Case: 19-60063   Document: 00515351071     Page: 1   Date Filed: 03/19/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                  Fifth Circuit

                                                                    FILED
                                                                 March 19, 2020
                                 No. 19-60063
                                                                 Lyle W. Cayce
                                                                      Clerk
JEFFREY BUTTS; KIMBERLY BUTTS; SHARRON BUTTS; SHANALE
RENEE HILL; SANDRA JONES; PATRICIA COX; LANE TOWNSEND,

             Plaintiffs - Appellants

v.

ROSEMARY AULTMAN, in her Official Capacity as Chairman of the State
Board of Education; DOCTOR CAREY M. WRIGHT, in her Official Capacity
as Superintendent of the Mississippi Department of Education; JASON
DEAN, in Official Capacity as Member of the Mississippi State Board of
Education; BUDDY BAILEY, in Official Capacity as Member of the
Mississippi State Board of Education; KAMI BUMGARNER, in Official
Capacity as Member of the Mississippi State Board of Education; KAREN
ELAM, in Official Capacity as Member of the Mississippi State Board of
Education; JOHNNY FRANKLIN, in Official Capacity as Member of the
Mississippi State Board of Education; WILLIAM HAROLD JONES, in
Official Capacity as Member of the Mississippi State Board of Education;
JOHN KELLY, in Official Capacity as Member of the Mississippi State Board
of Education; CHARLES MCCLELLAND; WINONA MUNICIPAL
SEPARATE SCHOOL BOARD; FRANK MCCLELLAND, in Official Capacity
as Member of the Mississippi State Board of Education,

             Defendants - Appellees




             Appeal from the United States District Court for the
                       Northern District of Mississippi


Before WIENER, HIGGINSON, and HO, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
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                                  No. 19-60063
      Seven residents of Montgomery County, Mississippi (“the County”), filed
this lawsuit against the County, the Winona Municipal Separate School Board,
and several state officials in their official capacities. Their claims arise out of
the Mississippi legislature’s July 2016 decision to administratively consolidate
two school districts and restructure the school board responsible for governing
the newly-formed district. Plaintiffs allege that these actions violated their
right to equal protection of the laws by depriving them of the ability to
participate equally in the district’s decision-making process.
      The district court denied plaintiffs’ motion for a temporary restraining
order and a preliminary injunction and granted the defendants’ motion to
dismiss. For the following reasons, we AFFIRM.


                                        I.
      In July 2016, the Mississippi legislature passed Miss. Code Ann. § 37-7-
104.4, which provided for the administrative consolidation of the Winona
Municipal Separate School District and the Montgomery County School
District. Under the terms of the statute, the territory of the two districts
became a single district—the Winona-Montgomery County Consolidated
School District—on July 1, 2018. The statute contains a series of provisions
pertaining to the creation of the consolidated district’s five-person school
board. It identifies two distinct phases in the school board’s creation: (1) the
interim board, and (2) the permanent board. See § 37-7-104.4(3)(b).
      From July 1, 2018 to January 1, 2019, an interim board was tasked with
governing the consolidated district. 

specified that the interim
board was to be comprised of “the existing members of the Board of Trustees
of the Winona Municipal Separate School District.” 

of the




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                                    No. 19-60063
Winona Board of Trustees were appointed by the Board of Aldermen of the City
of Winona. § 37-7-104.4(3)(b)(i).
      Beginning on January 1, 2019, the statute provided for the creation of a
permanent school board. § 37-7-104.4(3)(b). At that time, the three members of
the interim board “with the most years remaining in their terms” would retain
their positions on the permanent board. § 37-7-104.4(3)(b)(i). The remaining
two members of the board were to be elected to a four-year term “by the electors
of Montgomery County residing outside of the Winona corporate limits.” § 37-
7-104.4(3)(b)(ii). In order to facilitate the election, the statute specified that the
area of the County outside of the Winona corporate limits would be apportioned
“into two . . . proportionately equal single member board of trustee election
districts.” § 37-7-104.4(3)(b)(iii). Through these provisions, the statute
established a blended system of representation on the permanent board. Two
members of the permanent board are elected by residents who live outside of
the Winona corporate limits—a population accounting for approximately 57%
of the County’s total population. The three remaining members are appointed
by the Board of Aldermen of Winona—a group that represents Winona
residents, who make up 43% of the County’s population.
      In conformance with the terms of the statute, the interim board for the
new district held office from July 1, 2018 to January 1, 2019. Montgomery
County’s Board of Supervisors drew two election districts in the territory
outside of Winona, and, in November 2018, each district elected one school
board member. The permanent board took office on January 1, 2019.
      Plaintiffs are residents of Montgomery County who reside outside of
Winona. 1 They argue that the statute’s provisions regarding the formation of



