# McGhee v. Talladega City Board of Education

> District Court, N.D. Alabama · October 30, 2020

URL: https://www.frixlaw.com/law-library/cases/9989938

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** October 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9989938

## How later opinions describe it (automated extraction)

- holding that a student’s being deprived of participating in extracurricular activities did not implicate constitutional rights

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION

MARY McGHEE, et al., )
)
Plaintiffs, )
)
vs. ) Civil Action No.: 1:18-cv-1554
)
TALLADEGA CITY BOARD OF )
EDUCATION, et al., )
)
Defendants. )

MEMORANDUM OPINION
Aristotle once said, “The roots of education are bitter, but the fruit is sweet.”1 He meant
that study can be tedious but that the student eventually reaps the rewards of his hard work.
This case features both education and bitterness—but not of the Aristotelian kind. It
centers on a multi-year conflict involving members of the Talladega City Board of Education and
two mothers in the Talladega City School System, Sandra Beavers and Debra Wilson. Plaintiffs
Beavers and Wilson have filed a Third Amended Complaint that includes two identical counts,
one pleaded on each Plaintiff’s behalf: “Constitutional and Civil Rights Pursuant to Violation of
First Amendment Freedom of Speech, Due Process[,] and Equal Protection.” (Doc. 48).
The matter now comes before the court on Defendants’ two motions to dismiss. (Docs.
49, 51). Defendants Talladega City Board of Education, James “Jake” Montgomery, Chuck
Roberts, James Braswell, and Shirley Simmons-Sims seek dismissal of the Third Amended
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon
which relief can be granted. (Doc. 49). Defendants contend that (1) the complaint is an improper

1 1 Diogenes Laërtius, Lives of Eminent Philosophers 461 (v. 22) (R.D. Hicks ed. 1925). Although
modern scholars are critical of Diogenes’ work, Lives of Eminent Philosophers is one of the most comprehensive
sources for the history of ancient Greek philosophy and the maxims of ancient Greek philosophers.
shotgun pleading; (2) the complaint fails to set forth facts to support the claims with requisite
specificity and does not state a plausible claim for relief; (3) Plaintiff Beavers has failed to state a
claim for violation of constitutional rights; (4) Plaintiff Wilson does not have a viable substantive
due process claim; (5) Plaintiffs’ equal protection claims fail; (6) Plaintiffs Beavers and Wilson
have failed to state a First Amendment claim; (7) Claims against the board members in their

official capacity are due to be dismissed; and (8) Claims against the board members in their
individual capacity are due to be dismissed. (Id.).
Defendant Tony Ball incorporates Defendants Talladega City Board of Education, James
“Jake” Montgomery, Chuck Roberts, James Braswell, and Shirley Simmons-Sims’s Motion to
Dismiss and seeks dismissal of the Third Amended Complaint under largely the same argument:
that Plaintiffs fail to state a claim pursuant to Rule 12(b)(6). (Doc. 51). Mr. Ball, however, adds
an additional ground for dismissal: lack of subject matter jurisdiction pursuant to Rule 12(b)(1).
(Id.). Defendant Ball contends that 1) Plaintiffs’ Third Amended Complaint constitutes an
impermissible shotgun pleading; 2) Plaintiffs do not state a viable claim against Mr. Ball; 3)

Plaintiffs have not pleaded a viable due process claim, as no constitutional right exists to public
education nor to participate in interscholastic athletics or a gifted program; 4) Plaintiffs have not
alleged any viable procedural due process violation; 5) Plaintiffs have not identified any
comparator that would support their race-based equal protection claim; 6) Plaintiffs have not
stated a viable claim under the First Amendment; and 7) Plaintiffs’ official capacity claims
against Mr. Ball are redundant of their claims against the Board. (Id.).
In the interest of efficiency, the court addresses both motions to dismiss in this single
memorandum opinion.
2
Plaintiffs filed one response to Defendants’ motions to dismiss. (Doc. 52). Defendants
Talladega City Board of Education, James “Jake” Montgomery, Chuck Roberts, James Braswell,
and Shirley Simmons-Sims filed a reply brief, and Defendant Tony Ball filed a separate reply
brief. (Docs. 55, 56). The motions are now ripe for review. For the reasons set forth below, the
court DISMISSES WITH PREJUDICE Plaintiffs’ substantive due process claims, Ms. Beavers’s

