AMENDED SUMMARY JUDGMENT OPINION

Stephen Wm. Smith, United States Magistrate Judge.

This case presents a matter of first impression in this circuit — the use of privately developed algorithms to terminate public school teachers for ineffective performance. Of course, an employer's impulse to quantify employee performance is neither new1 nor inherently objectionable. The difficulty, as this case illustrates, is the tension between the understandable secrecy surrounding proprietary algorithms developed by private commercial enterprises, on the one hand, and the Fourteenth Amendment due process protections against substantively unfair or mistaken deprivations of life, liberty, or property, on the other.2

At issue here is the constitutionality of the "value-added" teacher appraisal system used by the Houston Independent School District during the 2011-15 school years. Plaintiffs include the Houston Federation of Teachers, a labor union with over 6,100 members that represents teachers and other HISD employees. Nine individual HISD teachers have also joined the suit. Before the court is HISD's motion for summary judgment (Dkt. 65).3 Having considered the parties' submissions and argument of counsel at a hearing on December 5, 2016, HISD's motion is denied in part and granted in part.

Background

In 2010, HISD began its transition to a "data driven" teacher appraisal system, with the goal of "having an effective teacher in every HISD classroom."4 The new system was implemented in 2011-12, evaluating teachers based on three components: (1) instructional practice; (2) professional expectations; and (3) student performance. The weight given each component has varied over the years.5 The focus of this litigation is on the third criterion, student performance, particularly HISD's new method of rating teacher effectiveness based on proprietary algorithms belonging to a private company.

The basic idea behind the new appraisal system is that a teacher's impact on student performance, for better or worse, can appropriately be measured by student growth on standardized tests.6 This is generally referred to as the "value-added model" (VAM) for evaluating teacher effectiveness. Under HISD's new policy, student growth will whenever possible7 be calculated by a value-added statistical model called the Educational Value-Added Assessment System (EVAAS), developed by private software company SAS and licensed for use by HISD.8 The EVAAS system measures teacher effectiveness by attempting to track the teacher's impact on student test scores over time.9 The details are more complicated, but in general a teacher's EVAAS score is based on comparing the average test score growth of students taught by the teacher compared to the statewide average for students in that grade or course. The raw EVAAS score is generated by SAS's proprietary software and is then converted to a test statistic referred to as the "Teacher Gain Index" (TGI), based on the ratio of the EVAAS score to its standard error.10 The TGI is sorted into one of five "value-added" effectiveness ratings, described in the following table:11

VALUE-ADDED       EVAAS ®TGI                          RELATIONSHIP TO
RATING                                                EXPECTED AVERAGE
                                                      GROWTH

Well above        Equal to or greater than 2          Students on average
                                                      substantially exceeded
                                                      expected average growth

Above             Equal to or greater than 1 but      Students on average
                  less than 2                         exceeded average growth

No detectable     Equal to or greater than -1 but     Students on average met
difference        less than 1                         expected growth

Below             Equal to or greater than -2 but     Students on average fell
                  less than -1                        short of average growth

Well below        Less than -2                        Students on average fell
                                                      substantially short of expected
                                                      average growth

SAS's source codes and other information underlying the EVAAS statistical methodology are proprietary trade secrets unavailable to plaintiffs or HISD.12

Plaintiffs challenge the use of EVAAS under various aspects of the Fourteenth Amendment, including:

HISD has moved for summary judgment on all counts. Additional facts will be discussed as relevant to the analysis below.

Summary Judgment Standards

Summary judgment is appropriate if no genuine issues of material fact exist, and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The party moving for summary judgment has the initial burden to prove there are no genuine issues of material fact for trial. Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th Cir. 2001). Dispute about a material fact is "genuine", if the evidence could lead a reasonable jury to find for the nonmoving party. In re Segerstrom, 247 F.3d 218, 223 (5th Cir. 2001). "An issue is material if its resolution could affect the outcome of the action." Terrebonne Parish Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 310 (5th Cir. 2002).

If the evidence presented to rebut the summary judgment is not significantly probative, summary judgment should be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether a genuine issue of material fact exists, the court views the evidence and draws inferences in the light most favorable to the nonmoving party. Id. at 255, 106 S.Ct. 2505.

