ST Pauls Response To AHSAA

Case 1:18-cv-00241-WS-B Document 30 Filed 06/15/18 Page 1 of 36
IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ST. PAUL’S EPISCOPAL SCHOOL *

*
Plaintiff, *
*
v. * CIVIL ACTION NO. 1:18-cv-00241-WS-B
*
The ALABAMA HIGH SCHOOL *
ATHLETIC ASSOCIATION, et al., *
*
Defendants. *
ST. PAUL’S REPLY BRIEF IN SUPPORT OF

MOTION FOR PRELIMINARY INJUNCTION
Statement Concerning Hearing Pursuant to Court’s Order of May 31, 2018 (Doc. 14)
Respectfully, St. Paul’s believes that, with this brief and its prior filings, it has submitted
a comprehensive, thorough record to support the Motion for Preliminary Injunction. The school
further respectfully submits that it has met the burden to obtain relief enjoining implementation
of the Association’s Competitive Balance Factor, but the school stands ready to answer any
questions the Court may have with regard to these very important issues.
/s/ Russel Myles

RUSSEL MYLES
rmyles @mcdowellknight.com
T. HART BENTON, III
tbenton@mcdowellknight.com
Attorneys for St. Paul’s Episcopal School
OF COUNSEL:
MCDOWELL KNIGHT ROEDDER

& SLEDGE, LLC
11 North Water St., Ste. 13290
Mobile, Alabama 36602
(251) 432-5300
(251) 432-5303 (fax)
TABLE OF CONTENTS
I. PRELIMINARY INJUNCTION STANDARD ...................................................................... 1

II. ST. PAUL’S IS LIKELY TO SUCCEED ON ITS EQUAL PROTECTION CLAIM. .......... 2
A. The Animus Doctrine Requires Heightened Review of the CBF. ....................................... 3
B. The CBF’s Classification Fails Even a Rational Basis Review. .......................................... 8
Selective or Open Enrollment................................................................................................ 10
Attendance Zones. ................................................................................................................. 10
Financial Assistance under the Accountability Act. .............................................................. 12
Enrollment Adjustments for 9th Grade Retention. ................................................................ 12
Participation Percentages. ...................................................................................................... 13
Enrollment Caps. ................................................................................................................... 14
Budgetary Restraints.............................................................................................................. 15
Employment of Coaches. ....................................................................................................... 15
C. The AHSAA’s Caselaw is Inapposite. ............................................................................... 17
III. ST. PAUL’S IS LIKELY TO SUCCEED ON ITS DUE PROCESS CLAIMS. ............... 18
A. The AHSAA Deprived St. Paul’s of Protected Property Interests..................................... 18
B. The AHSAA Violated the Procedural Due Process Clause. .............................................. 20
C. The AHSAA Violated the Substantive Due Process Clause. ............................................ 22
IV. ST. PAUL’S IS LIKELY TO SUCCEED ON ITS CLAIM UNDER THE ALABAMA
DECLARATORY JUDGMENT ACT. ........................................................................................ 24
V. THE INJUNCTION IS NECESSARY TO PREVENT IRREPARABLE INJURY. ............ 26
VI. THE REMAINING REQUIREMENTS FOR PRELIMINARY INJUNCTION ARE
PRESENT. .................................................................................................................................... 30
i
TABLE OF AUTHORITIES
Cases
AHSAA v. Rose, 446 So. 2d 1 (Ala. 1984) .................................................................................... 25

Barnes v. Zaccari, 669 F.3d 1295 (11th Cir. 2012) ................................................................ 18, 19
Bax v. Missouri State High Sch. Activities Ass’n, No. 02CV167612, slip op. (Boone County Mo.
Cir. Ct. Jan. 28, 2003) ......................................................................................................... 17, 18
Bd. of Regents v. Roth, 408 U.S. 564 (1972) .......................................................................... 18, 20
Bishop Grimes High School v. New York State Public High School Association, No. 5:00-CV-
1214, slip op. (N.D.N.Y. May 1, 2001) .............................................................................. 17, 18
Bishop McGuinness Catholic High Sch. v. Oklahoma Secondary Sch. Ass’n, No. 5:14-cv- 956,
slip op. (W.D. Okla. Nov. 18, 2014) ......................................................................................... 17
Caesars Mass. v. Crosby, 778 F.3d 327 (1st Cir. 2015) ............................................................... 20
Camp. v. Bryant, 64 F. Supp. 3d 906 (S.D. Miss. 2014) .......................................................... 4, 30
Canal Auth. v. Callaway, 489 F.2d 567 (5th Cir. 1974) ................................................................. 1
Carney v. Okla., 875 F.3d 1347 (10th Cir. 2017) ....................................................................... 3, 8
Carson City v. Price, 935 P.2d 1042 (Nev. 1997) .......................................................................... 2
Chavers v. Nat. Sec., 405 So. 2d 1 (Ala. 1981) ............................................................................ 24
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ..................................... 5, 9, 10, 17
Cleveland v. Loudermill, 470 U.S. 532 (1985) ....................................................................... 20, 21
Cohen v. Coahoma Cty, 805 F. Supp. 398 (N.D. Miss. 1992)...................................................... 30
Doe 1 v. Trump, 275 F. Supp. 3d 167 (D.D.C. 2017) ................................................................... 30
Everett v. Georgia-Pac., 949 F. Supp. 856 (S.D. Ga. 1996) ........................................................ 27
Gonzalez v. Hidalgo Cty., 489 F.2d 1043 (5th Cir. 1973) .............................................................. 1
Grayden v. Rhodes, 345 F.3d 1225 (11th Cir. 2003) .................................................................... 21
Holt v. Arkansas Activities Ass’n, No. CV-2006-4194, slip op. (Pulaski County Ark. Cir. Ct.
Aug. 3, 2006)....................................................................................................................... 17, 18
Home Oil Co., Inc. v. Sam’s E., Inc., 199 F. Supp. 2d 1236 (M.D. Ala. 2002) .............................. 3
In re Marine Elec. Ry. Prods. Div., Inc., 17 B.R. 845 (Bankr. E.D.N.Y. 1982) ............................ 2
Johnson v. City of Prichard, 771 F. Supp. 2d 1310 (S.D. Ala. 2011) .......................................... 21
Kroupa v. Nielsen, 731 F.3d 813 (8th Cir. 2013) ......................................................................... 22
Kubiszyn v. AHSAA, 374 So. 2d 256 (Ala. 1979) ................................................................... 25, 26
Marshall v. Bentley, 13 F. Supp. 3d 1188 (M.D. Ala. 2014) .................................................. 3, 4, 5
Martinez v. Matthews, 544 F.2d 1233 (5th Cir. 1976) .................................................................... 2
McCall v. Montg. Hous. Auth., 809 F. Supp. 2d 1314 (M.D. Ala. 2011) ..................................... 21
McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) .................................................................. 21, 22
Palmore v. Sidoti, 466 U.S. 429 (1984) .......................................................................................... 5
Perry v. Sindermann, 408 U.S. 593 (1972)............................................................................. 18, 19
Pub. Util. Comm’n v. U.S., 355 U.S. 534 (1958).......................................................................... 26
Romer v. Evans, 517 U.S. 620 (1996)....................................................................................... 8, 17
ii
Schiavo v. Schiavo, 403 F.3d 1223 (11th Cir. 2005) ...................................................................... 3

Scott v. Kilpatrick, 237 So. 2d 652 (Ala. 1970) ...................................................................... 25, 26
St. Patrick H.S. v. N.J. Ath. Ass’n, 2010 WL 715826 (D.N.J. Mar. 1, 2010) ............................... 21
St. Patrick High Sch. v. New Jersey Athletic Ass’n, 2010 WL 715826 (D.N.J. Mar. 1, 2010)..... 20
Sweatt v. Painter, 339 U.S. 629 (1950) .......................................................................................... 5
Thomas v. Bryant, 614 F.3d 1288 (11th Cir. 2010) ...................................................................... 26
U.S. v. Moreno, 413 U.S. 528 (1973) ......................................................................................... 4, 6
U.S. v. Windsor, 133 S. Ct. 2657 (2013) ......................................................................................... 3
Ullmo v. Gilmour Acad., 273 F.3d 671 (6th Cir. 2001) ................................................................ 24
Waddell v. Hendry Cty., 329 F.3d 1300 (11th Cir. 2003) ............................................................. 22
Wells Fargo Bank, N.A. v. Atmore-Brewton-Marshall Props., LLC, 2014 WL 199202 (S.D. Ala.
Jan. 17, 2014) .............................................................................................................................. 2
Wells v. Mobile Cty., 387 So. 2d 140 (Ala. 1980) ........................................................................ 24
Statutes
Ala. Code § 16-6D-4(13) (1975) .................................................................................................. 12

Ala. Code § 16-6D-8(b)(5) (1975) ................................................................................................ 10
Ala. Code § 16-6D-9(g)(2) (1975) ................................................................................................ 10
Ala. Code §§ 6-6-222, 224 (1975) ................................................................................................ 24
iii
TABLE OF EXHIBITS
Exhibit A Affidavit of Hart Benton

Exhibit A-1 Public School Titles (18 yrs)
Exhibit B Affidavit of Blair Fisher, St. Paul’s Head of School
Exhibit C B. Thomas, Alabama’s High-School Football Arms Race Includes Facilities That
Are Newer, Better, and Very, Very Expensive, AL.COM (Apr. 27, 2015)
Exhibit D N. Wager, ACS Approves Bid for Athletic Facilities at New High School, SHELBY
CTY. REPORTER (Dec. 6, 2016)
Exhibit E J. Bean, Field of Dreams: Saraland Will Open New $3.8 Million Football Stadium
this Fall, AL.COM (July 2, 2011)
Exhibit F S. Ericson, Saraland Schools Superintendent to Hold Q&A Sessions on $20M