procedural due process claim, and Plaintiffs’ official capacity claims against Defendant board
members and Mr. Ball for failure to state a claim upon which relief can be granted. The court
DISMISSES WITHOUT PREJUDICE Plaintiffs’ remaining claims and grants Plaintiffs a final
opportunity to amend their Complaint in compliance with Federal Rules of Civil Procedure
8(a)(2), 8(d)(1), and 10(b) and the Eleventh Circuit’s directive against shotgun pleadings.
I. Factual Background
The Talladega City Board of Education is a five-person body that oversees and manages
four elementary schools, a junior high school, and a high school in Talladega, Alabama. The
events leading to this lawsuit began in September 2016 when Mary McGhee, a Talladega City

Board of Education member and former Plaintiff in this case, made a comment in a Board
meeting about a Talladega High School employee being on the payroll for a position that he did
not hold. (Doc. 1-1). Upset by the insinuation, the employee filed a complaint, which led to Ms.
McGhee being formally censured and reprimanded by the rest of the Board. (Doc. 1). At a
subsequent board meeting, in March 2017, Ms. McGhee’s speaking privileges at Board meetings
were revoked in response to the incident and her refusal to apologize for her comments. (Id.).
Amidst these tensions, Defendant Tony Ball was hired as the new superintendent for the
Talladega City Board of Education in June 2018. (Id.). Plaintiffs in this case opposed his hiring.
3
In September 2018, Ms. McGhee, along with Plaintiffs Sandra Beavers and Debra
Wilson, brought suit against the Board, its members, and Mr. Ball. (Doc. 1). They brought
constitutional claims and challenged Mr. Ball’s hiring under Alabama state law. (Id.). Ms.
McGhee has since settled her claims.2 (Docs. 41–42). The court entered an Order of Dismissal of
Ms. McGhee’s claims on December 10, 2019. (Doc. 43).

Plaintiffs Sandra Beavers’s and Debra Wilson’s claims now remain. Ms. Beavers is the
mother of a former student athlete, and Ms. Wilson is the mother of a current gifted student in
the Talladega City School System. (Doc. 48). After litigation in this case began, Ms. Beavers
became a member of the Talladega City Board of Education. In their Third Amended Complaint,
Ms. Beavers and Ms. Wilson allege that Defendants Talladega City Board of Education, Board
of Education members James “Jake” Montgomery, Chuck Roberts, James Braswell, and Shirley
Simmons-Sims, and Superintendent Tony Ball “implement[ed] a scheme to limit [Plaintiffs’]
rights and privileges” as parents of children in the Talladega City School System. (Id.).
In their Third Amended Complaint, Plaintiffs Beavers and Wilson state that they

“contested the hiring of Defendant Ball by the Defendant Board.” (Doc. 48). Plaintiffs allege that
their “political opposition” to Mr. Ball’s hiring, as well as racial discrimination, led to actions
against their sons. Plaintiffs Beavers and Wilson’s Third Amended Complaint is meandering and
difficult to follow, but the facts they set out are as follows.
A. Sandra Beavers
Sandra Beavers alleges that because of her protest activities and because of his race, her

2 Ms. McGhee’s name remains on the case caption, as she was an original party to the case.

4
son, C.B, was prevented from playing basketball on the Talladega High School basketball team.
(Doc. 48). According to the Third Amended Complaint, C.B. started playing for the Talladega
High School basketball team during the 2015–2016 academic year, was a “stellar athlete,” and
was recruited by several colleges. (Id.). At some point, he was removed from the team—the
complaint is vague as to when and by whom. (Id.).

