Immaculate Heart Central School et al v. The New York State Public High School Athletic Association and Section III
Filing
19
MEMORANDUM-DECISION & ORDER Defendants New York State Public High School Athletic Association and Section III's motions to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) are DENIED IN PART and GRANTED IN PART; The Sec ond (Due Process); Third (Religious Freedom Restoration Act and First Amendment); and Fourth (42 U.S.C. § 1983) causes of action are DISMISSED; The First (Equal Protection) cause of action is NOT DISMISSED; and Defendants shall file an answer to the First cause of action on or before July 8, 2011. Signed by Judge David N. Hurd on 6/23/2011. (see)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------IMMACULATE HEART CENTRAL SCHOOL;
JEFFREY MARRA; CHRISTOPHER INGERSON;
and RONALD SEXTON,
Plaintiffs,
7:10-CV-1471
-vTHE NEW YORK STATE PUBLIC HIGH SCHOOL
ATHLETIC ASSOCIATION and SECTION III
Defendants.
-------------------------------APPEARANCES:
OF COUNSEL:
O'HARA, O'CONNELL & CIOTOLI
Attorneys for Plaintiffs
7207 East Genesee Street
Fayetteville, NY 13066
STEPHEN CIOTOLI, ESQ.
DOMINIC S. D'IMPERIO, ESQ.
OFFICE OF RENEE L. JAMES
Attorneys for Defendant New York State
Public High School Athletic Association
6216 Turnwood Drive
Jamesville, NY 13078
RENEE LEE JAMES, ESQ.
BOND, SCHOENECK & KING, PLLC
Attorneys for Defendant Section III
One Lincoln Center
Syracuse, NY 13202
JOHN G. McGOWAN, ESQ.
CLIFFORD G. TSAN, ESQ.
DAVID N. HURD
United States District Judge
MEMORANDUM–DECISION and ORDER
I. INTRODUCTION
Plaintiffs Immaculate Heart Central School ("IHC"), Jeffrey Marra, Christopher
Ingerson, and Ronald Sexton (collectively "plaintiffs") bring this declaratory action against
defendants New York State Public High School Athletic Association (the "Athletic
Association") and Section III (collectively "defendants") to enjoin them from classifying private
(non-public) schools differently than public schools. Specifically, plaintiffs assert four causes
of action: (1) violation of the Equal Protection Clause pursuant to the Fourteenth
Amendment; (2) violation of the Due Process Clause pursuant to the Fourteenth
Amendment; (3) violation of the Religious Freedom Restoration Act of 1993, Title 42, United
States Code, section 2000bb-1, and the First Amendment; and (4) violation of Title 42,
United States Code, section 1983.
Both defendants move to dismiss the complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). Plaintiffs oppose. Oral argument was heard on April 29, 2011, in Utica,
New York. Decision was reserved.
II. BACKGROUND
The following facts, taken from the complaint and incorporated documents, are
accepted as true for purposes of the motions to dismiss.
Plaintiff IHC is a private Catholic high school located in Watertown, New York. It is
operated by the Roman Catholic Diocese of Ogdensburg, New York and incorporated by the
University of the State of New York as an academic institution. Plaintiffs Marra, Ingerson,
and Sexton are the parents of sons who attend IHC and compete in IHC's interscholastic
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football program. Defendant Athletic Association is a non-profit organization responsible for
governing interscholastic athletics for secondary schools in New York.
Under the Athletic Association's constitution, New York is divided into eleven
geographic areas called "Sections." Defendant Section III is one of the eleven sections and
maintains its office in Onondaga County, New York. Any secondary school within the
geographic boundaries of Section III is eligible for membership upon acceptance by a
majority vote of the Athletic Council1 and upon approval of the Athletic Association. Member
schools must agree to abide by all Section III, Athletic Association, and New York State
Commissioner of Education rules, regulations, and procedures.
The Athletic Association provides administrative oversight of the eleven Sections.
One of its functions is to classify member school districts into "Classes" to ensure fair and
equitable interscholastic athletic competition. According to its constitution, schools are
classified annually using the preceding school year Basic Education Data ("BEDS")
enrollment figures published by the New York State Department of Education. The BEDS
figures are roughly synonymous with a school's enrollment.
In November 1997 the Athletic Association amended its constitution to provide that
each Section "may determine the appropriate classification for their non-public school
members." Compl. ¶ 11. Following this, in 1998, Section III passed a resolution "to place
non-public school members in the appropriate class to ensure equitable competition
regardless of enrollment." Id. ¶ 12. Then, in 2003, to accomplish this objective, Section III
enacted the classification policy at issue here for non-public schools. A classification
1
The Athletic C ouncil, com prised of representatives from Section III schools, establishes the
rules and regulations for adm inistering the activities of Section III.
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committee also exists to place non-public school sport teams in the appropriate class. The
classification placement, as determined by the classification committee, is sport specific and
reviewable on a biennial basis. The sport specific classification is for post-season sectional
competition.2
According to the Section III handbook, public schools are classified using only
BEDS numbers. A non-public school is initially classified based upon its enrollment where
there is no significant difference in strength of programs offered by like classified public
schools. Based on its BEDS numbers, IHC was classified and "has played primarily in Class
D since Section III enacted a classification system for high school football." Compl. ¶ 10.
