HARPSWELL COASTAL ACADEMY et al v. MAINE SCHOOL ADMINISTRATIVE DISTRICT NO 75 (TOPSHAM)

Filing 22

ORDER dismissing without prejudice 1 Complaint; dismissing as moot 5 Motion for Preliminary Injunction. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
HARPSWELL COASTAL ACADEMY et al., )
)
Plaintiffs,
)
)
v.
)
)
MAINE SCHOOL ADMINISTRATIVE
)
DISTRICT NO 75 (TOPSHAM),
)
)
Defendant.
)

2:15-cv-00454-JAW

ORDER ON PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Concluding that substantial uncertainty exists over the meaning of a state law
and that settling the state law question may well obviate the need to resolve a
significant federal constitutional question, the Court dismisses the Plaintiffs’
Complaint and motion for preliminary injunction without prejudice under Pullman1
abstention principles to allow the parties to proceed in state court.
I.

BACKGROUND
A.

Procedural History and Parties’ Arguments

On November 9, 2015, Harpswell Coastal Academy (HCA),2 Wesley and Carrie
Withers (the Withers),3 and John Doe4 initiated a lawsuit against Maine School

Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941).
HCA is a public charter school located in Harpswell, Maine, chartered under Chapter 112 of
Title 20-A of the Maine Revised Statutes. Compl. ¶ 1.
3
Wesley and Carrie Withers are residents and taxpayers of Harpswell, Maine, residents of
Maine School Administrative District (MSAD) 75, and parents of their minor son, John Doe. Compl.
¶ 2.
4
John Doe is a minor child and the son of Wesley and Carrie Withers. He is a student of HCA
in the eighth grade and a resident of MSAD 75. Compl. ¶ 3.
1

2

Administrative District (MSAD) 75,5 alleging violations of 42 U.S.C. § 1983 and 20-A
M.R.S. § 2415. See Compl. (ECF No. 1) (Compl.). The Plaintiffs seek to enjoin MSAD
75 from enforcing the provisions of its recently adopted policy – “Charter School
Students-Access to Public School Interscholastic and Extracurricular Activities”
(JJIAAB Policy)6 – that would prevent participation by John Doe on the Mt. Ararat
eighth grade boys’ basketball team, or that would exclude any other HCA students
from extracurricular or interscholastic activities. Id. at 9. Plaintiffs also seek a
declaratory judgment that the JJIAAB Policy violates 42 U.S.C. § 1983 and 20-A
M.R.S. § 2415, that John Doe have the right to compete for a position on the Mt.
Ararat eighth grade boys’ basketball team, and the awarding of damages in the sum
to be determined at trial. Id.
On November 10, 2015, Plaintiffs filed a motion for a preliminary injunction
under Federal Rule of Civil Procedure 65, seeking the Court to enjoin MSAD 75
pending trial and final determination of this case from enforcing the provisions of the
JJIAAB Policy, or any related rules that would prevent participation by John Doe on
the Mt. Ararat eighth grade boys’ basketball team, or that would exclude any other
HCA students from extracurricular or interscholastic activities.

Pls.’ Mot. for a

Prelim. Inj., at 9-10 (ECF No. 5) (Prelim. Inj.). Additionally, the motion requests that
John Doe be granted the immediate right to compete for a position on the Mt. Ararat
eighth grade boys’ basketball team, and if MSAD 75 has already held a try-out for

MSAD 75 is a school administrative unit, and under 20-A M.R.S. § 1206, the official school for
the communities of Bowdoin, Bowdoinham, Harpswell and Topsham, Maine. Compl. ¶ 4.
6
Compl. Attach. 1 Requirements for Participation in Extracurricular Activities (ECF No. 1)
(JJIAAB Policy).
5

2

the eighth grade boys’ basketball team, MSAD be ordered to hold a new try-out so
that John Doe may have the same opportunities as noncharter students. Id.
MSAD 75 filed an objection to the Plaintiffs’ motion for a preliminary
injunction on November 12, 2015. Def.’s Obj. to Pls.’ Mot. for a Prelim. Inj. (ECF No.
14) (Def.’s Obj.).