Ms. Beavers states that she tried to appeal the decision about her son’s playing on the
team but that she was denied a meeting by Mr. Ball and the Board. (Doc. 48). She also states that
C.B.’s father met with Mr. Ball but was not given a reason for C.B.’s removal nor was the
decision reversed. (Id.). Ms. Beavers alleges that Defendants’ alleged actions “denied her son’s
access to an athletic scholarship.” (Id.).
B. Debra Wilson
Debra Wilson alleges that because of her “political opposition” to Mr. Ball’s hiring and
because of his race, her son, J.W., a gifted student, was punished. (Doc. 48). She asserts that in
his gifted class, “rules were promulgated for the J.W. [sic] in which demeaning tasks” were

assigned to J.W.—tasks such as taking heavy trash bags to trashcans outside the school building
and being “made to sign in and out of class” when other students were not required to do so.
(Id.).
Ms. Wilson states that she requested a meeting with the Special Education Coordinator
but was denied one by Defendants. (Doc. 48). Instead, employees allegedly met to discuss her
concerns without her. (Id.). On March 21, 2019, Ms. Wilson and her husband obtained a meeting
at their son’s school, but Ms. Wilson states that a “school resource officer and other police
officers . . . were called in an effort to intimidate” them. (Id.).
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Lastly, Ms. Wilson asserts that the Talladega City School System violated the Alabama
Gifted Education Plan and that her son was forced to attend summer school because of it. (Id.).
She alleges that J.W’s grades have suffered because of Defendants’ actions. (Id.).
II. Standards of Review
A. Rule 12(b)(1)

Defendant Tony Ball challenges Plaintiffs’ invocation of subject matter jurisdiction.
Under Rule 12(b)(1), a defendant may challenge subject matter jurisdiction factually or facially.
Stalley v. Orlando Reg’l Healthcare Sys., 524 F.3d 1229, 1232 (11th Cir. 2008).
A facial attack on the complaint requires the court merely to look and see if the plaintiff
has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his
complaint are taken as true for the purposes of the motion. By contrast, a factual attack on
a complaint challenges the existence of subject matter jurisdiction using material
extrinsic from the pleadings, such as affidavits or testimony.

Id. at 1232–33 (internal quotations and citations omitted).
Plaintiffs invoke Section 1331 of Title 28 of the United States Code, under which district
courts have federal question jurisdiction. That section provides that “[t]he district courts shall
have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331.
B. Rule 12(b)(6)
Defendants also challenge the legal sufficiency of Plaintiffs’ complaint under Federal
Rule of Civil Procedure 12(b)(6). Under that rule, a defendant may question whether a plaintiff
has “stated a claim upon which relief can be granted.” Id. “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
6
Twombly, 550 U.S. 544, 570 (2007)).
Plaintiffs are not required to provide “detailed factual allegations” in their pleadings.
They are required, however, to provide “more than the unadorned, the defendant-unlawfully-
harmed-me accusation.” Iqbal, 556 U.S. at 678. To be plausible on its face, a claim must contain
enough facts to “allow[] the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Id. In other words, the complaint must demonstrate “more than a sheer
possibility that a defendant has acted unlawfully.” Id.
The Supreme Court has identified “two working principles” for district courts to use
when considering motions to dismiss. First, when evaluating motions to dismiss, although the
court must assume the veracity of the well-pleaded factual allegations, it does not have to accept
legal conclusions as true. Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.” Id.
Second, when evaluating motions to dismiss, district courts are to draw upon their
“judicial experience and common sense” to determine if the complaint states a plausible claim.

