“A student’s interest in participating in a single year of interscholastic athletics amounts to a mere expectation rather 4 than a constitutionally protected claim of entitlement.”
How later courts described this case
- “A student’s interest in participating in a single year of interscholastic athletics amounts to a mere expectation rather 4 than a constitutionally protected claim of entitlement.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
THOMAS PRITCHARD,
Plaintiff,
v. Case No: 2:19-cv-94-FtM-29MRM
FLORIDA HIGH SCHOOL ATHLETIC
ASSOCIATION, INC.,
Defendant.
OPINION AND ORDER
This matter comes before the Court on review of defendant’s
Motion to Dismiss Count III of Plaintiff’s Second Amended Complaint
and Demand for Jury Trial (Doc. #76) Pursuant to Federal Rules of
Civil Procedure Rule 12(b)(1) and Supporting Memorandum of Legal
Authority (Doc. #77) filed on March 9, 2020. After being directed
to do so by the Court, Plaintiff filed a Response (Doc. #86) on
April 24, 2020, and defendant filed a Reply (Doc. #91) on May 8,
2020. For the reasons that follow, the motion to dismiss is
granted in part and denied in part.
I.
A. Parties
When this action commenced, plaintiff Thomas Pritchard was an
eighteen-year-old high school senior at the Canterbury School in
Fort Myers. (Doc. #76, p. 2.) Defendant Florida High School
Athletic Association, Inc. is a non-profit corporation and the
athletic administrative organization that regulates student
participation in Florida high school athletic programs. (Id.) As
part of this regulation, defendant adopts and publishes bylaws
relating to student-athlete eligibility. (Id. p. 3.) One such
rule, Bylaw 9.5.1, limits student-athletes “to four consecutive
school years of eligibility beginning with school year he/she
begins ninth grade for the first time.” (Id. p. 4.) The rule
further states, “This does not imply that the student has four
years of participation. After four consecutive school years, the
student is permanently ineligible.” Id.
B. Factual Background
According to the Second Amended Complaint, plaintiff
participated in high school athletics during his ninth and tenth
grade years in Virginia before transferring to Florida and
attending Canterbury. (Id. pp. 4-6.) Based on a pre-enrollment
assessment, Canterbury administrators recommended plaintiff repeat
the tenth grade, which he did. (Id. pp. 6-7.) Plaintiff competed
in the school’s various sports during his tenth and eleventh grade
years. (Id. p. 7.) During plaintiff’s eleventh grade year,
Canterbury staff recommended a psychologist test plaintiff’s
learning ability. (Id.) A full psychoeducational evaluation
concluded plaintiff possessed a learning disorder with impairment
in reading and comprehension. (Id.) Canterbury administrators
also identified a previous injury to plaintiff’s hand as a physical
disability that adversely affected his math proficiency. (Id.)
Under defendant’s Bylaw 9.5.1, eleventh grade was the final
year of plaintiff’s eligibility to participate in interscholastic
competition because it was his fourth consecutive year in high
school. In August 2018, Canterbury filed a request with defendant
to accommodate plaintiff’s disabilities by waiving Bylaw 9.5.1 and
allowing a fifth year of eligibility. (Id. p. 8.) Defendant’s
Sectional Appeals Committee held a hearing on the matter on
1
September 6, 2018 and ultimately denied the request for a waiver.
(Id. p. 9.) A second hearing was held on October 4, 2018 with the
same result. (Id. p. 10.) Plaintiff appealed the Committee’s
decision to defendant’s Board of Directors, which conducted a
hearing on October 28, 2018 and upheld the Committee’s decision.
(Id. p. 11.)
C. Procedural History
Plaintiff initiated this matter in February 2019 and filed a
Second Amended Complaint (Doc. #76) on February 25, 2020. The
Second Amended Complaint alleges the following three claims: (1)
disability discrimination under the Americans with Disabilities
Act (“ADA”); (2) disability discrimination under the
1
The Committee determined that the decision to have plaintiff
repeat the tenth grade was “a parental choice in order to place
the student in a private school setting.” (Doc. #76, p. 9.)
Rehabilitation Act of 1973; and (3) violations of the Fourteenth
Amendment to the United States Constitution and Article I, Section
9 of the Florida Constitution. (Doc. #76, pp. 11-24.) The Second
Amended Complaint asserts the Court has jurisdiction over the
2
claims pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1367. (Id. ¶
7.)
On March 9, 2020, defendant filed the motion to dismiss
currently before the Court, arguing the Court lacks subject matter
jurisdiction over Count Three of the Second Amended Complaint.
(Doc. #77.) After plaintiff failed to respond to the motion, the
Court ordered him to do so. (Doc. #85.) On April 24, 2020,
Plaintiff filed a Response (Doc. #86), to which defendant filed a
Reply (Doc. #91) on May 8, 2020. The matter is now ripe for
review.
