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. * ORAL ARGUMENT REQUESTED

ST. PAUL’S RESPONSE IN OPPOSITION TO MOTION TO DISMISS

 TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 1
I. ST. PAUL’S PLEADS A PLAUSIBLE EQUAL PROTECTION CLAIM. ........................... 2
A. The AHSAA is Not a “Democratic Body” and, Therefore, Not Entitled to the Deference
(“Judicial Restraint”) Traditionally Afforded Democratic Bodies Under Rational Basis
Review. ........................................................................................................................................ 2
B. The Animus Doctrine Requires Heightened Review of the CBF. ................................... 5
C. The CBF’s Classification Fails Even a Rational Basis Review. .................................... 10
“Selective Admission and Controlled Enrollment.” .............................................................. 13
Participation Percentages. ...................................................................................................... 14
Funding, Facilities, and Coaches. .......................................................................................... 15
Students Who “Inflate Numbers for Classification.” ............................................................ 15
D. The AHSAA’s Cited Authorities are Inapposite. ........................................................... 17
II. ST. PAUL’S PLEADS PLAUSIBLE 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. .......................................... 22
C. The AHSAA Violated the Substantive Due Process Clause. ......................................... 26
III. ST. PAUL’S STATES A PLAUSIBLE CLAIM UNDER THE ALABAMA
DECLARATORY JUDGMENT ACT. ........................................................................................ 29
A. The AHSAA is Not a “Voluntary” Association. ............................................................ 32
IV. ST. PAUL’S STATES VALID CLAIMS AGAINST THE STUDENT MULTIPLIER .. 35
CONCLUSION ............................................................................................................................. 41

i
 TABLE OF AUTHORITIES

Cases

AHSAA v. Rose, 446 So. 2d 1 (Ala. 1984) .............................................................................. 32, 33

AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531 (11th Cir. 1986) ......................................................... 37
Animal Leg. Def. Fund v. Otter, 44 F. Supp. 3d 1009 (D. Idaho 2014) ......................................... 6
Barnes v. Zaccari, 669 F.3d 1295 (11th Cir. 2012) .......................................................... 19, 20, 24
Bax v. Missouri State High Sch. Activities Ass’n, No. 02CV167612, slip op. (Boone Cty. Mo.
Cir. Ct. Jan. 28, 2003) ......................................................................................................... 17, 18
Bd. of Regents of U. of Okla. v. NCAA, 561 P.2d 499 (Okla. 1977) ............................................. 33
Bd. of Regents v. Roth, 408 U.S. 564 (1972) .................................................................... 18, 21, 24
Bhd.’s Relief & Compen. Fund v. Rafferty, 91 So. 3d 693 (Ala. Civ. App. 2011) ....................... 19
Bishop Grimes High Sch. v. New York State Public High School Ass’n, 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
Booth Fisheries Co. v. Indust. Comm’n of Wisc., 271 U.S. 208 (1926) ....................................... 40
Brady v. U.S., 397 U.S. 742 (1970) .............................................................................................. 39
Brentwood Acad. v. Tenn. Secondary School Athletic Ass’n, 531 U.S. 288 (2001) ....................... 1
Britell v. U.S., 150 F. Supp. 2d 211 (D. Mass. 2001) ................................................................... 18
Brookhart v. Janis, 384 U.S. 1 (1966) .................................................................................... 36, 39
Brooks v. B.C.B.S. of Fla., Inc., 116 F.3d 1364 (11th Cir. 1997) ................................................... 4
Bueno v. City of Donna, 714 F.2d 484 (5th Cir. 1983) ........................................................... 36, 39
Caesars Mass. v. Crosby, 778 F.3d 327 (1st Cir. 2015) ............................................................... 21
Camp. v. Bryant, 64 F. Supp. 3d 906 (S.D. Miss. 2014) ............................................................ 5, 6
Carcamo v. Miami-Dade Cty., 375 F.3d 1104 (11th Cir. 2004) ................................................... 23
Carey v. Piphus, 435 U.S. 247 (1978) .......................................................................................... 26
Carney v. Okla., 875 F.3d 1347 (10th Cir. 2017) ................................................................. 5, 6, 10
Chavers v. Nat’l Sec., 405 So. 2d 1 (Ala. 1981) ..................................................................... 20, 29
Christ. Ben. Burial Ass’n v. Huff, 1 So. 2d 390 (Ala. 1941) ......................................................... 37
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ................................. 3, 5, 8, 11, 13
Cleveland v. Loudermill, 470 U.S. 532 (1985) ............................................................................. 25
Courington v. Birm. Trust Nat’l Bank, 347 So. 2d 377 (Ala. 1977) ............................................. 38
Craighead v. Austal USA, 2017 WL 6559917 (S.D. Ala. Dec. 21, 2017) ...................................... 2
Cty. of Sacramento v. Lewis, 523 U.S. 833 (1998) ................................................................. 27, 29
Desoto CAB Co., Inc. v. Picker, 228 F. Supp. 3d 950 (N.D. Cal. 2017) ........................................ 6
Dibbs v. Hillsb. Cty., 67 F. Supp. 3d 1340 (M.D. Fla. 2014) ......................................................... 5
Dobson v. Dunlap, 576 F. Supp. 2d 181 (D. Me. 2008) ............................................................... 38
Dunn v. Fort Bend Cty., 17 F.2d 329 (S.D. Tex. 1926) ................................................................ 38
Ensley Branch v. Seibels, 31 F.3d 1548 (11th Cir. 1994) ............................................................... 2

ii
Ex parte AHSAA, 229 So. 3d 1100 (Ala. 2017) ...................................................................... 32, 33
F.C.C. v. Beach Commun., Inc., 508 U.S. 307 (1993).................................................................... 3
Fetner v. City of Roanoke, 813 F.2d 1183 (11th Cir. 1987) ................................................... 23, 24
Fuentes v. Shevin, 407 U.S. 67 (1972) .................................................................................... 25, 26
Gay v. Tompkins, 385 So. 2d 973 (1980) ...................................................................................... 37
Gilbert v. Homar, 520 U.S. 924 (1997) ........................................................................................ 22
Grayden v. Rhodes, 345 F.3d 1225 (11th Cir. 2003) .................................................................... 22
Greyhound Lines, Inc. v. Cobb Cty., 523 F. Supp. 422 (N.D. Ga. 1981) ..................................... 33
Haddler v. Walker Cty., Ala., 2014 WL 2465322 (N.D. Ala. May 30, 2014) .............................. 24
Holt v. Arkansas Activities Ass’n, No. CV-2006-4194, slip op. (Pulaski Cty. Ark. Cir. Ct. Aug. 3,
2006).................................................................................................................................... 17, 18
Hudson v. Palmer, 468 U.S 517 (1984) ........................................................................................ 23
KTK Min. of Va., LLC v. City of Selma, Ala., 984 F. Supp. 2d 1209 (S.D. Ala. 2013) .......... 23, 24
Kubiszyn v. AHSAA, 374 So. 2d 256 (Ala. 1979) ............................................................. 32, 33, 34
Lee v. Macon Cty. Bd. of Educ., 283 F. Supp. 194 (M.D. Ala. 1968) ............................................ 1
Lee v. Monroe Cty. Heritage Museum, Inc., 998 F. Supp. 2d 1318 (S.D. Ala. 2014) ............ 32, 38
Loc. Union No. 57 v. Boyd, 16 So. 2d 705 (Ala. 1944) .............................................. 19, 21, 30, 34
Marshall v. Bentley, 13 F. Supp. 3d 1188 (M.D. Ala. 2014) ........................................ 2, 5, 7, 8, 10
Mathews v. Eldridge, 242 U.S. 319 (1976)................................................................................... 24
Mazer v. Jackson Ins. Agency, 340 So. 2d 770 (Ala. 1976) ......................................................... 37
McCall v. Montg. Hous. Auth., 809 F. Supp. 2d 1314 (M.D. Ala. 2011) ..................................... 26
McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) ........................................................................ 25
Multer v. Multer, 195 So. 2d 105 (Ala. 1966) .............................................................................. 36
Nat’l Ass’n of Boards of Pharm. v. Bd. of Regents of the U. System of Georgia, 633 F.3d 1297
(11th Cir. 2011) ................................................................................................................... 23, 24
Palmore v. Sidoti, 466 U.S. 429 (1984) .......................................................................................... 8
Patterson v. Coughlin, 761 F.2d 886 (2d Cir. 1985) .................................................................... 25
Perry v. Sindermann, 408 U.S. 593 (1972)....................................................................... 19, 20, 22
Pierce Oil Corp. v. Phoenix Refining Co., 259 U.S. 125 (1922) .................................................. 39
Quiller v. Barclays Am./Credit, Inc., 727 F.2d 1067 (11th Cir. 1984), on reh’g, 764 F.2d 1400
(11th Cir. 1985) ................................................................................................................... 36, 38
Romer v. Evans, 517 U.S. 620 (1996)................................................................................. 3, 11, 17
Sanders v. Dooly Cty., 245 F.3d 1289 (11th Cir. 2001) ............................................................... 37
Scott v. Kilpatrick, 237 So. 2d 652 (Ala. 1970) ................................................................ 32, 33, 34
Scott v. Okla. Secondary Sch. Activities Ass’n, 313 P.3d 891 (Okla. 2013) ................................. 32
Senn v. State, 189 So. 2d 870 (Ala. Ct. App. 1966) ...................................................................... 39
Stephens v. Dep’t of H.H.S., 901 F.2d 1571 (11th Cir. 1990) ...................................................... 11
Sullivan v. Southern Elec., 667 So. 2d 722 (Ala. 1995) ............................................................... 20
Sweatt v. Painter, 339 U.S. 629 (1950) .......................................................................................... 8
U.S. v. Barnette, 129 F.3d 1179 (11th Cir. 1997) ......................................................................... 36

iii
U.S. v. James Daniel, 510 U.S. 43 (1993) .................................................................................... 22
U.S. v. Moreno, 413 U.S. 528 (1973) ................................................................................... 7, 8, 17
U.S. v. Olano, 507 U.S. 725 (1993) .............................................................................................. 38
U.S. v. Windsor, 133 S. Ct. 2675 (2013) ................................................................................. 5, 6, 7
Ullmo v. Gilmour Acad., 273 F.3d 671 (6th Cir. 2001) ................................................................ 30
Vance v. Bradley, 440 U.S. 93 (1979) .................................................................................... 3, 4, 5
Waddell v. Hendry Cty., 329 F.3d 1300 (11th Cir. 2003) ................................................. 27, 28, 29
Waldman v. Conway, 871 F.3d 1283 (11th Cir. 2017) ................................................................. 27
Wells v. Mobile Cty., 387 So. 2d 140 (Ala. 1980) ........................................................................ 30
Yakus v. U.S., 321 U.S. 414 (1944)............................................................................................... 39
Zinermon v. Burch, 494 U.S. 113 (1990)................................................................................ 23, 24
Statutes

Ala. Code §§ 6-6-222, 224 (1975) ................................................................................................ 29

Other Authorities

BLACK’S LAW DICTIONARY (10th ed. 2014) ................................................................................. 35

S. Pollvogt, Unconstitutional Animus, 81 FORD. L. REV. 887 (2012)............................................. 6
Treatises

7 C.J.S. Associations § 14 ............................................................................................................. 19

7 C.J.S. Associations § 16 ............................................................................................................. 20
82 C.J.S. Statutes § 498 ................................................................................................................ 20

iv
 Plaintiff St. Paul’s Episcopal School (“St. Paul’s”) respectfully submits this Response in

Opposition to the Motion to Dismiss filed by Defendants Alabama High School Athletic

Association (“AHSAA”) and Steven P. Savarese (Doc. 33).1

INTRODUCTION

While the AHSAA was founded in 1921 as a private association, it has since evolved into

a full-fledged state actor (a fact the AHSAA does not deny) due to its broad authority over high

school athletics and pervasive entwinement with state-related functions and activities. (Doc. 34,

p. 12; Doc. 1, ¶ 28); Lee v. Macon Cty. Bd. of Educ., 283 F. Supp. 194 (M.D. Ala. 1968); see

Brentwood Acad. v. Tenn. Secondary School Athletic Ass’n, 531 U.S. 288 (2001). Indeed, the

AHSAA administers and regulates secondary school athletics and establishes rules of eligibility

across the State of Alabama, touching 780 high schools and middle schools and more than 150,000

student-athletes. (Doc. 24-2, ¶ 2). Yet, the AHSAA does not resemble the typical “state actor.”