Iqbal, 556 U.S. at 679. The court must be able to “infer more than the mere possibility of
misconduct.” Id. If the court determines that well-pleaded facts, accepted as true, do not state a
claim that is plausible, the claim must be dismissed. Id.
C. Shotgun Pleading
Defendants also contend that Plaintiffs’ complaint constitutes a shotgun pleading. Rule 8
of the Federal Rules of Civil Procedure sets forth the general rules of pleading. Rule 8(a)(2)
instructs pleaders to provide “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 8(d)(1) instructs that “each allegation must be
7
simple, concise, and direct . . .” Fed. R. Civ. P. 8(d)(1). The purpose of Rule 8 is to provide a
defendant “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Rule 10(b) of the Federal Rules of Civil Procedure sets forth the form of pleadings, requiring that
a party “state its claims or defenses in numbered paragraphs, each limited as far as practicable to

a single set of circumstances” and also instructing that “[i]f doing so would promote clarity, each
claim founded on a separate transaction or occurrence . . . must be stated in a separate count or
defense.” Fed. R. Civ. P. 10(b).
“Complaints that violate either Rule 8(a)(2) or Rule 10(b), or both, are often
disparagingly referred to as ‘shotgun pleadings.’” Weiland v. Palm Beach, 792 F.3d 1313, 1320
(11th Cir. 2015). Shotgun pleadings “wreak havoc on the judicial system” by “divert[ing]
already stretched judicial resources into disputes that are not structurally prepared to use those
resources efficiently.” Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1279 (11th Cir.
2006) (quotation and citation omitted).

The Eleventh Circuit has frequently condemned shotgun pleadings and has roughly
divided them into four categories: (1) complaints “containing multiple counts where each count
adopts the allegations of all preceding counts, causing each successive count to carry all that
came before and the last count to be a combination of the entire complaint”; (2) complaints
“replete with conclusory, vague, and immaterial facts not obviously connected to any particular
cause of action”; (3) complaints that do “not seperat[e] into a different count each cause of action
or claim for relief”; and (4) complaints that “assert[] multiple claims against multiple defendants
without specifying which of the defendants are responsible for which acts or omissions, or which
8
of the defendants the claim is brought against.” Weiland, 792 F.3d at 1321-23. According to the
Eleventh Circuit, “The unifying characteristic of all types of shotgun pleadings is that they fail to
one degree or another, and in one way or another, to give the defendants adequate notice of the
claims against them and the grounds upon which each claim rests.” Id. at 1323.

III. Discussion
The court will first address Defendant Ball’s motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1), will then consider whether Plaintiffs’ Third Amended
Complaint sinks to the level of a shotgun pleading, and will then determine whether any claims
should be dismissed at this stage under Rule 12(b)(6) for failure to state a claim upon which
relief can be granted.
A. Subject Matter Jurisdiction
In his Motion to Dismiss Plaintiffs’ Third Amended Complaint, Defendant Tony Ball
requests that the court dismiss claims against him pursuant to both Rule 12(b)(1) for lack of
subject matter jurisdiction and 12(b)(6) for failure to state a claim. (Doc. 51). Because the motion

is unique and because the court must always check jurisdiction, the court DENIES Mr. Ball’s
Rule 12(b)(1) motion first.
A Rule 12(b)(1) motion to dismiss questions a court’s subject matter jurisdiction over a
case. Fed. R. Civ. P. 12(b)(1). When a defendant challenges a court’s subject matter jurisdiction,
he can do so by “facial or factual attack.” Stalley v. Orlando Reg’l Healthcare Sys., 524 F.3d
1229, 1232 (11th Cir. 2008). With a factual attack, the court must consider extrinsic material;
with a facial attack, the court must consider only whether, if all the allegations are taken as true,
the plaintiff adequately alleged a basis of subject matter jurisdiction. Id. at 1232–33.
9
Mr. Ball has made a facial attack on Plaintiffs’ Complaint but has offered no explanation
as to why the court lacks subject matter jurisdiction. Plaintiffs have brought their claims under
the United States Constitution and 42 U.S.C. §§ 1983 and 1985. District courts have “original
jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. Plaintiffs have sufficiently alleged a basis of subject matter

