AHSAA Response

Case 1:18-cv-00241-WS-B Document 25 Filed 06/11/18 Page 1 of 42
IN THE UNITED STATES DISTRICT COURT

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

)
Plaintiff, )
v. )
) CIVIL ACTION NO. CV-18-241-WS-B
)
THE ALABAMA HIGH SCHOOL )
ATHLETIC ASSOCIATION and )
STEVEN P. SAVARESE, as Executive )
Director of the Alabama High School )
Athletic Association, )
)
Defendants. )
______________________________________________________________________________
DEFENDANTS’ BRIEF IN OPPOSITION TO

PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
______________________________________________________________________________
James E. Williams
jwilliams@mewlegal.com
C. Mark Bain
mbain@mewlegal.com
MELTON, ESPY & WILLIAMS, P.C.
255 Dexter Avenue
Montgomery, Alabama 36104
334-263-6621
Cooper C. Thurber
cooper.thurber@phelps.com
William E. Shreve, Jr.
william.shreve@phelps.com
PHELPS DUNBAR, LLP
P.O. Box 2727
Mobile, Alabama 36652
251-432-4481
ATTORNEYS FOR DEFENDANTS
PD.23901620.1
TABLE OF CONTENTS
INTRODUCTION……….3
FACTS……….4
ARGUMENT……….16
REQUIREMENTS FOR PRELIMINARY INJUNCTION……….16
ST. PAUL’S CANNOT MEET ANY OF THE PREREQUISITES……….19
St. Paul’s is unlikely to succeed on the merits……….19
St. Paul’s is unlikely to succeed on its claims as to the Multiplier……….20
St. Paul’s is unlikely to succeed on its equal-protection claim……….21
St. Paul’s is unlikely to succeed on its substantive-due-process claim……….29
St. Paul’s is unlikely to succeed on its procedural-due-process claim……….33
St. Paul’s is unlikely to succeed on its on its claim for a declaratory

judgment……….34
St. Paul’s is not faced with any actual, imminent, and irreparable injury……….37
The injury that AHSAA and its member school would suffer from a preliminary
injunction outweighs any threatened injury to St. Paul’s……….39
A preliminary injunction would be adverse to the public interest……….40
CONCLUSION……….41
2
INTRODUCTION
Defendant Alabama High School Athletic Association (“AHSAA”) has classified most of
Plaintiff St. Paul’s Episcopal School’s sports teams, including football, 6A for the upcoming
school year. Last year, and for the 17 years before that, St. Paul’s was classified 5A. The 6A
classification is based on AHSAA rules. The rules now provide for classification of private schools
based on enrollment, a 1.35 Multiplier, and a Competitive Balance Factor determined by a team’s
recent success in post-season play. AHSAA adopted the Multiplier in 1999, and the Competitive
Balance Factor in November 2017.
St. Paul’s seeks a preliminary injunction against the Multiplier and Competitive Balance
Factor. St. Paul’s claims that it is unfair for its teams to have to compete at the 6A level, and
unsafe for its football, soccer, and basketball teams to do so. Yet St. Paul’s has for a number of
years voluntarily scheduled 6A and 7A competition in sports including football, soccer, and
basketball, and done very well in football against 6A and 7A schools.
St. Paul’s is one of the premier high-school sports programs in Alabama, with a state-record
197 championships (all sports), and 5A football championships in 2007, 2014, 2015, and 2017.
Without the Multiplier and the Competitive Balance Factor, and classifying St. Paul’s solely by its
enrollment, St. Paul’s not only would not be classified 6A, it would move down from 5A to 4A.
St. Paul’s has not met and cannot meet any of the four prerequisites for a preliminary
injunction. It is highly unlikely that it can or will prevail on the merits. It will not suffer any
irreparable harm without an injunction. The balance of harms weighs heavily in favor of AHSAA,
and a preliminary injunction would not be in the public interest. The normal burden faced by the
movant is even higher in this case because St. Paul’s is seeking a mandatory and not merely a
prohibitive preliminary injunction. St. Paul’s 19-year delay in seeking an injunction against the
3
Multiplier, and, under the circumstances of this case, its months-long delay in seeking an
injunction against the Competitive Balance Factor, also bar the relief it seeks. The Court should
deny St. Paul’s motion.
I.
FACTS
A. AHSAA membership.
AHSAA, formed in 1921, is a voluntary association of public and private schools (doc. 24-
2 at 1 [¶ 2]). AHSAA regulates, coordinates, and promotes the member schools’ interscholastic
athletic programs (doc. 24-2 at 1 [¶ 2]). AHSAA’s membership includes 373 public and 51 private
schools (doc. 24-2 at 2 [¶ 5]). The membership has included private schools from the beginning
(doc. 24-2 at 2 [¶ 5]). All member schools agree upon admission to be governed by the AHSAA
Constitution, Bylaws, and rules (doc. 24-2 at 2 [¶ 6]).1
B. St. Paul’s athletic programs.
St. Paul’s is a private school in Mobile, and has participated in AHSAA championship play
since 1976 (doc. 24-1 at 91). St. Paul’s competes in football, baseball, softball, basketball, soccer,
track, cross country, golf, tennis, swimming and diving, and volleyball (doc. 24-13 at 1).
According to St. Paul’s website, St. Paul’s is the most successful school in Alabama (public or
1
There is another, private-school-only association in Alabama called the Alabama
Independent School Association (“AISA”) (doc. 24-1 at 116-46). The AISA’s website states that
its “mission is to serve independent schools in the state of Alabama by providing its member
schools with educational and corporate services and programs focusing on excellence
in academics, accreditation, and athletics,” and that AISA sponsors private-school athletics
including football, baseball, basketball, golf, tennis, soccer, softball, track, and volleyball. Thirty-
four schools, divided into three classes, compete in football (doc. 24-1 at 149). St. Paul’s is a
member of the AISA but does not compete in AISA athletics (doc. 24-1 at 118). It could, though,
if it does not wish to continue membership in AHSAA.
4
private) in terms of state championships, “lead[ing] all schools in Alabama with 197 State
Championships” (doc. 24-13 at 1).
C. AHSAA’s adoption of the Multiplier.
AHSAA groups schools into divisions for competition (doc. 24-2 at 2 [¶ 7]). Currently,
there are seven divisions, designated Class 1A (smallest) through Class 7A (largest) (doc. 24-2 at
2 [¶ 7]). School-enrollment numbers are used for classification (doc. 24-2 at 3 [¶ 8]).
In 1999, a public high school proposed that AHSAA exclude private schools from
championship competition with public schools because private schools could select their students
and public schools could not, giving private schools a competitive advantage (doc. 24-2 at 3 [¶
10]). Four other public high schools also submitted a proposal to exclude private schools from
post-season play and to form separate play-off systems (doc. 24-2 at 4 [¶ 11]). Surveys of AHSAA
membership showed that members were in favor, by a wide margin, of both proposals (doc. 24-2
at 4 [¶¶ 10 & 11]).
In response and in an effort to avoid splitting post-season play, AHSAA’s then-Executive
Director proposed that AHSAA adopt a multiplier of 1.35 for private schools’ enrollment, such
that AHSAA would classify a private school, once it reached a certain enrollment, in a higher
division than a public school with the same or smaller enrollment (doc. 24-2 at 4 [¶ 12]). For
example, if the enrollment break between Classes 1A and 2A was 150, and a public school and a
private school each had 149 students, the public school would be classified 1A, and the private
school 2A because the private school’s adjusted enrollment would be 1.35 x 149 = 201. As a result
and in order to improve competitive balance, the private school would compete against public
schools with higher enrollment. AHSAA’s Central Board of Control (hereafter “Central Board”
or “Board”), upon which AHSAA’s Constitution confers rulemaking authority, accepted the
5
multiplier proposal and adopted it as an AHSAA rule (hereafter “the Multiplier”) (doc. 24-2 at 4
[¶ 13], 100).2
The Multiplier does not affect every private school, because a school’s enrollment times
the Multiplier will not always exceed the threshold for the next highest classification. When first
applied in 2000, out of a total of 29 private schools, the Multiplier caused the reclassification of
15 to a higher division (doc. 24-1 at 22).