MSAD 75 argues that the Plaintiffs’ motion for preliminary

injunction should be denied for the main reason that they are unlikely to succeed on
the merits, whether as a matter of federal equal protection principles or as a matter
of state statutory interpretation.

Id. at 9-10.

Moreover, MSAD 75’s objection

suggests the Complaint is only “cloaked in constitutional garb” and questions
whether federal jurisdiction and standing exists for the Court to consider the § 1983
claim. Id. at 3, 5-6.
On November 12, 2015, the Court held a hearing on the Plaintiffs’ motion for
preliminary injunction.

(ECF No. 17).

During the presentations, the Court

questioned whether federal jurisdiction exists for a § 1983 claim founded on
“differential treatment for students based solely on which public school they choose
to attend . . .”, and particularly their participation in interscholastic and
extracurricular activities. See Compl. ¶ 42. At the hearing, the Court observed that
if the § 1983 claim was not viable, the only remaining count would be a state law
matter that would not provide a basis for federal jurisdiction.
Given the imminent announcement of the results of the Mt. Ararat eighth
grade boys’ basketball team try-outs, the parties agreed to brief the issue of
jurisdiction on an expedited basis. Additionally, the parties informed the Court that

3

MSAD 75 agreed to hold off announcing the results of the basketball try-outs until
1:00 p.m. on Monday, November 16, 2015. Letter from Att’y David W. Bertoni to Hon.
John A. Woodcock, Jr. (Nov. 13, 2015) (ECF No. 19). On November 13, 2015, the
Plaintiffs filed a memorandum. Suppl. Br. on Juris. (ECF No. 20) (Pls.’ Suppl. Mem.).
On November 14, 2015, the Defendant filed a responsive memorandum. Def.’s Suppl.
Br. on Fed. Juris. (ECF No. 21) (Def.’s Suppl. Opp’n).
B.

Factual Background
1.

Legislative Background

In 2011, the Maine Legislature passed LD 1553, which established a charter
school program in Maine, codified at 20-A M.R.S. § 2401 et seq. Compl. ¶ 8. HCA
applied for and received a charter contract with the Maine Charter School
Commission in 2013, and opened that fall. Id. ¶ 9. Pursuant to 20-A M.R.S.A. §
2415(2), students at a charter school may participate in extracurricular and
interscholastic activities in their home school district if the activity is not offered by
the charter school. Id. ¶ 10. Under this statute, superintendents are permitted to
deny charter students’ applications if the charter school provides the same
extracurricular activity or “if the noncharter public school does not have the capacity
to provide the public charter school student with the opportunity to participate in the
extracurricular or interscholastic activity.”7 Id. ¶ 11.

7

20-A M.R.S. § 2415(2) states in relevant part:
The superintendent of the school administrative unit or the superintendent's designee
may withhold approval only if the public charter school the student attends provides
the same extracurricular or interscholastic activity or if the noncharter public school
does not have the capacity to provide the public charter school student with the
opportunity to participate in the extracurricular or interscholastic activity.

4

2.

MSAD 75 Charter School Student Policy

MSAD 75 is charged with responsibility for the care, management, and control
of all public school business within its jurisdiction, which includes administration of
the athletic program at all of the schools within MSAD 75, including Mt. Ararat
Middle School. Id. ¶ 12. On July 9, 2015, MSAD 75’s school board adopted a policy
titled “CHARTER SCHOOL STUDENTS—ACCESS TO PUBLIC SCHOOL
INTERSCHOLASTIC AND EXTRACURRICULAR ACTIVITIES.”8 Id. ¶ 13. One of
the provisions of this policy is a definition of “capacity,” stating: “[t]he school does not
have capacity to provide a charter school student the opportunity to participate in an
extracurricular activity when all available slots or positions for the activity are taken
by regularly-enrolled students.” Id. ¶ 14; JJIAAB Policy at 2.
On September 2, 2015, the Acting Commissioner of the Department of
Education (DOE) sent a formal letter to Brad Smith, Superintendent of MSAD 75,
regarding the DOE’s position on MSAD 75’s JJIAAB Policy. Id. ¶ 21; Compl. Attach.
2 Letter to Superintendent Smith (ECF No. 1) (DOE Letter). Acting Commissioner
Desjardins informed MSAD 75 that the DOE’s interpretation of “capacity” is “that all

