A v. Arrowhead Union High School District et al
Filing
21
ORDER signed by Judge J.P. Stadtmueller on 7/16/2018: GRANTING in part 15 Defendants' Motion to Dismiss; DISMISSING with prejudice Plaintiff's claims under 42 U.S.C. § 1983 for violation of her rights under the Fourteenth Amendment; and REMANDING CASE, including Plaintiff's remaining claim under Wisconsin law for a writ of certiorari, to the Waukesha County Circuit Court for further proceedings. See Order. (cc: all counsel)(jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ISABELLA A. a minor, by her parents David
A. and Kiersten A.,
Plaintiff,
Case No. 18-CV-673-JPS
v.
ARROWHEAD UNION HIGH SCHOOL
DISTRICT, ARROWHEAD UNION
HIGH SCHOOL BOARD OF
EDUCATION, ARROWHEAD UNION
HIGH SCHOOL BOARD OF
EDUCATION PERSONNEL
COMMITTEE, RYAN MANGAN, and
LAURA MYRAH,
ORDER
Defendants.
Plaintiff is a
student at Arrowhead Union High School
(“Arrowhead”) and a member of the girls’ soccer team. She brings this
action against the school administration pursuant to 42 U.S.C. § 1983,
complaining that she was denied due process and equal protection of the
law when she was suspended from participating in four soccer games.
The suspension was handed down after she hosted a party at her home
during which her fellow students consumed alcohol. The action was
originally filed in Waukesha County Circuit Court and was thereafter
removed to this Court.
Defendants, collectively referred to herein as “Arrowhead,” have
moved to dismiss the complaint for failure to state any viable claims for
relief. (Docket #15). The motion is fully briefed and, for the reasons stated
below, it will be granted in part and the case will be remanded to state
court.
1.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a party to move to
dismiss a complaint on the ground that it fails to state a viable claim for
relief. Fed. R. Civ. P. 12(b)(6). To state a claim, a complaint must provide
“a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). In other words, the complaint
must give “fair notice of what the. . .claim is and the grounds upon which
it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The allegations
must “plausibly suggest that the plaintiff has a right to relief, raising that
possibility above a speculative level[.]” Kubiak v. City of Chi., 810 F.3d 476,
480 (7th Cir. 2016) (citation omitted). In reviewing the complaint, the
Court is required to “accept as true all of the well-pleaded facts in the
complaint and draw all reasonable inferences in favor of the plaintiff.” Id.
at 480–81.
2.
RELEVANT FACTS
The following facts are drawn from Plaintiff’s complaint. Plaintiff is
a sophomore at Arrowhead. As a member of the girls’ soccer team,
Plaintiff agreed to act in accordance with the school’s Parent/Athlete &
Co-Curricular Code of Conduct. The code of conduct warns that a student
athlete will be suspended from participation in school athletics if, among
other things, the student possesses, consumes, or sells alcohol or engages
in “criminally related activity,” including violations of state law or
municipal or county ordinance. (Docket #1-1 at 22). The code provides that
for a first offense, the student will be suspended from thirty percent of the
games of the current season. Id. at 23.
Page 2 of 20
During the weekend of February 10, 2018, Plaintiff invited
approximately a dozen fellow students over to her home for a party. Some
of them brought alcohol and consumed it at the party. Plaintiff did not
possess, provide, distribute, or consume any alcohol at the party, nor did
she ask anyone to bring alcohol or know that it would be brought.
Arrowhead administration officials became aware that underage
drinking had occurred at Plaintiff’s home. According to a transcript of a
voicemail left for Plaintiff’s father by school administrator Laura Myrah
(“Myrah”), Arrowhead officials found photographs depicting Plaintiff
posing with others at the party with beer cans visible in the background.
Id. at 29. Additionally, interviews with other students who attended the
party confirmed the presence of alcohol there. Id.1
On February 22, Arrowhead Activities Director Ryan Mangan
(“Mangan”) and Associate Principal Debra Paradowski met with Plaintiff
to present their belief that she had hosted a drinking party and to gauge
her response to the allegations. Plaintiff ultimately admitted that she
hosted the party and that alcohol was present. As a result, Mangan
informed Plaintiff that she was suspended from athletics and that he
would contact her parents.2
The Court can consider Myrah’s statements in the voicemail, including
her report about the photographs and other interviews, as Plaintiff herself
attached the voicemail transcript to her pleading, it is central to the case, and
nothing in her complaint or her arguments on the present motion even hint that
Myrah was lying. See Fed. R. Civ. P. 12(d); Hecker v. Deere & Co., 556 F.3d 575, 582
(7th Cir. 2009).