Analysis

1. Plaintiffs' protected property interests

The Fourteenth Amendment prohibits a state from depriving any person of life, liberty, or property without due process of law. When these constitutionally protected interests are implicated, the right to some kind of prior hearing is paramount. Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). To evaluate such a claim; a court must first consider whether there is sufficient evidence implicating a protected property right in plaintiffs' employment. Cleveland Brd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).

HISD employs teachers under probationary, term, and continuing contracts. A continuing contract has no definite term and can be terminated only for good cause. TEX. EDUC. CODE § 21.154. Teachers employed under continuing, contracts have a protected property interest in continued employment.13 Frazier v. Garrison I.S.D., 980 F.2d 1514, 1529 (5th Cir. 1993). Probationary and term contracts create a protected property interest in employment during the term of the contract. Id. at 1531. The record is clear that most teachers represented by HFT have a constitutionally protected property interest in continued employment during their current term, and, for those with continuing contracts, beyond the current term.14

HISD argues that a due process plaintiff must show actual deprivation of a constitutional right, as opposed to a mere conspiracy to deprive, citing Villanueva v. McInnis, 723 F.2d 414, 418-19 (5th Cir. 1984). However, Villanueva arose in a very different context — a § 1983 suit for damages against a former district attorney (McInnis) who conspired to murder the plaintiff (Villanueva). The Fifth Circuit reversed a jury award of money damages to Villanueva, because the defendant's co-conspirator (Rodriguez) tipped off the FBI so soon that "there was no actual threat that the `conspiracy' would be carried out." Id. at 418. Key to the court's holding was the nature of the relief sought:

Id. at 418-19 (emphasis added to last sentence). In other words, while an actual deprivation might be necessary to support a damages award, a threatened deprivation is sufficient to support injunctive relief.

Plaintiffs here do not seek money damages, but rather a declaratory judgment and permanent injunction against the use of EVAAS scores in termination or nonrenewal of teacher contracts. It is well settled that "[o]ne does not have to await the consummation of threatened injury to obtain preventive relief." Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 67 S.Ct. 1117 (1923). To pursue a claim for preventive relief such as an injunction, plaintiffs need only show "a realistic danger of sustaining a direct injury as a result of the [policy's] operation or enforcement." Pennell v. City of San Jose, 485 U.S. 1, 8, 108 S.Ct. 849, 99 L.Ed.2d 1 (1988). As the following summary judgment evidence convincingly demonstrates, HISD's value-added appraisal system poses a realistic threat to deprive plaintiffs of constitutionally protected property interests in employment.

In 2012, shortly after adopting the EVAAS model for rating teacher effectiveness, HISD altered its teacher nonrenewal policy to add a new reason for nonrenewal — "insufficient student academic growth as reflected by value-added data."15 That same year, HISD declared a district-wide goal of ensuring that "no more than 15% of teachers with ratings of ineffective are retained district-wide."16 HISD explicitly defined teacher "effectiveness" by reference to their value-added scores.17 The school board monitored whether the District met its goal of "exiting" a sufficient percentage of "its ineffective teachers, defined by the Board Monitoring System as teachers with EVAAS ≤ -2.00."18 Principals and other administrators were likewise evaluated on whether the District met its goal of exiting ineffective teachers.19 HISD reportedly progressed toward those goals for the three school years 2011-14, in which 20.3%, 24.4%, and 25.0% of ineffective teachers were "exited," respectively.20

While HISD maintains that teachers were not terminated solely on the basis of low value-added scores, the record indicates otherwise. HFT president Zeph Capo, based on his review of HISD documents (including one labeled "Status of Low Three-year EVAAS Teachers"), identified 12 HFT members whose continuing contracts were terminated for low value-added scores between 2012-14.21 All twelve teachers resigned, retired, or were reassigned without going through termination proceedings.22 HISD confirms that among these twelve are four teachers (two HFT members) given letters stating that the HISD Board had accepted the Superintendent's recommendation of their termination "based on significant lack of student progress and/or insufficient academic growth as reflected by value-added scores."23 HISD has also approved severance packages for dozens of teachers in 2012 and 2013 who were proposed for termination or nonrenewal due to "performance and a significant lack of student progress attributable to the educator."24

From this evidence the court concludes that HISD's value-added appraisal system for teachers poses a realistic threat to protected property interests sufficient to withstand summary judgment on their claim for injunctive relief under the Fourteenth Amendment.