MSAD 75 explains that the adoption of the JJIAAB Policy was initiated in the spring of 2015
when MSAD 75 Superintendent Brad Smith learned that two HCA students were participating on
MSAD 75 extracurricular activities outside the requirements of law codified by 20-A M.R.S. § 2415 (2).
Def.’s Obj. at 6-7; Def.’s Obj. Attach. 1 Affidavit of Bradley V. Smith ¶ 18 (ECF No. 4) (Smith Aff.).
Specifically, the students’ parents did not apply to participate in MSAD 75’s school teams, the students’
parents did not receive Superintendent Smith’s approval for their child to participate on school teams,
and HCA did not pay a reasonable share of MSAD 75’s costs for the children’s participation on school
teams. Def.’s Obj. at 6-7; Smith Aff. ¶ 18. Nevertheless, while the MSAD 75 Board of Directors set to
work drafting a comprehensive policy to address the situation, it also authorized Superintendent
Smith, as an interim measure, to increase the size of the teams to allow the two HCA students to
participate, provided, however, that additional volunteers were found to support the increased team
size for the duration of the season. Def.’s Obj. at 7; Smith Aff. ¶ 20.
8

5

public charter school students who wish to take part in these activities should have
an equal opportunity to do so. For example, in the case of a baseball player, the
decision as to whether the student is chosen for the team should be based solely on
their ability to play baseball in comparison to others trying out.” Compl. ¶ 22; DOE
Letter at 1. Acting Commissioner Desjardins also informed MSAD 75 at that time
that their policy “would deny [charter school students] the right to participate in
extracurricular activities that have been funded through the school district. This is
true despite the fact that their family has helped fund that school district by
contributing a share of local and state taxes equal to that of other families in the
district.” Compl. ¶ 23; DOE Letter at 2. The letter concluded that “to not allow this
[charter school] student a fair and equal opportunity to participate in these activities
would be discriminatory toward that student based on their choice of public school.”
Compl. ¶ 24; DOE Letter at 2.
3.

Enforcement of MSAD 75 Charter School Student Policy
against John Doe

John Doe was a student of MSAD 75 until he and his parents made the choice
for him to attend HCA when it opened in 2012. Compl. ¶ 27. Because playing
basketball is important to Doe, he and his parents investigated the law regarding
charter school students’ opportunities to play sports in their home district, before Doe
chose to attend HCA. Id. ¶ 28. HCA does not have a basketball team Doe could play
on. Id. ¶ 31. However, its students have previously participated in school sports, and
have specifically participated in school sports operated by MSAD 75, including Mt.
Ararat Middle School. Prelim. Inj. at 2 (citing Prelim. Inj. Attach 2 D’Anieri Affidavit
6