The Section III classification policy for non-public schools, adopted in 2003,
provides that a school will be moved up in class if it meets one of the following four criteria
within a two-year cycle: (1) a winning percentage of .750 in their overall record, league
record, or record in class; (2) a league and/or playoff championship; (3) a Sectional final
appearance; or (4) a State championship. Id. ¶ 14.
The classification committee met on December 15, 2009, to classify schools for the
upcoming fall sports season. Representatives from IHC attended. At the meeting, Mike
Stevens, Athletic Director and football coach for Sandy Creek Central School District,
proposed IHC be moved from Class D competition up to Class C based on its previous
2
Football is a "sectional" sport m eaning that, unlike som e other sports, a school's football
program plays schools in the sam e classification.
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winning record.3 The classification committee, by vote, approved IHC's move from Class D
to Class C.
On December 23, 2009, IHC appealed its reclassification to the Section III Appeal
Panel. On January 14, 2010, the Appeal Panel upheld the classification committee's
decision to move IHC to Class C. On February 2, 2010, IHC appealed to the Athletic
Association. The Athletic Association denied the appeal on February 17, 2010, and notified
IHC of its denial by letter on February 22, 2010. Plaintiffs subsequently filed this action on
December 7, 2010.
III. DISCUSSION
A. Legal Standard
When deciding a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff's factual
allegations must be accepted as true and all reasonable inferences must be drawn in favor of
the plaintiff to assess whether a plausible claim for relief has been stated. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555–61, 127 S. Ct. 1955, 1964–67 (2007); Ashcroft v. Iqbal, __ U.S.
__, 129 S. Ct. 1937, 1953 (2008) (holding that the pleading rule set forth in Twombly applies
in all civil actions). The factual allegations must be sufficient "to raise a right to relief above
the speculative level," crossing the line from conceivable to plausible. Twombly, 550 U.S. at
555, 127 S. Ct. at 1965. Additionally, "a formulaic recitation of the elements of a cause of
action will not do." Id. at 555, 127 S. Ct. at 1965. "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
3
In the 2008-09 school year, IH C 's football team had a record of nine w ins and one loss and
reached the class D sectional final. In 2009-10, the team com piled a record of seven w ins and tw o
losses and reached the class D section sem ifinals.
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defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Twombly,
550 U.S. at 556, 127 S. Ct. at 1965).
Thus, in reviewing the sufficiency of the pleading, a court first may identify legal
conclusions that "are not entitled to the assumption of truth." Id. at 1950. The court should
then "assume [the] veracity" of "well-pleaded factual allegations . . . and determine whether
they plausibly give rise to an entitlement to relief." Id.
Generally when considering a Rule 12(b)(6) motion, a district court is constrained
by the facts alleged in the complaint, documents attached to the complaint as exhibits, and
documents incorporated by reference in the complaint. DiFolco v. MSNBC Cable L.L.C., 622
F.3d 104, 111 (2d Cir. 2010). A court may nevertheless consider a document not in the
above categories "where the complaint 'relies heavily upon its terms and effect,' thereby
rendering the document 'integral' to the complaint." Id. (quoting Mangiafico v. Blumenthal,
471 F.3d 391, 398 (2d Cir. 2006)). "[E]ven if a document is integral to the complaint, it must
be clear on the record that no dispute exists regarding the authenticity or accuracy of the
document." Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006) (internal quotation omitted).
Further, there must not be any material disputed issues of fact regarding the document's
relevance. Id.
Here, the complaint does not include any attached exhibits. However, it relies on
the Athletic Association constitution and the 2010 Section III handbook. See D'Imperio Decl.,
Ex. 1 ("Athletic Association constitution"), Dkt. No 15-1; Rathbun Aff., Ex. C ("handbook"),4
Dkt. No. 10-1. The complaint makes reference to, among other things, the classification
4
The handbook contains the classification policy at issue.
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committee, classification policy, enrollment numbers, and appeals process. See Compl.,
Dkt. No. 1, ¶¶ 4, 9, 11, 34 (Athletic Association constitution); ¶¶ 14, 19, 17, 21, 27, 35
(handbook). Because the complaint relies heavily on these documents, they are integral to it.
Further, based on the references in the complaint and IHC's membership in the Athletic
Association and Section III,5 plaintiffs had knowledge of these documents and relied on them
in bringing suit. There is no dispute as to the authenticity or accuracy of these documents,
and both parties clearly considered them relevant as they are referenced by plaintiffs and
defendants in their arguments. Therefore the Athletic Association constitution and Section III
handbook will be considered in deciding the motions to dismiss.
B. Equal Protection Claim
1. Arguments–Equal Protection
Defendants move to dismiss the First cause of action alleging an equal protection
violation. They argue the claim must be dismissed because plaintiffs cannot prove the
classification policy violates the Equal Protection Clause since it survives rational basis
review. They contend the classification is based on the legitimate goal of maintaining
equitable competition among member schools and the classification policy is rationally
related to achieving that goal. The complaint acknowledges, and defendants assert, that the
classification policy attempts to remedy the competitive advantage that non-public schools
have because they are not constrained by geographic boundaries in recruiting, as are public
schools.