1
Plaintiff’s complaint says nothing about this February 22 meeting.
Defendants accuse Plaintiff of deliberately concealing the fact that it occurred.
(Docket #16 at 3 & n.2). In her response brief, Plaintiff is again silent on the
matter. See (Docket #19 at 7–10). The Court reports the February 22 meeting only
2
Page 3 of 20
On February 23, Mangan notified Plaintiff and her parents in
writing that she had been suspended from participating in thirty percent
of the soccer games that season due to her violation of the Code of
Conduct. That amounted to four games’ worth of suspension. Mangan’s
letter stated that she had been suspended for “hosting and possessing
alcohol the weekend of February 10.” Id. at 27. Upon receiving the letter,
Plaintiff appealed the suspension in accordance with the Code of Conduct
to the Appeal Committee.
On March 20, the Appeal Committee held a hearing to consider
Plaintiff’s appeal. The school district and Plaintiff’s father and her
attorney presented evidence and testimony at the hearing. The Appeal
Committee upheld the suspension. Plaintiff alleges that the decision was
based on her hosting of the February 10 party rather than possession of
alcohol, as the photographs discussed above were not submitted during
that hearing.
Plaintiff then appealed the Appeal Committee’s decision to the
Personnel Committee. Plaintiff had the opportunity to provide written
submissions to the Personnel Committee. On March 28, the Personnel
Committee met to consider Plaintiff’s appeal of her suspension. Plaintiff
was notified by letter on April 9 that the Personnel Committee upheld the
suspension.
After receiving the April 9 letter, Plaintiff’s father called Myrah to
demand further explanation for the suspension decision. She left him a
voicemail in response, noting that the evidence they considered included
the interview with Plaintiff, interviews with other student attendees, the
for consistency of the narrative; whether it actually occurred has no bearing on
the disposition of this case.
Page 4 of 20
photograph of the February 10 party, and another photograph showing
Plaintiff and another student on a separate occasion pretending to drink
wine from a wine bottle. Myrah explained that the suspension was
appropriate both because of the code’s prohibition on the possession of
alcohol and its prohibition on criminal activity, which in this case was
contributing to the delinquency of a minor. Further, said Myrah, the
suspension could be justified because hosting a party where alcohol was
consumed by minors was unbecoming a student athlete.
3.
ANALYSIS
Plaintiff advances three related constitutional claims. First, she
alleges that Arrowhead’s conduct during the suspension process violated
her right to procedural due process under the Fourteenth Amendment’s
Due Process Clause. Second, applying principles of substantive due
process under the Fourteenth Amendment, she alleges that she was
arbitrarily deprived of her constitutionally protected interest in
participation in high school athletics. Third, she claims that Arrowhead
violated the Fourteenth Amendment’s Equal Protection Clause when it
suspended her but not the other, similarly situated students at the party.
The Court will address each claim in turn. Finally, the Court will consider
Plaintiff’s remaining claim under Wisconsin state law for a writ of
certiorari.
3.1
Procedural Due Process
Plaintiff’s procedural due process claim arises under the Fourteenth
Amendment, which prohibits state officials from depriving individuals of
life, liberty, or property without due process of law. Colon v. Schneider, 899
F.2d 660, 666 (7th Cir. 1990). Such a claim requires Plaintiff to establish
“(1) a cognizable liberty or property interest; (2) the deprivation of that
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interest by some form of state action; and (3) the failure to employ
constitutionally adequate procedures.” Dietchweiler by Dietchweiler v.
Lucas, 827 F.3d 622, 627 (7th Cir. 2016). Plaintiff’s case falters on the first
element, as she enjoys no constitutionally protected property interest in
participation in interscholastic athletics.