jurisdiction in raising constitutional and federal statutory claims and thus Mr. Ball’s motion to
dismiss under Rule 12(b)(1) is DENIED.
B. Shotgun Pleading
A shotgun pleading fails to give a defendant adequate notice of the claims against him and
the factual bases for those claims. Weiland v. Palm Beach, 792 F.3d 1313, 1323 (11th Cir. 2015).
All Defendants contend that Plaintiffs’ Third Amended Complaint constitutes an improper
shotgun pleading. The court agrees.
As described above, the Eleventh Circuit generally recognizes four types of shotgun
complaints. Plaintiffs’ Third Amended Complaint falls into three of these categories: it is

conclusory and vague; it fails to separate counts; and it does not say which defendants are
responsible for which bad act.
Category II
Complaints “replete with conclusory, vague, and immaterial facts not obviously connected to
any particular cause of action” are shotgun pleadings. Weiland, 792 F.3d at 1322. Plaintiffs’
Third Amended Complaint is such a complaint. The court offers a few examples of conclusory
and vague facts with which the complaint is riddled.
In ¶¶ 3 and 4, Plaintiffs vaguely assert that the “Defendant Board of Education, its
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members[,] and the Superintendent . . . implement[ed] a scheme to limit [Plaintiffs’] rights and
privileges.” (Doc. 48). In ¶15, Ms. Beavers recounts her son’s being “prevented” from playing
basketball at Talladega High School but fails to identify when her son was removed from the
school basketball team or by whom. In ¶17, Ms. Beavers concludes that Defendants’ actions
“denied her son’s access to an athletic scholarship.” In his Motion to Dismiss, Defendant Ball

points out that Plaintiff Beavers “provides no context for [her] allegations.” (Doc. 51). The court
agrees.
Ms. Wilson offers similarly vague and conclusory facts, alleging, for example, in ¶19, that
“rules were promulgated” for her son without providing any further details as to which
defendants promulgated such rules and how, and in ¶33 that Defendants forced her son to attend
summer school. (Doc. 48). Plaintiffs offer little context for their allegations, and the court finds
that Plaintiffs’ Third Amended Complaint falls into Category II of shotgun pleadings.
Category III
Complaints that do “not seperat[e] into a different count each cause of action or claim for

relief” are shotgun pleadings. Weiland, 792 F.3d at 1323. Plaintiffs’ Third Amended Complaint
contains two identical counts, one asserted on behalf of each Plaintiff, separately entitled:
“Constitutional and Civil Rights Pursuant to Violation of First Amendment Freedom of Speech,
Due Process[,] and Equal Protection.” (Doc. 48). Plaintiffs have failed to separate their causes of
action or to adequately explain facts as needed.
Category IV
Complaints that “assert[] multiple claims against multiple defendants without specifying
which of the defendants are responsible for which acts or omissions, or which of the defendants
11
the claim is brought against” are notorious shotgun pleadings. Weiland, 792 F.3d at 1323.
Throughout their complaint, Plaintiffs are vague as to which defendants—the Board, the board
members in their individual capacities, or Superintendent Ball—are responsible for the various
acts and omissions they allege.
In sum, Plaintiffs have failed to acknowledge and follow Eleventh Circuit directives on

proper pleadings. These shortcomings prevent Defendants from having adequate notice as to the
specific claims against them and the factual bases for each claim. Thus, the court DISMISSES
the entire Third Amended Complaint WITHOUT PREJUDICE. The court GRANTS Plaintiffs a
final opportunity to replead in a manner consistent with Rules 8(a)(2), (8)(d)(1), and 10(b) of the
Federal Rules of Civil Procedure the Eleventh Circuit directive against shotgun pleadings.
C. Failure to State a Claim
As an alternative basis and because Plaintiffs may take up the court’s offer to amend their
complaint one final time, the court next turns briefly to the legal sufficiency of Plaintiffs’ claims
against the Board, Board members, and Superintendent Tony Ball. In their Motion to Dismiss,