5
M em bers such as IH C receive the Athletic Association constitution and Section III handbook
and agree to abide by all rules and regulations.
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Plaintiffs argue that defendants' perceived differences in recruiting capabilities
between public and non-public schools as a justification for the unequal treatment are wholly
illusory and the classification policy cannot survive rational basis review. They fault
defendants for failing to "show with at least the slightest shred of evidence that there is some
factual basis for [their] unsupported assumptions of 'inequitable competition' between private
and public schools." Pls.' Mem. of Law, Dkt. No. 15, 6. Plaintiffs contend that in reality, nonpublic schools do not have a competitive advantage and in fact, public schools may also
recruit outside their geographic boundaries.6 In essence, they argue the alleged justification
for the policy is nothing more than an excuse to treat non-public schools differently.
2. Legal Standard–Equal Protection
"The Equal Protection Clause requires that the government treat all similarly
situated people alike." Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir.
2001). To prove a violation of the Equal Protection Clause, a plaintiff must first demonstrate
that the two classes at issue are similarly situated. See, e.g., Yuen Jin v. Mukasey, 538 F.3d
143, 158 (2d Cir. 2008). Here, both public schools and non-public schools belong to
Section III and the parties agree the classification policy treats non-public schools differently
than public schools. They also do not dispute that rational basis review is appropriate
because no suspect class nor fundamental right is involved.
6
N ew York State Education Law section 3202(1) states: "A person over five and under
tw enty-one years of age w ho has not received a high school diplom a is entitled to attend the public
schools m aintained in the district in w hich such person resides w ithout the paym ent of tuition." It also
provides that "[n]onresidents of a district, if otherw ise com petent, m ay be adm itted into the school or
schools of a district or city, upon the consent of the trustees or the board of education, upon term s
prescribed by such trustees or board." Id. § 3202(2). Plaintiffs argue, "[l]ike a private catholic school, a
public high school with a strong football program and an accom m odating board of education could
becom e a m agnet school such that the lack of geographic boundaries and perhaps other advantages
could accentuate the benefits of the strong program ." Pls.' M em . O f Law, 8 (internal quotation om itted).
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Plaintiffs carry a heavy burden in proving an equal protection violation under
rational basis review:
[T]he Equal Protection Clause is satisfied so long as there is a plausible
policy reason for the classification, the legislative facts on which the
classification is apparently based rationally may have been considered to be
true by the governmental decisionmaker, and the relationship of the
classification to its goal is not so attenuated as to render the distinction
arbitrary or irrational.
Nordlinger v. Hahn, 505 U.S. 1, 11–12, 112 S. Ct. 2326, 2332 (1992) (internal citations
omitted). This standard of review is highly deferential toward the government and "is
accorded a strong presumption of validity." Yuen Jin, 538 F.3d at 158. "A classification
subject to rational basis review 'must be upheld against [an] equal protection challenge if
there is any reasonably conceivable state of facts that could provide a rational basis for the
classification.'" Id. (quoting FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313, 113 S. Ct.
2096, 2101 (1993)).
The rational basis does need not be asserted when the classification occurs.
Instead, "the burden is ultimately on the plaintiff to negate 'every conceivable basis which
might support' the state's action, whether or not the basis has a foundation in the record."
Smith v. Defendant A, No. 08 Civ. [ ], 2009 WL 1514590, at *4 (S.D.N.Y. May 29, 2009)
(quoting Price v. N.Y. State Bd. of Elections, 540 F.3d 101, 108 (2d Cir. 2008)). Defendants
have "no obligation to produce evidence to sustain the rationality" of the challenged
classification, regardless of whether the basis has any foundation in the record. Heller v.
Doe, 509 U.S. 312, 320, 113 S. Ct. 2637, 2643 (1993). Indeed, the justification may be
based on "rational speculation unsupported by evidence or empirical data." Beach
Commc'ns, 508 U.S. at 315, 113 S. Ct. at 2098. "[R]ational-basis review in equal protection
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analysis 'is not a license for courts to judge the wisdom, fairness, or logic of legislative
choices.'" Heller, 509 U.S. at 319, 113 S. Ct. at 2642 (quoting Beach Commc'ns, 508 U.S. at
313, 113 S. Ct. at 2100–01).
It should be noted that conducting rational basis review at the motion to dismiss
stage poses unique challenges. See Smith, 2009 WL 1514590, at *5. Many circuits have
adopted a solution in which they "take as true all of the complaint's allegations and
reasonable inferences that follow, and then apply the resulting facts in light of the deferential
rational basis standard." Id. To survive a motion to dismiss, "a plaintiff must allege facts
sufficient to overcome the presumption of rationality that applies to government
classifications." Id. When neither the complaint nor the non-moving party's opposition
negate "any reasonably conceivable state of facts that could provide a rational basis" for the
challenged classification, a defendant's motion to dismiss an equal protection claim will be
granted. See Sullivan v. City of New York, No. 08 Civ. 7294, 2011 WL 1239755, at * 4–5
(S.D.N.Y. Mar. 25, 2011) (internal quotation omitted).