      1  Some of the plaintiffs, including Patricia Cox and Lane Townsend, were also
previously employed by the former Montgomery County School District.
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                                       No. 19-60063
the interim board and the permanent board violate the Equal Protection
Clause. They also allege that the defendants acted unconstitutionally when
they took certain actions on behalf of the consolidated school district, including
terminating employees of the Montgomery County School District. They
initiated this lawsuit on November 17, 2017 2 and subsequently filed a motion
for a temporary restraining order and a preliminary injunction. On December
21, 2018, the district court denied their request for preliminary relief and
granted defendants’ motion to dismiss. 3 Plaintiffs timely appealed the
judgment. 4


                                              II.
       We “review a district court’s grant of a motion to dismiss de novo,
applying the same standard applied by the district court.” Masel v. Villarreal,

, 742–43 (5th Cir. 2019). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” 

(internal quotation marks
omitted). The court must “accept as true any well-pleaded factual allegations,”
but it is not required to accept “legal conclusions” or “‘naked assertion[s]’
devoid of ‘further factual enhancement.’” 

v. Iqbal, 

, 678 (2009)). “When applying rational basis doctrine to a dismissal for



       2 The lawsuit was originally filed in the Southern District of Mississippi, 

was subsequently transferred to the Northern District of Mississippi.
       3 The order granting the motion to dismiss did not adjudicate the claims against

Montgomery County. Thus, the claims against Montgomery County are not at issue in this
appeal.
       4 After filing their notice of appeal, plaintiffs obtained an entry of judgment pursuant

to Federal Rule of Civil Procedure 54(b). We therefore have jurisdiction over this appeal. See
Boudreaux v. Swift Transp. Co., 

, 539 n.1 (5th Cir. 2005) (holding that an appeal
is timely if it is “taken from an order that ‘would have been appealable if immediately
followed by the entry of judgment pursuant to Federal Rule of Civil Procedure 54(b)’” (citation
omitted)).
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                                  No. 19-60063
failure to state a claim, a legislative classification must be treated as valid if a
court is able to hypothesize a legitimate purpose to support the action.” Glass
v. Paxton, 

, 245 (5th Cir. 2018) (internal quotation marks omitted).


                                        III.
      Plaintiffs argue that the statute violates their right to equal protection
by diluting or silencing the voices of Montgomery residents who live outside of
Winona. Specifically, they challenge the structure of both the interim board
and the permanent board. Though they “explicitly disavow[]” a race-based
equal-protection claim, they argue that the statute discriminates against them
on the basis of residence, denying them equal representation in matters related
to the consolidated school district.
      In order to state a claim for an equal protection violation, plaintiffs must
show that “two or more classifications of similarly situated persons were
treated differently” under the statute. Gallegos–Hernandez v. United States,

, 195 (5th Cir. 2012) (citing Stefanoff v. Hays Cty., 

,
525–26 (5th Cir. 1998)). Once that threshold showing is made, the court
determines the appropriate level of scrutiny with which to review the
challenged statute. “Strict scrutiny is required if the legislative classification
operates to the disadvantage of some suspect class or impinges upon a
fundamental right explicitly or implicitly protected by the Constitution.”
Richard v. Hinson, 

, 417 (5th Cir. 1995) (citing San Antonio Indep.
Sch. Dist. v. Rodriguez, 

, 17 (1973)). If neither a suspect class nor a
fundamental right is implicated, the classification need only bear a rational
relationship to a legitimate governmental purpose. 

                                        A.
      During its six months of existence, the interim board was comprised
entirely of former members of the Winona School Board, who were appointed
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                                  No. 19-60063
by the Winona Board of Aldermen. Plaintiffs argue that this structure violates
the Equal Protection Clause because it “exclud[es] every single person who
does not live in the City of Winona from participating or having representation
on the board.”
      Plaintiffs’ claim against the interim board is foreclosed by the Supreme
Court’s decision in Sailors v. Board of Education of Kent County, 

(1967). In that case, the Court held that “state or local officers of the
nonlegislative character,” including school board members, need not be elected
and may instead “be chosen by the governor, by the legislature, or by some
other appointive 

. The Court clarified that the strict
“principle of ‘one man, one vote,’” which was held to be constitutionally
required in state elections in Reynolds v. Sims, 

(1964), “has no
relevancy” to an appointive selection scheme, 

. Because
there is no fundamental right to elect school board members, there is also no
constitutional requirement for school boards to be representative of the people
they serve. 

result, the Court upheld the structure of Kent County’s
school board, which gave every local district a single delegate, without regard
to the size or population of each district. 