To be entitled to due process, a plaintiff must have a liberty or
property interest at stake; not every deprivation rises to the level of
constitutional concern. Protectible interests “are not created by the
Constitution. Rather, they are created and their dimensions defined by an
independent source such as state statutes or rules entitling the citizen to
certain benefits.” Goss v. Lopez, 419 U.S. 565, 572–73 (1975). Further, when
examining these sources for qualifying interests, the Supreme Court has
instructed that “a person clearly must have more than an abstract need or
desire for [a benefit]. He must have more than a unilateral expectation of
it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of
Regents v. Roth, 408 U.S. 564, 577 (1972). “A ‘legitimate claim of
entitlement’ is one that is legally enforceable—one based on statutes or
regulations containing ‘explicitly mandatory language’ that links
‘specified substantive predicates’ to prescribed outcomes.” Miller v. Crystal
Lake Park Dist., 47 F.3d 865, 867 (7th Cir. 1995) (quoting Kentucky Dep’t of
Corr. v. Thompson, 490 U.S. 454, 463 (1989)).
The Seventh Circuit has not squarely addressed whether
participation in high school athletics is a protected interest. Numerous
other Circuits have, however, and the vast majority hold that it is not.
Hamilton v. Tenn. Secondary Sch. Athletic Ass’n, 552 F.2d 681, 682 (6th Cir.
1976); Albach v. Odle, 531 F.2d 983, 984–85 (10th Cir. 1976); Mitchell v. La.
High Sch. Athletic Ass’n, 430 F.2d 1155, 1158 (5th Cir. 1970); Hebert v.
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Ventetuolo, 638 F.2d 5, 6 (1st Cir. 1981); Rutledge v. Az. Bd. of Regents, 660
F.2d 1345, 1352 (9th Cir. 1981); U.S. ex rel. Mo. State High Sch. Activities
Ass’n, 682 F.2d 147, 153 (8th Cir. 1982); but see Palmer v. Merluzzi, 868 F.2d
90, 95 (3d Cir. 1989). District courts within this Circuit have followed the
majority view. See, e.g., Smith v. Chippewa Falls Area Unified Sch. Dist., 302
F. Supp. 2d 953, 957 (W.D. Wis. 2002); A.C. v. Bd. of Educ. for Cambridge
Cmty. Unit Sch. Dist. No. 227, No. 05-4092, 2005 WL 3560658, at *2 (C.D. Ill.
Dec. 28, 2005); Piekosz-Murphy v. Bd. of Educ. of Cmty. High Sch. Dist. No.
230, 858 F. Supp. 2d 952, 959 (N.D. Ill. 2012).
While the Seventh Circuit has not expressly considered this
question, signs suggest that it would join the majority. In Schaill v.
Tippecanoe County School Corp., 864 F.2d 1309, 1323 (7th Cir. 1988), the
Seventh Circuit, relying on the First Circuit’s decision in Hebert, observed
“that there is room for doubt whether a student has a constitutionally
protected liberty interest in being free of the potential stigma associated
with removal from an athletic team.” Similarly, in Todd v. Rush County
Schools, 133 F.3d 984, 986 (7th Cir. 1998), the Seventh Circuit found that
because
students
voluntarily
undertake
extracurricular
activities,
including athletics, those activities can be viewed more as a privilege than
as a right and can be subject to concomitant obligations like drug testing.
Thus, it seems highly likely that the Seventh Circuit would join the
majority of its sister Circuits and hold that participation in interscholastic
sports does not implicate any protectible liberty or property interest.
To stem this tide of adverse authority, Plaintiff says that Wisconsin
is unique in its creation of a protected property interest in interscholastic
athletic participation. In support, she offers a single decision: Butler v. Oak
Creek-Franklin School District, 116 F. Supp. 2d 1038 (E.D. Wis. 2000), issued
Page 7 of 20
by another branch of this Court. There, the student athlete was suspended
from participation in sports at his high school for repeated violations of
the athletic code of conduct, including smoking cigarettes, possessing
marijuana, consuming alcohol, and being arrested for disorderly conduct
at a local mall. Id. at 1042–43. The student asked the court for a
preliminary injunction against the enforcement of the suspension. Id.