Capital Improvements Plan, AL.COM (Dec. 9, 2014)
Exhibit G T. Green, Auburn High Makes Adam Winegarden Highest Paid Coach in
Alabama, OPELIKA-AUBURN NEWS (Feb. 5, 2015)
Exhibit H J. Sentell, Alabama’s High School Football Coaching Salaries Soar Past $120,000,
AL.COM (Apr. 26, 2015)
Exhibit I Letter from Dan Washburn, Executive Director of AHSAA
Exhibit J Affidavit of Steve Mask, St. Paul’s Director of Athletics and Head Football Coach
Exhibit J-1 St. Paul’s Fall 2017 Varsity Football Roster
iv
St. Paul’s seeks injunctive relief against the newly implemented Competitive Balance
Factor (“CBF”). While the Student Multiplier will be addressed at some juncture,1 the CBF is
the most immediate concern because, among other things, it stacks a “Success Test” on top of the
Student Multiplier to expose St. Paul’s student-athletes to heightened risks of personal injury
beginning this Fall. St. Paul’s has met its burden to obtain relief enjoining the CBF.
I. PRELIMINARY INJUNCTION STANDARD
The preliminary relief sought by St. Paul’s is prohibitive, not mandatory. St. Paul’s seeks
an Order “that the Association be preliminarily restrained, enjoined, and prohibited from
enforcing the CBF against any private school member of the Association.” (Doc. 2, p. 30). This
is without doubt prohibitive relief as it restrains and prohibits action by the AHSAA.
The AHSAA argues that the preliminary relief sought is mandatory because, it contends,
the injunction would undo, not maintain, the status quo. (Doc. 25, p. 17). The AHSAA
fundamentally misunderstands preservation of the “status quo” in the context of preliminary
injunctions. “It is often loosely stated that the purpose of a preliminary injunction is to preserve
the status quo.” Canal Auth. v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974). “The focus always
must be on prevention of injury by a proper order, not merely on preservation of the status quo.”
Id. If the existing status quo itself is causing irreparable injury, courts return the parties “to the
last uncontested status quo between the parties.” Id. The last uncontested status was before the
AHSAA implemented the CBF. Preserving the status quo to prevent irreparable injury means
classifying schools as they were before the AHSAA implemented the contested CBF.2
1
The AHSAA argues St. Paul’s has waived any challenge against the multiplier. (Doc. 25, p.
20). St. Paul’s does not address its challenge to the multiplier at this point; however, “[t]here is a
“strong presumption against waiver of constitutional rights,” which the AHSAA bears the
“heavy burden” of rebutting. Gonzalez v. Hidalgo Cty., 489 F.2d 1043, 1046 (5th Cir. 1973). St.
Paul’s submits the AHSAA cannot overcome this burden.
2
Further, only “[m]andatory preliminary relief, which goes well beyond simply maintaining the
1
The AHSAA’s argument that “St. Paul’s delay should preclude any preliminary
injunction” is meritless. (Doc. 25, p. 19). While the CBF was adopted in November, St. Paul’s
was not able to address the Board of Control until January 31. (Doc. 1-3). Then, on February 7,
Mr. Savarese “invited” St. Paul’s to register an appeal, but the AHSAA scheduled the appeal
roughly a month later on March 13. (See Doc. 24-2). When St. Paul’s “appeal” was denied on
March 14 (one day after it was heard), St. Paul’s Board then engaged in a process of deliberating
its alternatives and sought the aid of legal counsel. Any “delay” from November to mid-March
was caused by the AHSAA. Since St. Paul’s decided to file suit, undersigned counsel have
worked expeditiously to study complex constitutional issues, compile an evidentiary record, and
draft a thorough Complaint and the present Motion. There has been no delay.
Wells Fargo v. Atmore is distinguishable. There, the Court denied a motion for expedited
hearing, noting the plaintiff sought a hearing “within the next few days” and was, in effect,
seeking “the equivalent of a summary judgment hearing . . . before defendants have been served
with process.” Id. at *2. Here, the Court found that St. Paul’s “request for expedited hearing
appears well-grounded.”3 (Doc. 6, p. 1).
II. ST. PAUL’S IS LIKELY TO SUCCEED ON ITS EQUAL PROTECTION CLAIM.
“Whether the movant for preliminary injunctive relief has a substantial likelihood of
success on the merits requires a showing of only likely, rather than certain, success.” Home Oil
status quo pendente lite, is particularly disfavored.” Martinez v. Matthews, 544 F.2d 1233, 1243
(5th Cir. 1976). Here, the preliminary relief would simply preserve the last uncontested status
quo. The preliminary relief, therefore, is not subject to the heightened standard whether classified
as mandatory or prohibitive. In any event, St. Paul’s satisfies the heightened standard for
mandatory preliminary relief, as well as the lower burden for prohibitive preliminary relief.
3
The AHSAA’s remaining authorities are inapposite. In People v. Prog., 228 N.E.2d 146, 151
(Ill. App. 1st Dist. 1967), the Court granted the preliminary injunction despite a 10 month delay.
Carson City v. Price is factually distinguishable and involved an 8 month delay. In re Marine
Elec. is similarly distinguishable; there, the Court was reluctant to enjoin a government contract
three months after a third party had begun performing.
2
Co., Inc. v. Sam’s E., Inc., 199 F. Supp. 2d 1236, 1249 (M.D. Ala. 2002) (emphasis in original).4
A. The Animus Doctrine Requires Heightened Review of the CBF.
The AHSAA incorrectly applies rational basis review to the CBF’s classification of
public vs. private schools (Doc. 25, pp. 21–29). As alleged extensively throughout the
Complaint and in the Motion, the CBF was motivated by animus (private biases) toward private
schools. (E.g., Doc. 1, ¶¶ 137, 138; Doc. 2, ¶ 69). The Animus Doctrine thus subjects the CBF’s
classification to a heightened review, a point the AHSAA fails to address.5 Carney v. Okla., 875
F.3d 1347, 1353 (10th Cir. 2017). Under this Doctrine, “courts focus on the motivations that
actually lay behind the laws rather than upon the various post-hoc rationalizations that could
conceivably have justified the law as is done under regular rational basis review.” Id.; see
Marshall v. Bentley, 13 F. Supp. 3d 1188, 1212 (M.D. Ala. 2014) (recognizing “more careful
consideration or scrutiny” of classifications that “sugges[t] animus or a peculiar effort to
discriminate.”).6 “[O]nce animus is detected, the inquiry is over: the law is unconstitutional.”
Carney, 875 F.3d at 1354 (emphasis added) (quotations omitted).
The existence of animus is to be discerned from the “design, purpose, and effect” of the
4
“A movant need not establish that he can hit a home run, only that he can get on base,
with a possibility of scoring later.” Schiavo v. Schiavo, 403 F.3d 1223, 1241 (11th Cir. 2005)
(Wilson, J., dissenting).
5
The Animus Doctrine derives from recognition that “[t]he Constitution’s guarantee of equality
must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot
justify disparate treatment of that group.” U.S. v. Windsor, 133 S. Ct. 2657, 2593 (2013). The
Supreme Court recognizes that, “in determining whether a law is motivated by an improper
animus or purpose, discriminations of an unusual character [] require careful consideration.” Id.
6
See, e.g., Dibbs v. Hillsborough Cty., 67 F. Supp. 3d 1340, 1349 (M.D. Fla. 2014) (Equal
Protection violation where “challenged government action was motivated by animus or ill-will”);
Camp. v. Bryant, 64 F. Supp. 3d 906, 947–49 (S.D. Miss. 2014) (“Laws motivated by ‘an
improper animus’ toward a distinct class of persons require special scrutiny.”); S. Pollvogt,
Unconstitutional Animus, 81 FORD. L. REV. 887, 930 (2012) (“[W]hen the Court identifies
evidence of animus, it discredits the other purported state interests, regardless of whether they
are legitimate on a superficial level.” *** “[N]o law found to be based in animus should be
permitted to stand.”).
3
challenged law. Bryant, 64 F. Supp. 3d at 947–49 (quoting Windsor, 133 S. Ct. at 2689). As
recognized in Marshall, the Supreme Court has found animus where legislation “involved
explicit provisions directed toward very specific classes of people, thereby singling out clearly
identifiable groups . . . for differential treatment.” 13 F. Supp. 3d at 1212.7
Purpose. Here, animus is apparent from the CBF’s actual purpose: to artificially
disadvantage private schools so the AHSAA could gain the deference of state lawmakers who
harbored illegitimate biases against private schools and sought to intervene in the AHSAA’s
jurisdiction over high school athletics.8 (Doc. 1, ¶¶ 47–55). In 2016 and 2017, Alabama
lawmakers sponsored bills to segregate public and private schools in playoff competition. (Doc.
24-2, ¶¶ 19, 23). Notably, the legislature took aim at private schools because, the lawmakers
argued, private schools “recruit” student-athletes and public schools do not. (Doc. 17-7, pp. 2,
4–6; Doc. 17-8). But the AHSAA knew the lawmakers’ opinions were flawed.9 Although Mr.
Savarese admits recruiting is “not a public or private issue,” and that “we [the AHSAA] have
more instances of public schools recruiting than private schools recruiting” (Doc. 17-16, p. 4),
he assured the lawmakers that the AHSAA “know[s] there is a problem and a task force has been
meeting to find a solution.” (Doc. 17-7, pp. 3–4).
That the CBF was adopted to appease biased lawmakers is further apparent from the
AHSAA’s own admission that, in 2014, it considered a “success-based classification system . . .
7
In Marshall, the Court found that the classification was not subject to “the more ‘careful
consideration’ or scrutiny” applied in Windsor, 133 S. Ct., and U.S. v. Moreno, 413 U.S. 528
(1973) because it did not single out a clearly identifiable group for disparate treatment. 13 F.
Supp. 3d at 1212. Here, however, the CBF is explicitly designed to penalize only private schools
and was motivated by illegitimate biases. See infra, pp. 4–5.
8
It is also evident that members of the Board of Control acted on animus: e.g., Board member
Luke Hallmark told St. Paul’s AD that “it’s time for someone else to win one.” (Doc. 17-3, ¶ 11).
9
Moreover, the AHSAA has focused extensive resources (Doc. 17-20) and rules (Doc. 17-5, pp.
64–65) to combat recruiting.
4
where schools move up or down by how well they perform on the field of play,” but “quickly
determined that [such a system] simply wasn’t right for Alabama.” (Doc. 17-15, p. 4). St. Paul’s
submits that lawmakers’ demands in ‘16 and ‘17 that the AHSAA take action against private
schools was the only factor that changed the AHSAA’s analysis of a “success test” between 2014
(when it “wasn’t right”) and 2017 (when it “was right” but only for private schools).
One task force member acknowledged to St. Paul’s Head of School that the AHSAA
arranged the task force to forestall legislative intervention into its governance of high school
athletics. (Doc. 17-4, ¶¶ 5–8). Indeed, after the CBF’s enactment, Mr. Savarese acknowledged
to St. Paul’s AD that “the Alabama legislature was putting pressure on the [AHSAA] to take
action against private schools, and that he felt he ‘had to do something.’” (Doc. 17-3, ¶¶ 12).
The AHSAA makes no effort to challenge these facts, or to refute that the CBF was
motivated by the demands of state lawmakers that action be taken against private schools. The
record shows the CBF was, and remains, a vehicle for expressing private biases and animus
toward private schools. This, the Constitution does not permit. See Palmore v. Sidoti, 466 U.S.
429, 433 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly
or indirectly, give them effect.”); see also City of Cleburne v. Cleburne Living Ctr., 473 U.S.
432, 448 (1985) (the state “may not avoid the stricture of [the Equal Protection] Clause by
deferring to the wishes or objections of some fraction of the body politic”).
Design. Animus is further apparent from the CBF’s design, which singles out a clearly
identifiable, discrete class of institutions (private schools) for disparate treatment by levying a
penalty simply to disadvantage those schools in athletic competition. See Marshall, 13 F. Supp.
3d at 1212; Sweatt v. Painter, 339 U.S. 629, 635 (1950) (“Equal protection of the laws is not
achieved through indiscriminate imposition of inequalities.”). The CBF’s differential treatment
5
of private schools is so under-inclusive that its design can be explained only by animus. Moreno,
413 U.S. at 538 (“[T]he classification here in issue is not only ‘imprecise,’ it is wholly without
any rational basis.”). Indeed, if the CBF was truly aimed at offsetting the purported advantages
of “selective enrollment” or “school attendance zones” (as the AHSAA suggests (Doc. 25, p. 9)),
it would apply to all schools with such policies, including the overwhelming majority of the
AHSAA’s city school members that participate in open enrollment. (Doc. 1-5, ¶ 5).
Effect. Animus is also evidenced by the CBF’s punitive effect, which takes the
nationally unprecedented step of stacking two artificial mechanisms (the Student Multiplier,