While most state bodies are subject to levels of democratic oversight and accountability, the

AHSAA vests its principal rulemaking authority in a fundamentally autocratic body. This body,

the Central Board of Control, selects its own membership, imposes no term limits on its members,

and no rule it adopts (no matter how punitive, unsafe, or discriminatory) is subject to any procedure

of appeal or review. Now, through its Motion to Dismiss, the AHSAA asks the Court to extend

this dynamic to the U.S. Constitution, claiming its Board of Control is entitled to a veil of deference

historically afforded democratic institutions under a rational basis review.

The issues in this case go beyond whether the CBF’s classification of private schools is

1
Defendants’ supporting brief relies on matters asserted in St. Paul’s Reply Brief in Support of
Motion for Preliminary Injunction. Defendants argue that these materials are to be considered by
the Court under the present Motion. (Doc. 33, p. 19 n.5). In that spirit, St. Paul’s instant brief
cites to portions of its prior Reply Brief where necessary to provide a complete response to the
AHSAA’s arguments. In addition, St. Paul’s incorporates by reference its Complaint, all briefs,
affidavits, exhibits, and other supporting materials previously filed by St. Paul’s in this case.
1
“rationally related to a legitimate interest” (it is not), or whether the rule is “arbitrary” (it is). This

case also presents the novel issue of whether a breed of state actor devoid of democratic oversight

and accountability to those it purports to govern should be afforded any judicial deference at all.

See, infra, pp. 2–5; cf. Ensley Branch v. Seibels, 31 F.3d 1548, 1574 (11th Cir. 1994) (“The

Constitution was not designed to ease the lot of public officials, and it is not the role of federal

courts to insulate public officials from the people. Instead, woven throughout the Constitution is

a commitment to democratic self-rule, making public officials answerable to the people.”).

Similarly, this case will also show that the AHSAA is not a truly “voluntary association” and is

not, therefore, entitled to the carte blanche authority it claims. See, infra, pp. 32–34.

In this Response, St. Paul’s will show that the AHSAA’s disparate treatment of private

schools through the recently-adopted Competitive Balance Factor (“CBF”) is not entitled to the

traditional standard of rational basis review. But, as the Court knows, even “[t]he rational basis

standard . . . cannot defeat the plaintiff’s benefit of the broad Rule 12(b)(6) standard.” Marshall

v. Bentley, 13 F. Supp. 3d 1188, 1213 n.22 (M.D. Ala. 2014). The parties need not be reminded

that, at this stage, the Court “accepts as true all well-pleaded factual allegations in the Complaint,

and draws all reasonable inferences in the plaintiff’s favor.” Craighead v. Austal USA, 2017 WL

6559917, at *2 (S.D. Ala. Dec. 21, 2017). St. Paul’s has indeed submitted a well-pled Complaint

that alleges detailed facts supporting plausible claims of the AHSAA’s violations of the Fourteenth

Amendment and its own contractual obligations to private school members.

I. ST. PAUL’S PLEADS A PLAUSIBLE EQUAL PROTECTION CLAIM.

A. The AHSAA is Not a “Democratic Body” and, Therefore, Not Entitled to the
Deference (“Judicial Restraint”) Traditionally Afforded Democratic Bodies
Under Rational Basis Review.

The AHSAA seeks dismissal of St. Paul’s Equal Protection claim under a theory that the

CBF’s classification of private schools is “presumed constitutional,” and that the Court cannot

2
question the classification’s wisdom under the deference traditionally afforded by rational basis

review. (Doc. 33, p. 14). The AHSAA’s Board of Control, however, is inherently undemocratic

such that extending this deference is repugnant to the very policy of rational basis review.

The Supreme Court instructs that the “rational basis” standard of review is nothing more

than “a paradigm of judicial restraint.” F.C.C. v. Beach Commun., Inc., 508 U.S. 307, 314 (1993).

The Equal Protection Clause “is essentially a direction that all persons similarly situated should be

treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). However, this

promise “must coexist with the practical necessity that most legislation classifies for one purpose

or another, with resulting disadvantage to various groups or persons.” Romer v. Evans, 517 U.S.

620, 631 (1996). The Court, therefore, “attempt[s] to reconcile the principle with the reality by

stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold

the legislative classification so long as it bears a rational relation to some legitimate end.” Id.

Precedent reveals that the democratic process is the bedrock of this “paradigm of judicial

restraint.” Specifically, the Court has wisely subjected suspect classifications to “strict scrutiny”

“because such discrimination is unlikely to be soon rectified by legislative means,” and is seldom

relevant to any legitimate state interest. Cleburne, 473 U.S. at 440. On the other hand, where a

non-suspect classification is at stake, “[t]he Constitution presumes that, absent some reason to

infer antipathy, even improvident decisions will eventually be rectified by the democratic process

and that judicial intervention is generally unwarranted no matter how unwisely we may think a

political branch has acted.” Vance v. Bradley, 440 U.S. 93, 97 (1979). The Equal Protection

framework thus reflects the Court’s assumption that a democratic process will rectify improvident

law-making activities. Courts either presume democracy will not rectify an underlying wrong (in

the case of suspect classifications), or that it ultimately will (in the case of non-suspect

3
classification). In either case, however, the presence of a democratic body is absolutely

fundamental to the degree of deference afforded the state actor.

The deference afforded democratic bodies under the rational basis framework does not

extend here because “[r]ules adopted by the Board of Control are not subject to any democratic

process.” (Doc. 1, ¶ 25 n.17). The AHSAA Constitution does not allow member schools to elect

(or even nominate) representatives to the Board of Control; rather, it states that the Board of

Control “shall consist of [] one member from each District,” all of whom are “designated by the

said Board” itself. (Doc. 17-5, p. 20 [art. IV(d)]).2 Once a member is “designated” to the Board,

the AHSAA Constitution does not impose any term limit, and there is no procedure for member

schools to unseat an imprudent Board member or (worse) a misguided group of Board members.

What is more, the AHSAA is not subject to any oversight or review by any democratically

accountable legislative, administrative, or regulatory body of the State of Alabama. Further,

while there is a procedure to appeal a decision by the Executive Director (Mr. Savarese), no such

procedure exists for schools to appeal any rule adopted by the Board of Control, like the CBF.3

Simply put, there is no democratic oversight of the Board of Control such that even its most

punitive, discriminatory, dangerous, or “improvident decisions will eventually be rectified by [a]

democratic process,” and such that it is entitled to the deference traditionally afforded state actors.

Vance, 440 U.S. at 97. The judiciary (this Court) is the only true line of defense for private schools

2
The AHSAA Handbook (Doc. 17-5) is cited extensively throughout the Complaint and may be
considered by the Court. Brooks v. B.C.B.S. of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997).
3
The AHSAA Handbook does permit an appeal from “[a]n official ruling made by the Executive
Director [Mr. Savarese],” such as a ruling sanctioning a school for violating a bylaw. (Doc. 17-5,
p. 24). However, there is no process to appeal a rule adopted by the Board of Control; indeed, the
Handbook states that the Board “shall have full authority to adopt rules and regulations [including]
. . . . the power to classify member schools . . . . [and that] [t]he interpretation and application of
the rules and procedures for all AHSAA championship programs are vested in the . . . Board of
Control . . . and cannot be appealed.” (Id., pp. 21–22, 46).
4
(a minority group) to rectify any harmful, unsafe, or discriminatory decision of the Board of

Control. Accordingly, St. Paul’s submits that the Board of Control’s classification of schools

under the CBF should be reviewed with heightened scrutiny because it “is unlikely to be soon

rectified by legislative means,” if at all. Cleburne, 473 U.S. at 440. This standard requires that

the classification be “suitably tailored to serve a compelling interest.” Id. Here, the CBF’s

classification cannot pass this standard. The evidence, respectfully, will demonstrate that the

AHSAA acted to impose “arbitrary, discriminatory, and dangerous measures against private

schools and private school students” out of a “bare desire to harm and disadvantage a politically

unpopular group.” (Doc. 1, ¶¶ 8, 47–73, 137–39; Doc. 17-2).4

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

Even where state action is subject to real democratic oversight, the Supreme Court instructs

that rational basis presumes improvident decisions “will eventually be rectified” through the

democratic process and that judicial restraint should be exercised “absent some reason to infer

antipathy.” Vance, 440 U.S. at 97. Accordingly, rational basis review has no place for state action

in which there is “reason to infer antipathy.” Id. In these cases, courts subject laws motivated by

animus to heightened review under the Animus Doctrine. E.g., Carney v. Okla., 875 F.3d 1347,

1353 (10th Cir. 2017); U.S. v. Windsor, 133 S. Ct. 2675, 2693 (2013) (“[I]n determining whether

a law is motivated by an improper animus or purpose, discriminations of an unusual character []

require careful consideration.”); Marshall v. Bentley, 13 F. Supp. 3d 1188, 1212 (M.D. Ala. 2014)

(suggestion of animus requires “more careful consideration or scrutiny”).5

4
In fact, one AHSAA task force member actually admitted 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. 30, p. 12).
5
E.g., Camp. v. Bryant, 64 F. Supp. 3d 906, 947–49 (S.D. Miss. 2014) (same); Dibbs v. Hillsb.
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”).
5
 In Carney, the Tenth Circuit recently described the contours of the Doctrine, explaining

that “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.” 875 F.3d at 1353; accord Desoto CAB Co., Inc. v. Picker, 228 F. Supp. 3d

950, 957 (N.D. Cal. 2017) (“To be sure, the precise level of review under the rational basis test is

subject to some variation. In some instances, the government’s actual motivation and justification

(not just any conceivable basis) may be explored under ‘a more searching form of rational basis

review.’”); 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.”). Under this Doctrine, “once animus is

detected, the inquiry is over: the law is unconstitutional.” Carney, 875 F.3d at 1354.