In Sullivan, the complaint alleged certain provisions of the New York State
Retirement and Social Security Law violated equal protection. Id. at *1. The defendants
moved to dismiss. Their memorandum of law asserted that the relevant laws served the
legitimate state interest of saving taxpayer money. Id. at *4. The plaintiff, through the
complaint and his opposition to the motion, failed "to negate 'any reasonably conceivable
state of facts that could provide a rational basis for the [challenged] classification.'" Id.
(quoting Bd. of Trs. of Univ. of Alabama v. Garrett, 531 U.S. 356, 367, 121 S. Ct. 955, 964
(2001)). Accordingly, the Sullivan defendants' motion to dismiss was granted.
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Similarly, in Adams v. New York State Education Department, the plaintiffs
challenged a section of the New York State Education Law allowing the New York City
Department of Education to modify disciplinary hearing procedures through collective
bargaining agreements. 752 F. Supp. 2d 420, 458 (S.D.N.Y. 2010). The defendants moved
to dismiss. Their brief asserted the provision was rational because of the New York City
Department of Education's size and complexity in relation to other school districts in New
York. Id. at 460. The plaintiffs did not challenge this assertion. The court concluded that the
plaintiffs, not the defendants, "have the burden of negating any rational basis for the statute,
and they utterly have failed to do so." Id. As a result, the defendants' motion to dismiss the
equal protection claims was granted. Id.
3. Bishop Grimes High School v. New York State Public High School Athletic
Association7
a. Facts
In the Bishop Grimes case, District Judge Howard G. Munson considered the
Section III classification policy for non-public schools which preceded the policy at issue
here. No. 5:00-cv-1214, slip op. (N.D.N.Y. May 1, 2001) (Munson, S.J.) (unpublished
decision); McGowan Decl., Ex. A, Dkt. No. 10–2. In that case, plaintiffs Bishop Grimes High
School and Bishop Ludden High School were two private Catholic schools within Section III.
Both the Athletic Association and Section III were named defendants.
7
Plaintiffs and defendants donate a considerable portion of their argum ents to discussing the
Bishop G rim es case. Accordingly, the facts of that case and its prior related proceedings w ill be
discussed in detail.
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Prior to the Bishop Grimes lawsuit in 2001, as explained above, the Athletic
Association amended its constitution (in 1997) to permit Sections to unilaterally determine
class placement. Section III then adopted its resolution (in 1998)8 concerning the placement
of non-public schools in classes suitable for equitable competition. The Section III resolution
incorporated a list of fourteen suggested criteria for classification of non-public schools,
including: enrollment, the strength of individual sports programs, and historical information
as to sports achievements in a school's present placement.
In March 1998, shortly after the Section III resolution was passed, plaintiffs and
other non-public schools were notified their classifications would be decided at an upcoming
classification committee meeting. They were provided a copy of the resolution and
placement procedures, urged to submit information relevant to their classification, and to
send a representative to the meeting. At the meeting, Bishop Grimes and Bishop Ludden
made presentations to the committee but offered only their BEDS numbers and a general
statement of their intent to remain in their current classes. The committee reclassified them
for certain sports and appeals ensued.
As part of the appeals, plaintiffs requested other public and non-public schools
within the Section submit information to the committee regarding their athletic programs,
beyond BEDS numbers.9 On appeal, the committee reviewed the information and reversed
one of its prior decisions, but upheld the remaining reclassifications.
8
At that tim e (2001) Section III had not yet adopted the 2003 classification policy at issue in the
present m atter.
9
The inform ation included enrollm ent figures, transfer policies, athletic budgets, sports program s
offered, and success rates in various sports.
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Plaintiffs appealed to the Section III Executive Committee who affirmed the
reclassifications. They then appealed to the New York State Commissioner of Education.
b. New York State Commissioner of Education Opinion
In their appeal to the New York State Commissioner of Education
("Commissioner"), plaintiffs (referred to as petitioners) made both a facial and as-applied
challenge to the Section III classification resolution. See Appeal of Bishop Grimes High Sch.,
Decision No. 14,024, 1998 NY Educ. Dep't LEXIS 346 (N.Y. Educ. Dep't Oct. 14, 1998).
They argued the committee did not apply the classification criteria properly and incorrectly
based its decisions on incomplete information. As a result, they urged the reclassifications
were arbitrary and capricious.
The Commissioner found the committee appropriately utilized the criteria and the
plaintiff schools had a long record of dominance against their then-present competition. He
determined the committee had ample information on which to base a decision, including data
submitted by other Section III schools. He concluded that "[t]hese facts provide a rational
basis for the Competition [sic] Committee's decision to move them up to a more appropriate
level of competition." Id. at *10.