which has been abandoned by most states that considered it (Doc. 17-7, p.1), and a success test,
which other states apply to both public and private schools) to force certain “successful” private
schools to compete two classes above their true enrollment. Practically, this requires private
schools to compete against schools two to three (and, in at least one case, ten) times their sizes.
(Doc. 1, ¶¶ 6, 66, 107). It renders a decades-old prudent system of athletic classification based
on enrollment essentially meaningless for many private schools. Most significantly, this
arbitrary measure exposes private school students to a heightened risk of injury in contact and
collision sports, such as football and soccer. See infra, pp. 26–30.
Notwithstanding this evidence, the AHSAA concludes it is “doubtful” that private
schools are a politically unpopular group. (Doc. 25, p. 27). It takes this view despite the recent
political attacks aimed by lawmakers against private schools (see supra, pp. 4–5), despite the
“steady pressure by some public school members . . . to expel private schools from the [AHSAA]
and to make it simply a ‘public school’ institution,”10 (Doc. 17-4, ¶ 6), and despite offering
private schools just 1 out of 15 seats on the Board of Control and 2 out of 32 seats on the
10
By the AHSAA’s own admission, even in 1999 public schools were seeking to expel
private schools because of their “success.” (Doc. 24-2, ¶ 11).
6
Legislative Council (Doc. 17-5, pp. 6–7); being the first association in the nation to subject
private schools to a student multiplier (Doc. 17-21, p. 2); yielding to lawmakers’ pressures to
disadvantage private schools by adopting the CBF; being the only association in the nation to
apply a success test against only private schools; and being the only association in the nation to
stack a multiplier and success test against any class of schools in all sports.
The AHSAA distorts the true narrative of recent events by urging that 5 private school
representatives of the 15-member task force “unanimously recommended the CBF,” and that the
Board of Control’s decision to adopt the CBF included a vote from one private school
representative. (Doc. 25, p. 27). In reality, the lone private school Board member and 5 task
force representatives stepped in line and supported the CBF as the least punitive measure; not
because they approved of the rule, but because it was “the fairest” and “most appropriate”
compared with the alternative measures presented by the AHSAA. (Doc. 24-7, ¶ 11; Doc. 24-8,
¶ 8). One private school task force member acknowledged to St. Paul’s that “the CBF was a
matter of politics; that ‘everyone knows that it’s not fair,’ and that the CBF should apply to all
schools, but it simply was a political concession to public schools.” (Doc. 17-4, ¶ 8).
By the AHSAA’s own admission, had the CBF not been adopted, “the likely result would
have been separate public-school and private-school competition in the post-season, and
potentially becoming an association of public schools only.” (Doc. 25, p. 24). What realistic
alternative did these private school members have other than to vote for the measure?
The AHSAA also suggests letters sent by just six private schools expressing their support
for the AHSAA as an institution reflects the AHSAA’s good intentions. (Id., p. 27). One letter
is from McGill-Toolen, Mr. Savarese’s former employer and a 7A school that will never be
subject to the CBF. Other letters are from UMS and Randolph, schools that had representatives
7
on the task force and, in the case of UMS, on the Board of Control. One should not be surprised
that these schools would show deference for the “process” in which they acquiesced.
Notably, no letter endorses the CBF; quite the opposite. Madison Academy writes of its
“concerns” of the CBF (Doc. 24-1, p. 172); UMS suggests the CBF is “not ideal” for its school
(id., p. 171); Randolph “does not believe that the CBF . . . is optimal for classification” (id., p.
174). In fact, it is clear these schools were petitioning the AHSAA to forbear action to expel
private schools in retaliation for the present lawsuit at a recent meeting of AHSAA officials.
(Id., p. 175 (“It is my understanding that the [Board of Control] is meeting tomorrow in
response to the lawsuit recently filed . . . by St. Paul’s Episcopal School.”); id., p. 176 (“I want
you to know that, while we sympathize with the arguments made by St. Paul’s, my primary
argument would be to do whatever we need to do to keep the AHSAA intact.”)).
As evidenced by its design, purpose, and effect, the CBF’s differential treatment of
private schools is a “peculiar effort to discriminate” subject to heightened review. Marshall, 13
F. Supp. 3d at 1212. Further, because the CBF’s classification is firmly rooted in animus, it is
unconstitutional. Carney, 875 F.3d at 1354.
B. The CBF’s Classification Fails Even a Rational Basis Review.
Even under a rational basis review, the CBF’s classification of private vs. public schools
cannot pass constitutional muster. The AHSAA argues that the CBF survives rational basis
because “the means chosen by the AHSAA—the Multiplier and CBF—are rationally related to
[its] interests.” (Doc. 25, p. 24). The AHSAA errs in this analysis because the rational basis
standard looks at whether the “legislative classification,” [i.e., differential treatment of private
schools] is rationally related to a legitimate state interest; not the means. Romer v. Evans, 517
U.S. 620, 631 (1996). Here, “[t]he question is whether it is rational to treat [private schools]
differently” than public schools if the true goal is “promoting competitive balance,” as the
8
AHSAA says. (Doc. 25, p. 23); Cleburne, 473 U.S at 449. As discussed below, it is not.
Fundamentally, there is no “competitive imbalance” rooted in a public v. private
classification that justifies treating private schools differently. The AHSAA effectively identifies
this competitive imbalance as a school’s “consistent success in their classification during the last
three years” (Doc. 25, p. 10). [After all, “consistent success” is precisely what the AHSAA
designed the CBF to target. (Id.)]. By targeting the “consistent success” of only private schools,
the AHSAA must establish that this differential treatment is “rational.” Cleburne, 473 U.S at
449. But to rationally treat private schools differently from public schools presumes that some
trait is intrinsic to private schools that is absent from public schools. Yet, nothing indicates that
the ability to have “consistent success” is an advantage wholly unique to private schools (and
absent from public schools) such that it is rational to treat all private schools differently from all
public schools. Indeed, at least 121 public school teams would exceed the CBF’s “success test”
threshold if it applied to all schools. (Doc. 1-8, ¶ 20). [See also Public School Titles (18 yrs),
Ex. A-1, (showing multiple/consecutive titles won by public schools).] The unrefuted fact that
more public schools have had the same (or greater) measure of “consistent success” than private
schools erases any suggestion that private schools are the cause of “competitive imbalances”
among schools.11 The CBF fails rational basis for this reason alone.
Nonetheless, the AHSAA suggests the CBF’s disparate treatment of private schools is
rationally related to offsetting “certain competitive advantages . . . .” (Doc. 25, p. 23). This
argument is flawed because there are no practical distinctions between public and private schools
with respect to the identified “advantages.” St. Paul’s addresses each claim individually below.
11
Ask Faith Academy’s baseball team about imbalance. It loses to Russellville in the 5A title
game in ‘16 and ’17, but the CBF forces it to move up to 6A until 2022 while Russellville (with
titles in ’15, ’16, and ’17) stays in 5A. (Doc. 1, ¶ 106).
9
Selective or Open Enrollment. The AHSAA argues that “non-public schools can control
their enrollment through a selective process whereas public schools cannot” (Doc. 24-7) and that
private schools (unlike public schools) can “control enrollment as to both quality and quantity.”
(Doc. 25, p. 23). The notion that “public schools cannot” selectively enroll students is entirely
false. Many public city schools openly advertise their policy of enrolling non-resident students
at their schools. (Doc. 1, ¶ 85). In fact, a substantial majority of city public school districts
(89% of the 57 districts with publicly available information) have policies promoting selective
enrollment of non-resident students in some form or fashion. (Doc. 1-5). Moreover, since 2013,
Alabama law expressly permits any public school to selectively enroll transfers under the Ala.
Accountability Act. Ala. Code § 16-6D-8(b)(5) (“A local school system may accept the student
on whatever terms and conditions the system establishes . . . .”); id. at § 16-6D-9(g)(2) (“A
public school, school system, or school district . . . may develop the terms and conditions under
which it will allow a student who receives a scholarship . . . to be enrolled.”). The idea that
“selective enrollment” is unique to private schools is baseless and cannot justify the AHSAA’s
classification. Cleburne, 473 U.S at 446 (“The State may not rely on a classification whose
relationship to an asserted goal is so attenuated as to render the distinction arbitrary or
irrational”).
Attendance Zones. The AHSAA also cites “differences in attendance zones between
public and non-public schools” as an advantage of private schools. (Doc. 24-7, ¶ 6). In support,
the AHSAA relies on an affidavit that is misleading on multiple grounds. It explains that “for
public schools, zones are defined by local boards and bus routes” whereas private school “zones”
are defined (by the AHSAA) as “inside city limits or county wide if the school is outside the city
limits.” (Id.) This distinction is a red-herring; private “school zones” were created by the
10
AHSAA itself to deter transfers from public schools to private schools. (Doc. 17-5, p. 37).
Nonetheless, the affiant goes on to state, “As a result, non-public school zones may include
multiple public schools. While public schools may accept students who reside outside of their
zone, those students are not immediately eligible to participate in athletics but must wait one year
before participating.” (Doc. 24-7, ¶ 6). The affiant fails to disclose, however, that the AHSAA
creates an exception to that general eligibility rule that explicitly advantages public schools. The
exception allows a transfer between public schools to retain eligibility when there is a “bona fide
move” to a new school zone. (Doc. 1, p. 34 n.76). As the affiant well knows, that exception
would never apply to a transfer to a private school because the AHSAA treats the private
school’s “zone” (as in the case of St. Paul’s) to be the entire city, so there could never be a bona
fide move from a public school in the city limits. The AHSAA thus misrepresents a public school
advantage as a “private school advantage” for the purpose of treating private schools differently.
Like selective enrollment, there is no meaningful distinction between public and private
schools with regard to “attendance zones.” Again, a substantial majority of city public school
districts openly enroll non-resident students beyond their school zones. (Doc. 1-5). Further,
Alabama law requires public schools to offer enrollment to students of failing schools within the
same system, even if the student is from outside the school’s zone. Ala. Code § 16-6D-
8(b)(4)(b). The AHSAA, in fact, facilitates transfers between public schools by giving the
student immediate eligibility if the transfer is made within the same system. (Doc. 17-18).
Moreover, the absence of boundaries for private schools does not necessarily equate to broader
geographic enrollment. St. Paul’s draws the overwhelming majority of its students from an area
smaller than many Mobile County public school attendance zones. (Doc. 1-6, ¶ 4; Doc. 1-7, ¶ 3).
There simply is no distinction between public and private schools with regard to the presence or
11
effect of school zones, and the AHSAA makes no effort to refute these points.
Finally, there is no “competitive advantage” (and the AHSAA has offered no evidence of
any advantage) in matters concerning open enrollment or attendance zones. This is demonstrated
by the fact that 5 city public schools that do not engage in open or selective enrollment (i.e., do
not enroll students beyond their school zones) have completely dominated roughly 90 other
schools in 6A and 7A. (Doc. 1-8, ¶ 6). If selective and open enrollment were indeed
“advantages,” then private schools and public schools that do enroll beyond their attendance
zones would be winning the most titles. But this is not the case. Again, the AHSAA has made
no effort to refute any of these facts.
Financial Assistance under the Accountability Act. The AHSAA incorrectly states
that the Accountability Act only provides financial assistance for private schools and not public
schools. (Doc. 25, p. 9). The Act plainly defines a “qualifying school” eligible for scholarships