¶¶ 3-6 (ECF No. 5) (D’Anieri Aff.)). During the last school year, 2014-2015, before
MSAD 75’s JJIAAB Policy was adopted, John Doe was in seventh grade at HCA and
tried out for the Mt. Ararat seventh grade boys’ basketball team at MSAD 75. Compl.
¶ 29. Doe survived two rounds of cuts and made the Mt. Ararat seventh grade boys’
basketball team. Id. ¶ 30.
This winter, sixteen boys studying at Mt. Ararat have signed up to try-out for
thirteen available spots on the eighth grade team. Def.’s Obj. at 8; Smith Aff. ¶ 12.
The Withers gave notice to Mt. Ararat that their son wanted to try-out for the team.
Def.’s Obj. at 8; Smith Aff. ¶ 11. Pursuant to the JJIAAB Policy, after learning of the
number of MSAD 75 and home school students who had signed-up for the eighth
grade boys’ basketball team try-outs, Superintendent Smith, after first speaking to
Ms. Withers on November 6, 2015, sent a confirming letter notifying the Withers that
Mt. Ararat Middle School did not have sufficient capacity to accommodate students
from other schools. Def.’s Obj. at 8; Smith Aff. ¶¶ 12-14. The Plaintiffs assert that
on information and belief, Doe competed against most, if not all, of the same boys last
year, and he was awarded a spot on the team. Compl. ¶ 37. The Plaintiffs also
contend that, after another year of experience with this team, it is more than likely
that Doe would again be selected for the team, if he were given the same opportunities
as other students who live in his district. Prelim. Inj. at 2 (citing Prelim. Inj. Attach
1 Withers Affidavit ¶¶ 3-6 (ECF No. 5) (Withers Aff.)).
Mt. Ararat eighth grade boys’ basketball try-outs took place on Monday,
November 9, 2015 and Tuesday, November 10, 2015, and the coach of the team has

7

determined his selections for the thirteen positions on the team. Def.’s Obj. at 9;
Smith Aff. ¶ 26. However, pursuant to the Court’s direction, MSAD 75 has delayed
the announcement of the composition of the Mt. Ararat eighth grade boys’ basketball
team until 1 p.m. on Monday, November 16, 2015. Letter from Att’y David W. Bertoni
to Hon. John A. Woodcock, Jr. (Nov. 13, 2015) (ECF No. 19).
II.

DISCUSSION
A.

Jurisdiction: General Principles

Article III of the United States Constitution provides that the judicial power of
the federal courts “shall extend to all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made, or which shall be
made, under their Authority.” U.S. CONST. art. III, § 2. Here, the Plaintiffs present
two theories under which they claim relief: Count One alleges a violation of 42 U.S.C.
§ 1983 and Count Two alleges a violation of 20-A M.R.S. § 2415. As § 1983 is a federal
statute, it provides an independent basis for federal jurisdiction; as section 2415 is a
state statute, it does not provide an independent basis for federal jurisdiction.
Nevertheless, if this Court has jurisdiction over the § 1983 claim pursuant to § 1983’s
jurisdictional counterpart, 28 U.S.C. § 1343, it may retain jurisdiction over the state
law claim under the concept of pendent jurisdiction. United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 725 (1966) (To provide a basis for jurisdiction over the state law
claim, the federal and state law claims must “derive from a common nucleus of
operative fact”).9 At the same time, if the § 1983 claim is not viable, particularly at

After Gibbs, Congress enacted 28 U.S.C. § 1367. The United States Supreme Court has written
that the “supplemental jurisdiction statute codifies” the Gibbs principles. City of Chicago v. Int’l Coll.
9

8

this early stage, the Court would be left with a claim purely of state law and the
Supreme Court has written that “if the federal claims are dismissed before trial, even
though not insubstantial in a jurisdictional sense, the state claims should be
dismissed as well.”10 Id. at 726. The Court therefore turns to whether § 1983 provides
an independent basis for the exercise of federal jurisdiction.
B.

42 U.S.C. § 1983

Each claim under § 1983 must have two elements: (1) the plaintiffs must show
that the have been deprived of a right “secured by the Constitution and laws” of the
United States, and (2) they must show that the defendants deprived them of this right
acting “under color of any statute” of a state. Flagg Bros., Inc. v. Brooks, 436 U.S.
149, 155 (1978); Young v. Brown Univ., 63 F. Supp. 3d 198, 204 (R.I.D. 2014). Here
the question narrows to whether the Plaintiffs have properly alleged that they have
been deprived of a right secured by the Constitution and laws of the United States.
Mere citation of 42 U.S.C. § 1983 is not enough, because § 1983 creates a remedy, not
a right. 13D CHARLES ALAN WRIGHT, ARTHUR R. MILLER, EDWARD H. COOPER &
RICHARD D. FREER, FEDERAL PRACTICE AND PROCEDURE § 3573.2 (2008 ed.) (“Section
1983 is not a source of substantive rights; it provides only a remedy”). “Asserting a
violation of federal law, however, will not always be enough to establish a § 1983
cause of action – ‘[the] plaintiff must assert the violation of a federal right.” Consejo