Finally, the Commissioner "considered petitioners' arguments that the criteria
contained in the March 5 resolution are unfair because they have been applied only to
nonpublic schools." Id. at *11. He went on to state:
Petitioners have not, however, argued that the achievement and
maintenance of equitable competition is wrong, or that it is not a legitimate
purpose of Section III. The Court of Appeals has recognized that an athletic
organization may treat public and nonpublic schools differently when such
action 'further[s] the identified purposes by reasonably assuring that all
member schools have the opportunity to compete on a relatively level
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playing field.' Archbishop Walsh High Sch. v. Section VI, 88 N.Y.2d 131,
138 (1996). The same reasoning applies in this matter.
Id. at *11. He dismissed the appeal. Plaintiffs brought suit in federal court in August 2000.
c. Judge Munson's Decision in Bishop Grimes
The Bishop Grimes complaint alleged that the regulations—the 1997 Athletic
Association constitutional amendment and the 1998 Section III resolution—violated equal
protection. Bishop Grimes, Slip op. at 4–5. The plaintiffs argued "defendants, by
effectuating rules which classify nonpublic schools for purposes of interscholastic competition
on the basis of considerations other than enrollment . . . [violated Equal Protection] because
the same considerations do not apply to public schools with fixed geographical boundaries
who are only classified by enrollment." Id. at 5. Section III moved to dismiss the complaint
pursuant to Rule 12(b)(6).10
The court determined rational basis review was appropriate and "the burden is not
on the state to establish the rationality of the regulation, but upon the challenger to show that
the regulation is wholly arbitrary." Id. at 7. In considering whether Section III's
reclassification was rationally related to a legitimate government interest, Judge Munson
noted, "'it is not the role of federal courts to set aside decisions of school administrators
which the court may review as lacking wisdom and compassion.'" Id. at 7–8 (quoting Wood
v. Strickland, 420 U.S. 308, 326, 95 S. Ct. 992, 1003 (1975)).
10
Defendants point out that Judge M unson's analysis and dism issal in Bishop G rim es w ere
m ade pursuant to the m ore lenient pleading standard that w as in place prior to Twom bly, 550 U .S. 544,
127 S. C t. 1955 and Iqbal, 129 S. C t. 1937.
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The court went on to take judicial notice of the prior related proceedings, including
the Commissioner's decision, which detailed the plaintiffs' history of dominance in the sports
at issue. In examining that portion of the Commissioner's opinion, Judge Munson explained:
It is the responsibility of the state interscholastic athletic associations to
maintain a competitive balance within the association, and to facilitate this
acknowledged function by reasonably assuring that all member schools have
the opportunity to compete on a relatively level playing field. Section III's
concern with the equitable competitive character between its members[']
athletic teams being jeopardized is legitimate, and justified the
reclassification of the plaintiffs' basketball programs to a more suitable level
of competition for their athletes. It cannot be said that Section III's action
was entirely arbitrary and completely without worth in the furtherance of this
valid state aim. The court does not gauge the ultimate wisdom of Section
III anew, or the profoundness of its methodological analysis. The Section
has concluded that reclassification serves the purpose of making
interscholastic athletics fairer and more competitive. It cannot be said that
this action has no significant relevancy to the actualization of that goal.
Id. at 8–9 (internal citations and quotations omitted). He concluded that "there is no set of
facts that could have been proved to support a finding that defendant Section III deprived
plaintiffs of a constitutional right. Section III's motion to dismiss was granted. Id. at 10.
d. Applicability of Bishop Grimes
Defendants insist Bishop Grimes is controlling while plaintiffs contend their reliance
is misplaced. Plaintiffs assert the issue here is not whether it was a violation of equal
protection to reclassify IHC's football team on the basis of equitable competition, but instead
"whether Defendants have any rational basis for applying completely different types of rules
for members schools' athletic classifications, one for public schools and one for private
catholic and parochial schools." Pls.' Mem. of Law, 10.
Bishop Grimes is distinguishable from the instant matter on several grounds. First,
in the appeal to the Commissioner, it was determined the committee appropriately and
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properly applied the classification criteria to the plaintiff schools. By contrast, IHC (as
emphasized during oral argument) challenges the entire classification policy as
unconstitutional on its face.
While the Commissioner rejected the plaintiffs' argument that the criteria were
unfair because they applied only to non-public schools, he did so in reliance on Archbishop
Walsh, 88 N.Y.2d at 138. He explained, "[t]he [New York] Court of Appeals has recognized
that an athletic organization may treat public and nonpublic schools differently when such
action 'further[s] the identified purposes by reasonably assuring that all member schools
have the opportunity to compete on a relatively level playing field.'" Appeal of Bishop Grimes
High Sch., 1998 NY Educ. Dep't LEXIS 346, at *11 (quoting Archbishop Walsh, 88 N.Y.2d at
138).
In Archbishop Walsh, the Court of Appeals examined Section VI's policy requiring a
majority vote for non-public schools to become members of the Section. 88 N.Y.2d 131.
The court found its voting policy was rationally related to Section VI's legitimate interest in
maintaining competitive balance among public schools. Section VI advanced a number of
"concrete justifications," namely "because it is a voluntary organization of only public schools
that necessarily have open community enrollment, it has an interest in the character of
competition that such community identity and non-selectivity engender among member
schools." Id. at 137 (internal quotation omitted).