D. St. Paul’s success in Class 5A.
Immediately prior to 2000, St. Paul’s was classified 4A (doc. 24-1 at 22). As a result of
the Multiplier, AHSAA classified St. Paul’s 5A beginning in 2000 (doc. 24-1 at 22). St. Paul’s
competed in Class 5A from 2000 through the 2017-18 school year (doc. 24-1 at 91). Without the
Multiplier, St. Paul’s would have been classified 4A.
Of St. Paul’s state-record 197 championships, St. Paul’s won at least 89 while classified
5A (doc. 24-13 at 1).3 The 89 championships comprise four in football, one in baseball, 10 in
girls’ tennis, two in boys’ tennis, 11 in girls’ outdoor track, eight in boys’ outdoor track, 10 in
girls’ indoor track, two in boys’ indoor track, one in girls’ soccer, four in girls’ swimming and
diving, four in boys’ swimming and diving, one in girls’ cross country, three in boys’ cross country,
one in girls’ golf, 11 in boys’ golf, eight in girls’ volleyball, and eight in girls’ heptathlon (doc.
24-13 at 1).
2
The AISA applies a multiplier of 2.0 to single-gender schools (doc. 24-1 at 148).
3
St. Paul’s won these 89 championships from 2001 through the 2017-18 school year.
Counsel has not included the six championships that St. Paul’s lists as having been won in 2000
(doc. 24-13 at 1), because counsel is uncertain exactly when the Multiplier went into effect and
whether St. Paul’s won these championships in the 1999-2000 school year or the 2000-2001 school
year.
6
St. Paul’s football program was particularly successful. From 2000 through 2017, St.
Paul’s compiled a record of 165 wins to 61 losses, with 15 playoff appearances, a 35-11 record in
the playoffs, and four championships (doc. 24-1 at 91). St. Paul’s won its first-ever football
championship in 2007, followed by three more, in 2014, 2015, and 2017 (id.). Over the last seven
years (2011-2017), St. Paul’s won 83 games and lost 15, won ten or more games all but one year
(when it won nine games), made seven playoff appearances, and compiled a 24-4 record in the
playoffs, including the state-championship-game victories in 2011, 2015, and 2017 (id.).
Though classified 5A, St. Paul’s voluntarily scheduled football games against 6A and 7A
competition (doc. 24-1 at 5-6 [¶ 34], 15-17). From 2013-2017, St. Paul’s played eight games
against 6A and 7A schools, won seven, and lost one (22-18 to then-6A Fairhope in 2013) (doc. 24-
1 at 15-17). St. Paul’s average margin of victory in the seven wins was 37-10 (doc. 24-1 at 15-
17). These included a 42-0 win over 6A Dothan in 2016, a 42-7 win over 6A Northview in 2013,
a 41-14 win over 7A Fairhope in 2016, a 40-10 win over 7A Alma Bryant in 2015, a 37-6 win over
7A Alma Bryant in 2014, and a 34-14 win over 6A Dothan in 2017 (doc. 24-1 at 15-17). St. Paul’s
closest victory in 6A-7A competition was a three-point, 24-21 win over 7A Fairhope in 2017 (doc.
24-1 at 15-17). St. Paul’s all-time record in football against schools currently classified 7A is 16-
8 (66.67%), and against schools currently classified 6A, 54-27 (66.67%) (doc. 24-1 at 18). St.
Paul’s has fared better against the current 6A and 7A schools than it has against schools now
classified 4A, compiling a 66-36 record (64.71%) against 4A schools (doc. 24-1 at 18-19).
St. Paul’s alumni since becoming a 5A school in 2000 include A.J. McCarron (2009,
quarterback, University of Alabama, currently with Buffalo Bills), Mark Barron (2008, defensive
back, University of Alabama, currently with Los Angeles Rams), Tre Williams (2014, linebacker,
Auburn University, currently with New York Jets), Jacob Coker (2011, quarterback, Florida State,
7
University of Alabama, signed as free agent with Arizona Cardinals before release), and Chevis
Jackson (2004, defensive back, Louisiana State University, four NFL teams before leaving NFL
in 2011).
St. Paul’s has a total of 52 coaches for all sports, the highest number of coaches of any 5A,
6A, or 7A public or private school in the Mobile area (doc. 24-1 at 81). The next closest is 7A
McGill-Toolen with 44, and the least is 5A Williamson with 16 (doc. 24-1 at 81). Sixteen public
schools in the Mobile area, including eleven 6A and 7A schools, have less than 40 coaches (doc.
24-1 at 81). Ten, including six 6A and 7A schools, have less than 30 (doc. 24-1 at 81).
In its complaint, St. Paul’s asks for relief such that St. Paul’s would move down from last
year’s classification of 5A, in which St. Paul’s won 89 championships, to 4A (doc. 1 at 54).
E. The Classification Committee’s recommendation that AHSAA adopt the Competitive

Balance Factor.
Continued concerns over competitive imbalance between public and private schools led to
another change in AHSAA’s classification rules in 2017. From 2011 to 2016, private schools,
making up about 13.6% of AHSAA’s membership, won 38.1% of all championships in 12 boys’
sports and 36.6% of all championships in 12 girls’ sports (doc. 24-1 at 35-36). In July 2015,
AHSAA’s Director of Communications, Ron Ingram, informed the Board of a survey showing
that on average, 79.48% of private-school students participate in sports, while a random sampling
of 100 public schools showed that only 30.7% of public-school students participate (doc. 24-1 at
23-24; doc. 24-2 at 5 [¶ 8]). In March 2016, a state legislator introduced a bill to require AHSAA
“to allow public school members to compete only against each other for post regular season playoff
games and state championships, and its nonpublic school members to compete only against each
other for post regular season playoff games and state championships” (doc. 24-2 at 5 [¶ 19]; doc.
24-14 at 1-3).
8
In 2016, AHSAA formed a 15-member Classification Committee to study the relationship
between public and private schools (doc. 24-2 at 6 [¶ 21]). Five of the 15 members, including
Tony Havard, President of UMS-Wright Preparatory School, were from private schools (doc. 24-
2 at 6 [¶ 21]). Anthony McCall, Athletic Director of Montgomery Academy, a private school,
served as the Committee’s Co-Chair along with Matt Massey, Superintendent of Madison County
Schools (doc. 24-2 at 6 [¶ 21], 109; doc. 24-4 at 2-5).
The Classification Committee met six times between September 2016 and June 2017. As
described in Mr. Massey’s and Mr. McCall’s affidavits, the Committee discussed the competitive
advantages and disadvantages of public and private schools, including “[t]he difference in sport
participation percentages,” that “non-public schools can cap enrollment whereas public schools
cannot,” that “a number of non-public schools do not have the budget restraints for facilities that
public schools do,” that the “Alabama Accountability Act provides for financial assistance for
nonpublic schools,” that public schools’ enrollment figures are more inflated by “9th grade retained
students (a student who is repeating the 9th grade for failing to meet credit requirements to be
promoted),” “school attendance zones,” “selective enrollment,” and the “number of coaches non-
public schools are able to employ versus public schools” (doc. 24-4 at 2-7; doc. 24-7 at 2-3). The
Committee considered a number of alternatives to address competitive imbalance, including
methods used by athletic associations in other states (six used a multiplier or single-gender-school
multiplier, and two used a success factor) (doc. 24-4 at 4-7). The Committee finally decided on a
proposal that maintained use of the Multiplier and added a point system (hereafter “Competitive
Balance Factor” or “CBF”) applied to each of a school’s sports teams individually (as opposed
to the school as whole), based upon each team’s success during the immediately preceding three
years in post-season play (doc. 24-4 at 4, 20).