2. Procedural due process

Once it is determined that the Due Process Clause applies, the question remains what type of process is due. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). The core requirement of procedural due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The Supreme Court has emphasized that procedural due process has two related but distinct goals:

Fuentes v. Shevin, 407 U.S. 67, 80-81, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (emphasis added). See also Carey v. Piphus, 435 U.S. 247, 262, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) ("[The] purpose of procedural due process is to convey to the individual a feeling that the government has dealt with him fairly, as well as to minimize the risk of mistaken deprivations of protected interests.") (emphasis added)). In short, due process is designed to foster government decision-making that is both fair and accurate.

The standards of due process are not wooden absolutes, and must be judged according to the demands of the particular situation. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). In deciding what process is constitutionally due in various contexts, the Supreme Court has stressed that "procedural due process rules are shaped by the risk of error inherent in the truth-finding process...." Carey, 453 U.S. at 259, 101 S.Ct. 2748 (quoting Mathews v. Eldridge, 424 U.S. 319, 344, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). Among the factors considered is "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards." Mathews, 424 U.S. at 335, 96 S.Ct. 893.

In the context of public school teacher terminations, the Fifth Circuit has long required "timely notice and an opportunity to answer charges so as to minimize the likelihood of an erroneous discharge." Findeisen v. North East Independent School Dist., 749 F.2d 234, 239 (5th Cir. 1984). The minimum standards of procedural due process in such cases were specified in Ferguson v. Thomas, 430 F.2d 852 (5th Cir. 1970). These include the right to:

Id. at 856 (as restated in Levitt v. University of Texas at El Paso, 759 F.2d 1224, 1228 (5th Cir. 1985)). Within these boundaries the State has discretion to adopt the procedures it finds most appropriate. Levitt, 759 F.2d at 1228.

Under Texas law, a teacher proposed for termination has the right to (i) be represented by a representative of her choice; (ii) hear evidence on which the proposal to terminate her contract is based; (iii) cross-examine each adverse witness, (iv) present evidence on her own behalf, as part of a hearing in front of a hearing examiner, and (v) make oral argument to the Board of Trustees before any final ruling on her employment status. TEX. EDUC. CODE §§ 21.255-21.256.

Plaintiffs argue that these procedures are constitutionally inadequate for teachers threatened with termination based on low value-added scores, because they are denied access to the computer algorithms and data necessary to verify the accuracy of their scores.25 As a consequence, they say, HISD flunks the minimum procedural due process standard of providing the reason for termination "in sufficient detail to enable [the teacher] to show any error that may exist." Levitt, 759 F.2d at 1228; Ferguson, 430 F.2d at 856. The summary judgment record amply supports their claim.

HISD does not itself calculate the EVAAS score for any of its teachers. Instead, that task is delegated to its third party vendor, SAS.26 The scores are generated by complex algorithms, employing "sophisticated software and many layers of calculations."27 SAS treats these algorithms and software as trade secrets, refusing to divulge them to either HISD or the teachers themselves.28 HISD has admitted that it does not itself verify or audit the EVAAS scores received from SAS, nor does it engage any contractor to do so.29 HISD further concedes that any effort by teachers to replicate their own scores, with the limited information available to them, will necessarily fail.30 This has been confirmed by plaintiffs' expert, who was unable to replicate the scores despite being given far greater access to the underlying computer codes than is available to an individual teacher.31

The EVAAS score might be erroneously calculated for any number of reasons, ranging from data-entry mistakes to glitches in the computer code itself.32 Algorithms are human creations, and subject to error like any other human endeavor. HISD has acknowledged that mistakes can occur in calculating a teacher's EVAAS score;33 moreover, even when a mistake is found in a particular, teacher's score, it will not be promptly corrected. As HISD candidly explained in response to a frequently asked question, "Why can't my value-added analysis be recalculated?":

The remarkable thing about this passage is not simply that cost considerations trump accuracy in teacher evaluations, troubling as that might be. Of greater concern is the house-of-cards fragility of the EVAAS system, where the wrong score of a single teacher could alter the scores of every other teacher in the district. This interconnectivity means that the accuracy of one score hinges upon the accuracy of all. Thus, without access to data supporting all teacher scores, any teacher facing discharge for a low value-added score will necessarily be unable to verify that her own score is error-free.