For present purposes, the key feature of Butler is that the judge
found the student had demonstrated a reasonable likelihood that he
enjoyed a protectible property interest in participation in high school
athletics. Id. at 1049.3 More specifically, the court determined that the
athlete, once he was admitted to a school team, enjoyed a legitimate
expectation of being allowed to continue to play so long as he complied
with the applicable regulations. Id. at 1047. Under those circumstances, the
school did not have unlimited discretion to suspend him. Id.
To support the conclusion that the athlete had an expectation in
continued participation, the court examined the relevant rules and
regulations governing school athletics. Id. at 1048. First, the school’s
student handbook implied that the extracurricular athletic activities it
offered were available to all as long as students followed the pertinent
rules. Id. This stood in contrast to other types of activities, such as parking
at the school, that could be denied in the school’s sole discretion at any
time. Id. Second, the Wisconsin Interscholastic Athletic Association
(“WIAA”), of which the school was a member, required participating
The court also found there was no protectible liberty interest implicated
in the case, Butler, 116 F. Supp. 3d at 1047, but that holding is not relevant here,
since Plaintiff argues only that she enjoys a property interest in participating in
Arrowhead athletics, (Docket #19 at 2–6).
3
Page 8 of 20
schools to afford certain process to athletes accused of misconduct; thus,
the school would violate WIAA rules if it indeed enjoyed unfettered
discretion to suspend athletes. Id. at 1048–49. Finally, several Wisconsin
statutes and opinions from the Wisconsin Attorney General indicated that
discipline related to athletics must be reasonable and cannot be premised
solely on accusations in law enforcement records. Id. at 1049. Thus, said
the court, it appeared that “when a school offers the opportunity to
participate in high school athletics, it is an important benefit and can be
taken away only in a reasonable manner.” Id.
The Court respectfully declines to follow Butler. First, it is not
bound to do so, as decisions of district courts are not binding precedent
for anyone, not even the same judge in a later case. Camreta v. Greene, 563
U.S. 692, 709 n.7 (2011) (“‘A decision of a federal district court judge is not
binding precedent in either a different judicial district, the same judicial
district, or even upon the same judge in a different case.’”) (quoting 18
Moore’s Fed. Prac. § 134.02(1)(d) (3d ed. 2011)). Second, in Smith v.
Chippewa Falls Area Unified School District & Board of Education, No. 01-C0678-C, 2001 WL 34371694, at *3 (W.D. Wis. Dec. 19, 2001), a branch of the
court for the Western District of Wisconsin persuasively explained why
Butler’s analysis is flawed. Noting that Butler stands apart from the
majority view, the court in Smith proceeded to analyze each of the sources
mentioned in Butler as giving rise to a legitimate expectation of continued
participation in sports.
The primary difficulty with those sources, explained Smith, is that
they mandate only certain procedures, not specified substantive
predicates leading to prescribed outcomes. Id. at *2. For example, the cited
state statutes govern how law enforcement records could be used in
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meting out student discipline without stating that student athletes must
be allowed to play in the absence of discipline. See id.4 Similarly, while the
Wisconsin Attorney General’s opinion and the WIAA rules indicated that
student athletic rules must be reasonable, must be applied reasonably, and
must afford students an opportunity for a hearing, such provisions
created no more than “procedural entitlements,” which do not rise to the
level of constitutionally protected property interests. Id. Further, these
were hardly viable sources of law for purposes of formulating a student’s
substantive rights, as the Attorney General opinion was just that—the
state attorney general’s interpretation of a statute—and the WIAA rule
governs schools but cannot reasonably be viewed as creating enforceable
rights for student athletes. Id. at *3. Finally, the Smith court noted that
other schools in the region construed sports participation as a privilege,
not a right, making explicit what the handbook in Butler left silent. Id.
Thus, said Smith, none of the authorities relied upon in Butler could
survive close examination. See id.
This Court agrees with the thorough and careful reasoning of
Smith. Butler’s key sources of rights offer at best procedural protections for
student athletes, and it is well-settled that due process does not reach
procedural entitlements. Cevilla v. Gonzales, 446 F.3d 658, 662 (7th Cir.