St. Paul’s pled unconstitutional animus by alleging (and, further, will demonstrate) that

“[a]ny ostensible purpose for the [AHSAA’s] consideration and passage of the CBF was . . . a

mere pretext for the [AHSAA’s] actual motivation: a bare desire to [] disadvantage private schools

(a politically unpopular and disfavored group), to appease certain public school officials and

lawmakers, and thereby protect the [AHSAA’s] authority over high school athletics.” (Doc. 1, ¶

138). These allegations, taken as true, state a plausible Equal Protection claim. Animal Leg. Def.

Fund v. Otter, 44 F. Supp. 3d 1009, 1026 (D. Idaho 2014) (“By alleging animus, it would seem

that ALDF has stated a plausible Equal Protection claim.”). Moreover, animus will be established

through evidence concerning the “design, purpose, and effect” of the CBF. Bryant, 64 F. Supp.

3d at 948 (quoting Windsor, 133 S. Ct. at 2689). As recognized in Marshall, animus exists where

legislation “involve[s] explicit provisions directed toward very specific classes of people, thereby

6
singling out clearly identifiable groups [] for differential treatment.” 13 F. Supp. 3d at 1212.6

Purpose. Here, animus will be demonstrated 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.7 (Doc. 1, ¶¶ 47–55). The evidence will show that in 2016

and 2017, Alabama lawmakers sponsored bills to segregate public and private schools in playoff

competition. (Id., ¶¶ 48–49). It is undisputed that the legislature took aim at private schools

because, the lawmakers argued, private schools “recruit” student-athletes and public schools do

not. (Id., ¶ 51). Evidence will demonstrate that the AHSAA knew the lawmakers were wrong.8

(Id.) Although Mr. Savarese has admitted that recruiting is “not a public or private issue,” and

that “we [the AHSAA] have more instances of public schools recruiting than private schools

recruiting,” he assured the lawmakers that the AHSAA “know[s] there is a problem” and that

action would be taken “to find a solution.” (Id., ¶¶ 50–51). Evidence will show that Savarese and

the AHSAA yielded simply to buy the lawmakers’ deference. (Id., ¶ 50).

That the CBF was adopted solely in response to biased lawmakers is apparent, moreover,

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

system [] 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.” (Id., ¶ 107). St. Paul’s

6
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 does just that. (Doc. 1, ¶ 8).
7
It is also evident that members of the Board of Control acted on animus: e.g., Board member
Luke Hallmark’s statement: “it’s time for someone else to win.” (Id., ¶ 52 n.49). See also verified
allegations regarding antipathy at id., ¶ 72.
8
Moreover, the AHSAA focuses extensive resources and rules to combat recruiting. (Id., ¶ 33).
7
submits that evidence of lawmakers’ demands in ‘16 and ‘17 that action be taken against private

schools was the only factor that changed the AHSAA’s analysis of a “success test” between ‘14

(when it “wasn’t right”) and ‘17 (when it “was right” but only for private schools).

Indeed, the evidence will show that the AHSAA’s “true goal was to appease partisan voices

of animus and prejudice towards private schools and keep the legislature at bay.” (Doc. 1, ¶ 52).

This, the Constitution does not permit. 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.”); Cleburne, 473 U.S. at 448 (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 will be further demonstrated by 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 and penalize those schools in athletic competition. (Id.,

¶¶ 8, 54); 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.”). Indeed,

evidence will show that if the CBF was truly aimed at offsetting the purported advantages of

“selective admission” or “controlling enrollment,” it would apply to all schools with such policies,

including the majority of the AHSAA’s public school members that participate in open enrollment.

(Doc. 1, ¶¶ 83–86). The CBF’s differential treatment of private schools is, in fact, 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.”).

Effect. Animus will also be 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, and a Success Test, which other states apply

8
to both public and private schools) to force certain “successful” private schools to compete two

classes above their true enrollment. (Doc. 1, ¶ 67). Practically, this requires private schools to

compete against schools two to three (and, in at least one case, ten) times their sizes. (Id., ¶¶ 6,

66, 107). Evidence will show that the new CBF renders a decades-old prudent system of athletic

classification based on enrollment essentially meaningless for many private schools. Most

significantly, this arbitrary measure “will place private school students playing contact [] and

collision sports [] at a heightened risk of injury, particularly traumatic brain injury (‘concussions’)

and cumulative mild traumatic brain injury (‘subconcussions’).” (Id., ¶ 109). Contrary to the

AHSAA’s view, these risk-implications do not “go to the wisdom” of the CBF (Doc. 33, p. 19),

but evidence the underlying animus. What, other than animus and indifference, could explain a

rule that, by design, exposes student-athletes to a greater risk of injury?

Notwithstanding these allegations, the AHSAA concludes it is “doubtful” that private

schools are politically unpopular. (Id., p. 18). The AHSAA’s own opinion on this point, however,

is irrelevant at this stage. St. Paul’s clearly alleges that the CBF “was motivated by a bare desire

to harm and disadvantage a politically unpopular group.” (Doc. 1, ¶ 8).9 And substantial evidence

of the antipathy within the AHSAA is already in the record. (Docs. 17-3–4, 7, 8, 15, 16).

The AHSAA distorts the true narrative of recent events (and the facts) by urging that 5

private school representatives of the 15-member task force “unanimously recommended the CBF,”

9
Regardless, the AHSAA’s conclusion is belied by the recent political attacks aimed by lawmakers
against private schools (Doc. 1, ¶¶ 48–51), the recent pressure by some task force members to
“expel or segregate private schools” from the AHSAA (id., ¶ 53), and the AHSAA offering private
schools just 1 out of 15 seats on the Board of Control and 2 out of 32 seats on the Legislative
Council (id., ¶ 28), being the first association in the nation to subject private schools to a student
multiplier (id., ¶ 2), yielding to lawmakers’ pressures to disadvantage private schools by adopting
the CBF (id., ¶ 52), being the only association in the nation to apply a success test against only
private schools (id., ¶ 67), and the only association in the nation to stack a multiplier and success
test against any class of schools in all sports (id.).
9
and that the Board of Control’s decision to adopt the CBF included a vote from a single private

school representative. (Doc. 33, p. 18). In reality, theses representatives “had little to no choice

but to support the recommendation, knowing that the alternatives were far worse.”10 (Doc. 1, ¶

55). One private school task force member actually 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. 30, p. 12). Moreover,

on June 20, 2018, twenty-two private schools publicly announced, among other things, that “all

of us disagree with the decision to combine the competitive balance system with the

multiplier . . . .” (See June 20, 2018 Letter, Exhibit A). Two of those schools were represented

on the 15-member task force: UMS-Wright and Montgomery Catholic. (Id.)

As evidenced by its design, purpose, and effect, St. Paul’s will demonstrate that the CBF’s

disparate treatment of private schools is a “peculiar effort to discriminate” subject to heightened

review. Marshall, 13 F. Supp. 3d at 1213. Further, because the CBF’s classification was motivated

by animus, “[it] is unconstitutional.” Carney, 875 F.3d at 1354. Accordingly, St. Paul’s states a

plausible Equal Protection claim under the Animus Doctrine.

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

Even under a rational basis review, the CBF’s classification of private schools cannot pass

constitutional muster. While the AHSAA hangs its hat on the presumption of constitutionality it

contends it is afforded under rational basis, “[t]he rational basis standard . . . cannot defeat the

plaintiff’s benefit of the broad Rule 12(b)(6) standard.” Marshall, 13 F. Supp. 3d at 1213 n.23

(quotations omitted). Here, “[t]he question is whether it is rational to treat [private schools]

10
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?
10
differently” than public schools if the true goal is “promoting competitive balance,” as the AHSAA

claims. (Doc. 33, p. 14); Cleburne, 473 U.S at 449. As discussed below, St. Paul’s allegations and

“all reasonable inferences therefrom” establish that this disparate treatment is not rationally related

to any legitimate state interest. Stephens v. Dep’t of H.H.S., 901 F.2d 1571, 1573 (11th Cir. 1990).

Even assuming “competitive balance” were a legitimate state interest here, St. Paul’s will

show that these measures violate the Equal Protection Clause by demonstrating: (1) that the

purported “private school advantages” are present in public schools (i.e., they are not “private

school” advantages), and (2) that the identified traits are not “competitive advantages.” If either

case is true, the classification fails rational basis because there is clearly no “relation between the

classification [public v. private] and the purpose it serves.” Romer, 517 U.S. at 633.

Fundamentally, the CBF and Student Multiplier fail rational basis because, as the AHSAA

argues, the Complaint “alleg[es] that private schools [as a class] do not actually possess

competitive [athletic] advantages over public schools.” (Doc. 33, p. 15). Taking these allegations

as true, there is no “relation between the classification and the purpose it serves” if, as the AHSAA

claims, the purpose is to “offset certain competitive advantages possessed by private schools.”

(Id.); Romer, 517 U.S. at 633. This alone establishes a plausible Equal Protection claim.

The AHSAA responds that this analysis does not satisfy St. Paul’s burden of “‘negat[ing]

every conceivable basis that might support’” the challenged classification. (Id.) But this is a non

sequitur (especially at this stage of proceedings). The CBF, the AHSAA claims, seeks to offset

the “competitive advantages” supposedly unique to private schools (as a class). Yet, St. Paul’s

alleges, and the evidence will show, that private schools (as a class) “do not actually possess

competitive advantages over public schools” (as a class). (Id.) The evidence will show that there

is no “advantage” of any private school that does not also exist in a majority of public schools,

11
such that there are no “conceivable bases” to support a rule that targets the traits and success of a

few private schools while ignoring the same traits and the same (and often greater) success of a

myriad of similarly situated public schools. Further, evidence will demonstrate that certain so-

called “advantages” of private (and a majority of public) schools do not, in and of themselves,

determine consistent athletic success.

Notably, the AHSAA previously identified private schools’ “disproportionate success” by

comparing their total titles relative to their 13.6% proportion of membership across all 7 classes.

(Doc. 25, p. 8). “However, looking only at the overall number of private schools in the [AHSAA]

is misleading in this context.” (Doc. 1, ¶ 104). “In reality, private schools make up a far greater

percentage of the schools participating in many of the[] sports” in the lower classes. (Id.) “One

would expect, therefore, that private schools would indeed be achieving more playoff experience

in those sports.” (Id., ¶ 105). The AHSAA’s statistical sleight of hand inflates private schools’

appearance of success by concealing that many private school titles were obtained in sports and

classes where private schools comprise far more than 13.6% of participants. Indeed, its “view that

private schools are ‘winning too many championships’ is [] devoid of factual support. Public

schools, not private schools, have in fact dominated many sports, including a majority of the Big

5 sports in Alabama high school athletics: basketball, baseball, volleyball, softball, and football.”