Defendants Talladega City Board of Education, James “Jake” Montgomery, Chuck Roberts,
James Braswell, and Shirley Simmons-Sims contend that Plaintiffs’ Third Amended Complaint
fails to set forth facts to support the claims with requisite specificity and does not state a
plausible claim for relief, that Plaintiffs fail to state a claim for violation of constitutional rights,
and that the claims against the board members in their official and individual capacities are due
to be dismissed. (Doc. 49). Defendant Tony Ball makes similar arguments in his Motion to
Dismiss and contends that Plaintiffs’ official capacity claims against him are redundant of
Plaintiffs’ claims against the Board.
12
Because the court is providing Plaintiffs with a final opportunity to amend their complaint,
the court will mostly forgo considering whether Plaintiffs set forth facts to support claims with
requisite specificity and stated a plausible claim for relief in this Memorandum Opinion. The
court reiterates that in their next amended complaint, Plaintiffs should break up their claims into
separate counts, allege facts in support of each separate claim rather than make legal conclusions,

and clearly identify the defendant against whom a claim is being brought. The court also reminds
Plaintiffs that the Supreme Court set forth a relatively new federal pleading standard in 2009 in
Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Plaintiffs should not cite cases preceding Iqbal in the
future when discussing the standard of review for a motion to dismiss.
The court addresses Defendants’ contentions under 12(b)(6) to the following extent: The
court DISMISSES WITH PREJUDICE Plaintiffs’ substantive due process claims, Plaintiff
Beavers’s procedural due process claim, and Plaintiffs’ claims against the board members in
their official capacities. Plaintiffs may move forward with their First Amendment and Equal
Protection claims, as well as their claims against individual board members, if properly pleaded

in the next amended complaint. Ms. Wilson may also proceed with her procedural due process
claim if properly pleaded in the next amended complaint.
1. Plaintiffs’ Substantive Due Process Claims
Plaintiffs bring their constitutional claims under 28 U.S.C. § 1983. To establish a § 1983
claim, a plaintiff must prove “1) violation of a constitutional right, and 2) that the alleged
violation was committed by a person acting under color of state law.” Holmes v. Crosby, 418
F.3d 1256, 1258 (11th Cir. 2005) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). Plaintiffs allege
generally a violation of their due process rights without specifying whether their substantive or
13
procedural due process rights have been violated. (Doc. 48).
The Fourteenth Amendment instructs that “[n]o State shall . . . deprive any person of life,
liberty, or property without due process of law.” U.S. Const., amend. XIV. “The substantive
component of the Due Process Clause protects those rights that are ‘fundamental,’ that is, rights
that are ‘implicit in the concept of ordered liberty.’” McKinney v. Pate, 20 F.3d 1550, 1556 (11th

Cir. 1994) (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)).
Because no constitutional right arises to play interscholastic sports, receive a college
scholarship, or participate in a gifted program, being denied the opportunity to play
interscholastic sports, receive a college scholarship, or participate in a gifted program does not
implicate substantive due process. Because Plaintiffs cannot establish a violation of their
separate substantive due process rights, their substantive due process claims—to the extent that
they may be alleged in the Third Amended Complaint—are due to be DISMISSED WITH
PREJUDICE.
a. Ms. Beaver’s Substantive Due Process Claims

Plaintiff Beavers alleges that her son’s being removed from the Talladega High School
basketball team and the loss of his college scholarship opportunity violated due process.
However, Ms. Beavers’s son, C.B., had no constitutional right to play high school basketball or
to receive an athletic scholarship. The former Fifth Circuit has reasoned,
For better or worse, the due process clause of the fourteenth amendment does not insulate
a citizen from every injury at the hands of the state. Only those rights, privileges and
immunities that are secured by the Constitution of the United States or some Act of
Congress are within the protection of the federal courts. Rights, privileges and
immunities not derived from the federal Constitution or secured thereby are left
exclusively to the protection of the states. The privilege of participating in interscholastic
athletics must be deemed to fall in the latter category and outside the protection of due
14
process.