of Surgeons, 522 U.S. 156, 173 (1997). To the extent the statute differs from the Gibbs principles, the
provisions of § 1367 do not affect the Court’s analysis in this case. See Berrios-Cintron v. Cordero, 976
F. Supp. 110, 111 n.2 (D.P.R. 1997).
10
Depending on the circumstances, dismissal of the state law claim is not “a mandatory rule to
be applied inflexibly in all cases.” Redondo Constr. Corp. v. Izquierdo, 662 F.3d 42, 49 (1st Cir. 2011)
(quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). Instead, the federal court
should consider issues of “comity, judicial economy, convenience, and fairness.” Id.

9

De Salud de la Comunidad de la Playa De Ponce, Inc. v. González-Feliciano, 695 F.3d
83, 102 (1st Cir. 2012) (quoting Blessing v. Freestone, 520 U.S. 329, 340 (1997))
(emphasis in original).
C.

The Asserted Federal Right

In general, there are two categories of rights enforceable under § 1983: federal
statutory rights and federal constitutional rights. The Plaintiffs here make no claim
that their § 1983 action is grounded upon a federal substantive statute; accordingly
the Court turns to whether the Plaintiffs have made a constitutional claim cognizable
under § 1983. The rights enforceable under § 1983 emanate through the Fourteenth
Amendment and they include substantive and procedural due process, the equal
protection of the laws, and those rights in the Bill of Rights incorporated by the Due
Process Clause, including rights protected by the First, Second, Fourth, and Eight
Amendments.
Here, the Plaintiffs narrowed their federal constitutional claim to an asserted
denial of equal protection to charter school students. Pls.’ Suppl. Mem. at 1. The
Plaintiffs concede that the participation in extracurricular activities is not a
constitutionally-secured right, but they maintain that the charter school students
“are entitled to equal protection under the Constitution, which is a fundamental right
independent of the right to participate in interscholastic and extracurricular
activities.” Id. They claim that MSAD 75’s policy of distinguishing between its own
students and charter school students is without a rational basis and therefore violates
the Equal Protection Clause. Id. at 2-3.

10

To support their claim that MSAD 75 is denying charter school students equal
protection of the law, the Plaintiffs cite two federal cases: Denis J. O’Connell High
Sch. v. Virginia High Sch. League, 581 F.2d 81 (4th Cir. 1978) and Trefelner ex rel.
Trefelner v. Burrell Sch. Dist., 655 F. Supp. 2d 581 (W.D. Pa. 2009). In Denis J.
O’Connell, the Fourth Circuit addressed a claim by a parochial high school that a
state-sponsored athletic league violated its right to equal protection by excluding
private schools from the league, a classification that the parochial high school
maintained arbitrary classification in violation of the Equal Protection Clause. Denis
J. O’Connell, 581 F.2d at 83.

The Fourth Circuit considerably winnowed the

constitutional claim. It noted that “education is not a fundamental right under the
Constitution,” id. at 84 (citing San Antonio Independent Sch. Dist. v. Rodriguez, 411
U.S. 1, 35 (1973)), and neither is “participation in interscholastic athletics.” Id. (citing
Mitchell v. Louisiana High Sch. Athletic Ass’n, 430 F.2d 1155, 1159 n.17 (5th Cir.
1970)). However, the Fourth Circuit wrote that the claim that the “right of private
school students to be treated similarly as public school students” must survive a
“rational basis” test, id., and a “claimed denial of equal protection by state action
arises under the Constitution and would normally be within the District Court’s
jurisdiction [under § 1983], unless unsubstantial or frivolous.” Id.
In Trefelner, a district court in Pennsylvania dealt with a claim by a parochial
school student that a local school district violated the student’s First Amendment
right to free exercise of religion and equal protection of the law by promulgating and
enforcing a policy that limited participation in extracurricular activities, here a