(Id., ¶ 102). “In fact, if the CBF applied to all schools, [at least]11 121 public school teams [not

just 70] would have exceeded the Success Test threshold.” (Id., ¶ 107). This fact does not go to

the AHSAA’s “wisdom” in excluding public schools from the CBF; rather, it repudiates the

11
At the time these calculations were made, “playoff data was missing from the [AHSAA’s]
website for a number of sports (volleyball, baseball, softball, wrestling, golf [], soccer [],
swimming and diving [], and basketball []. Accordingly, more public school teams likely
exceeded the CBF Success Test point threshold in these sports than we were able to calculate
with the limited publicly available data.” (Doc. 1-8, p. 8).
12
AHSAA’s notion that a school’s ability or inability to succeed is a mere function of its “private”

or “public” character. As the AHSAA knows, any imbalance in educational performance of

any sort (academic, athletic, the arts) is chiefly a function of socioeconomics [“‘the haves and

have nots,’ the urban/rural divide, and the proliferation of ‘city school districts’” (Doc. 1, ¶

5)], which affects all classes of schools, public and private alike. The AHSAA’s short-sighted

decision to distinguish private from public schools on this basis of “success” is, accordingly, “so

attenuated as to render the distinction arbitrary or irrational.” Cleburne, 473 U.S at 446.12

Nonetheless, the AHSAA articulates several “conceivable bases” that, it contends, support

the classification. This argument is flawed because there is no practical distinction between public

and private schools with respect to the identified “advantages” of private schools. St. Paul’s

addresses each claim articulated in the AHSAA’s Motion below.13

“Selective Admission and Controlled Enrollment.” The AHSAA cites “selective

admission and controlling enrollment” as a competitive advantage of private schools. However,

the notion that public schools cannot control admissions or selectively enroll students (referred to

in the Complaint as “open enrollment”) “is a fallacy.” (Id., ¶ 5). Evidence will show that “[p]ublic

schools regularly engage in open and selective enrollment of students beyond their geographical

12
Moreover, where is it written, and where is it deemed rational and acceptable, for a state actor
to espouse that one’s status must determine, and limit, one’s athletic success? How many playoff
appearances will the AHSAA allow the Catholic schools? How many titles will the AHSAA
permit the large city public schools? The rural county public schools? The five Birmingham-area
public schools that have won 51% of all 6A and 7A titles, despite comprising only 5% of those
classes? (Doc. 1, ¶ 98). How can it be rational to believe that a class (just one class) of schools
should never win a percentage of titles that exceeds its composition in the association?
13
The AHSAA’s Motion identifies a list of “advantages” that omits certain “advantages” the
AHSAA previously articulated in its Response to Motion for Preliminary Injunction. (Doc. 25).
To the extent the Court considers any “advantages” not articulated in the present Motion, St. Paul’s
incorporates herein by reference the portion of its Reply Brief in Support of Motion for Preliminary
Injunction rebutting these “conceivable” bases for the CBF (Doc. 30, pp. 14–17).
13
boundaries. In fact, [and as a matter of law] open enrollment is now officially endorsed by the

State of Alabama.” (Doc. 1, ¶ 83). “Alabama actively promotes (indeed, subsidizes) the open and

selective enrollment of public schools through the Alabama Accountability Act of 2013.” (Id., ¶

87). St. Paul’s submits that the AHSAA’s effort to penalize conduct that “is now the public policy

of Alabama” cannot be rationally related to any legitimate state interest. (Id.)14

Regardless, “[m]any public ‘city schools’ openly market, advertise, and selectively enroll

non-resident students . . . .” (Id., ¶ 85). This is fact. And nearly every public city school district

(89% of the districts with publicly available information) has a policy promoting selective

enrollment of non-resident students in some form. (Id., ¶ 84). This, too, is fact. This common

practice now allows a majority of public schools to decide how to control their enrollment in the

exact same manner the AHSAA urges private schools can. Moreover, St. Paul’s alleges that

“[t]here is no evidence that open enrollment is causally related to athletic success among any class

of schools in the Association . . . .” (Id., ¶ 96).15

Participation Percentages. The AHSAA claims the Multiplier and CBF’s classification

is supported by private schools’ “higher percentage of student participation in sports.” (Doc. 33,

p. 16). St. Paul’s Complaint addresses this consideration as a “conceivable basis” for treating

private schools differently: “[T]here was (and is) no evidence that a school’s rate of athletic

participation is related to a school’s success in athletic competition.” (Doc. 1, ¶ 45). Moreover,

14
One state actor (the legislature) has created a public policy that funds the movement of students
from one school system to another, and another state actor (the AHSAA) penalizes private schools
for that action, while turning a blind eye to the same action in public schools.
15
This is further demonstrated by the fact that 5 city public schools that do not engage in selective
or controlled enrollment (i.e., do not enroll students beyond their school zones) have completely
dominated roughly 90 other schools in 6A and 7A. (Doc. 1, ¶ 98). If selective and controlled
enrollment were indeed “advantages,” then schools (private and public) that do enroll beyond their
attendance zones would be winning the most titles. “This simply is not the case.” (Id., ¶ 97).
14
evidence will show that the AHSAA has no legitimate interest in offsetting “student participation”

rates when “student participation in high school athletics is a specific goal and highly encouraged

by both the [AHSAA] and the National Federation.” (Doc. 1, ¶¶ 31 n.29, 45). St. Paul’s submits

that the AHSAA’s effort to penalize student participation in athletics cannot be rationally related

to any legitimate state interest when such a measure contravenes its own institutional policy. The

evidence, therefore, will negate this factor as a conceivable basis to justify the CBF.

Funding, Facilities, and Coaches. The AHSAA suggests private schools have

“advantages in funding,” “better facilities,” and “more coaches.” (Doc. 33, p. 16). Some private

schools may have greater funding than some public schools, but evidence will show that many

public schools likewise have far greater budgets and better facilities than private schools. (Doc.

30, p. 20). Indeed, evidence will establish the tremendous resources and facilities at many city

(and other) public school across the state, and that the examples cited in St. Paul’s Reply in Support

of Motion for Preliminary Injunction (id.) were not just outliers. As for St. Paul’s, the record

already establishes that, in contrast to public schools in its own region, it has not had a major

addition to its campus in roughly 25 years (id.), and that it only has 23 coaches at the high school

level, well below the average coaching staff of Mobile-area 5A–7A high schools, and that its entire

operation is subject to budget restraints. (Id., pp. 20–21, n.14). The notion that all private schools

have greater funding, facilities, and more coaches than all public schools is demonstrably false,

cannot support the present classification, and will be negated as a rational justification for the CBF.

Students Who “Inflate Numbers for Classification.” The AHSAA also suggests the

CBF’s disparate treatment of private schools is supported by their having “fewer students who are

ineligible or otherwise unable to compete but who inflate numbers for classification.” (Doc. 33,

p. 16). Here, the AHSAA relies on a prior argument that its own rule adopted in 2016 requiring

15
all 9th grade retained students to be calculated in enrollment numbers (a rule applying to both

public and private schools) has created a “competitive advantage” for private schools. (Doc. 25,

p. 9). This argument is misleading at best; it is inconceivable that the AHSAA relied on this fact

to identify a “competitive advantage.” The AHSAA previously said it presented the task force

with 2011–2016 data reflecting playoff success at a September 2016 meeting. (Doc. 24-4, ¶ 5).

However, the 9th grade retention rule was not implemented until the 2016–2018 classification

period, which would have begun in August 2016 (after the championship data was gathered for

the task force). (Doc. 24-2, ¶ 38). Here again, the AHSAA cannot explain how any “competitive

advantage” of private schools from this retention rule was reflected in data older than the rule

itself. Regardless, the retention rule applies to both public and private schools. It is incredulous

that a rule equally burdening private schools gives them any advantage. The evidence will

absolutely negate this factor as a rational justification for the CBF.

The Student Multiplier. Finally, the strongest evidence against the CBF’s

constitutionality is the Student Multiplier component itself. The AHSAA adopted the 1999

Multiplier rule specifically to “offset” many of the same so-called “private school competitive

advantages” articulated today: selective enrollment, controlled enrollment, and participation rates.

(Doc. 30, p. 21). The AHSAA argues it adopted the Multiplier in 1999 to offset these advantages

by classifying private schools “higher than a public school with the same enrollment,” so the

“private schools will be matched against public schools with higher enrollment.” (Doc. 33, pp.

15–16). This fact alone undermines any notion that the CBF was intended to offset any of these

same “advantages.” In Moreno, the Court opined that the existence of other provisions “wholly

independent” of the challenged law “aimed specifically at the problems” the legislature argued the

law was designed to address “necessarily casts considerable doubt upon the proposition that [the

16
challenged law] could rationally have been intended to prevent those very same abuses.” 413 U.S.

at 536–37.16 Here, like in Moreno, the AHSAA’s prior use of the Student Multiplier to offset the

same purported advantages identified here with respect to the CBF “casts considerable doubt upon

the proposition” that the CBF is rationally intended to offset those same “advantages.” Id. Indeed,

evidence will show that there are no public v. private school distinctions that make it rational to

treat private schools differently as the CBF does. The evidence will show that the AHSAA’s

treatment of private schools is a classification “undertaken for its own sake, something the Equal

Protection Clause does not permit.” Romer, 517 U.S. at 635.

D. The AHSAA’s Cited Authorities are Inapposite.

The AHSAA cites several unpublished opinions from other states rejecting equal protection

challenges to competitive-balance rules. (Doc. 33, pp. 17–18). However, none of these cases

involved claims implicating the Animus Doctrine or policies adopted by an inherently

undemocratic body; 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.17 The rationality of the present classification must be assessed on the characteristics of

16
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.
17
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
17
public and private schools in Alabama. And the evidence will demonstrate, moreover, that it is

not rational to treat Alabama’s public and private schools differently.

The AHSAA principally relies on Bishop Grimes (Doc. 33, p. 17); however, this opinion

offers it no support. 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.) 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 id., p. 9). Bishop Grimes is further distinguishable in that the plaintiff there

mounted an as-applied challenge to the New York classification scheme, unlike the St. Paul’s

facial challenge to the CBF. Cf. Britell v. U.S., 150 F. Supp. 2d 211, 221 (D. Mass. 2001) (Supreme

Court recognizes distinction between facial and as-applied Equal Protection challenges).

II. ST. PAUL’S PLEADS PLAUSIBLE DUE PROCESS CLAIMS.

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

The Due Process Clause safeguards constitutionally protected property interests. Board of

Regents of State Colleges 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

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., Missouri’s private
schools, unlike public schools can cap enrollment and selectively enroll). (Doc. 24-12, pp. 8–11).
Similarly, the Holt opinion upheld Arkansas’ multiplier based on evidence of private schools’
specific advantages over public schools. (Doc. 24-11, p. 8).
18
of entitlement” based on “express or implied contract” terms or “mutually explicit

understandings.” Barnes v. Zaccari, 669 F.3d 1295, 1303 (11th Cir. 2012); Arrington v. Helms,

438 F.3d 1336, 1348 (11th Cir. 2006) (“Property interests stem not from the Constitution, but from

such sources as . . . contracts.”). Moreover, “[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).