“as a public school outside of [the student’s] resident school district . . . .” Ala. Code § 16-6D-
4(13). Because public and private schools alike can receive funding under the Act, it is not
rational to treat private schools differently on this basis. In fact, “St. Paul’s has never
participated in the Accountability Act program.” (Affidavit of B. Fisher, Ex. B, at ¶ 5).
Enrollment Adjustments for 9th Grade Retention. The AHSAA urges that its own
rule requiring all 9th grade retained students to be calculated in enrollment numbers (a rule
applying to both public and private schools) has somehow created a “competitive advantage” for
private schools. (Doc. 24-4, p. 7). This argument is misleading at best; it is inconceivable that
the AHSAA relied on this fact to identify a “competitive advantage.” The AHSAA says it
presented the task force with ‘11–‘16 data reflecting playoff success at a September 2016
meeting. (Id.., ¶ 5). However, the 9th grade retention rule was not implemented until the ‘16–
12
‘18 classification period, which would have begun in August 2016 — after the championship
data was gathered for the task force. (Doc. 24-2, ¶ 38). The AHSAA fails to explain how any
“competitive advantage” held by private schools under the 9th grade retention rule would have
been reflected in data older than the rule itself.
Regardless, the retention rule applies to both public and private schools. It is thus
inconceivable that a rule equally burdening private schools creates any advantage for private
schools. Nonetheless, the AHSAA suggests that this rule caused a few public schools to move
up one class in the 2016–2018 classification period. (Id., p. 11). The AHSAA does not explain
how 10 out of 373 (2.7%) public schools moving up one classification from 2016 to 2018 created
a competitive advantage for all private schools. Presumably, the AHSAA believes these schools
moved up a class, thereby thinning competition in the class they left behind. But if this were the
case, any “advantage” would have affected public and private schools alike. Further, if moving
up a class creates a “competitive advantage” for other schools that do not move up, then, by the
AHSAA’s own logic, the Student Multiplier and CBF create obvious “competitive advantages”
for public schools by moving private schools up multiple classes. Regardless, if the AHSAA
believes the retention rule had unintended consequences, it should change the rule, not use it as a
pretext to discriminate against private schools.
Participation Percentages. The AHSAA claims the CBF’s classification is supported
by the “difference in sport participation percentages” between public and private schools. (Doc.
25, p. 9). The AHSAA relies exclusively on a 2015 survey that, it argues, showed “on average,
79.48% of private-school students participate in sports, while a random sampling of 100 public
schools showed that only 30.7% of public-school students participate.” (Id., p. 8). However, this
survey did not show the athletic “participation rate.” Rather, the survey divided “roster totals”
13
by enrollment for all sports to find the gross proportion of students competing in all sports. (See
Doc. 24-1, pp. 23–24). This is a critical distinction because the AHSAA’s calculation artificially
inflates certain “participation rates” by counting students playing multiple sports as multiple
participants (e.g., one student playing 3 sports is counted as 3 participants).12 Further, it is
completely irrational to treat private schools differently from public schools on the basis of
student participation when the AHSAA itself urges all students to engage in athletics.
Enrollment Caps. The AHSAA contends private schools “cap enrollment,” affording an
unfair advantage, and that “public schools” cannot do this because they are “required by law to
accept all students.” (Doc. 24-4, p. 6). But public schools do cap enrollments. As explained,
supra, city public schools regularly and selectively enroll non-resident students from beyond
their attendance zones. This common practice allows them to decide whether to expand or
restrict (i.e., cap) their enrollment in the same manner the AHSAA urges private schools can.
Regardless, the AHSAA, once again, fails to explain how placing a “cap” on enrollment
creates any advantage in athletics. Presumably, it means that private schools can (conceivably)
cut off enrollment at a pre-determined number to avoid moving into a higher class. That private
schools could “theoretically” do this does not mean that they do. And the evidence shows they
do not. For one, St. Paul’s does not cap or “manipulate its enrollment in any way to achieve
13
athletic advantages.” (Ex. B, ¶ 6). St. Paul’s “enrollment is a function of economics,
academic requirements, and resources.” (Id.) The school “exist[s] to serve all students who can
12
This inaccurate measure is how the AHSAA calculated class 2A private schools to have a
101.4% participation rate. (Doc. 2-1, p. 2).
13
If athletic classification were a driver of the school’s enrollment policy, St. Paul’s could
“shave 31 to 32 students from its classification grades, thus moving to the top of 3A and then
compete in 4A with the 1.35 student multiplier.” (Ex. B, ¶ 6). Or, St. Paul’s could add another
130 students to its classification grades (even with the multiplier), remain in 5A, but be a much
stronger athletic competitor. (Id.) St. Paul’s obviously has done none of these things. (Id.)
14
benefit from [its] programs up to the capacity of [its] limited facilities and would never turn
away a student within those parameters.” (Id.)
Budgetary Restraints. The AHSAA contends (without any support) that private schools
“do not have the budget restraints for facilities that public schools do.” (Doc. 24-4). Private
schools obviously operate under “budgetary restraints,” and any contrary opinion is ludicrous.
St. Paul’s “operates on a budget,” and “any suggestion that [it] ha[s] no budgetary restraints for
facilities is . . . completely false.” (Ex. B, ¶ 2). Some private schools may have larger budgets
than some public schools, but many public schools likewise have far greater budgets than
private schools. What else could explain Opelika’s recent $45 million athletic facility upgrade
(Ex. C), Thompson’s newly-built $19.87 million fields and practice facilities (Ex. B), Hewitt-
Trussville’s new $14 million stadium (Ex. C), Saraland’s $3.8 million football stadium and $20
million improvement plan, which includes an indoor athletic facility and a track and tennis
facility (Ex. E, F). Meanwhile, St. Paul’s recently began construction on its first major building
in 25 years, “which consists of new dining and academic spaces and is not related to athletics in
any way.” (Ex. B, ¶ 2).14 The AHSAA’s wholly unsupported opinion that private schools,
unlike public schools, do not have “budgetary restraints” is flatly wrong, and cannot support
treating private schools different from public schools.
Employment of Coaches. The AHSAA further suggests that private schools “do not
have either salary limits for their coaching staff nor any limits on the number of coaches or
teaching positions.” (Doc. 24-5, p. 6.) Once again, this suggestion is false. Indeed, the “highest
paid high school coach in Alabama” is a public school employee (Ex. G), and a number of public
14
As Mr. Fisher testifies, all of St. Paul’s major buildings are 25+ years old. The new
construction only became possible because the school engaged in an extensive fundraising effort.
(Ex. B, ¶ 2). “Every department [] including athletics, must operate within [] budgets. No
dedicated endowment or other source of funding covers budgetary shortfalls.” (Id.).
15
school coaches earn well over $100,000 (Ex. H). Private schools’ ability to hire coaches is
clearly restrained by budgets, and these schools have the same practical limits on employing
coaches as public schools. For St. Paul’s, “the school’s ability to fund salaries, whether those
salaries are for coaches or teachers, is strictly limited by [its] budget.” (Ex. B, ¶ 2).
The AHSAA claims private schools can employ more coaches than public schools. (Doc.
25, p. 9). The AHSAA’s only evidence of this claim is that St. Paul’s (one private school) has 51
coaches “on staff,” whereas the next highest coaching staff for a 5A–7A public school in the
Mobile area is 43 coaches. This statistic is misleading and inflated on two points: one, it
compares St. Paul’s middle school and high school coaching count with public schools’ high
school coaching staff, and, a number of its coaching assistants are not “on staff,” but merely part-
time volunteers who receive a small stipend for their service. (Ex. B, ¶ 3). In reality, St. Paul’s
has only 23 coaches at the high school level (22 of which hold faculty, administrative, or staff
positions as well), well below the 33.64 average coaching staff of Mobile-area 5A–7A high
schools. (Id.; Doc. 24-1, p. 81).
Finally, strongest evidence against the CBF’s constitutionality is the Student Multiplier
component itself. The AHSAA adopted the Student Multiplier in 1999 specifically to “offset”
many of the same “private school competitive advantages” articulated today: selective/open
enrollment, enrollment “caps,” and participation rates. (See Doc. 24-2, ¶ 10; Doc. 25, p. 5; Dan
Washburn Letter, Ex. I). The AHSAA argues it adopted the Student Multiplier to force private
schools to “compete against public schools with higher enrollment” to offset these “advantages”
“in order to improve competitive balance.” (Doc. 25, p. 5). This fact alone undermines any
notion that the CBF was implemented to offset any of these “advantages.” In Moreno, the Court
opined that the existence of other provisions “wholly independent” of the challenged law “aimed
16
specifically at the problems” the legislature argued the law was designed to address “necessarily
casts considerable doubt upon the proposition that [the challenged law] could rationally have
been intended to prevent those very same abuses.” 413 U.S. at 536.15
There are no public v. private school distinctions that make it rational to treat private
schools differently. The CBF’s classification of private v. public schools is a classification
“undertaken for its own sake, something the Equal Protection Clause does not permit.” Romer,
517 U.S. at 635.
C. The AHSAA’s Caselaw is Inapposite.
The AHSAA cites several unpublished opinions from other states rejecting equal
protection challenges to competitive-balance rules. (Doc. 25, pp. 25–26). However, none of
these cases involved claims implicating the Animus Doctrine; nor did they consider any measure
resembling the rule at issue here: the unprecedented stacking of a Success Test on top of a
Student Multiplier. Moreover, whatever “competitive advantages” were at issue in Oklahoma,
Arkansas, and Missouri were resolved in light of evidence unique to purported differences
between public and private schools in those states.16 The rationality of the present classification
15
Moreover, private schools continue to have a measure of success even after the Student
Multiplier. This record reveals that any such success is not a result of the “competitive
advantages” the AHSAA identified then or now. Indeed, the record reveals that the so-called
advantages the Student Multiplier was designed to erase have, in fact, no correlation to (nor are
they determinative of) athletic achievements. They were simply pretexts to justify an enrollment
adjustment to burden an unpopular class of member schools. No new rule, therefore, seeking to
offset those same “unfair advantages” can be deemed rationally related to any legitimate interest.
Cleburne, 473 U.S at 446 (“The State may not rely on a classification whose relationship to an
asserted goal is so attenuated as to render the distinction arbitrary or irrational”).
16
In Bishop McGuinness, the Oklahoma association reclassified “any member school” (public
and private) based on four criteria. (Doc. 24-9, p. 7). One was “the ability to limit admission
due to selective enrollment,” which the plaintiff argued “will almost never apply to similarly
situated public schools.” (Id., p. 16). Selective enrollment was, thus, a distinguishing
characteristic that could support a difference in treatment. (See id., p. 18). The Bax opinion
likewise upheld Missouri’s multiplier based on “substantial evidence that Missouri public and
nonpublic schools are not similarly situated and operate differently in many relevant ways” (e.g.,
17
must be assessed on the characteristics of public and private schools in Alabama. And, as
demonstrated supra, it is not rational to treat Alabama’s public and private schools differently.
The AHSAA principally relies on Bishop Grimes (Doc. 25, p. 25); however, this opinion
offers no support for the AHSAA. There, the AHSAA suggests the New York association relied
on 14 criteria to classify private schools, “which, though not quoted in the court’s opinion,
apparently included ‘enrollment, transfer policies, athletic budgets, sports programs offered,