11

marching band, to students of the school district. 655 F. Supp. 2d at 585-90. In
Trefelner, the district court issued a temporary restraining order requiring the school
district to allow the student to participate in the marching band. Id. at 598.
Against Denis J. O’Connell and Trefelner, MSAD 75 cites Pelletier v. Maine
Principals’ Ass’n, 261 F. Supp. 2d 10 (D. Me. 2003) for the proposition that equal
access to sports teams is not a fundamental right under federal law. Def.’s Suppl.
Opp’n at 3. In Pelletier, parents who were home schooling their children wanted their
children to compete in track, not for the local school, which was willing to allow them
to participate, but for a local Christian school, which was not. Id. at 11-13. The
Pelletier plaintiffs agreed that there is no fundamental right to athletic participation.
Id. at 13-14.

The district court for the District of Maine concluded under a

substantive due process and parental educational choice analysis that the Maine
Legislature’s distinction between requiring a public school to accept home schooled
students in its extracurricular activities and not requiring a private school to do so
had a rational basis. Id. at 13-15. The Pelletiers did not raise an equal protection
argument. Id. at 15.
D.

Analysis

The narrow issue here is whether the Plaintiffs have raised an equal protection
argument that is serious enough to allow this Court to exercise jurisdiction over the
case. Neither Trefelner nor Pelletier is particularly helpful. The plaintiffs in Trefelner
argued that the school district’s policy violated both their equal protection and free
exercise of religion rights and the district court analyzed the case under the Free

12

Exercise Clause of the First Amendment because it was the “strongest guarantee of
the rights at issue in this case.” Trefelner, 655 F. Supp. 2d at 590. The Trefelner
Court subjected the school district’s policy to “heightened scrutiny” and concluded
that the policy was not “narrowly tailored to advance a compelling interest.” Id. at
596. The Trefelner case is of limited applicability to this case as there is no free
exercise of religion claim here.
Nor is Pelletier determinative. The Pelletier Court did not address an equal
protection argument because none was raised. It does set forth the general principles
of law that the Fourth Circuit discussed in Denis J. O’Connell, but the Plaintiffs in
this case are not claiming that charter school students have a fundamental right to
athletic participation.
The Court returns to Denis J. O’Connell. In Denis J. O’Connell, the Fourth
Circuit held the state-sponsored league’s exclusion of non-public schools to the lowest
equal protection standard of rational basis and concluded that the league’s exclusion
passed the rational basis test. 581 F.2d at 88. The Fourth Circuit’s decision does not
support the Plaintiffs’ likelihood of ultimate success; however, for purposes of district
court jurisdiction, the Fourth Circuit concluded that the district court “properly took
jurisdiction of the claim pursuant to 28 U.S.C. § 1343.” Id. at 84. Even the dissent
in Denis J. O’Connell agreed that the “district court properly took jurisdiction in this
case.” Id. at 88.
Consistent with Denis J. O’Connell, this Court concludes that it could exercise
jurisdiction over the equal protection count in this case.

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E.