Here, Alabama law dictates that the AHSAA’s Constitution and Bylaws form a binding

contract between St. Paul’s and the AHSAA. Bhd.’s Relief & Compen. Fund v. Rafferty, 91 So.

3d 693, 696 (Ala. Civ. App. 2011). The AHSAA is, therefore, bound to follow the terms of the

AHSAA Constitution. Loc. Union No. 57 v. Boyd, 16 So. 2d 705, 711 (Ala. 1944) (“The

constitution, laws, and regulations of such associations are in the nature of a contract between it

and its members, and they, as well as the association, are bound thereby”); 7 C.J.S. Associations

§ 14 (association’s “rights and powers, and duties and liabilities are measured according[]” to its

constitution, which is “a contract which courts will enforce”).

Article VII(i) of the AHSAA’s Constitution expressly provides that “rules and regulations”

adopted by the Board of Control “shall be uniformly effective and binding upon all members of

the [AHSAA].” (Doc. 17-5, p. 21). Canons of contract interpretation plainly establish that the

Board of Control must exercise its classification authority subject to the strictures of Article VII(i).

Article VII(i) contains two clauses: (i) an enabling clause for the Board of Control’s general

rulemaking authority [“The Central Board of Control shall have full authority to adopt rules and

regulations”]; and (ii) a limitation clause, requiring that these rules and regulation “shall be

uniformly effective and binding upon all members of the [AHSAA].” (Id.) The Constitution’s

subsequent grant of classification authority in Article VII(l) (id., p. 22) must be read in pari materia

19
with Article VII(i).18 As the AHSAA argues, classification “is based on AHSAA rules. The rules

now provide for classification based on enrollment, a 1.35 Multiplier, and a Competitive Balance

Factor.” (Doc. 33, p. 3). It is clear that any “classification” adopted by the Board of Control under

Article VII(l) is a “rule,” subject to the broader Article VII(i) limitations on the Board of Control’s

general rulemaking authority. Any classification rule adopted by the Board of Control,

accordingly, “shall be uniformly effective and binding upon all members of the [AHSAA].” (Doc.

17-5, p. 21). Moreover, the use of the language “shall” is an “imperative, operating to impose an

enforceable duty” against the Board of Control such that this limitation on classification authority

is absolutely mandatory. 82 C.J.S. Statutes § 498.

Under this construction, Article VII(i) is an explicit contractual provision imposing a duty

on the AHSAA to adopt “uniformly effective” classification rules, such that St. Paul’s has a

“legitimate claim of entitlement” to be able to participate under the same rules as all member

schools, public and private alike. Sindermann, 408 U.S. at 601. The right of St. Paul’s to ensure

that its student-athletes receive the same level of fairness and safety in athletic competition is

derived from its explicit entitlement to “uniform” classification rules, supplemented by the implied

duty of good faith and fair dealing, as well as the mutually explicit understandings “implied from

the AHSAA’s words and conduct” from other provisions of the Handbook. Id. at 602; Barnes,

669 F.3d at 1303; Chavers v. Nat’l Sec., 405 So. 2d 1, 6 (Ala. 1981). Among these mutually

explicit understandings is the AHSAA’s self-avowed commitment to:

• “Enhance the health and safety of all participants”19 (Doc. 17-5, p. 3);

18
7 C.J.S. Associations § 16 (association constitution “construed according to the general rules of
contracts.”); Sullivan v. Southern Elec., 667 So. 2d 722, 725 (Ala. 1995) (“Terms [] should be
construed in pari materia and a construction adopted that gives effect to all terms used.”).
19
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
20
 • “[P]romote the interscholastic athletic programs among its member schools, which
include public, private and parochial institutions” (Doc. 17-5, 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) explicit guarantee of uniform classification rules (further governed by the

implied duty of good faith and fair dealing), supplemented by these mutually-explicit

understandings, create the 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).

Relying on Roth, 408 U.S. at 577, the AHSAA suggests these rights are “at best only

expectations.” (Doc. 33, p. 22). 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. In

particular, the Article VII(i) guarantee of uniform classification rulemaking is an explicit

contractual term to which the AHSAA is bound. Boyd, 16 So. 2d at 711.

On the back of a straw man, the AHSAA restyles St. Paul’s rights as “a right to be classified

4A . . . and not 6A,” and then posits that no such right exists because the Handbook states the

AHSAA will apply the Student Multiplier to force St. Paul’s to compete in 5A. (Id., p. 21). St.

increasing, not decreasing, the safety of sports competition. (Doc. 17-5, pp. 50–52, 56–57, 73).
21
Paul’s makes no such claim. Its rights boil down to equal treatment and safe, “uniform” rules.

These explicit, mutually understood rights exist for all schools in every class.

In a similar move, the AHSAA claims 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. 33,

pp. 22–23). This is, at best, another 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. These are protected property rights. Sindermann, 408 U.S. at 602.

B. The AHSAA Violated the Procedural Due Process Clause.

The AHSAA deprived St. Paul’s constitutionally protected property rights to safe and

uniform classification rules without any pre-deprivation process, “including notice and an

opportunity to be heard at a meaningful time and in a meaningful manner.” (Doc. 1, ¶ 154).

The AHSAA 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. 33, p. 25). Courts

recognize that the “meaningful time” component of due process is “a flexible concept that varies

with the particular circumstances.” Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003). In

that spirit, Courts have found a post-deprivation hearing to satisfy the “meaningful time”

requirement in limited circumstances where a pre-deprivation hearing is simply impracticable,

such as “‘extraordinary situations’ in which some valid governmental interest is at stake that

justifies postponing the hearing until after the deprivation.” Id. at 1236; Gilbert v. Homar, 520

U.S. 924, 930 (1997) (same).20

20
E.g., U.S. v. James Daniel, 510 U.S. 43, 53 (1993) (same).
22
 However, where, as here, the AHSAA can (and should) feasibly provide predeprivation

process, binding precedent requires that it must do so. Zinermon v. Burch, 494 U.S. 113, 132

(1990); Fetner v. City of Roanoke, 813 F.2d 1183 (11th Cir. 1987). In Fetner, the Eleventh Circuit

considered whether a postdeprivation hearing satisfied due process. There, Fetner was terminated

from public employment without a formal hearing. Id. at 1184. The district court ruled in favor

of the defendants on summary judgment, finding that “Fetner suffered no constitutional

deprivation since adequate due process was provided by the post-deprivation remedies available”

through a subsequent administrative process. Id. 1185. The district court relied on precedent

recognizing that, although “due process usually requires notice and a hearing before the State may

interfere with a citizen’s liberty or property,” postdeprivation measures may suffice in limited

circumstances. Id. However, the Eleventh Circuit reversed, holding that this reasoning does not

apply where “a deprivation of property is authorized by an established state procedure and it is

practicable for the State to provide pre-deprivation procedures,” in which case “due process has

been consistently held to require pre-deprivation notice and a hearing in order to reduce the

possibility of a wrongful deprivation.” Id. at 1186. Accordingly, “[p]ost-deprivation remedies do

not provide due process if pre-deprivation remedies are practicable.” Id.; Zinermon, 494 U.S. at

132 (“In situations where the State feasibly can provide a predeprivation hearing before taking

property, it generally must do so regardless of the adequacy of [postdeprivation remedies].”);

Hudson v. Palmer, 468 U.S 517, 534 (1984) (“The controlling inquiry is solely whether the state

is in a position to provide for predeprivation process.”).21

21
E.g., Nat’l Ass’n of Boards of Pharm. v. Bd. of Regents of the U. System of Georgia, 633 F.3d
1297, 1317 (11th Cir. 2011) (“The feasibility of predeprivation procedures is the central question
in determining whether predeprivation procedures must be provided.”); Carcamo v. Miami-Dade
Cty., 375 F.3d 1104, 1106 n.4 (11th Cir. 2004) (same); KTK Min. of Va., LLC v. City of Selma,
Ala., 984 F. Supp. 2d 1209, 1229 (S.D. Ala. 2013) (same); Haddler v. Walker Cty., Ala., 2014 WL
23
 Here, St. Paul’s was deprived of protected property interests when the AHSAA adopted

the CBF at its November 2017 meeting. (Doc. 1, ¶ 153). To be “deprived” of a protected interest

connotes some loss of that right. See Roth, 408 U.S. at 575. St. Paul’s was deprived of its property

interests [i.e., to be “treated” on equal footing with similarly situated public schools, the

“promulgation” of classification rules that do not unfairly disadvantage its athletic programs, and,

most importantly, the “promulgation” of classification rules that do not increase risks of injury to

its student-athletes (id., ¶ 151)], when the Board of Control promulgated a new classification rule

that was not “uniformly” applied to all member schools and was designed in such a way that will

unfairly disadvantage private school athletic programs and, moreover, carries serious risk-

implications. The fact that competition would not begin until August 2018 is irrelevant because

the “deprivation” occurred in November with the rule’s passage and the schools’ reclassification.

The AHSAA had considerable time (over one year) to provide St. Paul’s notice and an opportunity

to object to this deprivation; yet, it failed to do so. (Id., ¶ 154). Apparently, the AHSAA began in

2016 to evaluate new classification rules to offset private schools’ “success.” (Doc. 33, p. 7). It

was entirely feasible, therefore, for the AHSAA to provide St. Paul’s a pre-deprivation hearing

before November 2017. Nat’l Ass’n of Bds. of Pharm., 633 F.3d at 1318. Under these facts, the

AHSAA’s failure to provide any pre-deprivation process transgressed the “meaningful time”

component of Due Process and amounted to a violation of St. Paul’s constitutional rights.22

Zinermon, 494 U.S. at 132; Fetner, 813 F.2d at 1186.

2465322, at *5 (N.D. Ala. May 30, 2014) (same).

22
The Mathews v. Eldridge, 242 U.S. 319 (1976), balancing test is unnecessary here. It is well-
settled that a pre-deprivation hearing must be provided where practicable. Barnes, 669 F.3d at
1306 (Mathews factors irrelevant where pre-deprivation hearing clearly required). Regardless, the
Mathews factors weigh in favor of a pre-deprivation hearing, given St. Paul’s substantial private
interest at stake, the serious risk of erroneous deprivation, and the minimal administrative burden
on the AHSAA to allow a pre-deprivation hearing. See KTK, 984 F. Supp. 2d at 1229.
24
 The AHSAA cites McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) for the point that it

may “cure a procedural deprivation by providing a later procedural remedy.” (Doc. 33, p. 25).