Value-added teacher evaluation systems such as EVAAS are a relatively recent development, and no Fifth Circuit case has addressed a procedural due process challenge to such a system. Plaintiffs rely most heavily upon Banks v. Federal Aviation Admin., 687 F.2d 92 (5th Cir. 1982), in which two air traffic controllers challenged their dismissal for drug usage after their urine samples were destroyed and unavailable for independent testing on their behalf. The lab tests showed traces of cocaine, the only evidence of drug use in the record. The Fifth Circuit overturned their discharges, agreeing that the controllers were denied due process because their inability to evaluate the critical lab samples rendered the administrative hearings fundamentally unfair:

Id. at 94. Mere description of the lab's general testing methods and results was not good enough, the court declared. "We hold that due process required an opportunity by the controllers to test on their own behalf to evaluate the accuracy of the government-sponsored tests." Id. at 96. Plaintiffs assert that Banks is controlling here, and that due process similarly requires an opportunity by teachers to test on their own behalf the accuracy of their HISD-sponsored value-added scores. The court agrees.

HISD's efforts to distinguish Banks fall wide of the mark. It is true that HISD provides some information about EVAAS to teachers — such as an overview of value-added growth as a measure of student learning,35 a general description of the EVAAS test methods and how they are applied in HISD,36 and how to read the EVAAS teacher value added report.37 A teacher is also provided a list of the students linked to that teacher and the percentage of their instruction for which the teacher was responsible.38 Contrary to HISD's claim, however, this information does not "surpass" the Banks standard. The controllers in Banks were similarly advised about the lab's general testing methods, and even had the opportunity to cross-examine the laboratory director. Yet, the Fifth Circuit held these measures fell short of due process, because without the test samples it was not possible to verify or replicate the controllers' particular test results. Banks, 687 F.2d at 94. The same is true here. HISD's own discovery responses and witnesses concede that an HISD teacher is unable to verify or replicate his EVAAS score based on the limited information provided by HISD.39

HISD argues that Banks did not require access to proprietary information of the independent testing laboratory used by the FAA to perform the analysis. As defendant's brief correctly observes, "the Due Process Clause does not empower Plaintiffs to put SAS out of business" by requiring disclosure of its trade secrets.40 By the same token, SAS's trade secrets do not empower, much less compel, HISD to violate the constitutional rights of its employees. When a public agency adopts a policy of making high stakes employment decisions based on secret algorithms incompatible with minimum due process, the proper remedy is to overturn the policy, while leaving the trade secrets intact.

Moreover, in at least one respect the teachers' due process argument is stronger than the controllers in Banks. A drug test is a widely accepted, routine procedure to detect the presence of a physical substance in the body. By contrast, the EVAAS score purports to measure an intangible, job-related trait ("effectiveness") using a recently invented method that by HISD's own admission is the subject of vigorous academic debate. No similar controversy attends the detection of illicit drugs based on urine samples.41 Given the same urine sample, independent verification of a positive drug test is possible. But independent verification of a negative EVAAS score is impossible. According to the unrebutted testimony of plaintiffs' expert, without access to SAS's proprietary information — the value-added equations, computer source codes, decision rules, and assumptions — EVAAS scores will remain a mysterious "black box," impervious to challenge.42

While conceding that a teacher's EVAAS score cannot be independently verified, HISD argues that the Constitution does not require the ability to replicate EVAAS scores "down to the last decimal point."43 But EVAAS scores are calculated to the second decimal place,44 so an error as small as one hundredth of a point could spell the difference between a positive or negative EVAAS effectiveness rating,45 with serious consequences for the affected teacher.

Finally, HISD contends that, unlike in Banks where the drug tests "controlled" the outcome of the hearings, the EVAAS score is merely "one factor the hearing officer might or might not consider."46 This argument casually elides the compelling summary judgment evidence recounted above, such as HISD's aggressive goal of "exiting" 85% of teachers with "ineffective" EVAAS ratings,47 as well as its amended policy adding low value-added scores as grounds for nonrenewal.48 Given these official policies endorsed by the HISD Board, it beggars belief that any HISD hearing officer would (or could) freely disregard the very score used by HISD to identify "ineffective" teachers.