Pullman Abstention

Although not briefed by the parties in the extraordinarily short interval for
decision in this case, the Court resolves the jurisdictional question on another basis:
Pullman abstention. Professor Chemerinsky defined Pullman abstention:
Federal court abstention is required when state law is uncertain and a
state court’s clarification of state law might make a federal court’s
constitutional ruling unnecessary.
ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 12.2 (5th ed. 2007). “Under Pullman,
federal courts should abstain when ‘(1) substantial uncertainty exists over the
meaning of the state law in question, and (2) settling the question of state law will or
may well obviate the need to resolve a significant federal constitutional question.”
Casiano-Montañez v. State Ins. Fund Corp., 707 F.3d 124, 128-129 (1st Cir. 2013)
(quoting Batterman v. Leahy, 544 F.3d 370, 373 (1st Cir. 2008)).
Here, the parties have presented differing interpretations of the meaning of
the term “capacity” as it appears in 20-A M.R.S. § 2415(2). The statute reads in part:
A public charter school is eligible for statewide interscholastic leagues,
competitions, awards, scholarships and recognition programs for
students, educators, administrators and schools to the same extent as
are noncharter public schools. If a public charter school applies for and
receives written approval from the superintendent of a school
administrative unit or the superintendent's designee, who may withhold
such approval, the public charter school is eligible for school
administrative unit-sponsored interscholastic leagues, competitions,
awards, scholarships and recognition programs for students, educators,
administrators and schools to the same extent as are noncharter public
schools. If a public charter school student applies for and receives
written approval from the superintendent of the school administrative
unit of the noncharter public school or the superintendent's designee,
who may withhold such approval, the public charter school student is
eligible to participate in extracurricular activities not offered by the
student's public charter school at the noncharter public school within
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the attendance boundaries of which the student's custodial parent or
legal guardian resides or the noncharter public school from which the
student withdrew for the purpose of attending a public charter school.
The superintendent of the school administrative unit or the
superintendent's designee may withhold approval only if the public
charter school the student attends provides the same extracurricular or
interscholastic activity or if the noncharter public school does not have
the capacity to provide the public charter school student with the
opportunity to participate in the extracurricular or interscholastic
activity.
20-A M.R.S. § 2415(2) (emphasis supplied).

The Plaintiffs argue that the term

“capacity” means what Thomas A. Desjardin, the Acting Commissioner for the state
of Maine Department of Education, says it means:
The department’s interpretation of capacity is that all public charter
school students who wish to take part in these [extracurricular]
activities should have an equal opportunity to do so.
DOE Letter at 1. The Defendant argues that “capacity” means what the MSAD 75
policy says it means:
The school does not have capacity to provide a charter school student
the opportunity to participate in an extracurricular activity when all
available slots or positions are taken by regularly-enrolled students.
JJIAAB Policy at 2.
The Maine Legislature amended section 2415(2) on May 1, 2014 over the
Governor’s veto to include the “capacity” language under the title “An Act to Permit
a School Administrative Unit Discretion Concerning Participation of Students from
Charter Schools in School Extracurricular and Interscholastic Activities.” P.L., 2013,
ch. 601, § 1 (enacted May 1, 2014). The meaning of “capacity” as used in this statute
has not been the subject of any state court decisions.

15

This Court views the proper interpretation of “capacity” as potentially
determinative of the issues in this case, including the equal protection contention. If
the Plaintiffs are correct, they will prevail in their state law claim; if the Defendant
is correct, it will prevail. If the Plaintiffs prevail, there is no equal protection issue
because the public school and charter school students will be treated similarly. If the
Defendant prevails, the rationale for the distinction between public school and
charter school students will be explicated by the state courts and may assist the equal
protection analysis. Thus, as the Supreme Court has written, abstention is proper if
the state statute is “susceptible of a construction by the state judiciary which might
avoid in whole or in part the necessity for federal constitutional adjudication, or at
least materially change the nature of the problem.” Bellotti v. Baird, 428 U.S. 132,
146-47 (1976) (quoting Harrison v. NAACP, 360 U.S. 167, 177 (1959)).
This case, as framed, is a textbook example for Pullman abstention. A federal
court is less likely to retain jurisdiction if the state law question involves a matter of
state or local concern. See Torres-Rivera v. Garcia-Padilla, 783 F.3d 42 (1st Cir. 2015)
(commonwealth political issues); In re Eastport Assocs., 935 F.2d 1071 (9th Cir. 1991)
(land use planning); Almodovar v. Reiner, 832 F.2d 1138 (9th Cir. 1987) (state antiobscenity ordinance); Brooks v. Walker Cty. Hosp., 688 F.2d 334 (5th Cir. 1982) (state
health care law). Here, the resolution of this issue of statutory construction centers
on public and charter school education, traditionally areas of state and local concern.
See Pustell v. Lynn Public Schools, 18 F.3d 50, 54 (1st Cir. 1994) (“Although federal