However, McKinney did not involve the state’s total failure to provide constitutionally required

pre-deprivation process; indeed, McKinney “received a pre-termination hearing and, with it, all

the process due . . . .” 20 F.3d at 1562. Because a pre-deprivation hearing was required under the

present facts, St. Paul’s § 1983 claim ripened in November 2017 and could not be undone by

any subsequent conduct. Patterson v. Coughlin, 761 F.2d 886, 893 (2d Cir. 1985) (“In view of

our holding that an adequate prior hearing was required, a postdeprivation hearing . . . is

inadequate, by definition, to meet the requirements of due process. This may be tautological, but

it is a point that appears to have been missed by appellees and by the district court. Once a cause

of action for a constitutional violation accrues, nothing that the state does subsequently can cut

off the § 1983 claim.”); Fuentes v. Shevin, 407 U.S. 67, 81–82 (1972) (“If the right to notice and

a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the

deprivation can still be prevented. . . . [N]o later hearing and no damage award can undo the fact

that the arbitrary taking that was subject to the right of procedural due process has already

occurred. This Court has not embraced the general proposition that a wrong may be done if it can

be undone.”).23 The AHSAA’s constitutional obligation to provide St. Paul’s a pre-deprivation

hearing is no trivial technicality; it is the bedrock of due process:

[T]he prohibition against the deprivation of property without due process of law

23
The AHSAA also argues that the “AHSAA Constitution does not require notice.” (Doc. 33, p.
25). 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 . . . .” Cleveland v. Loudermill, 470 U.S. 532, 542 (1985); Fuentes, 407
U.S. at 80 (“Parties whose rights are to be affected are entitled to be heard; and in order that they
may enjoy that right they must first be notified.”).

25
 reflects the high value, embedded in our constitutional and political history, that we
place on a person’s right to enjoy what is his, free of governmental interference. . . .
It has long been recognized that fairness can rarely be obtained by secret, one-sided
determination of facts decisive of rights. And no better instrument has been devised
for arriving at truth than to give a person in jeopardy of serious loss notice of the
case against him and opportunity to meet it.”

Fuentes, 407 U.S. at 81. The AHSAA’s conduct was antithetical to these values.

Moreover, St. Paul’s was not even afforded process in a “meaningful manner” when it

eventually was allowed to speak. When St. Paul’s was permitted to address the CBF (on January

31, two months after the CBF was adopted and published), the AHSAA advised St. Paul’s it could

speak for “10-15 minutes,” did not permit St. Paul’s counsel to address the Board of Control,

refused to state the justification for its decision, or respond to a request for the evidence it relied

on. (Doc. 1, ¶¶ 69–75; Doc. 1-3); 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.”). Further, the evidence will

demonstrate that the so-called “appeal” the AHSAA invited on March 13, 2018 was a sham, that

the Board of Control had no intention of reconsidering the CBF, but did charge St. Paul’s nearly

$1,700 for the right to attend. (Doc. 1, ¶ 75, n.58). At a minimum, truly meaningful process would

have afforded St. Paul’s the ability to challenge the AHSAA’s “unjustified deprivation of” its

property rights to safe, uniform, and non-discriminatory rulemaking. Carey v. Piphus, 435 U.S.

247, 259 (1978). Yet, how could St. Paul’s have mounted any such challenge when the purported

“justifications” for the CBF were never fully divulged until this litigation? Because St. Paul’s was

afforded no process prior to the deprivation of its constitutionally protected property rights (and

no “meaningful” process at any point), it states a plausible Procedural Due Process claim.

C. The AHSAA Violated the Substantive Due Process Clause.

Substantive Due Process “protects against the arbitrary and oppressive exercise of

26
government power.” Waldman v. Conway, 871 F.3d 1283, 1292 (11th Cir. 2017). Courts will find

a Substantive Due Process violation where the state’s conduct “can be characterized as arbitrary

or conscience shocking in a constitutional sense.” Waddell v. Hendry Cty., 329 F.3d 1300, 1305

(11th Cir. 2003). Notably, “the measure of what is conscience shocking is no calibrated yard

stick,” as “rules of due process are not [] subject to mechanical application in unfamiliar territory.”

Cty. of Sacramento v. Lewis, 523 U.S. 833, 848, 850 (1998). In this light, although intentional

harms are most likely to rise to the level “conscience-shocking” behavior, “whether the point of

the conscience shocking is reached when injuries are produced with culpability falling within the

middle range, following from something more than negligence but less than intentional conduct,

such as recklessness or gross negligence is a matter for closer calls.” Id. at 849 (“[W]e have

expressly recognized the possibility that some official acts in this range may be actionable . . . .”).

The present case presents the very “unfamiliar territory” cautioned by the Lewis Court.

523 U.S. at 850. And in this territory, St. Paul’s respectfully submits that the conscience of the

Court should be deeply disturbed by the AHSAA having adopted the CBF “with [as the evidence

will show] a deliberate indifference to, and in conscious disregard of, excessive, known, and clear

risks to the health and safety of private school student-athletes.” (Doc. 1, ¶ 147). That the

AHSAA’s conduct was “conscience shocking” derives from the reality that St. Paul’s and other

member schools entrust the AHSAA with authority to adopt rules to be “uniformly” applied and

that “[e]nhance the health and safety of all participants.” (Doc. 17-5, pp. 3, 21). While there is

always risk of injury in athletics, 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. (Doc. 1, ¶ 143(a)).

This obligation, moreover, is implicit given the AHSAA’s purpose and role in regulating high

school athletics. But the AHSAA adopted the CBF with a conscious disregard of direct warnings

27
from local physicians and well-documented medical literature 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. (Doc. 1, ¶¶ 122–30).

The Eleventh Circuit has said that “[d]eterminations of what is egregious conduct must not

be made in the glow of hindsight; decisions made by a government actor must be egregious—that

is, shock the conscience—at the time the government actor made the decision.” Waddell, 329 F.3d

at 1305. Here, at the time the AHSAA adopted the CBF in November 2017, it had been directly

warned by a neurosurgeon and a sports medicine orthopedist that the CBF would expose private

school students to heightened risks of injury, yet it “did nothing to investigate, or even seriously

consider, the medical concerns expressed by Dr. Conrad and Dr. Ronderos.” (Id., ¶ 61). Indeed,

“[n]either Dr. Conrad nor Ronderos heard from the [AHSAA] again. No one called; no one asked

for additional information; no one asked the doctors to explain their concerns.” (Id.) In reality,

and “[i]ncredibly, Dr. James Robins, co-chairman of the [AHSAA’s] ‘Medical Advisory

Committee,’ admitted at the Board of Control’s January [2018] quarterly meeting that the

[AHSAA] had reviewed no data to determine if the CBF would increase the risk of injuries by

forcing students to ‘play up’ two classification levels above their true enrollment.” (Id., ¶ 131).

In fact, the AHSAA’s parent organization documented these very risks in a 2014

Concussion Summit Report,24 which the AHSAA was aware of when the CBF was adopted. (Id.,

24
While the Concussion Summit Report does not provide guidelines against small schools playing
larger schools, it clearly states that “[t]eam size dictates numerous variables that may affect an
athlete’s potential head exposure.” (Doc. 1-9). An obvious extension of this finding is that the
CBF exposes private school students to increased risks of injury by “forc[ing] smaller private
schools to play against far larger public schools,” given the reality that “[t]eams from smaller
schools generally have smaller rosters of athletes than teams from larger schools.” (Doc. 1, ¶¶
109, 115). This logical conclusion is what led Dr. Timothy Hecker, a board-certified neurologist,
28
¶¶ 124–27). The AHSAA’s adoption of the CBF in complete disregard of the known risk

implications, and without undertaking any measures to evaluate those risks, is precisely the sort of

“deliberate indifference” to health and safety Substantive Due Process guards against. Lewis, 523

U.S. at 851 (“As the very term ‘deliberate indifference’ implies, the standard is sensibly employed

only when actual deliberation is practical.”); Waddell, 329 F.3d at 1306 (state may shock the

conscience by acting with a “deliberate indifference to an extremely great risk of serious injury to

someone in Plaintiffs’ position.”). Such deliberate indifference by a state actor entrusted with

students’ health and safety “shocks the conscience” by any standard. Accordingly, St. Paul’s

Substantive Due Process Claim should not be dismissed.

III. ST. PAUL’S STATES A PLAUSIBLE CLAIM UNDER THE ALABAMA

DECLARATORY JUDGMENT ACT.

The Alabama 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. 19–21, St. Paul’s has contractual

rights under the AHSAA’s Handbook, Constitution, and Bylaws; chiefly, that all classification

rules adopted by the AHSAA “shall be uniformly effective and binding upon all members of the

[AHSAA].” (Doc. 17-5, p. 21). These contractual rights are supplemented by the AHSAA’s

implied duties of good faith and fair dealing. See Chavers, 405 So. 2d at 6. All told, these rights

to opine that the Concussion Summit Report’s findings “document[] the dangers implicated by
forcing smaller teams to go head-to-head with larger opponents.” (Doc. 1-1). Nearly one-third of
St. Paul’s 2017 football roster was comprised of freshmen. (Doc. 30, p. 33). As Coach Mask
testified, in reality the lack of experience and depth on his team means that he is usually playing
60%–64% of his players “both ways.” (Id.) This is precisely what the Concussion Summit Report
and Dr. Hecker addressed as serious injury risks even when teams of similar sizes are competing
against each other, and explains why teams like St. Paul’s face an even greater risk of injury when
competing against larger schools. (Docs. 1-1, ¶¶ 9–16; 1-9, p. 2). The AHSAA’s failure to
recognize or give credence to these risks was beyond reckless when one considers its professed
goal to “[e]nhance the health and safety of all participants,” (Doc. 17-5, p. 3), and its self-avowed
“firm commitment to safety in school athletics.” (Doc. 24-2, ¶ 36).
29
include the specific privileges and understandings alleged in paragraph 159 of the Complaint. The

AHSAA, in turn, violated the “rights, interests, and expectations of its private school members”

through its adoption of the CBF, which subjects private schools to a different standard of

classification, “designat[es] private schools as an inferior, unequal class of institutions,” and

exposes private school student-athletes to significantly greater risk of injury. (Doc. 1, ¶¶ 8, 161).

According to the AHSAA, most of the contractual “rights” claimed by St. Paul’s “are mere

expectations.” (Doc. 33, p. 26). The AHSAA relies on a case interpreting Ohio law for its

argument that statements in the AHSAA’s Handbook are not enforceable. (Id., citing Ullmo v.

Gilmour Acad., 273 F.3d 671 (6th Cir. 2001)). 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 supra, pp. 19–21, St. Paul’s rights are legitimate entitlements

arising from explicit contractual guarantees supplemented by mutually explicit understandings. In

particular, the Article VII(i) guarantee of equal application of classification rules is an explicit

contractual term to which the AHSAA is unquestionably bound. Boyd, 16 So. 2d at 711. Further,

the AHSAA’s authority to classify is restrained by its implied duty of good faith and fair dealing.

Here, the AHSAA 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 there is no “right” to have it exercise its classification power in a

manner that does not discriminate against private schools. (Doc. 33, p. 26). This is a non sequitur:

the AHSAA cannot classify schools in a way that discriminates against one member or class of

30
members given that the AHSAA’s power to “classify” is exercised in a “rule,” and all “rules . . .

shall be uniformly effective and binding upon all members.” (Doc. 17-5, p. 21). It is, thus,

impossible for the Board of Control to adopt classification 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, why do classifications based on enrollment exist in the first place? For 87% of

member schools, it means they will compete against programs of similar size. Until recently, for

the other 13%, the Student Multiplier required many schools to play up one classification, but

never more than that. Now, some private schools will be forced to move even farther away from

the measure of classification that is deemed fairer and safer for the majority. What is right and

proper for Homewood, Spanish Fort, Saraland, Hoover, Russellville, etc., is not right and proper,

not “challenging enough,” for the likes of St. Paul’s and other private schools.