Significantly, the Archbishop Walsh Court reviewed (and affirmed) the grant of
summary judgment in favor of Section VI. The court noted "the plaintiff's burden on this kind
of constitutional attack of showing that the requirement has no rational basis." Id. at 138.
The plaintiff "fail[ed] to show that the justifications advanced by Section VI in response to this
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equal protection claim are not reasonably related to the concerns of promoting rationally
rooted interscholastic athletic competition." Id. This is distinguishable. Here, at the burden
to dismiss stage plaintiffs need only provide enough facts to state a claim to relief that is
plausible on its face. By contrast, plaintiffs have a higher evidentiary burden to survive a
motion for summary judgment.
Further, Archbishop Walsh held public and non-public schools may be treated
differently when it "further[s] the identified purposes." Id. at 138 (emphasis added). The
Court of Appeals did not hold that as long as an association's interest is legitimate, any policy
they implement survives rational basis review. The classification must further that interest.
The defendants' interests in Bishop Grimes, Archbishop Walsh, and the present
case—ensuring a level playing field and maintaining the character of competition—may be
shared, but the policies vary. In Archbishop Walsh it was Section VI's majority vote
requirement for admission of non-public schools. In Bishop Grimes it was a classification
policy for non-public schools, different than the one presently used by Section III.
Whether Section III's classification policy actually furthers, and is therefore
rationally related to, their interest in ensuring equitable competition is precisely the issue
here. Such inquiry is fact and policy specific, and neither Bishop Grimes nor Archbishop
Walsh are dispositive.
4. Analysis–Equal Protection
Section III aims "to place non-public school members in the appropriate class to
ensure equitable competition regardless of enrollment." Compl. ¶ 12. The classification
policy for non-public schools, provided in the handbook, reiterates this goal. See Handbook,
Classification Criteria for Non-Public Schools, 1.0. The goal of maintaining balanced
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competition in Section III is a legitimate interest. To survive rational basis review, the
classification must be rationally related to achieving that interest.
Defendants contend non-public schools recruit outside their geographic boundaries
and therefore have a competitive advantage over public schools. To remedy this alleged
competitive advantage, Section III classifies non-public schools using factors in addition to
enrollment figures. They assert that by taking into account winning records, post-season
appearances, and other statistics, the classification policy ensures equitable competition
among Section III member schools.
According to plaintiffs, "a factual basis must exist in order for a classification to
satisfy the rational basis test," and thus the decision to move IHC from Class D to Class C
violated the Equal Protection Clause. Compl. ¶ 26. This argument is unavailing.
Defendants do not need to present evidence to sustain the rationality of the policy. They are
not required to show non-public schools actually recruit outside their geographic boundaries,
or that public schools cannot do the same. Defendants have asserted a justification for the
classification and the burden remains with plaintiffs to negate every conceivable basis for the
policy.
Plaintiffs, through the complaint and opposition papers, contend private schools do
not have a competitive advantage and thus the policy which considers non-public schools'
winning records is not rationally related to the stated interest. Accepting the allegations in
the complaint as true, as must be done on a motion to dismiss, "the majority of Section III's
public school members also accept students from outside their geographic boundaries."
Compl. ¶ 44. Plaintiff cites a portion of the New York State Education Law which permits
public schools to do so. See N.Y. Educ. Law § 3202.
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Plaintiffs also cite a Commissioner of Education opinion for further support. That
decision acknowledged a study conducted by Section IV during 1995–96.11 See Appeal of
Notre Dame High Sch., Decision No. 14,104, 1999 NY Educ. Dep't LEXIS 245 (N.Y. Educ.
Dep't Apr. 6, 1999). According to the study, "[i]t appears clear from the data assembled that
in certain sports, private schools have achieved greater success than most, but not all,
comparably classified schools over the past decade plus." Id. at *1. The study found "[t]he
record of the private schools in interscholastic competition generally does not seem to
demonstrate an across-the-board advantage which those schools have received as the result
of any distinctions between them and the public schools insofar as number and caliber of
athletes enrolled is concerned." Id. at *2. The report went on to state, "[i]n other words, the
private schools have not been strong in all sports, as one might expect if they were
benefitting significantly from their enrollment advantages as a private school." Id.
The report's conclusion was that "[i]n the absence of a good program, any
theoretical advantage which a private school may have over a public school does not
translate into a discernable practical advantage." Id. Finally, it concluded that where a
private school does have a strong program, it could potentially become a magnet school and
the lack of geographic boundaries could accentuate the private school's advantages. The
report recommended a sport-by-sport evaluation of private member schools, because "in
certain situations, the private schools may have some benefit which, while difficult to quantify,
is nonetheless present." Id. at *3.
11
Subsequent to the study, Section IV adopted an across-the-board reclassification of non-public
schools, contrary to the report's recom m endations. The C om m issioner found the blanket reclassification
w as arbitrary and capricious and ordered the actions set aside.