II.
A. Legal Standards
Defendant seeks dismissal of Count Three under Federal Rule
of Civil Procedure 12(b)(1), which provides for dismissal of an
action if the Court lacks subject matter jurisdiction. A motion
to dismiss under Rule 12(b)(1) can be asserted on either facial or
factual grounds. Carmichael v. Kellogg, Brown & Root Servs., Inc.,
2
The pleading actually asserts jurisdiction under 29 U.S.C.
§ 1131 (Doc. #76, ¶ 7), but plaintiff has acknowledged this was a
scrivener’s error (Doc. #86, p. 1).
572 F.3d 1271, 1279 (11th Cir. 2009). A facial attack to the
court’s jurisdiction, like the one here, requires the court to
determine whether the plaintiff has sufficiently alleged a basis
of subject matter jurisdiction, accepting the allegations as
true. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990).
B. Analysis
As noted, Count Three of the Second Amended Complaint contains
two claims, alleging violations of the Fourteenth Amendment of the
United States Constitution and Article I, Section 9 of the Florida
Constitution. (Doc. #76, p. 21.) Specifically, plaintiff alleges
defendant violated his substantive due process rights when it
“arbitrarily, maliciously, capriciously, irrationally and in bad-
faith denied his Bylaw 9.5.1 waiver.” (Id.)
In its motion, defendant argues this Court does not have
subject matter jurisdiction over Count Three because “the
privilege of participating in interscholastic athletics falls
outside the rights, privileges and immunities secured by the
Constitution of the United States and protected by the Federal
Courts.” (Doc. #77, p. 3.) Accordingly, defendant argues Count
Three should be dismissed with prejudice. (Id. p. 7.) The Court
3
will address each claim in Count Three separately.
3
The Federal Rules of Civil Procedure require parties to
limit claims “as far as practicable to a single set of
circumstances,” and to state in a separate count “each claim
founded on a separate transaction or occurrence.” Fed. R. Civ. P.
(1) Fourteenth Amendment Claim
Plaintiff must affirmatively allege facts that, taken as
true, show the existence of federal subject matter jurisdiction.
Travaglio v. Am. Express Co., 735 F.3d 1266, 1268 (11th Cir. 2013);
Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1247
(11th Cir. 2005). “In a given case, a federal district court must
have at least one of three types of subject matter jurisdiction:
(1) jurisdiction under a specific statutory grant; (2) federal
question jurisdiction pursuant to 28 U.S.C. § 1331; or (3)
diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).” Baltin
v. Alaron Trading Corp., 128 F.3d 1466, 1469 (11th Cir. 1997).
Federal question jurisdiction exists if the cause of action arises
from the Constitution, laws, or treaties of the United States. 28
U.S.C. § 1331.
Plaintiff argues the Court has federal question jurisdiction
over Count Three because the claim alleges a violation of the
Fourteenth Amendment. However, even if a complaint alleges injury
to federal rights, a court should not entertain the lawsuit “where
10(b). However, “[w]here several claims are being asserted,
separation is necessary only when each claim is based on a separate
transaction or occurrence and doing so would facilitate the clear
presentation of the matters set forth.” Howard v. Wells Fargo
Bank, N.A., 2016 WL 3447514, *3 (M.D. Fla. June 23, 2016) (marks
and citations omitted)). Here, Count Three does not violate Rule
10(b) because the facts alleged arise out of a single “set of
circumstances,” i.e., the waiver denial.
the alleged claim under the Constitution . . . is wholly
insubstantial and frivolous.” Fountain v. Metro. Atlanta Rapid
Transit Auth., 678 F.2d 1038, 1042 (11th Cir. 1982) (quoting Bell
v. Hood, 327 U.S. 678, 682-83 (1946)). “This exception applies
when the federal claim is ‘so insubstantial, implausible,
foreclosed by prior decisions of this Court, or otherwise
completely devoid of merit as not to involve a federal
controversy.’” Yeh Ho v. Sabocik, 775 Fed. App’x 551, 553 (11th
Cir. 2019) (quoting Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 89 (1998)). Where this narrow exception applies,
dismissal for lack of subject-matter jurisdiction is proper. Id.
The Court finds plaintiff’s Fourteenth Amendment claim falls
within this narrow exception.
The Fourteenth Amendment provides that no State shall
“deprive any person of life, liberty, or property, without due
process of law.” U.S. Const. amend. XIV, § 1. The Supreme Court
has interpreted this clause to provide two distinct guarantees:
substantive due process and procedural due process. DeKalb Stone,
Inc. v. Cty. of DeKalb, Ga., 106 F.3d 956, 959 (11th Cir. 1997)
(citing Zinermon v. Burch, 494 U.S. 113, 125 (1990)).