2006); Olim v. Wakinekona, 461 U.S. 238, 248–51 (1983) (“Process is not an
Indeed, these statutes are even less helpful to Plaintiff’s cause now than
they were when Smith and Butler were issued. The statutes have been amended,
and they now allow law enforcement records to form the “sole basis” for “taking
action against” the student under the school athletic code. Wis. Stat. §§
118.125(5)(b), 118.127. This is precisely the opposite of what the statutes said
when Butler was decided. Butler, 116 F. Supp. 2d at 1054. Plaintiff apparently did
not actually read the current versions of the statutes, for she says nothing about
the amendments or how Butler remains viable notwithstanding them.
4
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end in itself. Its constitutional purpose is to protect a substantive interest
to which the individual has a legitimate claim of entitlement.”). Just as
importantly, much of the Butler court’s reasoning is premised on silence
and suggestion in the cited authorities, not “explicitly mandatory
language” connecting “specified substantive predicates” with “prescribed
outcomes.” Thompson, 490 U.S. at 463. For these reasons, the Court parts
ways with Butler.
Notably, Plaintiff’s analogy to Butler fails on the facts, even were
the Court to adopt Butler’s view of the law. Plaintiff leans heavily on
Arrowhead’s athletic code of conduct, which she reads as creating an
expectation of continued participation in Arrowhead sports for players
who follow the rules. But Arrowhead’s code of conduct for extracurricular
activities clearly states that “[a]thletics are a privilege and not a right and
are made available to students who abide by the rules and regulations as
outlined by Arrowhead and the WIAA.” (Docket #1-1 at 21) (emphasis in
original). Later, the handbook emphasizes that “[p]articipation in the athletic
program at Arrowhead is entirely voluntary and is a privilege that can be
revoked.” Id. at 22 (emphasis in original). Quite unlike the student in Butler,
then, here Plaintiff knew full well that athletic participation was a
privilege only. To be sure, the Arrowhead handbook does not “strongly
impl[y]” that Plaintiff need only observe the applicable rules to continue
playing on Arrowhead sports teams. Butler, 116 F. Supp. 2d at 1048.
In an effort to shore up the reasoning of Butler against Smith and
the other authorities discussed above, Plaintiff cites Wis. Stat. §
118.133(1)(a), which governs participation in interscholastic athletics and
other extracurricular activities by home-schooled students. It provides, in
relevant part:
Page 11 of 20
A school board shall permit a pupil who resides in the
school district and is enrolled in a home-based private
educational program to participate in interscholastic
athletics in the school district on the same basis and to the
same extent that it permits pupils enrolled in the school
district to participate.
Id. Plaintiff’s reliance on this provision is entirely misplaced, as it says
nothing about the content of the property interest at stake. It tells school
districts that home-schooled students must be
afforded
athletic
participation to the same extent as students who attend school in the
district’s school building. Crucially, it does not define the right to
participation in athletics. As the Court has explained, none of the available
sources of state law plausibly suggest that Plaintiff enjoys a legitimate
expectation of continued participation in interscholastic athletics at
Arrowhead. The Court would expect the same result to obtain for any
similarly situated home-schooled student.
Consequently, this Court joins the majority of courts that have
faced this issue and finds that Plaintiff enjoyed no protectible property
interest in continued participation in Arrowhead’s soccer program.
Because Plaintiff has not alleged the deprivation of a constitutionally
protected interest, her procedural due process claim fails without
consideration of whether or what procedure she was actually afforded.
Roth, 408 U.S. at 570–71.
3.2
Substantive Due Process
Plaintiff’s next claim is for violation of her substantive due process
rights. Substantive due process is a concept that has developed to protect
against certain state action regardless of the fairness of any procedural
protections the plaintiff was afforded. Cnty. of Sacramento v. Lewis, 523 U.S.
Page 12 of 20
833, 840 (1998); Daniels v. Williams, 474 U.S. 327, 331 (1986). It arises when
state action infringes upon a fundamental liberty interest, Reno v. Flores,
507 U.S. 292, 302 (1993), or when state action is “arbitrary and
unreasonable, having no substantial relation to the public health, safety,
morals, or general welfare,” Euclid v. Ambler Realty Co., 272 U.S. 365, 395
(1926). When fundamental rights are involved, a challenged action must
survive strict scrutiny, meaning it must be narrowly tailored to a serve a
compelling state interest. City of Cleburne v. Cleburne Living Ctr., 473 U.S.
432, 440 (1985). Otherwise, the reviewing court employs only rational
basis review, asking whether the action in question is rationally related to
a legitimate state interest. Lee v. City of Chi., 330 F.3d 456, 467 (7th Cir.