9
Mr. Massey states that “[t]he consensus of the Classification Committee was that the [CBF]
was the fairest solution,” and that “[t]he Committee members took great care and effort in
discussing, analyzing, deliberating, and finally recommending the [CBF]” (doc. 24-4 at 5 [¶ 14]).
Mr. Massey also explains that one reason the Committee decided on the CBF is that it would only
impact the private schools that had consistent success in their classification during the last three
years, whereas an increase in the Multiplier would impact many more private schools regardless
of past performance (doc. 24-4 at 5 [¶ 13]). The Committee thus felt that the CBF was more
narrowly tailored to address the disproportionately large numbers of championships won by
private schools. For example, the CBF this year affects only 85 of the total 820 private-school
teams in all sports (10.4%) (doc. 24-4 at 5 [¶ 13]).
Mr. McCall, Co-Chair of the Committee from Montgomery Academy, states in an
affidavit:
11. While the new Competitive Balance Factor will affect Montgomery
Academy, I appreciate the approach used by the AHSAA Central Board and the
Classification Committee in adopting this new rule. Of the solutions discussed, I
believe the Competitive Balance Factor is the fairest which is why I voted in
support of its recommendation to the Central Board.
12. As a representative of a non-public school on this Committee, I saw firsthand

the effort put into studying this issue by the other Committee members. In serving
on this Committee, I was sincerely trying to find a possible solution to the above
noted differences, advantages and disadvantages between the public and non-public
school members and my impression was that everybody else on this Committee was
doing so as well.
13. …I truly believe that our Committee members voted for what they believe
to be the best and fairest way to level a playing field. I know I did.
(Doc. 24-7 at 4). James E. Rainey, Jr., a Committee Member from Randolph School in Huntsville,
states in an affidavit that “Committee discussions were open, frank, and productive,” that the
“dialogue between Committee members was consistently respectful, and public school Committee
10
members frequently validated or expressed sympathy for the points of view of their non-public
school counterparts, and vice versa,” and that “I believe the Competitive Balance Factor was the
most appropriate recommendation for the Committee to make…on the basis of our extensive
deliberations” (doc. 24-8 at 3 [¶¶ 8-9]).
In June 2017, the 15-member Classification Committee unanimously voted to recommend
that the Central Board adopt the CBF (doc. 24-4 at 4 [¶ 11]).
F. AHSAA’s adoption of the CBF.
The Central Board comprises 15 members, including one, Terry Curtis of UMS-Wright
Preparatory School, from a private school (doc. 24-2 at 1-2 [¶ 3]). Mr. Massey informed the Board
of the Classification Committee’s unanimous vote recommending the CBF, and described the
information the Committee considered and the reasons the Board voted to recommend the CBF
(doc. 24-4 at 5 [¶ 15]; doc. 24-5 at 3 [¶ 6]). On November 13, 2017, the Board voted unanimously
to adopt the CBF (doc. 24-5 at 3 [¶ 6], 6), the final text of which states:
11
(Doc. 24-5 at 6)
G. Effect of the Multiplier and CBF on St. Paul’s.
The Multiplier results in AHSAA’s classifying St. Paul’s 5A (doc. 24-1 at 63). The CBF
applies to specific sports rather than to St. Paul’s sports program as a whole (doc. 24-1 at 72-75).
Based on post-season performance the past three years, St. Paul’s football, volleyball, boys’ golf,
boys’ and girls’ indoor and outdoor track, boys’ and girls’ cross country, boys’ and girls’ soccer,
and boys’ and girls’ tennis teams move up from 5A to 6A (doc. 24-1 at 72-75). St. Paul’s boys’
and girls’ swimming and diving teams, formerly in the combined 1A-5A classification for this
sport, move up to the combined 6A-7A classification (doc. 24-1 at 72-75). St. Paul’s other teams,
including basketball, soccer, softball, and baseball, remain 5A (doc. 24-1 at 72-75).
H. St. Paul’s appeal.
St. Paul’s sent AHSAA a letter dated January 22, 2018, stating that School representatives
wanted to attend the Central Board’s January 31, 2018 meeting and “be placed on the meeting
agenda” (doc. 24-2 at 117). AHSAA agreed (doc. 24-2 at 118). N. Blair Fisher, Head of St. Paul’s,
and Steve Mask, St. Paul’s athletic director and head football coach, “expressed concerns they had
about the [CBF],” and St. Paul’s asked the Board “to vacate the [CBF] or…to suspend its
application to allow more time for analysis and thoughtful reconsideration” (doc. 24-2 at 8 [¶ 29],
119) On February 8, 2018, St. Paul’s notified AHSAA that St. Paul’s wished to appeal the Board’s
adoption of the CBF and to be heard again (doc. 24-2 at 119). The Board granted St. Paul’s request
and conducted a hearing on March 13, 2018 (doc. 24-2 at 9 [¶ 32]). Mr. Fisher and Coach Mask
made a 38-page Power-Point presentation (doc. 24-2 at 9 [¶ 32]). The next day, March 14, 2018,
AHSAA sent St. Paul’s a letter advising that “[f]ollowing a review of the information provided
and considerable discussion, the [Board] voted unanimously to deny the appeal” (doc. 24-2 at 124).
12
I. St. Paul’s safety concerns.
St. Paul’s complaint alleges that the Multiplier and CBF’s effect will be to “place private
school students playing contact sports (basketball and soccer) and collision sports (football and,
eventually, lacrosse) at a heightened risk of injury” (doc. 1 at ¶ 109). St. Paul’s avers that high-
school football in general “accounts for the largest volume of concussions in sport at any level”
(doc. 1 at ¶ 111), and that high-school football players in general “sustain a large number of
impacts to the head, approaching more than 2,000 during a single season” (doc. 1 at ¶ 112). These
are risks of playing football in general and at any classification (see doc. 1 at ¶ 117, referring to
“already-present risks”). St. Paul’s alleges that if it is classified 6A, there will be an added but
unquantified increment of risk because St. Paul’s may be “unevenly matched against a school two
to three times its size with a greater number of players, a greater number of larger players, and
players who are not ‘playing both ways’” (offense and defense) (doc. 1 at ¶ 117). St. Paul’s
complaint asks the Court for relief such that St. Paul’s football team would not be classified 6A,
or 5A, but 4A, thereby avoiding the alleged added risk.
St. Paul’s has voluntarily scheduled football games against larger 6A and 7A schools for
years (doc. 24-1 at 5-6 [¶ 34], 15-18). The current enrollment figures for the 6A and 7A schools
that St. Paul’s voluntarily played from 2013 to 2017 are Alma Bryant – 1307, Fairhope – 1207,
Northview – 1021, and Dothan – 891 (doc. 24-1 at 60-61). St. Paul’s enrollment for 2017-18 was
310 (doc. 1 at ¶ 11). St. Paul’s also voluntarily scheduled football games against larger schools
prior to 2013, as it has an all-time record of 16-8 against teams currently classified 7A, and an all-
time record of 54-27 against teams currently classified 6A (doc. 24-1 at 18). St. Paul’s has
produced no evidence that its players sustained any concussions or other injuries against 6A and
13
7A competition, or if they did, that the number or severity of concussions or injuries exceeded
those suffered in competition against 1A-5A schools.