[and] success rates in various sports.” (Id., pp. 25–26). Although the opinion recognizes that the
association asked public and private schools for those 14 criteria in a survey (Doc. 24-10, p. 3), it
is not at all clear (and the court does not state) that the association classified schools on the basis
of those specific criteria. Regardless, the Bishop Grimes opinion offers zero substantive analysis
of those criteria under Equal Protection; the court simply concluded that the association’s
reclassification was not unconstitutional. (See Doc. 24-10, p. 9).
III. ST. PAUL’S IS LIKELY TO SUCCEED ON ITS DUE PROCESS CLAIMS.
A. The AHSAA Deprived St. Paul’s of Protected Property Interests.
The Due Process Clause safeguards constitutionally protected property interests. Regents
v. Roth, 408 U.S. 564, 570 (1972). The AHSAA’s arguments ignore well-settled precedent that
such interests include benefits to which a person has a “legitimate claim of entitlement” based on
“express or implied contract” terms or “mutually explicit understandings.” Barnes v. Zaccari,
669 F.3d 1295, 1303 (11th Cir. 2012). Indeed, “[e]xplicit contractual provisions may be
supplemented by other agreements implied from the promisor’s words and conduct in light of the
surrounding circumstances.” Perry v. Sindermann, 408 U.S. 593, 602 (1972).
Missouri’s private schools, unlike public schools can cap enrollment and selectively enroll
students). (Doc. 24-12, pp. 8–11 (emphasis added)). Similarly, the Holt opinion upheld
Arkansas’ multiplier based on evidence of private schools’ specific advantages over public
schools. (See Doc. 24-11, p. 8).
18
Here, the AHSAA’s Constitution and Bylaws form a contract between St. Paul’s and the
AHSAA, which guarantees rules adopted by the Board of Control “shall be uniformly effective
and binding upon all members of the [AHSAA].” (AHSAA Const., art. VII(i), Doc. 17-5, p. 21
(emphasis added); see Brief of AHSAA, AHSAA v. Stuart, 2002 WL 32828487, at *35 (11th Cir.
Oct. 8, 2002) (arguing member schools “contract” with the AHSAA “in exchange for
membership” in the AHSAA)). In effect, Article VII(i) guarantees unconditional equal
protection of all members. This right is supplemented by mutually explicit understandings
“implied from the AHSAA’s words and conduct” set forth in other provisions of the AHSAA’s
Handbook (Doc. 17-5). Sindermann, 408 U.S. at 602; Barnes, 669 F.3d at 1303. Among these
mutually explicit understandings are the AHSAA’s commitment to:
 “Enhance the health and safety of all participants”17 (Doc. 17-5, p. 3);
 “[P]romote the interscholastic athletic programs among its member schools, which
include public, private and parochial institutions” (Id., p. 96);
 “[S]erve the needs of its member schools [public and private] in conducting their
athletic programs” (Id.);
 “[P]romote pure amateur athletic competition in the high schools [public and private] of
Alabama” (Id., p. 18);
 Direct competition in such a way that “is concerned primarily with benefits to all the
participants [public and private] and to spreading these benefits to constantly increasing
numbers;” (Id., p. 98); and
 Organize athletic competition in such a way that “provide[s] opportunities for schools
to demonstrate and to evaluate the best taught in their programs with the best taught in
other schools from other area of the state” (Id., p. 17).
The Article VII(i) guarantee, supplemented by these mutually-explicit understandings, create the
constitutionally protected property rights enumerated in Paragraph 151 of the Complaint as
17
The understanding that the AHSAA will endeavor to “[e]nhance the health and safety of all
participants” is further supported by the AHSAA’s promulgation of safety rules directed at
increasing, not decreasing, the safety of sports competition. (Doc. 17-5, pp. 50–52, 56–57, 73).
19
“independently imposed or agreed-upon limitations on the [AHSAA’s] freedom to act.” Caesars
Mass. v. Crosby, 778 F.3d 327, 333 (1st Cir. 2015).
Relying on Roth, 408 U.S. at 577, the AHSAA suggests these rights are “at best only
expectations.” (Doc. 25, p. 31). However, Roth speaks only to “unilateral expectations,” the
unjustified anticipations of one party. Id. St. Paul’s rights, rather, are legitimate entitlements
arising from explicit contractual guarantees supplemented by mutually explicit understandings.
The AHSAA states that St. Paul’s has articulated only an interest in “participating in
athletics,” and cites a string of cases holding that no such right exists. (Doc. 25, p. 31). This is,
at best, a straw man argument entirely irrelevant to this case. Those cases concerned whether
individual students have a constitutional right to participate in sports. St. Paul’s makes no such
claim. Rather, as an AHSAA member, St. Paul’s articulates rights flowing from contractual
guarantees and mutually explicit understandings governing its relationship with the AHSAA.
In a similar move, the AHSAA restyles St. Paul’s rights as “a property interest in a
particular classification,” and then posits that no such right exists. (Id., pp. 30–31). Once again,
St. Paul’s has made no such claim. St. Paul’s rights boil down to fair dealings, equal treatment,
and safe and “uniform” rule-making. These rights exist for all schools in any classification.
B. The AHSAA Violated the Procedural Due Process Clause.
The AHSAA deprived St. Paul’s constitutionally protected property rights without any
pre-deprivation process. The AHSAA provided no pre-deprivation notice or opportunity to
object. (Ex. B, ¶ 7.) The AHSAA argues that the “AHSAA Constitution does not require
notice.” (Doc. 25, p. 33). But the U.S. Constitution does require notice where a protected
property interest is at stake: “An essential principle of due process is that a deprivation of
[property] be preceded by notice and opportunity for hearing appropriate to the nature of the
case.” Cleveland v. Loudermill, 470 U.S. 532, 542 (1985) (quotations omitted).
20
The AHSAA next argues St. Paul’s received adequate process because the school
presented its objections to the Board of Control “[a]fter the Board adopted the CBF.” (Doc. 25,
p. 33 (emphasis added)). However, the “‘root requirement’ of the Due Process Clause [is] that
an individual be given an opportunity [to be heard] before he is deprived of any significant
property interest.” Cleveland, 470 U.S. at 542 (emphasis in original). In reality, the AHSAA
deprived St. Paul’s of its property interests without any pre-deprivation notice or meaningful
opportunity to be heard. (Ex. B, ¶ 7); see Johnson v. City of Prichard, 771 F. Supp. 2d 1310,
1320–21 (S.D. Ala. 2011) (Due Process requires “notice reasonably calculated [] to apprise
interested parties [] of the action and [to] afford [] an opportunity to present [] objections.”).18
The AHSAA also argues St. Paul’s had “adequate process under the circumstances”
through a post-deprivation opportunity to object. (Doc. 25, p. 33, citing Grayden v. Rhodes, 345
F.3d 1225 (11th Cir. 2003); McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994)).19 Grayden
actually supports St. Paul’s. There, the Eleventh Circuit explained, as a general rule,
constitutional deprivations “must be preceded by notice and an opportunity to be heard.” 345
F.3d at 1236. The Court noted this requirement may give way under “‘extraordinary situations’
in which some valid governmental interest is at stake that justifies postponing the hearing until
after the deprivation.” Id. The Court recognized three requirements for such exigency (e.g.,
“there is a special need for prompt action”), none of which are present in this case. Id.
The AHSAA cites McKinney for the point that it may “cure a procedural deprivation by
18
Even when St. Paul’s was permitted to address the CBF, the AHSAA refused to state the
precise reasons for its decision, or respond to a request for the evidence it relied on (Doc. 1, ¶¶
69–75; Doc. 17-2). See McCall v. Montg. Hous. Auth., 809 F. Supp. 2d 1314, 1324 (M.D. Ala.
2011) (“[D]ue process generally requires the decision-maker to state the reasons for his
determination and indicate the evidence upon which he relied.”).
19
The AHSAA also cites St. Patrick H.S. v. N.J. Ath. Ass’n, 2010 WL 715826 (D.N.J. Mar. 1,
2010) for the point that participation in athletics is not a constitutional right. (Doc. 25, p. 33). As
discussed supra, p. 20, St. Paul’s makes no such claim. This authority is irrelevant.
21
providing a later procedural remedy.” 20 F.3d 1550; (Doc. 25, p. 34). There, a plaintiff was
fired from public work, “received a pre-termination hearing, and with it, all the process due.” Id.
at 1562. The alleged “procedural deprivation” was bias during the hearing, not the total failure
to provide any pre-deprivation process. Id. “It is axiomatic that, in general, the Constitution
requires that the state provide fair procedures and an impartial decision maker before
infringing on a person’s interest in life, liberty, and property.” Id. at 1561 (emphasis added).20
Because St. Paul’s was afforded no process prior to the termination of its constitutionally
protected property rights, it is likely to succeed on the merits of its Procedural Due Process
claim. See Kroupa v. Nielsen, 731 F.3d 813, 820 (8th Cir. 2013) (where plaintiff “was afforded
no process at all,” her “chance of success on this aspect of the merits [] is a virtual certainty.”).
C. The AHSAA Violated the Substantive Due Process Clause.
Where, as here, a constitutionally protected property interest is a stake, “substantive due
process . . . protects against the arbitrary and oppressive exercise of government power.”
Waldman v. Conway, 871 F.3d 1283, 1292 (11th Cir. 2017). The AHSAA argues it did not act
arbitrarily because the CBF is rationally related to a legitimate interest. (Doc. 25, p. 32). For the
reasons set forth supra, pp. 8–17, the CBF is not rationally related to any legitimate purpose.
Courts will also find a Substantive Due Process violation where the state “shocked the
conscience” by acting with a “deliberate indifference to an extremely great risk of serious injury
to someone in Plaintiffs’ position.” Waddell v. Hendry Cty., 329 F.3d 1300, 1306 (11th Cir.
2003). Although St. Paul’s argues this point in its Motion, the AHSAA did not respond.
St. Paul’s respectfully submits that the conscience of the Court must be deeply disturbed
20
The AHSAA raises St. Paul’s allegation that the CBF was applied in an “ex post factor
manner” and claims this fact does not state a claim for a procedural due-process violation (Doc.
25, p. 34). The ex post facto application of the CBF is not the locus of St. Paul’s Due Process
claims; it merely shows that no private school had an opportunity to address the implications of a
new rule that penalizes events that had already occurred.
22
by the AHSAA’s reckless indifference to known and unjustifiable risks to the safety of
adolescent student-athletes. [The facts concerning the details of the AHSAA’s failures are
documented at Doc. 2, ¶¶ 45–66.] St. Paul’s and other member schools entrust the AHSAA with
authority to adopt rules to be “uniformly” applied that “[e]nhance the health and safety of all
participants.” (Doc. 17-5, pp. 3, 21). While there is always risk of injury, when member schools
agree to be bound by the AHSAA’s rules, they do so with the understanding that the AHSAA
will not increase that risk. But the AHSAA adopted the CBF with a conscious disregard of
direct warnings from local physicians (Docs. 17-9–12) and well-documented medical literature
(Docs. 17-22–34) recognizing that, by stacking a Success Test on top of the Student Multiplier,
the CBF would expose certain private school students to heightened risks of personal injury
(including concussions and CTE) when forced to compete two classifications above the school’s
true enrollment. The AHSAA’s parent organization documented these very risks in a 2014
Concussion Summit Report (Doc. 1-9), which the AHSAA was aware of when the CBF was
adopted (Doc. 17-13). The AHSAA’s Dr. Robinson was grossly mistaken when he testified that
the Report dealt only with football “practice” guidelines, and “[was] not meant to be
recommendations for playing games.” (Doc. 24-3, ¶ 17). The Report specifically documents the
risks “during contests,” and explains that “data consistently show that competition presents the
highest risk of concussion.” (Doc. 1-9, pp. 1, 3).
The AHSAA admittedly adopted the CBF without reviewing any medical science, or
conducting a study of its own, to determine the CBF’s risk implications. (Doc. 1, ¶ 131; Doc.
17-3, ¶ 13). Even when confronted about these risk implications in January and March 2018, the
AHSAA still refused to postpone enforcement of the CBF to allow a study of its impact. (Doc.
1, ¶¶ 71–75, 132; Doc. 17-3, ¶ 13). In fact, it appears from Dr. Robinson’s testimony that the
23
Medical Advisory Committee did not even discuss the warnings of Dr. Conrad and Dr. Ronderos
(a neurosurgeon) until February 2018. (Doc. 24-3, ¶ 12). Such conduct by a state actor entrusted
with the health and safety of students “shocks the conscience” by any standard.
IV. ST. PAUL’S IS LIKELY TO SUCCEED ON ITS CLAIM UNDER THE