The AHSAA contends that its constitutional object “to promote pure athletic competition,”

supports its “implementing measures for competitive balance.”25 (Doc. 33, p. 26). This may be

true, but only if competitive balance is applied to all schools. Again, the AHSAA cannot abide by

its own contractual obligations while implementing a classification rule that singles out one class

of members for disparate treatment.26

25
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 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 is not “uniformly” applied to all members. (Doc. 17-5, p. 21).
26
The AHSAA claims offhand that St. Paul’s has “forfeited, waived, become estopped to assert,
or become barred by laches from asserting” the right to not be classified differently from public
schools. (Doc. 33, p. 27). As explained infra, p. 36, the existence of an affirmative defense must
be established from the face of the Complaint, and the AHSAA must show that the elements of
each affirmative defense are established by the allegations such that these defenses exist as a matter
of law. The AHSAA, however, makes no effort to articulate the actual elements of these defenses
31
 A. The AHSAA is Not a “Voluntary” Association.

The AHSAA further argues that declaratory relief should not be granted here because

Alabama courts seldom interfere with AHSAA rules. (Doc. 33, p. 27, citing Scott v. Kilpatrick;

AHSAA v. Rose; Kubiszyn v. AHSAA). These authorities relied on the doctrine that courts should

take a “hands-off philosophy” to voluntary associations of any sort. Rose, 446 So. 2d at 5.

However, St. Paul’s submits that the evidence will demonstrate that the AHSAA, as presently

existing, is not a “voluntary” association, and that, accordingly, these precedents do not apply.

Recently, Alabama Supreme Court Justice Tommy Bryan addressed this very point in a

concurring opinion, explaining that he “would, if asked, argue that the deference afforded the

Association be scaled back.” Ex parte AHSAA, 229 So. 3d 1100, 1104 (Ala. 2017). Justice Bryan

relied on Scott v. Okla. Secondary Sch. Activities Ass’n, where the Supreme Court of Oklahoma

found Oklahoma’s athletic association (“OSSA”) was “not truly a voluntary association” because

schools “must join the OSSA to compete with any of its [] member schools,” and a school

“effectively has no choice but to join” “[s]hould the school desire the value and enrichment its

families and students receive from interscholastic competition.” 313 P.3d 891, 898–902 (Okla.

2013). Justice Bryan concluded that, like the OSSA, “I do not view the [AHSAA] as a traditional

voluntary association. . . . Because the Association plays a role that goes above and beyond that

of a traditional voluntary association, greater scrutiny is required” of the AHSAA’s decisions. 229

So. 3d at 1104, 1106. Indeed, St. Paul’s alleges, and the evidence will establish, that “there is

simply no practical alternative to the [AHSAA]. The [AHSAA] has been the only real avenue

through which a private school can provide its students a quality, competitive, [] diverse[, and

economically feasible] athletic experience.” (Doc. 1, ¶ 45 n.40). “[I]t is extremely difficult, as a

here, much less apply them to any specific facts. Lee v. Monroe Cty. Heritage Museum, Inc., 998
F. Supp. 2d 1318, 1321 (S.D. Ala. 2014).
32
practical matter, for schools to compete in high school athletics . . . without being a member of the

[AHSAA].” (Id., ¶ 22). As in Oklahoma, a school (like St. Paul’s) cannot compete with other

member schools unless it is a member of the AHSAA. (Id.) Moreover, while there is an

independent organization (the AISA), the evidence will show that the schools that participate are

few in number, sparsely located, and do not offer the same number of sports that AHSAA member

schools provide their student-athletes. The evidence will show that the quality of interscholastic

competition would be substantially inferior and certainly much more costly because of

substantially greater travel requirements. Given this reality, the AHSAA is “not a traditional

voluntary association,” and is not entitled to the deference it was once afforded. Id. at 1104; Scott,

313 P.3d at 891; Bd. of Regents of U. of Okla. v. NCAA, 561 P.2d 499, 505 (Okla. 1977) (“The

necessity of court action is apparent where the position of a voluntary association is so dominant

in its field that membership in a practical sense is not voluntary but economically necessary.”).

Regardless, it appears that Alabama courts have only extended the deference sought by the

AHSAA to claims contesting the AHSAA’s determinations of student eligibility. E.g., Scott, 237

So. 2d; Rose, 446 So. 2d; Kubiszyn, 374 So. 2d; Ex parte AHSAA, 229 So. 3d. The AHSAA cites

no authority, and St. Paul’s has found none, extending such deference to a school’s claim that the

AHSAA breached its contractual obligations to member schools by adopting a new rule in

violation of its authority, and in abrogation of its implicit and explicit guarantees, under the

AHSAA Handbook, Constitution, and Bylaws. Cf. Greyhound Lines, Inc. v. Cobb Cty., 523 F.

Supp. 422, 427 (N.D. Ga. 1981) (“A decision of a state supreme court must be on the precise point

in controversy in the federal court in order to have binding effect as a precedent”). Here, the

AHSAA is effectively claiming the right to unilaterally determine whether or not it has breached

a contract to which it is unquestionably bound or whether it has violated constitutional rights of

33
its members. Boyd, 16 So. 2d at 711. No court has gone this far.27

In addition to the foregoing, there is substantial authority that deference is never

appropriate when a voluntary association has acted in an arbitrary manner. E.g., Scott, 237 So. 2d

at 655. The AHSAA contends St. Paul’s fails to plead “facts adequate to show that AHSAA acted

arbitrarily.” (Doc. 33, p. 28). The CBF’s design and application is inherently arbitrary, as alleged

throughout the Complaint. (E.g., Doc. 1, ¶¶ 1, 8, 29, 65, 106, 108, 147). It targets private school

“competitive success” while completely ignoring the similar and greater successes of public

schools: “[e]ven those public schools that experience the same or even greater levels of success as

their private school counterparts are exempt.” (Id., ¶¶ 6, 107). In fact, “if the CBF applied to all

schools, [at least]28 121 public school teams would have exceeded the Success Test threshold.

None of those 121 teams, however, will be told to move up a classification next year.” (Id., ¶ 107).

Indeed, a task force member acknowledged 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. 30, p. 31).29

The CBF’s arbitrariness is further apparent in how it levies points in coed sports, which

can force teams up classifications even if they have never won a single game. (Doc. 1, ¶ 63 n.53).

Consider also the following irrefutable example of arbitrariness taken from the Complaint:

27
Even in those cases concerning student-eligibility, the deference was only afforded “[a]bsent
some evidence that a student athlete has suffered impairment of a property right.” Kubiszyn, 374
So. 2d at 257. As set forth, supra, the AHSAA deprived St. Paul’s of very specific and protected
property rights stemming from the same contractual rights that form the basis for declaratory relief.
The deference sought by the AHSAA, therefore, is inappropriate. Id.
28
See supra, note 11.
29
The AHSAA suggests its “adoption of the CBF was the product of discussions by a committee
on which private schools were well represented.” (Doc. 33, p. 28). Private schools were not “well
represented,” but comprised a small minority of the total membership on both the task force and
Board of Control. (Doc. 30, p. 12). Regardless, that the CBF was discussed and ultimately
accepted by persons with different views does not mean it is not an arbitrary rule.
34
 Another perfect example of the irrational and discriminatory results of the CBF is
how it impacts Mobile’s Faith Academy baseball team. Russellville High School
(a public school) was the 2015, 2016, and 2017 5A baseball state champion. Faith
Academy (a private school) squared off against Russellville in two of those
championship games (2016 and 2017) and lost. Under the CBF, however, Faith
Academy [] will have to “level-up” to 6A until 2022, while Russellville remains in
5A. The three-time state champion does not move up (because it is a public school),
but the private school it beat head-to-head is moving to 6A.

(Doc. 1, ¶ 106). The CBF’s design and application to private schools is purely “founded on

prejudice or preference rather than on reason or fact,” the dictionary definition of “arbitrary.”

BLACK’S LAW DICTIONARY (10th ed. 2014).

IV. ST. PAUL’S STATES VALID CLAIMS AGAINST THE STUDENT MULTIPLIER

St. Paul’s states valid claims against the Student Multiplier component of the CBF. The

AHSAA argues that various equitable affirmative defenses bar St. Paul’s claims as to the Student

Multiplier because St. Paul’s competed under the prior Multiplier rule of 1999. (Doc. 33, pp. 10–

12). The AHSAA’s argument, however, ignores the fundamental change of circumstances that

occurred between 1999 and when it took action to reinstate a 1.35 Student Multiplier with the

Success Test under the CBF in 2017. The premise of the Multiplier of 1999 [to offset purported

disparities in participation rates and presumed selective enrollment (Docs. 1, ¶ 18; 30-9)] may have

reflected differences between public and private schools in 1999, but it certainly does not today.

Now, “public schools regularly engage in open and selective enrollment of students from

beyond their geographical boundaries.” (Doc. 1, ¶ 83). Moreover, the AHSAA’s effort in 2015

to identify a disparity in athletic “participation rates” to justify the Student Multiplier component

of the CBF was marred by miscalculation. (Doc. 30, pp. 18–19). And even then, there is “no

evidence that a school’s rate of athletic participation is related to a school’s success in athletic

competition . . . .” (Doc. 1, ¶ 45). No equitable defense applies here given the changed

circumstances surrounding public school enrollment policies and the AHSAA’s decision to

35
incorporate a Student Multiplier in the new CBF nonetheless. Further, applying any of these

equitable defenses would only grant the AHSAA a windfall from a finding of its own wrongdoing.

See U.S. v. Barnette, 129 F.3d 1179, 1184 (11th Cir. 1997) (“‘He who offends against the law

seeks in vain the help of the law’ is a very old legal maxim.”).

Regardless, any defendant seeking dismissal of a claim based on an affirmative defense

must prove that the defense “clearly appears on the face of the complaint.” Quiller v. Barclays

Am./Credit, Inc., 727 F.2d 1067, 1069 (11th Cir. 1984), on reh’g, 764 F.2d 1400 (11th Cir. 1985)

(“Generally, the existence of an affirmative defense will not support a motion to dismiss.”). The

AHSAA, however, faces an even greater burden in arguing that St. Paul’s has waived its

constitutional rights. The Supreme Court has long held that, “[t]here is a presumption against the

waiver of constitutional rights . . . .” Brookhart v. Janis, 384 U.S. 1, 4 (1966). The Court,

therefore, must “indulge every reasonable presumption against finding a waiver” of St. Paul’s

constitutional rights. Bueno v. City of Donna, 714 F.2d 484, 492–93 (5th Cir. 1983). The AHSAA

fails to meet its heavy burden of proving that any affirmative defense appears on the face of the

Complaint. Critically, the AHSAA cites the general theory of each defense, but fails to either

outline the necessary elements of each defense or explain how all of those elements “clearly

appear[]” on the face of the Complaint. Quiller, 727, F.2d.