      The structure of the interim board is analogous to the appointive scheme
that was upheld in Sailors, and it therefore withstands plaintiffs’ equal
protection claim. Sailors makes clear that the constitution does not require
equal representation on an appointive school board. 

The Court in
Sailors also explicitly endorsed the right of states to experiment with novel
approaches when establishing school boards, observing that local governments
require “many innovations, numerous combinations of old and new devices,
[and] great flexibility in municipal arrangements.” See 

The
constitutional legitimacy of the interim board is further supported by Mixon v.
Ohio, 

(6th Cir. 1999), where the Sixth Circuit upheld a school
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                                       No. 19-60063
board appointment system that left members of the district who lived outside
of the city limits without any representation on the board, 

       Though Sailors placed limits on its holding, none of those limitations is
relevant here. The Court was careful to explain that states are not permitted
to manipulate the implementation of appointment structures in order to
violate the constitution. 

(noting that states may not
“manipulate [their] political subdivisions so as to defeat a federally protected
right, as for example, by realigning political subdivisions so as to deny a person
his vote because of race”). Here, however, plaintiffs are not pursuing a race-
based discrimination claim, and they do not argue that the state acted with the
intent to impinge on a fundamental right or to invidiously discriminate against
a suspect class.
       Thus, following Sailors, we hold that the appointive structure of the
interim board implicates neither a fundamental right nor a suspect class. We
agree with the district court that the interim board survives rational basis
review. It was rational for the legislature to conclude that a board transition
period would “best promote an efficient and smooth consolidation.” By allowing
Winona board members to retain their governance roles during this interim
period, the statute gave state officials additional time to prepare for the
upcoming Montgomery County elections, providing a short buffer period to
help promote “stable school board membership” and governance. See Irby v.
Va. State Bd. of Elections, 

, 1355 (4th Cir. 1989). Because this
structure is rationally related to a legitimate governmental purpose, we affirm
the district court’s dismissal of the plaintiffs’ claim against the interim board. 

To the extent that plaintiffs also allege that members of the interim board acted
before they were statutorily authorized, this claim fails because any alleged unlawful actions
were subsequently ratified by the interim board after it took office on July 1, 2018. See, e.g.,
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                                       No. 19-60063
       Plaintiffs also argue that the structure of the permanent board violates
the Equal Protection clause. Under the terms of the statute, residents of
Montgomery County who live outside Winona vote for two members of the five-
person board. See § 37-7-104.4(b)(ii). Although these residents constitute a
majority of the County’s population, they are entitled to elect fewer than half
of the board’s members. Plaintiffs assert that this scheme unconstitutionally
dilutes the voice of Montgomery residents.
       Unlike the interim board, the permanent board is partially elected and
partially appointed. Though Sailors makes clear that there is no constitutional
right to vote in school board 

, the Supreme Court held
in Kramer v. Union Free School District No. 15, 

(1969), that strict
scrutiny is required when statutes “grant[] the franchise to residents on a
selective basis,” 

(1969) (emphasis added). When a statute restricts
participation to only some eligible voters, “careful examination is necessary.”

“Any unjustified discrimination in determining who may participate
in political affairs or in the selection of public officials undermines the
legitimacy of representative government.” 

Sailors stands for
the principle that states are not obligated to provide for school board elections,
Kramer clarifies that once they decide to do so, the selective extension of the
right to vote is subject to “exacting judicial scrutiny,” 

see also
Hadley v. Junior Coll. Dist. of Metro. Kan. City, Mo. City, 

, 54 (1970)
(affirming the importance of the one person-one vote requirement in the local




R & L Inv. Prop., L.L.C. v. Hamm, 

, 149 (5th Cir. 2013) (“Ratification is the
adoption or confirmation by a person with knowledge of all material facts of a prior act which
did not then legally bind him and which he had the right to repudiate.” (citation omitted)).
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                                 No. 19-60063
election context); Avery v. Midland Cty., Texas, 

, 485–86 (1968)
(same).
      Though these cases emphasize that courts must apply strict scrutiny
when evaluating local government structures that selectively withhold the
right to vote, they do not support plaintiffs’ argument that the court is
obligated to compare the relative strength of the elective positions and the
appointive positions on the permanent board. Kramer focuses on statutory
schemes that extend the franchise in a selective manner. 