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IHC has alleged sufficient facts to overcome the presumption of rationality that
applies to government classifications. See Smith, 2009 WL 1514590, at *5. Accepting the
allegations as true, they asserted facts to negate defendants' explanation that non-public
schools have a competitive advantage because they can recruit without geographic
boundaries.
In Sullivan and Adams, cited above, the defendants offered a justification for the
unequal treatment and the reviewing court concluded the state's interest was legitimate and
the classification rationally related to achieving that interest. Neither the plaintiffs in Sullivan
nor Adams negated defendants' proffered reasons. By contrast, the plaintiffs here have
alleged facts, which if true, could negate defendants' proposed basis for classifying nonpublic schools differently than public schools.
Taking the facts in the complaint as true (even if doubtful), and making all
inferences in plaintiffs' favor, they have met their burden at the motion to dismiss stage.
They have alleged "enough facts to state a claim to relief that is plausible on its face" and
have raised a right to relief above the speculative level. Twombly, 550 U.S. at 570, 127 S.
Ct. at 1974. The complaint and opposition provide a basis to conclude that there is a
complete and utter lack of "rational relationship between the disparity of treatment and some
legitimate governmental purpose." See Heller, 509 U.S. at 320, 113 S. Ct. at 2642.
5. Conclusion–Equal Protection
Plaintiffs have stated a claim for the deprivation of equal protection of the law and
dismissal at this early point in the litigation is inappropriate. Accordingly, defendants' motions
to dismiss the equal protection claim will be denied.
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C. Due Process Claim12
1. Arguments–Due Process
Defendants move to dismiss the Second cause of action alleging a violation of the
Due Process Clause. They argue the claim fails at the threshold because participation in
interscholastic athletics is not a protected interest and thus plaintiffs are not entitled to
procedural due process. Plaintiffs contend they were deprived of procedural due process
when they did not receive advance notice that IHC would be considered for reclassification.
Further, they imply wrongdoing because the reclassification proposal was made by a rival
football coach and no one mentioned his "obvious conflict of interest." Compl. ¶ 20.
2. Legal Standard–Due Process
The Due Process Clause of the Fourteenth Amendment contains both a procedural
and substantive component. Zinernon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 983
(1990). The procedural component bars "the deprivation by state action of a constitutionally
protected interest in life, liberty, or property . . . without due process of law." Id. (internal
quotation omitted) (emphasis in original). A procedural due process inquiry entails two
issues: (1) whether there is a constitutionally protected liberty or property interest protected
by the Due Process Clause, and if so (2) whether the process afforded was adequate. See
Ford Motor Credit Co. v. N.Y.C. Police Dep't, 503 F.3d 186, 190 (2d Cir. 2007). "In order to
have an interest protectable under the Constitution, a person must have a 'legitimate claim of
12
W hile the com plaint does not indicate w hether the due process claim is one for procedural or
substantive due process, the allegations and plaintiffs' subsequent argum ents m ake clear that the claim
is one for a violation of procedural due process.
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entitlement to it.'" Abramson v. Pataki, 278 F.3d 93, 99 (2d Cir. 2002) (quoting Bd. of
Regents of State Coll. v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709 (1972)).
Courts in this circuit and elsewhere have held that participation in interscholastic
athletics is not protected by due process. See Seamons v. Snow, 84 F.3d 1226, 1234–35
(10th Cir. 1996) (finding plaintiff did not have a property interest in membership on his high
school football team); Walsh v. La. High Sch. Athletic Ass'n, 616 F.2d 152,159 (5th Cir.
1980) (holding Due Process Clause does not protect participation in interscholastic athletic
competition); Denis J. O'Connell High Sch. v. Va. High Sch. League, 581 F.2d 81, 84 (4th
Cir. 1978) ("[E]ducation is not a fundamental right under the Constitution, and, of course,
neither is participation in interscholastic athletics such a right.") (internal citation omitted);
Gardner v. Wansart, No. 05 Civ. 3351, 2006 WL 2742043, at *5 (S.D.N.Y. Sept. 26, 2006)
(granting defendants' motion to dismiss plaintiff's due process claim because there is no
entitlement under state or federal law to participate as a matter of right in college athletics);
Mazevski v. Horseheads Cent. Sch. Dist., 950 F. Supp. 69, 72 (W.D.N.Y. 1997) ("[I]t is only
when a student is excluded from the entire educational process that due process must be
afforded. His exclusion from a particular course, event or activity is of no constitutional
import."); Giannattasio v. Stamford Youth Hockey Ass'n, Inc., 621 F. Supp. 825, 829 (D.
Conn. 1985) ("[T]he privilege of participating in . . . interscholastic sports competition is
without constitutional protection."); Kellenberg Mem'l High Sch. v. Section VIII, 255 A.D.2d
320, 320 (N.Y. App. Div. 2d Dep't 1998) (affirming dismissal of procedural due process claim
in underlying Article 78 proceeding because petitioners failed to demonstrate a
constitutionally protected interest in membership in Section VIII).