With regard to laches, the AHSAA cites Multer v. Multer, 195 So. 2d 105 (Ala. 1966), for

the nebulous claim that “laches is ‘a rule of equity by which equitable relief is denied to one who

has been guilt of unconscionable delay.’” (Doc. 33, p. 10).30 It ignores the actual elements of

30
Multer is inapposite. Latches was invoked to prevent the plaintiff from setting aside a divorce
where the relief sought would “irrevocably damage and complicate the lives of innocent persons,”
and the plaintiff had defrauded the court in entering the marriage. 195 So. 2d at 108. Moreover,
Multer recognized that “[l]aches is not fixed by a hard and fast limit of time, but is a principle of
good conscience dependent on the facts of each case.” Id. at 109. Gay v. Tompkins, 385 So. 2d
36
laches, however, that “a defendant must demonstrate (1) a delay in asserting a right or a claim, (2)

that the delay was not excusable, and (3) that there was undue prejudice to the party against whom

the claim is asserted.” AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1545 (11th Cir. 1986). While

the AHSAA wholly fails to argue that any delay in challenging the Student Multiplier was

inexcusable, in reality, there has been no delay given the changed circumstances discussed, supra,

which render the CBF’s reinstitution of the Student Multiplier unconstitutional in today’s

educational landscape. Similarly, the AHSAA cites Mazer v. Jackson Ins. Agency, 340 So. 2d 770

(Ala. 1976) for the general theory of estoppel (Doc. 33, p. 10), but fails to articulate or even apply

the actual “basic elements of equitable estoppel” outlined by the Court: (i) “misleading”

communication; (ii) reliance on that communication; and (iii) resulting prejudice.31 The AHSAA

argues that St. Paul’s competed under the 1999 Multiplier rule, but does not claim St. Paul’s

“misled” it. Id. Moreover, the AHSAA fails to explain (with regard to either laches or estoppel)

how it has been prejudiced in any way. In truth, the AHSAA will be no more prejudiced by the

present challenge than it would have been had the Court found the Multiplier unconstitutional in

1999. Sanders v. Dooly Cty., 245 F.3d 1289, 1291–92 (11th Cir. 2001) (element of prejudice

missing because effect of injunction was no more prejudicial to defendants than it would have been

had suit been brought earlier). As a result, neither laches nor estoppel can support dismissal of

973 (1980), also cited by the AHSAA, is similarly inapposite. There, the Court invoked latches to
bar contract assignees from exercising their redemption rights against a property after the time for
equitable redemption had expired.
31
Mazer has no application here. Mazer did not involve constitutional claims, or even contractual
rights; rather, the defendant misled landowners during a property zoning and development dispute.
340 So. 2d at 771. Christ. Ben. Burial Ass’n v. Huff, 1 So. 2d 390 (Ala. 1941) offers no support
either. There, the defendant was estopped from arguing the plaintiff forfeited her right to insurance
proceeds where the defendant caused the plaintiff to rely on his misstatements, change her position,
and thereby forfeit the proceeds. Id. at 391–92. Here again, the AHSAA identifies no
misstatement by St. Paul’s, reliance by the AHSAA, or material prejudice from any reliance.
37
any claim. Lee v. Monroe Cty. Heritage Museum, 998 F. Supp. 2d 1318, 1321 (S.D. Ala. 2014).32

The AHSAA relies on Courington v. Birm. Trust Nat’l Bank, 347 So. 2d 377 (Ala. 1977)

for the point that “‘[a]cquiesence is a form of estoppel.’” (Doc. 33, p. 11). However, the

“acquiescence” in Courington does not invoke the same equitable estoppel theory in the AHSAA’s

other cited authorities, and simply is irrelevant to the present facts. In Courington, an employee

sought to avoid a contractual provision by arguing he had never read it. Id. at 377–78. The Court

found the employee “acquiesced” to this provision by executing the agreement and acting under it

for several years. Id. at 380. Courington thus holds that a party is “estopped” from denying the

existence of a contractual provision by feigning ignorance where the party otherwise acted under

the contract. St. Paul’s does not deny the existence of any contractual provision here; nor does it

deny that the Student Multiplier has been in place for 18 years. Instead, it alleges the AHSAA

acted unconstitutionally, and in breach of its own contractual obligations and duties to St. Paul’s

and other private schools by incorporating the Student Multiplier in the newly-implemented CBF

and that today’s circumstances make the Student Multiplier completely unwarranted, if it ever was.

The AHSAA next argues St. Paul’s “waived” its constitutional challenges to the Student

Multiplier, citing U.S. v. Olano, 507 U.S. 725 (1993). Olano, however, addressed the waiver of a

32
While the AHSAA relies on Dobson v. Dunlap, 576 F. Supp. 2d 181 (D. Me. 2008) to argue
latches may bar a Fourteenth Amendment claim (Doc. 33, p. 12), Dobson actually highlights the
AHSAA’s failure to establish latches in this case. Notably, the Court explained that “a defendant
claiming laches has the burden of proving both unreasonableness of the delay and the occurrence
of prejudice,” and that the “proponent of the doctrine must make a clear showing of prejudice.”
Id. at 187. There, the defendant “presented convincing proof of prejudice” so as to justify latches.
Id. Here, the AHSAA makes no argument of inexcusable delay (given the changed circumstances),
or that it has been prejudiced. The AHSAA’s cites only one case, Dunn v. Fort Bend Cty., 17 F.2d
329 (S.D. Tex. 1926), to argue that equitable estoppel may bar a Fourteenth Amendment claim.
This case is unavailing. That equitable estoppel may, in theory, bar a constitutional claim does not
relieve the AHSAA of its burden to prove that this defense “clearly appears on the face of the
complaint.” Quiller, 727 F.2d at 1069. And the AHSAA fails to make this requisite showing.
38
Federal Rule of Criminal Procedure objection where it was raised for the first time on appeal. Id.

at 730. Olano did not consider the waiver of constitutional rights. What is more, “[t]here is a

presumption against the waiver of constitutional rights, and for a waiver to be effective it must be

clearly established that there was an intentional relinquishment or abandonment of a known right

or privilege.” Brookhart, 384 U.S. at 4.33

In reality, St. Paul’s has not waived any challenge to the Student Multiplier component of

the CBF because the landscape of public and private high schools is fundamentally different today

than it was in 1999. While there may have been conceivable differences among public and private

school enrollment policies and participation rates in 1999, the premises supporting the Multiplier

then do not exist today. See, supra, pp. 35–36. And rather than sit on its rights, St. Paul’s took

swift action to bring the present claims when the AHSAA reinstituted a Student Multiplier (on

false pretenses) under the CBF in violation of the Fourteenth Amendment.34, 35

The AHSAA suggests St. Paul’s also waived and/or forfeited36 its constitutional rights

33
Brady v. U.S., 397 U.S. 742, 748 (1970) (same); Bueno, 714 F.2d at 492–93 (“[C]ourts indulge
every reasonable presumption against finding a waiver.”).
34
The AHSAA’s reliance on Senn v. State, 189 So. 2d 870 (Ala. Ct. App. 1966) is also unavailing.
There, the Court held the petitioner waived an objection to his earlier conviction by not raising it
on appeal, explaining that “one may waive and does waive his constitutional rights if he
intelligently fails to assert or claim them at the appropriate time and place, and according to the
established course of procedure.” Id. at 324. Senn is thus distinct from the present case, where
there is no (and the AHSAA has not identified any) “established course of procedure” whereby St.
Paul’s should have brought the present claims before this suit. To the extent the Multiplier was a
valid rule in 1999, the circumstances have changed such that these claims are timely.
35
The AHSAA also cites Pierce Oil Corp. v. Phoenix Refining Co., 259 U.S. 125 (1922) to argue
constitutional claims may be waived by “‘conduct inconsistent with the assertion of such a right.’”
(Doc. 33, p. 11). Notwithstanding that Pierce is factually inapposite, and that the Court found the
constitutional claim “futile to the point almost of being frivolous,” the AHSAA fails to show how
St. Paul’s conduct was inconsistent with the assertion of the rights claimed herein, and, moreover,
fails to show it “intentionally relinquished” known constitutional rights as more recent Supreme
Court precedent requires. E.g., Brookhart, 384 U.S. at 4.
36
The AHSAA cites only one case, Yakus v. U.S., 321 U.S. 414 (1944) for the point that a
constitutional right may be forfeited by the failure to make timely assertion of the right before a
39
because it “accepted the Multiplier and agreed to AHSAA’s classifying St. Paul’s as a 5A school

for 18 years” and “received the benefits of being classified 5A” by winning championships it

otherwise “would not have won.” (Doc. 33, p. 11). The argument that St. Paul’s endorsed and has

benefited from the Multiplier relies on a distorted narrative of the allegations and raises facts that

are not in the Complaint. St. Paul’s “accepted” the Student Multiplier in the loosest sense of the

word because it was forced to: “there simply is no practical alternative to the [AHSAA].” (Doc.

1, ¶ 45 n.40). That St. Paul’s was obliged to compete under the Multiplier with no practical

alternative does not mean that St. Paul’s affirmatively “agreed” to the measure. Further, the

suggestion that St. Paul’s benefitted from the Multiplier is incredulous.37 The Complaint shows

that the Multiplier of 1999 punished St. Paul’s for being a private school and for its athletic

participation, which is, in fact, a “specific goal” that is “highly encouraged by both the [AHSAA]

and National Federation.” (Id., ¶ 45). It would be more appropriate to say that St. Paul’s endured

the rule and that its student body rose to the occasion to meet the challenge dealt by the AHSAA.

St. Paul’s submits that its claims against the Student Multiplier component of the CBF are

timely, particularly given the change of circumstances since the Multiplier rule was first adopted

in 1999.

court. (Doc. 33, p. 10). The quoted language, however, was merely dicta and offers no analytical
guidance for the present case. Id. at 447.
37
The AHSAA cites Booth Fisheries Co. v. Indust. Comm’n of Wisc., 271 U.S. 208 (1926) for its
quote that a plaintiff “having elected to accept the provisions of the law, and such benefits and
immunities as it gives, may not escape its burden by asserting that it is unconstitutional.” Booth
is inapposite. There, the Court held an employer could not challenge the constitutionality of
Wisconsin’s Workers’ Compensation Act on due process grounds because the it voluntarily
elected to “accept the law” and its limited process in order to gain the benefits of avoiding “a suit
for damages for injuries or wrongful death.” Id. at 210. Here, St. Paul’s did not voluntarily elect
to “accept” the Student Multiplier by entering the AHSAA subject to the rule; indeed, the Student
Multiplier was adopted years after St. Paul’s joined the Association.
40
 CONCLUSION

For each of the foregoing reasons, St. Paul’s respectfully requests that the Court deny

Defendants’ Rule 12(b)(6) Motion to Dismiss. St. Paul’s also requests that the Court schedule a

hearing for oral argument on Defendants’ Motion.

Respectfully submitted this 11th day of July, 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)

41
 CERTIFICATE OF SERVICE

I hereby certify that on July 11, 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

42