–
29; see also 

(holding that “the principle of ‘one man,
one vote’ has no relevancy” to appointive selection schemes); 

–06 (“If the municipal school boards were elected bodies and only the
Cleveland residents could vote in the school board election, then . . . Kramer
likely would apply, and problems of voter inclusion would arise.”). Contrary to
plaintiffs’ contention, Supreme Court precedent does not compel the court to
scrutinize the relative power of appointive and elective seats when analyzing
the constitutionality of a blended school board structure. See 

–11 (promoting “innovation[]” and “experimentation” when adopting
representative schemes for local governance boards); see also Cunningham v.
Municipality of Metro. Seattle, 

, 894 (W.D. Wash. 1990)
(holding that “appointed members of a mixed board should not be counted in
calculating the [deprivation of the franchise], because the voters do not select
them”).
      Under Kramer’s framework, courts must determine whether an election
scheme unconstitutionally excludes potential voters from the pool of eligible
voters. Viewing the school board structure from this perspective, plaintiffs’
claim against the permanent board must fail. Although the statute excludes
Winona residents from the franchise, plaintiffs do not live in Winona, so they
are not among those potentially injured by the selective voting structure. Only
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                                 No. 19-60063
“voters who allege facts showing disadvantage to themselves as individuals
have standing to sue.” Gill v. Whitford, 

, 1929 (2018) (quoting
Baker v. Carr, 

, 206 (1962)) (emphasis added). Plaintiffs do not
argue that the two election districts in Montgomery violate the requirements
of one-person, one-vote; instead, they focus their argument on the relative
representation afforded to Winona residents, as compared to other residents of
the County.
      Because this claim is not supported by the law and plaintiffs lack
standing to challenge the statute’s selective grant of the franchise, we affirm
the district court’s dismissal of plaintiffs’ claim against the permanent board.
                                       C.
      Third, plaintiffs argue that the defendants violated their rights when
they fired Montgomery County School District employees and retained
employees of the former Winona Municipal Separate School District. They
assert that these actions discriminated against employees based on geographic
affiliation, without regard to each employee’s experience or skills.
      As plaintiffs acknowledge, school district employees are not a suspect
class, and there is no fundamental right to continued state employment. See

(holding that classifications on the basis of
geography are not suspect); Arceneaux v. Treen, 

, 133 (5th Cir.
1982) (“[T]he right to hold public employment is not a recognized fundamental
right.”). Therefore, defendants’ decision to terminate the employees must be
upheld as long as “there is any reasonably conceivable state of facts that could
provide a rational basis for the classification.” Integrity Collision Ctr. v.
Fulshear, 

, 589 (5th Cir. 2016). Defendants’ actions survive this
lenient standard. Winona was a higher performing school district than
Montgomery, and the Superintendent may have felt that the most seamless


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                                       No. 19-60063
and efficient way to implement the consolidation would be to absorb the
Montgomery district into the better-performing Winona district.
                                              D.
       Finally, for the reasons discussed above, we affirm the district court’s
denial of plaintiffs’ motion for a temporary restraining order and a preliminary
injunction. 6 In order to obtain a preliminary injunction, the movant must first
establish a substantial likelihood of success on the merits, Speaks v. Kruse, 

, 399–400 (5th Cir. 2006). If the party requesting a preliminary
injunction cannot show a substantial likelihood of success on the merits, the
injunction should be denied and there is no need for the court to address the
other requirements for a preliminary injunction. Lake Charles Diesel, Inc. v.
Gen. Motors Corp., 

, 203 (5th Cir. 2003). Because plaintiffs’ equal
protection claims fail on the merits, they have not demonstrated a substantial
likelihood of success. Therefore, they are not entitled to preliminary relief.


                                              IV.
       For the foregoing reasons, the judgment of the district court is
AFFIRMED.




       6 A temporary restraining order may be treated as a preliminary injunction when an
adversarial hearing has taken place. See 11A Charles Alan Wright & Arthur R. Miller,
FEDERAL PRACTICE AND PROCEDURE § 2951 (3d ed. 2019) (“[I]f there is an adversary hearing
or the order is entered for an indeterminate length of time, the ‘temporary restraining order’
may be treated as a preliminary injunction.”). The district court held a hearing on the parties’
motions on December 4, 2018, before issuing its decision.
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