St. Paul’s has also produced no actual roster comparisons showing the heights and weights
of players on other 6A teams as compared with those of St. Paul’s players. AHSAA has provided
comparisons showing that St. Paul’s players’ average heights and weights in 2017 were on average
comparable to those of other 6A teams and of the 6A champion, Pinson Valley (doc. 24-1 at 78-
79); that St. Paul’s had 75 players on its roster in 2017 (doc. 24-1 at 7, 11-12); that 27 schools in
6A had smaller rosters (43 to 74) (doc. 24-1 at 9-10); and that the average number of players on
teams in Class 4A, the classification in which St. Paul’s desires to compete, was 51, which would
give St. Paul’s a 24-player advantage (doc. 24-1 at 12-13). St. Paul’s has produced no evidence
whether or how often its players have played both ways, whether or why St. Paul’s players could
or would be expected to do so more often if St. Paul’s was classified 6A, or whether St. Paul’s
players who have played both ways were injured more often or more severely than those who did
not. [St. Paul’s could of course prohibit its coaches from playing any player both ways.]
Two physicians sent letters to AHSAA opining that application of the CBF would increase
smaller teams’ risk of injury (doc. 1 at ¶¶ 57-60). AHSAA’s Central Board directed that AHSAA’s
Medical Advisory Committee review the physicians’ letters (doc. 24-5 at 4 [¶ 9]). At the
Committee’s meeting on February 25, 2018, the Committee informed AHSAA’s Executive
Director Savarese that there was “insignificant data to support the physicians’ assertion that there
is an increased risk of injury when a school plays another school in a higher class” (doc. 24-2 at
11 [¶ 37])
James B. Robinson, M.D. is the Medical Director for the University of Alabama
Department of Athletics, for DCH Sports Medicine in Northport, Alabama, and for AHSAA, and
14
Co-Chairman of AHSAA’s Medical Advisory Committee (doc. 24-3 at 2 [¶¶ 3-6]). Jeffrey R.
Dugas, M.D., an orthopedic surgeon with Andrews Sports Medicine & Orthopedic Center in
Birmingham, is a member of the Committee (doc. 24-6 at 1 [¶ 3], 3 [¶ 7]). AHSAA has filed
affidavits from both doctors (docs. 24-3 & 24-6). Neither believes that St. Paul’s football players
are at increased risk of concussions or other injury from competing in 6A (doc. 24-3 at 3-6; doc.
24-6 at 3-4).
As to increased risk in what St. Paul’s calls “contact sports (basketball and soccer),” St.
Paul’s soccer teams will move up to Class 6A, but the basketball teams will not, because they have
not had enough post-season success (doc. 24-1 at 72-75). As in football, however, St. Paul’s has
voluntarily scheduled soccer matches and basketball games against 6A and 7A schools – 54 soccer
matches and 29 basketball games over the last five years (doc. 24-1 at 152-69). St. Paul’s has
produced no evidence of injury rates in these contests as compared with those against 1A-5A
competition, nor any evidence of disparity in roster sizes or in players’ heights or weights.
J. Reaction to St. Paul’s suit by other private schools.
The CBF results in 85 of 820 total private-school sports teams (10.4%) moving up a
classification (doc. 24-4 at 5 [¶ 13]). Twenty-two private-schools have teams moving up due to
the CBF (doc. 24-1 at 72-75). Madison Academy joins St. Paul’s as the only two football teams
moving up, and Madison Academy has three other teams moving up (doc. 24-1 at 72-75). UMS-
Wright’s baseball, boys’ and girls’ golf, boys’ and girls’ outdoor and indoor track, and tennis teams
move up (doc. 24-1 at 72-75). Yet only St. Paul’s is a Plaintiff in this case. No others have joined
or intervened, and none have filed separate lawsuits. UMS-Wright, Madison Academy, and other
private schools have written AHSAA expressing their support of AHSAA.
15
UMS-Wright’s letter, signed by Board Chairman Brooks Milling, President Tony Havard,
and Head of School Doug Barber, says that “[o]ur purpose is to clearly state to you our support of
the AHSAA and our belief that an AHSAA comprised of both public and private schools is in the
best interest of the student athletes”; that the CBF was “developed through a fair and open process”
that included “unanimous recommendation of a Classification Task Force comprised of
representatives from both public and private schools”; and that “[a]lthough we may not see every
rule enacted by the AHSAA as ideal for UMS-Wright…, we respect the fairness and integrity of
the rule-making process” and “intend to abide by rules of the Association” (doc. 24-1 at 170-71)
The letter from Madison Academy President Terry Davis states, “I am writing to affirm the support
of Madison Academy for AHSAA”; that AHSAA’s Executive Director Savarese and his team
“lead openly and fairly from an established foundation of policies that have been arrived at by
membership participation”; that while the school has concerns about the CBF, “we believe that the
process and resulting decision was fairly deliberated”; and that “as a member…, we will respect
and abide by this ruling as we do with all [AHSAA] rules” (doc. 24-1 at 172). See also doc. 24-1
at 173-76, letters from McGill-Toolen, Randolph School, Trinity Presbyterian, and Houston
Academy.
II.
ARGUMENT
A. REQUIREMENTS FOR PRELIMINARY INJUNCTION.
A “preliminary injunction is an extraordinary and drastic remedy[.]” Suntrust Bank v.
Houghton Mifflin Co., 252 F.3d 1165, 1166 (11th Cir. 2001). The remedy “is never awarded as
of right,” Munaf v. Geren, 553 U.S. 674, 690 (2008), but “is a matter within the discretion of the
district court,” United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir. 1983), and
16
granting it “is the exception rather than the rule,” United States v. Lambert, 695 F.2d 536, 539
(11th Cir. 1983). A court may grant a preliminary injunction only if the movant “clearly carries
the burden of persuasion” as to four prerequisites: (1) “a substantial likelihood that [the movant]
will ultimately prevail on the merits,” (2) “that [the movant] will suffer irreparable injury unless
the injunction issues,” (3) “that the threatened injury to the movant outweighs whatever damage
the proposed injunction may cause the opposing party,” and (4) “that the injunction…would not
be adverse to the public interest.” Jefferson County, 720 F.2d at 1519.
In this case, St. Paul’s faces two additional hurdles. One is the heightened burden of proof
for a mandatory (as opposed to a prohibitive) preliminary injunction. A “typical preliminary
injunction is prohibitive in nature and seeks simply to maintain the status quo pending a resolution
of the merits of the case.” Haddad v. Arnold, 784 F. Supp. 2d 1284, 1295 (M.D. Fla. 2010). But
here, AHSAA has already implemented the Multiplier and CBF by having reclassified private
schools and by AHSAA’s and member schools’ having scheduled competition accordingly. St.
Paul’s and others have already signed contracts to play as scheduled. That is the status quo.
St. Paul’s is not seeking to maintain the status quo but to undo it. St. Paul’s asks the Court
to “order that [AHSAA] classify its member schools for the 2018-2020 classification period using
true, unadjusted enrollment” (doc. 2 at 30), which would necessitate “reschedul[ing] athletic
competition for the upcoming 2018-2019 academic year” (doc. 2 at 29 [¶ 79]). This is mandatory,
not prohibitive, injunctive relief. See Haddad, 784 F. Supp. 2d at 1295 (“When a preliminary
injunction is sought to force another party to act, rather than simply to maintain the status quo, it
becomes a ‘mandatory or affirmative injunction.’”). “Mandatory preliminary relief is particularly
disfavored, and should not be issued unless the facts and law clearly favor the moving party.”
Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976) (emphasis added).
17
Two, “delay is a factor that this Court may properly consider in evaluating the propriety of
a…preliminary injunction.” Mortensen v. Mortgage Elec. Registration Sys., Inc., 2010 WL
11425328, *8 (S.D. Ala. Dec. 23, 2010) (Steele, C.J.). A party “cannot delay...and then use an
‘emergency’ created by its own decisions concerning timing to support a motion for preliminary
injunction.” Id. (quoting Max-Planck-Gesellschaft Zur Forderung Der Wissenschaften E.V. v.
Whitehead Inst. for Biomed. Research, 650 F. Supp. 2d 114, 123 (D. Mass. 2009)).
AHSAA adopted the Multiplier in 1999 (doc. 24-2 at 4 [¶ 13]). St. Paul’s was classified
5A based on the Multiplier from 2000 to 2017 (doc. 24-1 at 22, 91, 93-94), and sought no
injunction until this year, after AHSAA also adopted the CBF. St. Paul’s 19-year delay should
rule out an injunction as to the Multiplier. See Skehan v. Board of Trustees of Bloomsburg State
College, 353 F. Supp. 542, 543 (M.D. Pa. 1973) (“Delays in seeking preliminary injunctions have
been held grounds for barring that relief. Since an application for preliminary injunction is based
upon an urgent need for the protection of Plaintiff’s rights, a long delay in seeking relief indicates
that speedy action is not required.”).
AHSAA adopted the CBF on November 13, 2017 (doc. 24-2 at 7 [¶ 25]), and denied St.
Paul’s appeal by letter dated March 14, 2018 (doc. 24-2 at 9 [¶ 33], 124). St. Paul’s filed suit on
May 24, 2018 – six months after AHSAA adopted the CBF, and two months and 10 days after
AHSAA denied the appeal. While a delay measured in months might not be significant in some
cases, it is in this case, because (1) the 2018 football season is set to begin August 24, 2018,
contracts for the scheduled games have already been signed (doc. 24-2 at 126-34), and logistics
have been worked out and plans made by AHSAA and member schools (doc. 24-2 at 9 [¶¶ 34 &
35]), and (2) St. Paul’s is asking the Court to order AHSAA to reclassify private schools based
solely on enrollment, which would then require reclassification of a number of public schools, and
18
AHSAA and member schools would then have to re-do all of the many affected schedules in short
order and before the season starts (doc. 24-1 at 83-86; doc. 24-2 at 9 [¶ 34]). Under these
circumstances, St. Paul’s delay should preclude any preliminary injunction. Cf. Wells Fargo Bank,
N.A. v. Atmore-Brewton-Marshall Props., LLC., 2014 WL 199202, *3 (S.D. Ala. Jan. 17, 2014)
(Steele, C.J.) (involving motion to appoint receiver, stating that “adverse circumstances that
[plaintiff] contends create a need for urgent, expedited relief have been known to it for a period of
months, dating back in some instances to August or September of last year,” that “plaintiff
refrained from filing [suit] until January 14, 2014,” and that “[s]uch a course of conduct is
inconsistent with the present hue and cry for an expedited remedy”); see also People ex rel. Bolton
v. Progressive Gen. Ins. Co., 228 N.E.2d 146, 149 (Ill. Ct. App. 1967) (“[A] delay of even a few
months in seeking injunctive relief is indicative of such a lack of urgency as to preclude the
issuance of an injunction.”), aff’d, 256 N.E.2d 338 (Ill. 1969); In re Marine Elec. Ry. Prods. Div.,
Inc., 17 B.R. 845, 847-48, 855-56 (Bankr. E.D.N.Y. 1982) (dismissing claim for injunction, based
on plaintiff’s delay of two months and 24 days after rejection of bid for contract and one month
and three days after contract awarded to another bidder who “proceeded to work”); Carson City
v. Price, 934 P.2d 1042, 1043-44 (Nev. 1997) (reversing preliminary injunction based on plaintiff’s
delay of six months after public hearing on approval of construction project and two months and
10 days after construction began, where defendant-developer had spent substantial sums and had
“complet[ed] a large portion of the construction”).
B. ST. PAUL’S CANNOT MEET ANY OF THE FOUR PREREQUISITES.
1. St. Paul’s is unlikely to succeed on the merits.
St. Paul’s complaint contains four counts: (1) Violation of equal protection, (2) violation
of substantive due process, (3) violation of procedural due process, and (4) declaratory judgment
19
as to the School’s rights under the AHSAA Handbook, Constitution, and Bylaws (doc. 1 at ¶¶ 134-
62). St. Paul’s asks the Court to order AHSAA to get rid of both the Multiplier and CBF and
classify private schools based solely on enrollment, which would make St. Paul’s not a 6A or 5A
school but a 4A school (doc. 1 at 54). St. Paul’s is unlikely to succeed on these claims.
a. St. Paul’s is unlikely to succeed on its claims as to the Multiplier.
A constitutional right “may be forfeited…by the failure to make timely assertion of the
right before a tribunal having jurisdiction to determine it.” Yakus v. United States, 321 U.S. 414,
444 (1944). There is “nothing in the nature of…a constitutional right…to prevent its being waived
or the right to claim it barred, as other rights may be,” by “conduct inconsistent with the assertion
of such a right.” Pierce Oil Corp. v. Phoenix Ref. Co., 259 U.S. 125, 128-29 (1922). The “right
to invoke the Fourteenth Amendment, being a personal privilege, may be lost by election, waiver,
or estoppel.” Dunn v. Fort Bend Cty., 17 F.2d 329, 333 (S.D. Tex. 1926).
AHSAA adopted the Multiplier in 1999, and reclassified St. Paul’s from 4A to 5A in 2000
(doc. 24-1 at 22; doc. 24-2 at 4 [¶ 13]). St. Paul’s competed in 5A for 18 years (doc. 24-1 at 91).
AHSAA has used the Multiplier and CBF to classify private schools for 2018-19, AHSAA and
member schools relied on such classification in scheduling, and St. Paul’s has signed contracts to
play as scheduled (doc. 24-2 at 9 [¶¶ 34 & 35]), 126-34; doc. 24-1 at 83-86). St. Paul’s did not
challenge the Multiplier in court until May 24, 2018. St. Paul’s has forfeited, waived, become
estopped to assert, or become barred by laches from asserting any such challenge by not making
it years ago and by expressly accepting the Multiplier through 18 years of actual competition as a
5A school (doc. 24-1 at 22, 91, 93-94). See United States v. Olano, 507 U.S. 725, 733 (1993)
(“forfeiture is the failure to make the timely assertion of a right,” and “waiver is the ‘intentional
relinquishment or abandonment of a known right’”); Dunn, 17 F.2d at 333 (any plaintiff who might
20
have questioned validity of county road district created by statute “has long since lost that right by
estoppel, waiver, or election; the district having existed as a going district for more than 16 years”);
Dobson v. Dunlap, 576 F. Supp. 2d 181, 184-85, 187-88 (D. Me. 2008) (laches barred claims under
Fourteenth Amendment).
b. St. Paul’s is unlikely to succeed on its equal-protection claim.
The Equal Protection Clause of the Fourteenth Amendment provides that no State shall
“deny to any person within its jurisdiction the equal protection of the laws.” AHSAA and similar
associations have been held to be “State actors” subject to the Fourteenth Amendment. See Lee
v. Macon County Bd. of Educ., 283 F. Supp. 194, 198 (M.D. Ala. 1968); Brentwood Academy v.
Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288 (2001). The Equal Protection Clause is
“a direction that all persons similarly situated should be treated alike.” City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985). It “does not prevent the states from resorting to
classification for the purposes of legislation.” F.S. Royster Guano Co. v. Virginia, 253 U.S. 412,
415 (1920). “[M]ost legislation classifies for one purpose or another, with resulting disadvantage
to various groups or persons.” Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 271-72 (1979).
As long as a law “neither burdens a fundamental right nor targets a suspect class,” courts
will “uphold the legislative classification so long as it bears a rational relation to some legitimate
end.” Romer v. Evans, 517 U.S. 620, 631 (1996). St. Paul’s has no fundamental right to be an
AHSAA member, and its students have no fundamental right to participate in athletics, so the
School cannot have a fundamental right to compete in a particular AHSAA classification. See
Morrissey v. United States, 871 F.3d 1260, 1268 (11th Cir. 2017) (“fundamental right” is one
“‘explicitly or implicitly guaranteed by the Constitution’”); Denis J. O’Connell High Sch. v.
Virginia High Sch. League, 581 F.2d 81, 84 (4th Cir. 1978) (private school had “no fundamental
21
right” to membership in athletic association); Graham v. NCAA, 804 F.2d 953, 959 (6th Cir. 1986)
(“participation in interscholastic athletics is not a…fundamental right”). Nor is the School part of
a “suspect class.” Griffin High Sch. v. Illinois High Sch. Ass’n, 822 F.2d 671, 675 (7th Cir. 1987)
(“private schools have not historically been considered a suspect class”).
Since the Multiplier and CBF do not affect a fundamental right or suspect class, they need
only be “rationally related to a legitimate state interest.” Walsh v. Louisiana High Sch. Athletic
Ass’n, 616 F.2d 152, 160 (5th Cir. 1980). This standard is “exceedingly deferential.” Marshall v.
ESPN Inc., 111 F. Supp. 3d 815, 831 (M.D. Tenn. 2015), aff’d, 668 Fed. Appx. 155 (6th Cir.
2016). A state’s legislative choice will be upheld “if there is any reasonably conceivable state of
facts that could provide a rational basis” for it. FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313
(1993). A legislative choice “is not subject to courtroom fact-finding and may be based on rational
speculation unsupported by evidence or empirical data.” Id. “[W]hether in fact the provision will
accomplish its objectives is not the question”; equal protection “is satisfied if [the court]
conclude[s] that the [state actor] rationally could have believed that the [provision] would promote
its objective.” Western & S. Life Ins. Co. v. State Bd. of Equalization of Cal., 451 U.S. 648, 671-
72 (1981) (emphasis in original).4
4
The rational-relation test and the law developed thereunder apply not only to statutes
enacted by state legislatures but also to rules adopted by state actors, such as athletic associations,
and by state agencies. See, e.g., Kite v. Marshall, 661 F.2d 1027, 1030 (5th Cir. 1981) (applying
rational-relation test and law to athletic association’s eligibility rule); Valencia v. Blue Hen
Conference, 476 F. Supp. 809, 825-26 (D. Del. 1979) (applied to association’s not admitting
private schools), aff’d, 615 F.2d 1355 (3d Cir. 1980); In re United States ex rel. Mo. State High
Sch. Athletic Ass’n, 682 F.2d 147, 151-53 (8th Cir. 1982) (applied to association’s rule);
Archbishop Walsh High Sch. v. Section VI of N.Y. State Pub. High Sch. Athletic Ass’n, 666
N.E.2d 521, 523 (N.Y. Ct. App. 1996) (applied to association’s not admitting private schools);
Sisson v. Virginia High Sch. League, 2010 WL 5173264, *3-4 (W.D. Va. Dec. 14, 2010) (applied
to association’s rule); Griffin High Sch. v. Illinois High Sch. Ass’n, 822 F.2d 671, 674-75 (7th Cir.
1987) (applied to association’s rule); Dandridge v. Williams, 397 U.S. 471, 473, 485 (1970)
22
The Multiplier and CBF pass the rational-relation test by a wide margin. AHSAA’s
membership includes both public and private schools, whose interests sometimes diverge but who
by and large prefer to combine rather than separate their competition. AHSAA exists for the
benefit of both groups. The Multiplier and CBF are an effort to address both constituencies’
concerns, and to maintain combined competition rather than having separate competition, by
achieving an appropriate competitive balance. The Multiplier and CBF are intended to level the
playing field between public and private schools, by offsetting certain competitive advantages
possessed by private schools which have contributed to private schools’ winning a
disproportionately large number of championships (e.g., higher rates of student participation in
athletics; ability to control enrollment as to both quality and quantity; greater financial resources,
leading to more coaches and better facilities; not being saddled with as many students who are
ineligible to compete but who inflate enrollment for classification, etc.) (doc. 24-1 at 14, 24, 25-
34, 49, 81-82). AHSAA’s Classification Committee, on which private schools were well
represented, considered and discussed various alternatives for months, and finally recommended
keeping the Multiplier and adding the CBF (doc. 24-4 at 4 [¶ 11]; doc. 24-7 at 4 [¶ 9]; doc. 24-8
at 3 [¶ 9]; doc. 24-2 at 109). AHSAA’s Central Board of Control agreed, and voted unanimously
to adopt the CBF in addition to the Multiplier that had been in effect since 2000 (doc. 24-2 at 7 [¶
25], 181).
Promoting competitive balance in high-school athletics, including between public and
private schools, is a legitimate state interest. See Kite v. Marshall, 661 F.2d 1027, 1029 (5th Cir.
1981) (“mak[ing] competition among [association’s] member schools as fair and equitable as
(applied to agency’s regulation); Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1071, 1084 (9th Cir.
2015) (applied to agency’s rules).
23
possible” was “legitimate state objective”); Mitchell v. Louisiana High Sch. Athletic Ass’n, 430
F.2d 1155, 1158 (5th Cir. 1970) (“fair competition among [association’s] member schools” was
“legitimate state interest”); Griffin High Sch. v. Illinois High Sch. Ass’n, 822 F.2d 671, 675 (7th
Cir. 1987) (rule’s purpose of “plac[ing] public schools on an equal footing with private schools
with regard to student recruitment” was “a legitimate one”). So is preserving combined
competition for public and private schools. See Bax v. Missouri State High Sch. Activities Ass’n,
No. 02CV167612, slip op. [doc. 24-12] at ¶ 9 (Boone County Mo. Cir. Ct. Jan. 23, 2008)
(upholding 1.35 multiplier for private schools, stating that association had “a legitimate and
substantial interest” in “preserving combined championships for public and nonpublic schools,”
as well as in “preserving the Association” made up of both kinds of schools). And the means
chosen by AHSAA – the Multiplier and CBF – are rationally related to these interests. The
Multiplier counts each private-school student at 1.35 times each public-school student, such that a
private school, once it reaches a certain enrollment, will be classed higher than a public school
with the same enrollment. As a result, the private school will be matched against public schools
with higher enrollment and which therefore will (presumably) provide better competition for the
competitively advantaged private school. The CBF, based on private-school teams’ success in
post-season play, has the same effect. Consequently, the Multiplier and CBF benefit those schools
“who were disadvantaged under the previous system of classification.” Bax, slip op. [doc. 24-12]
at ¶ 9. Had AHSAA not adopted the Multiplier in 1999 or had it not adopted the CBF in 2017,
and instead decided to classify both public and private schools based strictly on enrollment (as St.
Paul’s is asking the Court to order), the likely result would have been separate public-school and
private-school competition in the post-season, and potentially AHSAA’s becoming an association
of public schools only.