ALABAMA DECLARATORY JUDGMENT ACT.
The Ala. Declaratory Judgment Act empowers the Court to construe a contract “either
before or after there has been a breach thereof” to “declare rights, status, and other legal
relations” of the parties. Ala. Code §§ 6-6-222, 224. As set forth supra, pp. 18–19, St. Paul’s
has contractual and property rights under the AHSAA’s Handbook, Constitution, and Bylaws;
chiefly, that all rules adopted by the AHSAA “shall be uniformly effective and binding upon all
members of the [AHSAA].” (Doc. 17-5, p. 21). These rights are supplemented by the
AHSAA’s implied duties of good faith and fair dealing.21 See Chavers v. Nat. Sec., 405 So. 2d
1, 6 (Ala. 1981). The AHSAA deprived St. Paul’s of these rights and privileges through its
design and enforcement of the CBF. (Doc. 2, ¶ 76).
According to the AHSAA, most of the contractual “rights” claimed by St. Paul’s “are
mere expectations.” (Doc. 25, p. 34). The AHSAA relies on a case interpreting Ohio law for its
argument that statements in the AHSAA’s Handbook are not enforceable. (Id., p. 35, citing
Ullmo v. Gilmour Acad.). In Ullmo, the “Philosophy” section of a school handbook was too
general and aspirational to constitute an enforceable contract under Ohio law. 273 F. 3d at 676–
77. Here, the AHSAA’s Constitution and Bylaws undisputedly constitute enforceable contracts
between the AHSAA and its members. Wells v. Mobile Cty., 387 So. 2d 140, 142 (Ala. 1980).
As described above, the language in the AHSAA Handbook concerning the parties’
“expectations” (as denominated by the AHSAA) conveys how the parties intend the AHSAA to
21
St. Paul’s rights are detailed at Doc. 2, pp. 27-28.
24
perform its contractual obligations, both express and implied.
The AHSAA suggests there is no “right” to have it exercise its classification power in a
manner that does not discriminate against private schools. (Doc. 25, p. 35). This is a non
sequitur given that the AHSAA’s classification authority co-exists with a broader obligation to
adopt rules “which shall be uniformly effective and binding upon all members.” (Doc. 17-5, p.
21). It is impossible for the Board of Control to adopt rules that are “uniformly effective and
binding upon all members” if levied in a way that treat, for example, the success of and,
moreover, the risk implications affecting one class of members differently than other classes.
Further, the AHSAA’s authority to classify is restrained by its implied duty of good faith and fair
dealing. Here, the Associations has created an unprecedented rule that affects only one class of
its members and enhances the risk of injuries for one class of student-athletes in total disregard
of its commitment to act in all ways to “[e]nhance the safety of all participants.” (Id., p. 3).
The AHSAA suggests that its constitutional object “to promote pure athletic
competition,”22 supports its “implementing measures for competitive balance.” (Doc. 25, p. 35).
This may be true, but only if competitive balance is applied to all schools. Again, the AHSAA
cannot abide by its own constitutional obligations while implementing a rule that singles out one
class of members for disparate treatment.
The AHSAA further argues that declaratory relief should not be granted here because
Alabama courts usually are reluctant to interfere with AHSAA rulemaking. (Id., p. 36, citing
Scott v. Kilpatrick; AHSAA v. Rose; Kubiszyn v. AHSAA). This deference does not apply here.
22
The AHSAA also argues that its object “to promote pure athletic competition,” does not mean
classification by “enrollment only.” (Doc. 25, p. 25). This misses the point. Enrollment
classifications were constitutionally sound because they applied across the board to all schools.
The AHSAA may classify to “promote pure athletic competition” through measures other than
enrollment, but it cannot adopt a measure that discriminates against one class of members.
25
In Kubiszyn, the Court found that it would adhere to the deferential standard set forth in Scott,
“[a]bsent some evidence that a student athlete has suffered impairment of a property right.” 374
So. 2d at 257. As set forth supra, the AHSAA has deprived St. Paul’s of very specific and
protected property rights. The deference sought by the AHSAA, therefore, has no application.
Id. Moreover, to give the AHSAA (a state actor) deference on conduct antagonistic to the
Fourteenth Amendment would place the AHSAA above the limits of the U.S. Constitution,
which the Supremacy Clause of Article VI does not allow. Pub. Util. Comm’n v. U.S., 355 U.S.
534, 544 (1958) (“It is of the very essence of supremacy to remove all obstacles to its action . . .
so to modify every power vested in subordinate governments . . . .”).
In addition to the foregoing, there is substantial authority that deference is never
appropriate when an association has acted in an arbitrary manner. Scott, 237 So. 2d at 655.
The CBF’s application is inherently arbitrary. It targets private school “competitive success”
while completely ignoring the similar and greater successes of public schools. (Doc. 1-8 at ¶¶
4–11, 15–21; Ex. A-1). Indeed, a task force member recognizes “the CBF was a matter of
politics; that ‘everyone knows that it’s not fair,’ and that the CBF should apply to all
schools, but it simply was a political concession to public schools.” (Doc. 17-4, ¶ 8).23
V. THE INJUNCTION IS NECESSARY TO PREVENT IRREPARABLE INJURY.
“It is [] well-established that injunctive relief is appropriate to prevent a substantial risk
of serious injury from ripening into actual harm.” Thomas v. Bryant, 614 F.3d 1288, 1318 (11th
Cir. 2010)). Expert medical opinion and significant medical research recognize that the CBF
will expose St. Paul’s football players to a heightened risk of substantial injury in 6A
23
The AHSAA suggests it did “not arbitrarily decide to adopt” the CBF because it was the
product of “months of study” “by a committee on which private schools were well represented.”
(Doc. 25, p. 37). That the CBF was discussed over a period of months and ultimately accepted
by persons with different views does not mean it is not an arbitrary rule.
26
competition, particularly concussions and sub-concussive impacts. (Docs. 1-1; 17-22–34).
Dr. Timothy P. Hecker, a board certified neurologist, opines that the CBF “will increase
the risk of neurological trauma for students at smaller private schools (such as St. Paul’s) by
pitting them against schools two to three times their size,” and that “[t]he obvious disparities in
team and player size created by the CBF will, in [his] opinion, substantially increase the risk of
personal injury and concussions, and the frequency and magnitude of sub-concussive head
impacts, for students at small private schools like St. Paul’s.” (Doc. 1-1, ¶¶ 13, 15).
While St. Paul’s offers the opinion of a board certified neurologist on these matters of
neurological injuries, the AHSAA cites the affidavits of a family practitioner (Dr. Robinson,
Doc. 24-3) and an orthopedic surgeon (Dr. Dugas, Doc. 24-6), both of whom are affiliated with
the AHSAA. (Doc. 24-3, ¶ 10; Doc. 24-6, ¶ 7). While both doctors have obtained specialties in
sports medicine, they are not neurologists. See Everett v. Georgia-Pac., 949 F. Supp. 856, 857
(S.D. Ga. 1996) (“[A] physician must, at a minimum, possess some specialized knowledge about
the field in which he is to testify.”). In fact, Dr. Dugas makes no reference to the neurological
risks articulated by Dr. Hecker, does not refute Dr. Hecker’s expert opinion, and apparently
failed to review the Concussion Summit Report and 11 of the 13 articles filed by St. Paul’s as
exhibits supporting the existence, nature, and degree of the present risks. (Doc. 24-6, ¶¶ 7–11).
Dr. Dugas simply opines that he “do[es] not believe that there is an increased risk of
injury as the result of a school playing another school in a higher classification.” (Id., ¶ 11
(emphasis added)). Dr. Robinson similarly opines “there is insignificant data to support [Dr.
Conrad and Dr. Ronderos’] assertion that there is an increased risk of injury as the result of a
school playing another school in a higher classification.” (Doc. 24-3, ¶ 12). Both miss the mark:
the CBF, as designed, is forcing St. Paul’s to play up two classes, not just one — and for an
27
entire season (actually, four entire seasons). This is a critical distinction. As Dr. Hecker states,
“the [AHSAA’s] joint application of the 1.35 student multiplier and the CBF’s success test will
increase the risk of neurological trauma for students at smaller private schools (such as St.
Paul’s) by pitting them against schools two and three times their size.” (Doc. 1-1, ¶ 13).
Dr. Dugas and Dr. Robinson claim St. Paul’s 2017 roster reflects a similar team size and
player size as that of 6A teams, so there are no increased risks. (Doc. 24-3, ¶ 13; Doc. 24-6, ¶ 8).
This argument is baseless on several grounds. First, the most important factor that plays into the
CBF’s risk implications (and one that neither doctor addresses) is the effect of playing “both
ways” (offense and defense). Academic literature (Doc. 17-23, p. 5; Doc. 17-24, pp. 5–6),
medical expert opinion (Doc. 1-1, ¶ 9), and the Concussion Summit Report (Doc. 1-9, p. 2)
recognize that “playing both ways” is a significant contributing factor to the heightened risks of
injury (particularly concussions) for student-athletes at smaller schools. 6A teams frequently
have larger talent pools, allowing them to fill rosters with larger, stronger, and more athletic
players (a term known as “depth”). (Doc. 17-3, ¶ 5). As a smaller school with less roster depth,
St. Paul’s will play just 25 to 27 players in an average game, 60% to 64% of whom will typically
play positions on both offense and defense. (Id., ¶ 7). On the other hand, few athletes on most
6A public school teams will play both ways. (Id.) The CBF significantly increases the existing
risks of injury by exposing St. Paul’s players to competition against “schools two to three times
its size with a greater number of players, a greater number of larger players, and players who are
not playing both ways.” (Doc. 1-1, ¶ 14). The AHSAA offers no evidence on this critical point.
While St. Paul’s roster, on its face, is similar in size to that of some 6A teams, St. Paul’s
roster includes roughly 21 freshmen. (Ex. J-1). Further, the AHSAA’s own data clearly show
that St. Paul’s has smaller players than most 6A schools. While St. Paul’s has 4 players over 250
28
lbs., Blount has 20, Daphne has 12, Spanish Fort has 12, and Saraland has 6. (Doc. 24-3, p. 25).
The AHSAA, moreover, draws from grossly inaccurate data to calculate the “average weight” of
6A players: e.g., the weight of 73% of BC Rain’s players and 13% of Baldwin County’s players
is missing from the data. (Id.) This decreases the average weight of all players in 6A Region 1
to suggest St. Paul’s has a closer-to-average number of large players.
The AHSAA suggests that any risk implications are belied by St. Paul’s having scheduled
games against 6A and 7A schools in the past. It is important to note that, between ‘13 and ‘17,
St. Paul’s scheduled only 1 or 2 games per year against a larger school. “Each of those games
was scheduled because St. Paul’s had open dates and no one in [its] classification was available.”
(Ex. J, ¶ 3). These schools were chosen “after significant consideration of each school’s
strengths and weaknesses,” from which it was “determined that [St. Paul’s] would not be
overmatched—either physically or competitively.”24 (Id.) Thus, according to Coach Steve
Mask, “[w]hile St. Paul’s can withstand playing larger schools in one or two games per year, a
full season of competition against 6A schools would likely be disastrous to St. Paul’s football
program and will seriously compromise the health and safety of [its] student-athletes.” (Doc. 17-
3, ¶ 9). According to Mask, as a season progresses, the mismatch forced on St. Paul’s will
increasingly expose its players to greater fatigue and substantial risk of injury. (Id., ¶ 9). An
injunction is imperative to prevent irreparable physical injury to St. Paul’s students.
Finally, the AHSAA’s arguments here ignore the most fundamental point: Why do we
compete, especially in football, in classifications in the first place? Because wise, prudent,
24
Only one of the four teams ever had a winning record in any of those years. Two of the teams
were 0-10, and, of the losing teams, the highest win count was 4-7. (Ex. J, ¶ 4). As Mask said, “I
would never voluntarily schedule a game if I believed the opponent would physically dominate
my players or if I believed the competition would significantly increase the risk of physical harm
to my players.” (Id. at ¶ 5).
29
reasonable leaders many years ago determined that the game would be fairer and far safer for its
participants if schools of similar size were classified together for competition. As Mr. Savarese
well knows, this wisdom was exercised once again in 2014 when the AHSAA recognized that
there were “large disparit[ies] in the sizes of schools” in 6A and, therefore, created the state’s
7A classification. (Doc. 17-15, p. 4).
Lastly, St. Paul’s will also continue to suffer irreparable injury from the AHSAA’s
ongoing constitutional violations. As numerous courts have found, these constitutional injuries
constitute irreparable injury as a matter of law.25 The AHSAA does not contest this.
VI. THE REMAINING REQUIREMENTS FOR PRELIMINARY INJUNCTION ARE