16

courts are capable of resolving state law issues, educational policy is a matter of
particularly local concern”).
Also implicated in the Plaintiffs’ lawsuit is a demand that the federal court
enjoin state school officials from acting in accordance with school district policy. Such
an injunction would raise significant questions about the breadth of federal court
authority over state actors. At the very least, if this Court has the power to enjoin a
school coach from selecting a middle school basketball team, it should be mindful of
“[c]onsiderations of federalism, comity and sound judicial administration.” CasianoMontañez, 707 F.3d at 129.
The one Pullman abstention requirement that gives the Court pause is that
the federal constitutional question must be “significant.” Batterman, 544 F.3d at 373
(“The problem with Pullman abstention here is that the lawfulness of the cap does
not present a significant federal constitutional issue”). Whether a challenge to this
state statute on the ground that it has no rational basis raises a “significant” federal
constitutional question is less clear. The Fourth Circuit’s conclusion in Denis J.
O’Connell may presage the ultimate resolution of this question, if the constitutional
issue is finally reached. Nevertheless, the Court concludes that a challenge to the
constitutionality of this statute based on a statutory distinction between public school
and charter school students is sufficient for Pullman abstention purposes.

See

Pustell, 18 F.3d at 54 (Pullman abstention was appropriate when “[a] dispositive
state court interpretation of [a state educational policy] issue could eliminate entirely
the need to address the constitutional issues”).

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In drawing its conclusion, the Court has substantially relied on the First
Circuit’s 1994 decision in Pustell v. Lynn Public Schools. In Pustell, the district court
was confronted with a remarkably similar issue: a mixed question of state statutory
interpretation and federal constitutional law involving a Lynn School Committee
regulation that required consent to home visits by school district officials before
granting approval to homeschooling.

Pustell, 18 F.3d at 51. The district court

reached the constitutional issue and the parents appealed. Id. On appeal, the First
Circuit concluded that the district court erred in failing to abstain for substantially
the same reasons this Court is abstaining in this case. Pustell, 18 F.3d at 51-54.
The Court realizes that in making this ruling, the Plaintiffs may well elect to
file a substantially similar case in state court and that, in the interim, the MSAD 75
coaching staff may announce the members of the Mt. Ararat eighth grade boys’
basketball team and begin practice, and the team will not by virtue of the application
of the contested policy include the student Plaintiff. The Court does not diminish the
outsized significance that team selections can have on a middle school student.
Nevertheless, the Court resolves that issues of the proper exercise of federal power
must prevail.
On balance, this Court concludes that it should abstain from hearing this case,
at least until the state of Maine courts have had an opportunity to decide the novel
issue of statutory interpretation that may be dispositive of the claim.

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F.

Remedy

One alternative would be to certify the state law question to the Maine
Supreme Judicial Court. See 4 M.R.S. § 57. But before certifying a question to the
Maine Law Court, there must be “no dispute as to the material facts at issue.” Darney
v. Dragon Prods. Co., LLC, 2010 ME 39, ¶ 10, 994 A.2d 804. Here, the Court is not
at all certain that the parties agree enough on the underlying facts to meet this
standard.
A second alternative would be to stay this proceeding while the state court
resolves the state law issue. In Atwater v. Chester, 730 F.3d 58 (1st Cir. 2013), the
First Circuit concluded that a stay of the federal proceeding was appropriate where
the district court had abstained under Pullman. Id. at 64-65. But in Atwater, there
was a state court proceeding pending. This Court will not stay this case pending a
potential filing in state court. Furthermore, it may well be that the Plaintiffs decide
to proceed with both the state law count and the equal protection count in state court.
If so, the state court may reach and resolve the federal constitutional question.
In these circumstances, the Court has resolved that the best alternative is to
dismiss the pending action without prejudice to allow the parties to proceed in state
court.
III.

CONCLUSION
The Court DISMISSES the Plaintiffs’ Complaint without prejudice (ECF No.

1). The Court DISMISSES as moot the Plaintiffs’ Motion for a Preliminary Injunction
(ECF No. 5).

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SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 16th day of November, 2015

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