On this summary judgment record, HISD teachers have no meaningful way to ensure correct calculation of their EVAAS scores, and as a result are unfairly subject to mistaken deprivation of constitutionally protected property interests in their jobs. HISD is not entitled to summary judgment on this procedural due process claim.

3. Substantive due process: rational basis

A successful substantive due process claim requires evidence that the challenged law or practice is not "a rational means of advancing a legitimate governmental purpose." Finch v. Fort Bend Independent School Dist., 333 F.3d 555, 563 (5th Cir. 2003). Plaintiffs contend that EVAAS violates their rights to substantive due process because there is no rational relationship between EVAAS scores and HISD's stated "goal of having an effective teacher in every HISD classroom so that every HISD student is set up for success."49

Rational basis scrutiny presents a very demanding standard for plaintiffs, and a very forgiving standard for policymakers. See Reid v. Rolling Fork Pub. Util. Dist., 854 F.2d 751, 753 (5th Cir. 1988) ("equal protection violation does not arise if there is any basis for a classification or official action that bears a debatably rational relationship to a conceivably legitimate government end" (emphasis added)). Ultimately, whether the necessary rational relationship exists is a question of law. Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1044 (5th Cir. 1998).

Plaintiffs argue that EVAAS is not a rational evaluation tool "because it is sytematically biased against large categories of teachers on the basis of the type and size of classrooms they teach, is highly volatile, is highly variable on the basis of which models or tests are used, and is highly divergent from other measures of teacher effectiveness."50 As discussed above, it is also highly secretive and impossible to replicate.

HISD counters that 42 states and the District of Columbia use some measure of student performance in teacher evaluations, and value-added models have been throughly vetted and endorsed by much of the academic community.51 HISD also cites a trio of recent cases outside the Fifth Circuit rejecting similar substantive due process challenges to value-added teacher rating schemes.

The Eleventh Circuit considered a value added model based on student scores on the Florida Comprehensive Assessment Test (FCAT VAM) in Cook v. Bennett, 792 F.3d 1294 (11th Cir. 2015). The plaintiffs were teachers who either did not teach tested subjects, or taught students who did not take the FCAT. The Cook plaintiffs conceded that the "FCAT VAM is — or at least a rational policymaker could believe it is — capable of measuring some marginal impact that teachers can have on their own students or on the overall school environment." Id. at 1302. The Eleventh Circuit affirmed the dismissal of plaintiffs' substantive due process and equal protection claims because "[w]hile the FCAT VAM may not be the best method — or may even be a poor one — for achieving [the government's goal of improving instruction], it is still rational to think that the challenged evaluation procedures would advance the government's stated purpose." Id. at 1301.

While plaintiffs vehemently deny that EVAAS passes rational review, at least one of their experts has made a concession similar to that in Cook:

In Wagner v. Haslam, 112 F.Supp.3d 673 (M.D. Tenn. 2015), the court addressed Tennessee's state-mandated statistical method for evaluating teacher effectiveness, TVAAS.53 The plaintiffs criticized TVAAS, and value-added models in general (called VAAs in Wagner), as severely flawed due to failure to control for outside impacts on performance and due to high margins of error leading to low statistical confidence. As in Cook, the Wagner plaintiffs challenged only the constitutionality of using of school-wide TVAAS scores to evaluate the performance of teachers of subjects not tested on state-wide standardized tests, a claim not at issue here. However, the Wagner court explained at length the extremely limited role a court has in applying the rational basis standard:

112 F.Supp.3d at 696.

Most recently, in Trout v. Knox Cty. Brd. of Educ., 163 F.Supp.3d 492 (E.D. Tenn. 2016), teachers who did not receive annual performance bonuses asserted that use of TVAAS violated their constitutional rights to due process and equal protection. Although not the primary basis for its ruling, the court discussed plaintiffs' claims based on the statistical shortcomings of TVAAS.54 The court ruled as a matter of law that it is not irrational for the state to rely on a 68% confidence level in TVAAS results, stating "were this case to go to trial, its merits would be subject to a preponderance of the evidence standard. That is, the Court could make its decisions based on a 51% confidence level. Surely then, a 68% confidence level must pass rational basis review." Id. at 503. The court further pointed out that it was undisputed that "TVAAS algorithms have been validated for their accuracy in measuring a teacher's effect on student growth." Id. at 504. The court concluded that while TVAAS may be a "blunt tool," that is all the constitution requires. Id. at 505.