PRESENT.
The AHSAA does not explain how a preliminary injunction against the CBF would
injure the AHSAA, or how it is adverse to the public interest. The AHSAA only responds with
testimony that scheduling issues would arise “[s]hould the 1.35 multiplier and [CBF] be set
aside.” (Doc. 24-2, ¶ 34). But an injunction against the CBF alone does not implicate these
concerns; indeed, all schools know exactly where they are classified without the CBF and can
immediately coordinate their schedules accordingly. (Doc. 17-6). While St. Paul’s believes the
Student Multiplier will be addressed in due time, the school seeks preliminary relief specifically
against the CBF. The AHSAA argues that schools have already entered competition contracts;
however, these contracts may be cancelled by mutual agreement. (See Doc. 17-5, p. 62).
Regardless, the contracts (which are amenable to cancellation) do not justify a rule that is
unconstitutional, unsafe, and in violation of private schools’ own contract with the AHSAA.
25
See, e.g., Cohen v. Coahoma Cty, 805 F. Supp. 398, 406 (N.D. Miss. 1992) (finding, with
respect to plaintiff’s Due Process claim, that “[i]t has repeatedly been recognized by the federal
courts at all levels that violation of constitutional rights constitutes irreparable harm as a matter
of law.”) (collecting cases); Doe 1 v. Trump, 275 F. Supp. 3d 167 (D.D.C. 2017) (finding the
injuries “irreparable for the additional reason that they are the result of alleged violations of
Plaintiffs’ rights to equal protection of the laws . . . .”); Bryant, 64 F. Supp. 3d at 950 (same).
30
Respectfully submitted this 15th day of June, 2018.
/s/ Russel Myles