Mitchell v. Louisiana High School Athletic Association, 430 F.2d 1155, 1157–58 (5th Cir. 1970)3
(emphasis added) (quotation and citation omitted); see also Marner ex rel. Marner v. Eufala City
School Board, 204 F. Supp. 2d 1318, 1324 (M.D. Ala. 2002) (holding that a student’s being
deprived of participating in extracurricular activities did not implicate constitutional rights).
Although no Eleventh Circuit law addresses the exact question of whether a constitutional
right to receive a college athletic scholarship exists, a sister district court in Alabama has held
that the opportunity to receive a college athletic scholarship is not a protected property right.
Taylor v. Alabama High School Athletic Ass’n, 336 F. Supp. 54, 57 (M.D. Ala. 1972). In Taylor,
the court looked back at the Fifth Circuit’s decision in Mitchell. See Taylor, 336 F. Supp. at 57;
Mitchell, 430 F.2d at 1157. The district court pointed out that in Mitchell, the Fifth Circuit cited
with approval a Tenth Circuit decision involving an Oklahoma student athlete’s claim that he had
a property interest in receiving a college scholarship; the Tenth Circuit held that federal rights
were not implicated. Taylor, 336 F. Supp. at 57; see also Oklahoma High School Athletic Ass’n

v. Bray, 321 F.2d 269, 272 (10th Cir. 1963). The district court stated that the Fifth Circuit’s
approval of Bray “amount[ed] to a disapproval by the Fifth Circuit Court of Appeals of
Plaintiffs’ contention that their chances of obtaining college scholarships upon display of their
athletic prowess at tournaments is a property right protected by the due process clause.” Taylor,
336 F. Supp. at 57.

3 The Eleventh Circuit has adopted as binding precedent all decisions of the former Fifth Circuit
handed down prior to the Eleventh Circuit’s establishment on October 1, 1981. Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir.1981) (en banc).

15
Finding the foregoing authority persuasive, the court DISMISSES WITH PREJUDICE Ms.
Beavers’s substantive due process claims, to the extent that they may be alleged.
b. Ms. Wilson’s Substantive Due Process Claims
Plaintiff Wilson alleges that Defendants “engaged in an ongoing pattern of behavior” that
deprived her and her son, J.W., of their due process rights. However, Ms. Wilson’s son, J.W.,

had no federal constitutional right to participate in a school gifted program. The Supreme Court
has established that “public education is not a ‘right’ granted to individuals by the Constitution.”
Plyer v. Doe, 457 U.S. 202, 221 (1982). “The right to attend a public school is state-created,
rather than a fundamental right for the purposes of substantive due process.” C.B. ex rel Breeding
v. Driscoll, 82 F.3d 383, 387 (11th Cir. 1996). If public education itself is not a fundamental
right, it follows that a student’s participating in a gifted program as part of his public education is
not a fundamental right.
The court notes that although federal legislation recognizes that gifted students have special
needs, no statutory right to gifted education exists either. See Jacob Javits Gifted and Talented

Students Education Act, 20 U.S.C. § 7294. The Individuals with Disabilities Education Act
(IDEA) provides certain rights to gifted students who also have a disability as outlined by the
IDEA but also requires parents to exhaust several administrative remedies before filing a lawsuit.
20 U.S.C. §§ 1400–1482. Plaintiff Wilson has alleged no claim under federal statutory law.
Because Plaintiff Wilson brings no cause of action, the court DISMISSES WITH
PREJUDICE Ms. Wilsons’s substantive due process claim to the extent that it may be alleged.
2. Plaintiffs’ Procedural Due Process Claims
As stated above, Plaintiffs allege generally a violation of their due process rights without
16
specifying whether their substantive or procedural due process rights have been violated. (Doc.
48). Substantive due process protects individuals from government interference with their
constitutional rights. Procedural due process, on the other hand, protects individuals from
inadequate process when the government interferes with a liberty or property interest. “The
essence of [procedural] due process is the requirement that a person in jeopardy of serious loss