24
Under “rational basis review, a state ‘has no obligation to produce evidence to sustain the
rationality of a statutory classification.’” Leib v. Hillsborough Cty. Pub. Transp. Comm’n, 558
F.3d 1301, 1306 (11th Cir. 2009). Instead, the challenged classification “is presumed
constitutional, and the burden is on the one attacking the law to negate every conceivable basis
that might support it[.]” Leib v. Hillsborough Cty. Pub. Transp. Comm’n, 558 F.3d 1301, 1306
(11th Cir. 2009). St. Paul’s has not met and cannot meet this burden, because there are a number
of conceivable bases that might support the Multiplier and CBF. And AHSAA’s Classification
Committee and Central Board of Control certainly could “rationally…have believed that the
[Multiplier and CBF] would promote [AHSAA’s] objective” of competitive balance and
preserving combined competition. Western & S. Life Ins. Co., 451 U.S. at 671-72. Whether the
Committee and Board could have chosen a more effective method, or one with more limited effects
on private schools, is irrelevant. See Heller v. Doe, 509 U.S. 312, 321 (1993) (“courts are
compelled under rational-basis review to accept a legislature’s generalizations even when there is
an imperfect fit between means and ends,” and a “classification does not fail rational-basis review
because it is not made with mathematical nicety or because in practice it results in some
inequality”) (internal quotation marks omitted).
This case is not the first equal-protection challenge to competitive-balance rules affecting
private schools. Other courts have rejected such challenges. In Bishop Grimes High School v.
New York State Public High School Association, No. 5:00-CV-1214, slip op. [doc. 24-10]
(N.D.N.Y. May 1, 2001), the association adopted a resolution “to plac[e] its nonpublic school
members in classes suitable for ensuring equitable competition [in post-season play] regardless of
enrollment.” Id. at 2. The resolution listed 14 criteria which, though not quoted in the court’s
opinion, apparently included “enrollment, transfer policies, athletic budgets, sports programs
25
offered, [and] success rates in various sports.” Id. at 2, 3. The association moved the plaintiffs’
basketball teams up a level, based on these criteria. Id. at 3-4. The plaintiffs alleged that the
association, “by effectuating rules which classify nonpublic schools…on the basis of
considerations other than enrollment, transgressed the Equal Protection Clause[.]” Id. at 5. The
association moved to dismiss the complaint for failure to state a claim. Id. at 5. The court noted
the “lengthy period of dominance of plaintiffs’ basketball programs” and recognized the
“responsibility of the [association] to maintain a competitive balance” and to “‘reasonably assur[e]
that all member schools have the opportunity to compete on a relatively level playing field.’” Id.
at 8. Applying the rational-relation test, the court found no violation of equal protection, stating
that the association “concluded that reclassification serves the purpose of making interscholastic
athletics fairer and more competitive,” and that “[i]t cannot be said that this action has no
significant relevancy to the actualization of that goal.” Id. at 7-9. The court dismissed the
complaint. Id. at 10. See also Bishop McGuinness Catholic High Sch. v. Oklahoma Secondary
Sch. Ass’n, No. 5:14-cv-956, slip op. [doc. 24-9] at 9, 14-18 (W.D. Okla. Nov. 18, 2014) (denying
preliminary injunction against association’s post-season classification criteria which, though
facially neutral, would result in higher classification of private schools only, finding that criteria
were rationally related to “objective of ‘preserving equitable competitive opportunities’”); Bax v.
Missouri State High Sch. Activities Ass’n, No. 02CV167612, slip op. [doc. 24-12] at 3, 17-21
(Boone County Mo. Cir. Ct. Jan. 28, 2003) (upholding 1.35 multiplier for private schools as
rationally related to interest in “competitive equity,” stating that multiplier was “simply another
permissible tool to address equity in grouping schools[,] like the existing tools of classification
[and] different enrollment breaks”); Holt v. Arkansas Activities Ass’n, No. CV-2006-4194, slip
op. [doc. 24-11] at 1, 8 (Pulaski County Ark. Cir. Ct. Aug. 3, 2006) (denying preliminary
26
injunction against 1.75 multiplier for private schools, finding that multiplier was rationally related
to interest in “fair competition” and had “a reasonable basis based on the advantages of non-public
schools over public schools”).
St. Paul’s alleges that AHSAA’s adoption of the CBF “was motivated by a bare desire to
harm and disadvantage a politically unpopular group” (doc. 1 at ¶ 8). See USDA v. Moreno, 413
U.S. 528, 534 (1973) (under equal protection, “a bare congressional desire to harm a politically
unpopular group cannot constitute a legitimate governmental interest”). That private schools, of
which there are many in Alabama, are a “politically unpopular group” is doubtful. Regardless,
five of the 15 members of AHSAA’s Classification Committee that unanimously recommended
the CBF were from private schools (doc. 24-2 at 109). The committee made this recommendation
after six meetings over nine months and with many communications in between, during which
alternatives were proposed and considered (doc. 24-4 at 2 [¶ 5], 3 [¶ 7], 6 [¶ 16]; doc. 24-7 at 2 [¶
5], 3 [¶ 8]; doc. 24-8 at 2 [¶ 7], 3 [¶ 8]). One member of AHSAA’s Central Board of Control,
which voted unanimously to adopt the CBF, was from a private school (Terry Curtis of UMS-
Wright Preparatory School) (doc. 24-2 at 16). St. Paul’s position apparently is that the private-
school representatives on the Committee and Board had a “bare desire to harm and disadvantage”
their own schools. That is highly unlikely.
If AHSAA was out to “harm and disadvantage” private schools through the CBF, it would
be reasonable to expect that more than one school would have joined this suit. None have; St.
Paul’s is the lone complainant. Not only have other schools not joined, representatives of several
(including UMS-Wright Preparatory School) have expressed support for AHSAA, and
disagreement with the School’s filing suit (doc. 24-1 at 170-76). That is hardly the reaction
expected if AHSAA’s desire was as the School claims. Private schools have been members of
27
AHSAA since its inception in 1921; those schools obviously and rightly perceive that they benefit
from membership, as does ASHAA; and AHSAA has no desire to “harm and disadvantage” them.
St. Paul’s alleges that the Multiplier and CBF expose St. Paul’s football, soccer, and
basketball players to greater risk of injury from having to compete against 6A schools with more,
bigger, and faster players (doc. 1 at ¶ 108). AHSAA has produced evidence and facts to the
contrary (doc. 24-1 at 7-13, 18-21, 78-80; doc. 24-3 at 1-33; doc. 24-6 at 1-16). In any event, St.
Paul’s argument goes to the wisdom of the Multiplier and CBF, not to their constitutionality.
“Once a rational relationship [is shown to] exist,…judicial inquiry must cease.” In re United States
ex rel. Mo. State High Sch. Activities Ass’n, 682 F.2d 147, 152 (8th Cir. 1982). Equal protection
“is not a license for courts to judge the wisdom, fairness, or logic of legislative choices,” FCC, 508
U.S. at 307, and “[i]t is not the role of the federal courts to set aside decisions of school
administrators” because those decisions allegedly “lack[] a basis in wisdom or compassion,” Wood
v. Strickland, 420 U.S. 308, 326 (1975). Whether a rule “is wise or creates undue individual
hardship are policy decisions better left to legislative and administrative bodies,” because
“[s]chools themselves are by far the better agencies to devise rules and restrictions governing
extracurricular activities,” and “[j]udicial intervention in school policy should always be reduced
to a minimum.” Missouri State High Sch. Activities Ass’n, 682 F.2d at 152-53 (upholding
association’s transfer rule). See also Kite v. Marshall, 661 F.2d 1027, 1030 (5th Cir. 1981) (stating
that court would “not evaluate the ultimate wisdom…of [athletic association’s ‘summer camp
rule’], or the sagacity of its methodology,” that “[t]he school authorities have concluded that [the
rule] serves the purpose of making interscholastic athletics fairer and more competitive,” and that
court was “not prepared to say that [the rule] bears no meaningful relationship to the achievement
of that ideal”); Hardy v. Univ. Interscholastic League, 759 F.2d 1233, 1235 (5th Cir. 1985) (federal
28
courts “are not super referees over high school athletic programs”).
c. St. Paul’s is unlikely to succeed on its substantive-due-process claim.