2003); Romer v. Evans, 517 U.S. 620, 631 (1996).
Plaintiff concedes that she is not complaining of the deprivation of
a fundamental right. As a result, she can succeed in her challenge to
Arrowhead’s suspension only if she shows that it was egregiously
arbitrary. See Dunn v. Fairfield Comm. High Sch. Dist. No. 225, 158 F.3d 962,
966 (7th Cir. 1998); Sabol v. Walter Payton College Preparatory High Sch., 804
F. Supp. 2d 747, 753 (N.D. Ill. 2011). In other words, she must be able to
show that the challenged action “shocks the conscience” and is
“unjustifiable by any governmental interest.” Remer v. Burlington Area Sch.
Dist., 286 F.3d 1007, 1013 (7th Cir. 2002) (quotation omitted); PiekoszMurphy, 858 F. Supp. 2d at 960.
Plaintiff cannot surmount this high bar. Arrowhead temporarily
suspended her from participating in soccer matches after it concluded that
she hosted a drinking party at her home. Disciplining those who permit
alcohol consumption at a party, even if they do not themselves supply the
alcohol or drink it, is well within the school’s legitimate prerogative to
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prevent underage students from indulging in alcohol. Plaintiff does not
challenge this conclusion. (Docket #19 at 10).
She does, however, contest the premise, arguing that she did not in
fact violate the code of conduct because being present when drinking
occurs is not a violation of the code. Id. at 11. In her view, the school acted
arbitrarily by punishing her for conduct not violative of the rules. Id. at 11.
Moreover, she makes clear in her complaint that Arrowhead was not
permitted to offer constantly shifting justifications for the suspension,
including possessing alcohol, hosting a drinking party, violating state or
local law, and engaging in conduct unbecoming an athlete. See (Docket #11 at 10–12).
She is wrong for at least two reasons. First, because the Court is
engaging in deferential rational basis review, the school’s action must be
upheld if any legitimate justification for it can be conceived. Heller v. Doe,
509 U.S. 312, 320 (1993). Arrowhead is not confined to the reasons it
actually gave at the time. Id. Because post-hoc rationales are acceptable,
the Court finds it is conceivable that Plaintiff violated the code of conduct
by hosting a party where drinking occurred, even though she did not
provide or consume any alcohol. She openly admits in her complaint that
she hosted a party at her home where alcohol was consumed, and she
does not challenge the authenticity of the photographs Myrah described in
her voicemail that depict her with her friends in the foreground and beer
in the background. Indeed, notably absent from her complaint is any
suggestion that she did not become aware during the party that her fellow
students were drinking. Plaintiff’s role in permitting drinking to occur at
her party can rationally be described as violative of numerous provisions
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of Arrowhead’s athletic code of conduct, including the prohibition on
possessing alcohol and on conduct unbecoming a student athlete.5
Second, in school discipline cases the Supreme Court has made
clear that federal courts are not fora for relitigating evidentiary minutiae.
Wood v. Strickland, 420 U.S. 308, 326 (1975); Sabol, 804 F. Supp. 2d at 754;
Piekosz-Murphy, 858 F. Supp. 2d at 961. “[Section] 1983 does not extend the
right to relitigate in federal court evidentiary questions arising in school
disciplinary proceedings or the proper construction of school regulations.”
Wood, 420 U.S. at 326. Instead, courts defer to a school’s classification or
construction of its own rules, even if erroneous, so long as they were not
so irrational or arbitrary as to shock the conscience. Sabol, 804 F. Supp. 2d
at 754; Tun v. Whitticker, 398 F.3d 899, 903 (7th Cir. 2005) (“It is one thing
to say that officials acted badly, even tortiously, but—and this is the
essential point—it is quite another to say that their actions rise to the level
of a constitutional violation.”). Applying this additional layer of
deference, it no longer matters whether Plaintiff is correct that “hosting” a
drinking party is not technically a violation of the Arrowhead athletic
code of conduct. Assuming she is right, the Court nevertheless cannot say
that Arrowhead’s slight overextension or misapplication of the rules was
irrational or unrelated to the school’s legitimate interest in curbing alcohol
use by students. Substantive due process offers Plaintiff no remedy for
such a technical misstep. Gaunder v. Leckrone, 366 F. Supp. 2d 780, 788
(W.D. Wis. 2005) (even if school administrators erred in meting out
Arrowhead could also have rationally believed that Plaintiff was lying
about her level of participation in the drinking aspect of the party. At the present
stage, the Court must accept as true her allegations that she did not drink and
did not know anyone else would do so. But at the time it made its suspension
decision, Arrowhead did not have to extend Plaintiff any presumption of truth.