It is certainly disputed here whether EVAAS algorithms have been validated, and plaintiffs offer up numerous other ways in which EVAAS falls short.55 Even accepting plaintiffs' criticisms at face value, the loose constitutional standard of rationality allows governments to use blunt tools which may produce only marginal results. HISD's motion for summary judgment on this substantive due process claim is granted.

4. Substantive due process: vagueness

Plaintiffs' claim that EVAAS is unconstitutionally vague also arises from the Fourteenth Amendment's guarantee of substantive due process. The applicable test for unconstitutional vagueness requires plaintiffs to show that EVAAS "fail[s] to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits" or "authorize[s] and even encourage[s] arbitrary and discriminatory enforcement." City of Chicago v. Morales, 527 U.S. 41, 56, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). While the doctrine of vagueness has been extended to civil cases, and specifically to the discharge of public employees, it is recognized that "lesser degrees of specificity are required to overcome a vagueness challenge in the civil context than in the criminal context... because the consequences in the criminal context are more severe." San Filippo v. Bongiovanni, 961 F.2d 1125, 1135 (3d Cir. 1992).

In San Filippo, a tenured professor sued after being dismissed by Rutgers University for failure to maintain "standards of sound scholarship and competent teaching." The Third Circuit rejected San Filippo's argument that these regulations were unconstitutionally vague because they do not specify exactly what conduct is prohibited, holding that broad and general regulations are not necessarily vague. Id. at 1137. A vague standard is one that does not specify any standard at all, not one that merely proscribes a wide range of not-specifically-enumerated behaviors. Id. at 1137-38; see Ford Motor Co. v. Texas Dep't of Trans., 264 F.3d 493, 507 (5th Cir. 2001) ("An economic regulation is invalidated only if it commands compliance in terms so vague and indefinite as really to be no rule or standard at all").

HISD teachers, like Rutgers professors, can "evaluate their behavior's conformity to the dismissal standard" provided by regulations implementing EVAAS. Id. Teachers are advised that a low EVAAS score can lead to termination, and given general information about the EVAAS system and how it measures teacher effectiveness. While teachers may not be able to verify the accuracy of their EVAAS scores, a suitably definite rule or regulation is not rendered unconstitutionally vague simply because it may be unfair or prone to error. HISD's motion for summary judgment on plaintiffs' vagueness claim is granted.

5. Equal protection

To state a claim under the Equal Protection Clause, a § 1983 plaintiff must allege either that (a) a state actor intentionally discriminated against [him] because of membership in a protected class, or (b) he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. Gibson v. Texas Dep't of Ins., 700 F.3d 227, 238 (5th Cir. 2012). Plaintiffs' claim is of the latter type. They allege that HISD wrongly classifies teachers according to their EVAAS scores, and then subjects them to different treatment based on the classification. Plaintiffs further contend that HISD has a policy of requiring supervisors to bring instructional performance ratings into alignment with EVAAS scores.56 This practice of alignment allegedly subverts the independence of the instructional practice score.57 This appears to be a novel claim, and the court has found no authority addressing an equal protection claim in an analogous context.58

As with substantive due process, an equal protection claim is subject to rational basis review. This requires that the classification system used to justify subjecting some teachers to different treatment than others must be rationally related to a legitimate governmental objective. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Mahone v. Addicks Util. Dist. of Harris Cty, 836 F.2d 921, 933 (5th Cir. 1988) (an equal protection challenge focuses on three elements: (i) the classification, (ii) the purpose the classification is designed to serve, and (iii) the fit between the classification and the purpose.). As plaintiffs point out, the court must review "the classification system itself."59

Plaintiffs' factual allegations simply do not fit the mold of an equal protection claim. The court fails to see how the practice of aligning instructional practice ratings with EVAAS scores is a classification system. Even if it were, the court has already determined that the EVAAS system satisfies rational basis review. Thus, this claim necessarily fails along with the substantive due process claim discussed above. HISD's motion for summary judgment on plaintiffs' equal protection claim is granted.

Conclusion

For these reasons, HISD's motion for summary judgment (Dkt. 65) is denied with respect to the procedural due process claim, but granted on all other claims.