RUSSEL MYLES
rmyles @mcdowellknight.com
T. HART BENTON, III
tbenton@mcdowellknight.com
Attorneys for St. Paul’s Episcopal School
OF COUNSEL:
MCDOWELL KNIGHT ROEDDER

& SLEDGE, LLC
11 North Water St., Ste. 13290
Mobile, Alabama 36602
(251) 432-5300
(251) 432-5303 (fax)
CERTIFICATE OF SERVICE
I hereby certify that on June 15, 2018, I electronically filed the above and foregoing
document with the Clerk of Court using the CM/ECF electronic filing system which will send
notification of such filing to the following:
James E. Williams, Esq.

C. Mark Bain, Esq.
MELTON, ESPY & WILLIAMS, P.C.
P. O. Drawer 5130
Montgomery, AL 36103-5130
(334) 263-6621 / Fax: (334) 269-9515
Cooper C. Thurber, Esq.

William E. Shreve, Jr., Esq.
PHELPS DUNBAR, LLP
101 Dauphin Street, Suite 1000
Mobile, AL 36602
(251) 432-4481 / FAX: (251) 433-1820
/s/ Russel Myles
31

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Case 1:18-cv-00241-WS-B Document 30 Filed 06/15/18 Page 1 of 36

IN THE UNITED STATES DISTRICT COURT

ST. PAUL’S EPISCOPAL SCHOOL *

ST. PAUL’S REPLY BRIEF IN SUPPORT OF

/s/ Russel Myles

MCDOWELL KNIGHT ROEDDER

I. PRELIMINARY INJUNCTION STANDARD ...................................................................... 1

AHSAA v. Rose, 446 So. 2d 1 (Ala. 1984) .................................................................................... 25

Schiavo v. Schiavo, 403 F.3d 1223 (11th Cir. 2005) ...................................................................... 3

Ala. Code § 16-6D-4(13) (1975) .................................................................................................. 12

Exhibit A Affidavit of Hart Benton

Exhibit B Affidavit of Blair Fisher, St. Paul’s Head of School

Exhibit F S. Ericson, Saraland Schools Superintendent to Hold Q&A Sessions on $20M

Exhibit I Letter from Dan Washburn, Executive Director of AHSAA

I. PRELIMINARY INJUNCTION STANDARD

fundamentally misunderstands preservation of the “status quo” in the context of preliminary

appears well-grounded.”3 (Doc. 6, p. 1).

II. ST. PAUL’S IS LIKELY TO SUCCEED ON ITS EQUAL PROTECTION CLAIM.

A. The Animus Doctrine Requires Heightened Review of the CBF.

consideration or scrutiny” of classifications that “sugges[t] animus or a peculiar effort to

Carney, 875 F.3d at 1354 (emphasis added) (quotations omitted).

identifiable groups . . . for differential treatment.” 13 F. Supp. 3d at 1212.7

meeting to find a solution.” (Doc. 17-7, pp. 3–4).

AHSAA’s own admission that, in 2014, it considered a “success-based classification system . . .

deferring to the wishes or objections of some fraction of the body politic”).

achieved through indiscriminate imposition of inequalities.”). The CBF’s differential treatment

Notwithstanding this evidence, the AHSAA concludes it is “doubtful” that private

argument would be to do whatever we need to do to keep the AHSAA intact.”)).

private schools is a “peculiar effort to discriminate” subject to heightened review. Marshall, 13

unconstitutional. Carney, 875 F.3d at 1354.

B. The CBF’s Classification Fails Even a Rational Basis Review.

Fundamentally, there is no “competitive imbalance” rooted in a public v. private

relationship to an asserted goal is so attenuated as to render the distinction arbitrary or

no effort to refute any of these facts.

participated in the Accountability Act program.” (Affidavit of B. Fisher, Ex. B, at ¶ 5).

been reflected in data older than the rule itself.

pretext to discriminate against private schools.

Participation Percentages. The AHSAA claims the CBF’s classification is supported

participants (e.g., one student playing 3 sports is counted as 3 participants).12 Further, it is

away a student within those parameters.” (Id.)

treating private schools different from public schools.

schools. (Id.; Doc. 24-1, p. 81).

schools differently. The CBF’s classification of private v. public schools is a classification

517 U.S. at 635.

C. The AHSAA’s Caselaw is Inapposite.

Student Multiplier. Moreover, whatever “competitive advantages” were at issue in Oklahoma,

reclassification was not unconstitutional. (See Doc. 24-10, p. 9).

III. ST. PAUL’S IS LIKELY TO SUCCEED ON ITS DUE PROCESS CLAIMS.

A. The AHSAA Deprived St. Paul’s of Protected Property Interests.

“express or implied contract” terms or “mutually explicit understandings.” Barnes v. Zaccari,

surrounding circumstances.” Perry v. Sindermann, 408 U.S. 593, 602 (1972).

membership” in the AHSAA)). In effect, Article VII(i) guarantees unconditional equal

protection of all members. This right is supplemented by mutually explicit understandings

mutually explicit understandings are the AHSAA’s commitment to:

constitutionally protected property rights enumerated in Paragraph 151 of the Complaint as

“independently imposed or agreed-upon limitations on the [AHSAA’s] freedom to act.” Caesars

Mass. v. Crosby, 778 F.3d 327, 333 (1st Cir. 2015).

arising from explicit contractual guarantees supplemented by mutually explicit understandings.

B. The AHSAA Violated the Procedural Due Process Clause.

pre-deprivation process. The AHSAA provided no pre-deprivation notice or opportunity to

an individual be given an opportunity [to be heard] before he is deprived of any significant

constitutional deprivations “must be preceded by notice and an opportunity to be heard.” 345

C. The AHSAA Violated the Substantive Due Process Clause.