5
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appropriate punishment, no substantive due process claim would lie
where the error did not shock the conscience).6
For all these reasons, the Court finds that Plaintiff’s substantive due
process claim is without merit and must be dismissed.7
3.3
Equal Protection
Plaintiff’s final claim is for denial of equal protection of the law. If
the state classifies the plaintiff based on race, alienage, national origin, or
when the classification impinges on a fundamental right, strict scrutiny is
It is worth pointing out that Plaintiff completely ignores the line of case
law regarding deference to a school’s interpretations of its rules. In fact, she cites
not a single case in the one-page section of her brief devoted to her substantive
due process claim. (Docket #19 at 10–11).
6
Though not discussed by either party, there is likely an additional reason
Plaintiff’s substantive due process claim cannot stand: she has adequate
alternative state-law remedies available to her. The Seventh Circuit teaches that
“in cases where the plaintiff complains that [she] has been unreasonably
deprived of a state-created property interest, without alleging a violation of some
other substantive constitutional right or that the available state remedies are
inadequate, the plaintiff has not stated a substantive due process claim.” Kauth v.
Hartford Ins. Co. of Ill., 853 F.2d 951, 958 (7th Cir. 1988); Doherty v. City of Chi., 75
F.3d 318, 325 (7th Cir. 1996); Montgomery v. Stefaniak, 410 F.3d 933, 939 (7th Cir.
2005). Such is the case here, as Plaintiff claims she was deprived of a state-created
property interest—continued participation in Arrowhead sports—but does not
successfully allege the violation of any other substantive constitutional right.
Additionally, Plaintiff’s complaint includes a claim for a writ of certiorari under
Wisconsin common law. Certiorari is a procedure whereby Wisconsin courts can
review the decisions of municipalities, administrative agencies, or inferior
tribunals. Ottman v. Town of Primrose, 796 N.W.2d 411, 420 (Wis. 2011). The
court’s review encompasses whether the entity under review had proper
jurisdiction, applied the correct law, did not act arbitrarily or unreasonably, and
came to conclusions reasonably supported by the available evidence. Id.
Certiorari is, therefore, a state-created remedy for Plaintiff’s alleged injury, as it
provides a mechanism for review of Arrowhead’s suspension decision. Plaintiff
does not suggest that the certiorari procedure is inadequate to protect her
interests, and the Court does not see any infirmities in it. Consequently, the
availability of state remedies stands as yet another obstacle to Plaintiff’s
substantive due process claim.
7
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applied. Vision Church v. Vill. of Long Grove, 468 F.3d 975, 1002 (7th Cir.
2006). Plaintiff’s case is not of this variety, so the extent of the Court’s
review is only whether Arrowhead’s punishment decision had a rational
basis. Id. Specifically, for equal protection claims based on a “class of one,”
as Plaintiff advances here, the question is whether the plaintiff was
intentionally treated differently from others similarly situated and the
difference in treatment was rationally related to a legitimate purpose. Vill.
of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
Plaintiff’s equal protection theory has two aspects. First, she
complains that she received a four-game suspension from the soccer team
for actions that did not actually violate the code of conduct. For reasons
adequately covered above, her interpretation of the code of conduct is not
controlling. Arrowhead’s decision to suspend her for hosting a drinking
party was rationally related to legitimate purposes. Sabol, 804 F. Supp. 2d
at 754; Gaunder, 366 F. Supp. 2d at 787.
Second, Plaintiff argues that she was suspended from athletics
while other Arrowhead students who attended the party and did not
drink received no suspension, and one student who did drink received
only a one-game suspension. This argument goes nowhere, as these
students are not similarly situated to Plaintiff. Racine Charter One, Inc. v.