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3. Analysis–Due Process
At oral argument, plaintiffs conceded that participation in interscholastic athletics is
not protected by due process. In any event, the plaintiffs here were not deprived of the right
to participate in interscholastic athletics. In fact, IHC and the individual student-athletes have
continued to participate in Section III sports programs and have been successful in Class C.
Nor have they been denied membership in Section III. Instead, Section III prohibited them
from competing in Class D, while allowing them to play in Class C. Since the right to
participate in interscholastic athletics is not protected by due process, it follows that
competing in a particular Class, within a specific Section, is not constitutionally protected.
Plaintiffs instead contend defendants violated due process because the right to
participate in Class D was extended to them and then arbitrarily taken away without the
proper procedure. They essentially argue that the failure to abide by the two week notice
requirement (in the handbook) is itself a due process violation. They insist they should have
been provided "prior actual notice that a vote would be held to reclassify IHC's football
program to a higher class." Pls.' Mem. of Law, 14.13
This argument focuses solely on the handbook's notice requirements. The
handbook provides that "[a] deadline date should be established a minimum of two weeks
prior to a classification meeting in which individual schools, leagues, or sport committees can
13
W hile not m entioned by the plaintiffs or relied upon in the com plaint, defendants subm itted a
D ecem ber 4, 2009, letter sent to IH C and other schools inform ing them of the upcom ing classification
m eeting scheduled for Decem ber 15, 2009. See R athbun Aff., Ex. F, D kt. N o. 10–1. The letter indicated
that representatives from non-public schools should attend the m eeting to respond to classification
recom m endations and m ake suggestions of their ow n. D efendants argue the letter dem onstrates
plaintiffs w ere provided notice (nine days) of the reclassification. Because it is not integral to the
com plaint, it is not proper to consider the letter at the m otion to dism iss stage. For the reasons that
follow, w hether plaintiffs received notice is irrelevant.
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request an examination of a non-public team based upon the criteria listed above."
Handbook, Classification Criteria for Non-Public Schools, 5.0. Plaintiffs ignore the first prong
of a procedural due process analysis—whether there has been a deprivation of a protected
interest. What plaintiffs here complain they were deprived of—the two weeks notice
promised in the handbook—goes to whether the process afforded was adequate. To assert
a valid procedural due process violation, plaintiffs must have been deprived of a protected
property interest. The process itself, or lack thereof, cannot serve as the property interest.
The parties agree there is no constitutionally protected property interest in
participating in interscholastic athletics. Because there is no protected interest, the
procedural due process inquiry is at an end. See Wilkinson v. Austin, 545 U.S. 209, 221,
125 S. Ct. 2384, 2393 (2005) (holding that it could reach the second step—what process is
due—only if it finds that a protected interest was at stake). There is no need to determine
whether the process afforded, particularly the December 4, 2009, letter submitted by
defendants, was adequate because there is no protected interest.
4. Conclusion–Due Process
Even accepting plaintiffs' factual allegations as true and drawing all reasonable
inferences in their favor, they have not plausibly stated a procedural due process claim.
Because they have no constitutionally protected property interest in participating in
interscholastic athletics, or maintaining membership in Class D, the procedural due process
claim fails and defendants' motions to dismiss will be granted.
- 24 -
D. Remaining Claims
In response to defendants' motions to dismiss, plaintiffs consent to dismissal of the
Third, Religious Freedom Restoration Act and First Amendment, and Fourth, 42 U.S.C. §
1983, causes of action.
IV. CONCLUSION
Defendants have a legitimate interest in maintaining balanced competition in
Section III. They assert the classification policy for non-public schools is related to that
interest because non-public schools possess certain competitive advantages such as
recruiting outside their geographic boundaries. However, taking the complaint as true and
making all reasonable inferences in plaintiffs' favor, they have offered facts to negate
defendants' proffered explanation. They assert non-public schools do not have a competitive
advantage over public schools and thus the classification policy, taking into account
competitive success, is not rationally related to ensuring equitable competition. Accordingly,
defendants' motions to dismiss the First claim based on the Equal Protection Clause will be
denied.
Plaintiffs' Second claim alleging a violation of procedural due process fails. Even
making all inferences in their favor as must be done on a motion to dismiss, they cannot
satisfy the first prong of a procedural due process analysis. They acknowledged at oral
argument that there is no protected property interest in interscholastic athletics and thus any
argument as to what process they were entitled to is moot. Because plaintiffs cannot
establish a protected property interest, the due process claim will be dismissed.
Finally, plaintiffs' Third and Fourth causes of action will be dismissed on consent of
the parties.
- 25 -
Therefore, it is
ORDERED that
1. Defendants New York State Public High School Athletic Association and Section
III's motions to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)
are DENIED IN PART and GRANTED IN PART;
2. The Second (Due Process); Third (Religious Freedom Restoration Act and First
Amendment); and Fourth (42 U.S.C. § 1983) causes of action are DISMISSED;
3. The First (Equal Protection) cause of action is NOT DISMISSED; and
4. Defendants shall file an answer to the First cause of action on or before July 8,
2011.
IT IS SO ORDERED.
Dated: June 23, 2011
Utica, New York.
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