paul's has failed to show a substantial likelihood of success on the procedural due process claim found at Count III of the Complaint. No preliminary injunction is appropriate on that theory.
Finally, in Count IV of the Complaint, St. Paul's brings a state-law claim pursuant to the Alabama Declaratory Judgment Act, Ala. Code §§ 6-6-220 et seq. The Complaint alleges that the AHSAA is obligated by its Constitution, Bylaws and Handbook to perform certain duties and to refrain from certain activities, to-wit: (i) "To treat all general classes of its member schools (i.e., public and private) equally;" (ii) "To not disadvantage, harm, or otherwise injure the athletic programs of one class of schools (i.e., public or private) to the benefit of another class of schools;" (iii) "To adopt and apply rules that improve and enhance the safety of athletic programs for student-athletes from all member schools;" and (iv) "To refrain from adopting or applying rules (or engaging in other acts) that substantially increase the risk of personal injury and harm to student-athletes." (Doc. 1, ¶ 160.) On that basis, St. Paul's requests that this Court declare the parties' respective rights and duties relative the AHSAA's Constitution, Bylaws and Handbook.
In order for Count IV to support granting the Motion for Preliminary Injunction, St. Paul's must show a substantial likelihood that the CBF violates the AHSAA's obligations and duties under the subject documents. It has not met this burden. For example, while plaintiff contends that the AHSAA somehow had a duty not to adopt rules that treat private-school members any differently than public-school members, the Constitution, Bylaws and Handbook evince no such promises, assurances or explicit understandings. St. Paul's points to language in the Handbook that the AHSAA's purpose is to "regulate, coordinate and promote the interscholastic athletic programs among its member schools, which include public, private and parochial institutions;" that the AHSAA's major aims are "to serve the needs of its member schools in conducting their interscholastic athletic programs;" that the AHSAA "is concerned primarily with benefits to all the participants and to spreading those benefits to constantly increasing numbers;" and that the AHSAA's object "shall be to promote pure athletic competition in the high schools of Alabama." (Doc. 17, Exh. 4, at 16, 94, 96; doc. 30, at 19.) On this record, it does not appear substantially likely that any of these broad, generic statements are sufficiently definite to confer property rights on St. Paul's or to furnish contractual guarantees of any particular form of treatment by the Association. It is far from clear how any of these statements may be reasonably read as forbidding AHSAA from classifying private-school members differently than public-school members in the interest of promoting competitive balance.
Furthermore, Article VII(l) of the AHSAA Constitution expressly confers upon the Central Board the unfettered "power to classify member schools into two or more divisions for the purpose of athletic competition." (Doc. 17, Exh. 4, at 20.) Nothing in that language would restrict the Central Board from relying on distinguishing features or criteria other than enrollment in exercising such power. Likewise, nothing in that language would appear to bar the AHSAA from taking into consideration the outsized success of one subset of its members (i.e., private schools) in exercising its classification power, particularly where that outsized success is rationally perceived to be rooted in certain advantages accruing to that subset of member schools.
In its briefs, St. Paul's relies on Article VII(i) of the AHSAA Constitution, which provides that the Central Board "shall have full authority to adopt rules and regulations which shall be uniformly effective and binding upon all members of the Association." (Doc. 17, Exh. 4, at 19.) Plaintiff posits that the "uniformly effective" and "binding upon all members" language prohibits any rules that apply only to certain subsets of the membership. But plaintiff places more weight on this provision that it appears reasonably capable of bearing. After all, Article VII(i) is not framed as a limiting statement or restriction forbidding the Central Board from imposing rules and regulations that apply to some (but not all) members; indeed, that subsection is simply one item in a long list delineating the Central Board's extensive powers and broad authority. Among the powers conferred on the Central Board by Article VII are "the power to classify member schools" and "authority over any matter related to championship play," without any identified limits or boundaries. (Id. at 20.) Viewed in context, then, Article VII(i) does not seem substantially likely to support a construction that the AHSAA's Central Board was not empowered to adopt any rule that does not apply equally to
On the topic of safety, St. Paul's says the Constitution, Bylaws and Handbook obligated the AHSAA "[t]o adopt and apply rules that improve and enhance the safety of athletic programs for student athletes from all member schools." (Doc. 1, ¶ 160(c).) Assuming that the AHSAA undertook such a contractual obligation, the court record reflects that the AHSAA adopted numerous rules in fulfillment of that commitment, such as fall football practice regulations, intravenous fluid use policy, and concussion policy, among others. (Doc. 17, Exh. 4, at 48-55.) On this record, it is unclear how plaintiff could reasonably suggest that St. Paul's has failed to adopt health and safety rules.
St. Paul's also asserts that the AHSAA was under a contractual obligation to "refrain from adopting or applying rules (or engaging in other acts) that substantially increase the risk of personal injury and harm to student-athletes." (Doc. 1, ¶ 160(d).) There does not appear to be a particular provision in the AHSAA's Constitution, Bylaws or Handbook that explicitly imposes such a duty on the AHSAA; however, it is not unreasonable to suggest that such an obligation is implicit given the AHSAA's role and purpose in regulating interscholastic athletic competition among its members. The problem is that the record before this Court does not reveal a substantial likelihood that St. Paul's will prevail on its theory that adoption of the CBF "substantially increase[d] the risk of personal injury and harm to student-athletes." The facts and circumstances discussed in Section IV.C., supra, in the context of St. Paul's "deliberate indifference" claim likewise show that St. Paul's is not likely to succeed on a theory that the AHSAA shirked its duty to avoid adopting rules that substantially increase the risk of injury to private-school student-athletes.
Further militating against entry of a preliminary injunction as to Count IV is the line of Alabama authorities supporting the proposition that courts generally should not interfere with the internal operations of the AHSAA. The Alabama Supreme Court has explained, in the context of a legal challenge to the AHSAA's determination that the plaintiff was ineligible to play high-school football, that "[a]thletics and athletes belong in their own arena. A courtroom is not the proper field of competition." Alabama High School Athletic Ass'n v. Rose, 446 So.2d 1, 5 (Ala. 1984). Subscribing to a "hands-off philosophy" summarized by the mantra "it's their show; let them run it," the Rose Court elaborated that "[e]ven claimed violations of due process of law are viewed more liberally in favor of the association's authority to administer its own rules and regulations." Id.
In sum, Count IV suffers from numerous deficiencies that, taken collectively, preclude the entry of preliminary injunctive relief in plaintiff's favor. Plaintiff seeks to derive ironclad (albeit ill-defined and vague) contractual commitments from benign (and often aspirational) generalizations in the AHSAA's Constitution, Bylaws, and Handbook.
For all of the foregoing reasons, plaintiff's Motion for Preliminary Injunction (doc. 2) is
DONE and ORDERED.