“Substantive due process includes both the protections of most of
the Bill of Rights, as incorporated through the Fourteenth
Amendment, and also the more general protection against ‘certain
arbitrary, wrongful government actions regardless of the fairness
of the procedures used to implement them.’” Id. (quoting Zinermon,
494 U.S. at 125).
Plaintiff alleges his substantive due process rights were
violated by the denial of his waiver request. However, as
defendant argues, there is no constitutional right to participate
in high school athletics. See Davenport by Davenport v. Randolph
Cty. Bd. of Educ., 730 F.2d 1395, 1397 (11th Cir. 1984) (“This
court has held that ‘[t]he privilege of participating in
interscholastic activities must be deemed to fall . . . outside
the protection of due process.’” (quoting Mitchell v. La. High
Sch. Athletic Ass’n, 430 F.2d 1155, 1158 (5th Cir. 1970)); Walsh
v. La. High Sch. Athletic Ass’n, 616 F.2d 152, 159 (5th Cir. 1980)
(“A student’s interest in participating in a single year of
interscholastic athletics amounts to a mere expectation rather
4
than a constitutionally protected claim of entitlement.”) ; Gates
v. Bd. of Dirs. of Fla. High Sch. Athletic Ass’n, 2008 WL 2025848,
*1 (N.D. Fla. May 9, 2008) (“Under the settled law of the circuit,
a student’s interest in playing interscholastic sports is not
protected by the due process clause.”). As there is no
4
“[D]ecisions of the United States Court of Appeals for
the Fifth Circuit (the ‘former Fifth’ or the ‘old Fifth’), as that
court existed on September 30, 1981, handed down by that court
prior to the close of business on that date, shall be binding as
precedent in the Eleventh Circuit, for this court, the district
courts, and the bankruptcy courts in the circuit.” Bonner v. City
of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981).
constitutional right to participate in high school athletics, the
Court finds plaintiff’s substantive due process rights could not
have been violated by the denial of his waiver request.
Accordingly, the Fourteenth Amendment portion of Count Three is
“completely devoid of merit,” Steel Co., 523 U.S. at 89, and will
be dismissed without prejudice for lack of subject matter
5
jurisdiction.
(2) Article I, Section 9 Claim
Count Three also alleges defendant violated Article I,
Section 9 of the Florida Constitution, which provides that “[n]o
person shall be deprived of life, liberty or property without due
process of law.” Art. I, § 9, Fla. Const. The Second Amended
Complaint asserts the Court can exercise jurisdiction over this
claim pursuant to 28 U.S.C. § 1367. (Doc. #76, ¶ 7.) While
defendant’s motion broadly includes this portion of Count Three in
the request to dismiss for lack of subject matter jurisdiction
(Doc. #77, p. 6), it does not address the substantive merits of
5
While defendant requests the Court dismiss the claim with
prejudice, “[a] dismissal for lack of subject matter jurisdiction
is not a judgment on the merits and is entered without prejudice.”
Stalley ex rel. U.S. v. Orlando Reg’l Healthcare Sys., Inc., 524
F.3d 1229, 1233 (11th Cir. 2008); see also Yeh Ho, 775 Fed. App’x
at 554-55 (finding district court properly determined it lacked
subject-matter jurisdiction over federal claims but erred in
dismissing with prejudice).
the state law claim or the supplemental jurisdiction issue.®
Accordingly, the Court will deny defendant’s motion to the extent
it seeks to dismiss the Florida portion of Count Three for lack of
subject matter jurisdiction.
Accordingly, it is now
ORDERED:
Defendant Motion to Dismiss Count III of Plaintiff's Second
Amended Complaint and Demand for Jury Trial (Doc. #76) Pursuant to
Federal Rules of Civil Procedure Rule 12(b)(1) (Doc. #77) is
GRANTED in part and DENIED in part. For the reasons stated above,
the Fourteenth Amendment portion of Count Three of the Second
Amended Complaint is dismissed without prejudice. Count Three is
deemed to allege only a claim under the Florida Constitution, and
defendant shall file its answer to Count Three within FOURTEEN
(14) DAYS of the date of this Opinion and Order.
DONE AND ORDERED at Fort Myers, Florida, this ist day of
June, 2020.
if — a f
| (A
py ON? E
JOHN E. STEELE
3q IOR UNITED STATES DISTRICT JUDGE
6 While defendant does address the substantive state law claim
and supplemental jurisdiction in its Reply (Doc. #91, pp. 2-4),
‘District Courts, including this one, ordinarily do not consider
arguments raised for the first time on reply,” Allah El v. Avesta
Homes, 2012 WL 515912, *3 (M.D. Fla. Feb. 16, 2012).
Copies: Counsel of record