Racine Unified Sch. Dist., 424 F.3d 677, 680 (7th Cir. 2005) (to be considered
“similarly situated,” comparators must be closely comparable to the
plaintiff in all material respects). Undoubtedly Plaintiff hosted a drinking
party and knew that alcohol was present, whether or not she helped
provide it or drank any. It is not irrational to punish more harshly one
who knowingly facilitates consumption of alcohol by providing a venue.
In this sense, the other attendees were less culpable. Arrowhead did not
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act capriciously in concluding that hosting a party with the knowledge
that alcohol was being consumed by students was enough to warrant
increased punishment. Thus, Plaintiff’s equal protection claim must be
dismissed as well.
3.4
Certiorari
The final claim that needs to be considered is Plaintiff’s request for
a writ of certiorari under Wisconsin common law. Certiorari exists to
provide judicial review of the decisions of municipalities, administrative
agencies, or inferior tribunals. Ottman, 796 N.W.2d at 420. This claim must
be dismissed without considering its merits, as it lies outside the Court’s
subject-matter jurisdiction.
First, the parties are residents of this State, so diversity jurisdiction
under 28 U.S.C. § 1332 is not available. Second, the certiorari claim arises
under state law, not federal law, so federal question jurisdiction under 28
U.S.C. § 1331 is likewise absent. Finally, with all of Plaintiff’s other federal
claims dismissed,8 there are no claims within the Court’s original
jurisdiction to which this claim could tethered by the exercise of
supplemental jurisdiction under 28 U.S.C. § 1367.
Plaintiff’s complaint sets forth seven items delineated as “claims for
relief”: (1) a claim of denial of procedural due process; (2) a claim of denial of
substantive due process; (3) a claim of denial of equal protection; (4) a claim of
deprivation of constitutional rights under 42 U.S.C. § 1983; (5) a claim for
temporary injunction; (6) a claim for permanent injunction; and (7) a claim for a
writ of certiorari under Wisconsin law. The first three, as well as the last, have
been expressly considered in this Order. The other three have not, as they are not
actually separate claims for relief. Section 1983 is the procedural vehicle for
bringing an action against a state actor for constitutional violations, and
temporary and permanent injunctions are types of relief that can be awarded, not
legal claims. The Court has addressed all of the proper legal claims,
notwithstanding the odd structure of Plaintiff’s pleading.
8
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Section 1367(c)(3) allows a district court to decline to exercise
supplemental jurisdiction over a state-law claim where the court has
dismissed all the claims within its original jurisdiction. Id. § 1367(c)(3).
Indeed, in such circumstances “the presumption is that the court will
relinquish federal jurisdiction over any supplemental state-law claims.”
Al’s Serv. Ctr. v. BP Prods. N. Am., Inc., 599 F.3d 720, 727 (7th Cir. 2010).
Given the gestational stage of this case, the unique state-law issues
implicated in the certiorari claim, and the need to promote judicial
economy, fairness, and comity with state courts, this matter will be
remanded to the state court for further proceedings on Plaintiff’s certiorari
claim. Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 351–52 (1988); Sharp
Elecs. Corp. v. Metro. Life Ins. Co., 578 F.3d 505, 514–15 (7th Cir. 2009).
4.
CONCLUSION
For the reasons stated above, the Court finds that Plaintiff has not
plausibly alleged a violation of her constitutional rights. As a result, the
Court is obliged to grant Defendants’ motion to dismiss those claims with
prejudice. As to the state-law certiorari claim, it must be remanded to the
state court for its consideration.
Accordingly,
IT IS ORDERED that Defendants’ motion to dismiss (Docket #15)
be and the same is hereby GRANTED in part as stated herein;
IT IS FURTHER ORDERED that Plaintiff’s claims under 42 U.S.C.
§ 1983 for violation of her rights under the Fourteenth Amendment be and
the same are hereby DISMISSED with prejudice; and
IT IS FURTHER ORDERED that this action, including Plaintiff’s
remaining claim under Wisconsin law for a writ of certiorari, be and the
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same is hereby REMANDED to the Waukesha County Circuit Court for
further proceedings.
Dated at Milwaukee, Wisconsin, this 16th day of July, 2018.
BY THE COURT:
____________________________________
J. P. Stadtmueller
U.S. District Judge
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