(be given) notice of the case against him and an opportunity to meet it.” Mathews v. Eldridge,
424 U.S. 319, 348 (1976) (internal quotation and citation omitted).
In the Eleventh Circuit, “a § 1983 claim alleging a denial of procedural due process requires
proof of three elements: (1) a deprivation of a constitutionally protected liberty or property
interest; (2) state action; and (3) constitutionally inadequate process.” Grayden v. Rhodes, 345
F.3d 1225, 1232 (11th Cir. 2003). Students faced with “interference with a protected property
interest must be given some kind of notice and afforded some kind of hearing.” Goss v. Lopez,
419 U.S. 565, 579 (1975).
a. Ms. Beavers’s Procedural Due Process Claims

Plaintiff Beavers alleges that her son’s being removed from the Talladega High School
basketball team and the loss of his college scholarship opportunity violated due process. As
discussed above, Ms. Beavers’s son had no liberty or property interest in participating in
interscholastic athletics or in receiving a college scholarship. Because no liberty or property
interest is involved, procedural due process is not implicated. Plaintiff Beavers brings no cause
of action, and the court DISMISSES WITH PREJUDICE Ms. Beavers’s procedural due process
claims, to the extent that they may be alleged.

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b. Ms. Wilson’s Procedural Due Process Claims
Plaintiff Wilson alleges that Defendants “engaged in an ongoing pattern of behavior” that
deprived her and her son, J.W., of their due process rights. Procedural due process is sometimes
implicated with public education. When a state entitles its students to education, “the State is
constrained to recognize a student’s legitimate entitlement to a public education as a property

interest which is protected by the Due Process Clause and which may not be taken away . . .
without adherence to the minimum procedures required by that clause.” Goss v. Lopez, 419 U.S.
565, 574 (1975). To establish a procedural due process claim, Ms. Wilson must show that her
son’s participating in a gifted program was a protected property interest and explain why the
process she received was inadequate. She has not done so. Thus, the court DISMISSES
WITHOUT PREJUDICE Ms. Wilson’s procedural due process claim but grants her the
opportunity to replead her claim one final time.
3. Claims Against Board Members in Their Official Capacities
Plaintiffs bring claims against board members and Mr. Ball in their official capacities. (Doc.

48). This is unnecessary because Plaintiffs are also suing the Talladega City Board of Education.
The Eleventh Circuit has ruled that it is unnecessary to sue local officials in their official
capacities when the local government entity is being sued. “Because suits against a municipal
officer sued in his official capacity and direct suits against municipalities are functionally
equivalent, there no longer exists a need to bring official-capacity actions against local
government officials, because local government units can be sued directly.” Busby v. City of
Orlando, 931 F.2d 764, 776 (11th Cir. 1991). Here, Plaintiffs bring suit against the Talladega
City Board of Education. Their claims against the board members in their official capacities, as
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well as against Mr. Ball in his official capacity, are duplicative and are thus DISMISSED WITH
PREJUDICE.
IV. Conclusion
For the reasons stated above, the court DISMISSES WITH PREJUDICE Plaintiffs’
substantive due process claims, Ms. Beavers’s procedural due process claims, and Plaintiffs’
official capacity claims against Defendant board members and Mr. Ball for failure to state a
claim for which relief can be granted. The court DISMISSES WITHOUT PREJUDICE
Plaintiffs’ remaining claims against all Defendants and grants Plaintiffs a final opportunity to
amend their Complaint if they can do so in compliance with Federal Rules of Civil Procedure
8(a)(2), 8(d)(1), and 10(b) and the Eleventh Circuit’s directive against shotgun pleadings.
If Plaintiffs choose to amend, they must file a Fourth Amended Complaint on or before
November 20, 2020. Each count in the Fourth Amended Complaint should contain no more than
one discrete claim for relief, and each count must also contain allegations of fact that support that
discrete claim. Additionally, the claims should clearly specify which defendants they are brought
against. The court warns Plaintiffs that this opportunity is the last chance to properly plead their
case.
The court DENIES Mr. Ball’s Motion to Dismiss under Rule 12(b)(1).
DONE and ORDERED this 30th day of October, 2020.

rf.
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9989938. Public record. Not legal advice.