The Due Process Clause of the Fourteenth Amendment provides that no State shall
“deprive any person of life, liberty, or property, without due process of law.” The “substantive
component of [due process] 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). Also, “[w]here a person’s state-created rights are infringed by a ‘legislative act,’ the
substantive component of [due process] generally protects that person from arbitrary and irrational
governmental action.” Kentner v. City of Sanibel, 750 F.3d 1274, 1279-80 (11th Cir. 2014). In
either case, “a plaintiff must, as a threshold matter, show a government deprivation of life, liberty,
or property.” Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998).
As previously discussed, this case does not involve any “fundamental rights.” St. Paul’s
claims that it has been deprived of state-created property rights that are based on AHSAA’s
Constitution, Bylaws, or Handbook, or on “mutually explicit understandings” with AHSAA (doc.
1 at ¶ 144), such rights being as follows:
a. The right to the Association’s promulgation and application of rules

(including its Constitution and Bylaws) in a manner that does not substantially
increase the likelihood of personal injury and harm to students engaged in athletic
competition;
b. The right to have the Association’s “power to classify” exercised in manner

that does not discriminate against private schools (as a class), that does not penalize
private schools (as a class) for athletic accomplishments that are encouraged and,
indeed, lauded among public schools, and that does not penalize private schools (as
a class) for fostering participation in school athletics;
c. The right to have the Association abide by its charter mission to provide fair
and balanced sporting events, so that all student-athletes have the opportunity to
participate in an environment of “pure” competition;
d. The right to the Association’s promotion of St. Paul’s athletic programs to
29
the same degree as, and on equal footing with, the athletic programs of public
schools;
e. The right to have the achievements of its student-athletes judged and

evaluated in the same manner and on equal footing with the student-athletes of
public schools; and
f. The right to not otherwise be treated disparately or unequally from public

schools.
(Doc. 1 at ¶ 143). St. Paul’s alleges that AHSAA “deprived [St. Paul’s] of [such] rights by
designing and applying the CBF so that all private school students in the classification grades (10th-
12th) are counted as 1.35 students,” which “automatically requires those students to ‘play up’ a
classification,” and “then penalizing those students (again) if they achieve success by moving them
up yet another classification” (doc. 1 at ¶ 145). In other words, St. Paul’s contends it has a
property right to be classified 4A and not 6A.
St. Paul’s has no such right, under AHSAA documents or the law. AHSAA’s Constitution
states that “[t]he Central Board of Control shall have full authority to adopt rules and regulations
which shall be uniformly effective and binding upon all members of the Association,” and that the
Board “shall have the power to classify member schools into two or more divisions for the purpose
of athletic competition” (doc. 24-2 at 31 [§ VII(i)], 32 [§ VII(l)]). The Constitution (doc. 24-2 at
20-34) does not say that the Board can only classify schools based on enrollment, that it cannot
classify private schools differently than public schools, or that it cannot change the rules on
classification. AHSAA’s 2017-18 Handbook (doc. 24-2 at 13) – one of the documents upon which
the School bases its claim – expressly states that “[a]n index of 1.35 is used to determine the
enrollment figure for classifying each private school member,” and that “[e]ach private school
student counts 1.35 for classification purposes” (doc. 24-2 at 100). Prior Handbooks would have
included this same provision after AHSAA adopted the Multiplier in 1999. A Handbook stating
30
that AHSAA will apply the Multiplier to private schools cannot create a right to have AHSAA not
apply the Multiplier to private schools. St. Paul’s accepted the Multiplier from its adoption in
1999 to 2017. St. Paul’s cannot have had any understanding that AHSAA would only classify
schools by enrollment or that AHSAA could not or would not classify private schools differently
than public schools, because St. Paul’s has known since 1999 that AHSAA could and had classified
private schools differently. What St. Paul’s calls “rights” are at best only expectations. See Board
of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972) (“To have a property interest in a
benefit, a person clearly must have more than an abstract need or desire for it. He must have more
than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.”).
St. Paul’s student-athletes, not St. Paul’s itself, are the ones who actually compete. They
have no liberty or property interest in participating in athletics. See 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. Louisiana High Sch. Athletic Ass’n, 430 F.2d 1155, 1158 (5th Cir.
1970)); Walsh v. Louisiana High Sch. Athletic Ass’n, 616 F.2d 152, 159-60 (5th Cir. 1980)
(“student’s interest in participating in a single year of interscholastic athletics amounts to a mere
expectation rather than a constitutionally protected claim of entitlement”); Stewart v. Bibb County
Bd of Educ., 2006 WL 449197, *2 (M.D. Ga. Feb. 23, 2006) (“students do not have property rights
in any expectation to participate in athletics”), aff’d, 95 Fed. Appx. 927 (11th Cir. 2006); Gates v.
Board of Directors 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.”). Since students have no liberty or property right to
participate in athletics at all, neither they nor St. Paul’s can have any liberty or property right to
31
compete in any particular AHSAA classification. See Immaculate Heart Cent. Sch. v. New York
State Pub. High Sch. Athletic Ass’n, 797 F. Supp. 2d 204, 218 (N.D.N.Y. 2011) (“Since the right
to participate in interscholastic athletics is not protected by due process, it follows that competing
in a particular Class, within a specific Section, is not constitutionally protected.”); Bishop
McGuiness, slip op. at 19-21 (rejecting private school’s argument that “[b]efore [new rule’s]
implementation, [school] ‘could be confident that it would be classified [5A] according to its
[enrollment]” and that school as a result had “protected ‘property interests” stemming from “status
in [its]…5A classification”).
Even if St. Paul’s had a property interest in a particular classification, St. Paul’s still could
not prevail. “Substantive due process challenges that do not implicate fundamental rights are
reviewed under the ‘rational basis’ standard,” Kentner v. City of Sanibel, 750 F.3d 1274, 1280
(11th Cir. 2014), which is indistinguishable from the rational-relation test under equal protection,
see Braun v. Terry, 148 F. Supp. 3d 793, 806 (E.D. Wis. 2015) (“In the context of both equal
protection and substantive due process claims,…courts employ a rational basis test to determine
whether the state action is constitutional.”). The party challenging the legislative judgment “must
convince the court that the legislative facts on which the classification is apparently based could
not reasonably be conceived to be true by the governmental decisionmaker.” Kentner, 750 F.3d
at 1281 (internal quotation marks omitted). The state is “not required to convince the courts of the
correctness of [its] legislative judgment[],” and the “wisdom or fairness of [the state’s] rationale[]”
is not the test. Id. (internal quotation marks omitted). The rational-basis standard “is ‘highly
deferential,’” and courts “hold legislative acts unconstitutional under [this] standard in only the
most exceptional of circumstances.” Id.
AHSAA has already explained how and why the Multiplier and CBF are rationally related
32
to the legitimate interests in promoting fair competition and preserving combined public-private
competition. For those same reasons, the Multiplier and CBF meet the rational-basis standard for
substantive due process.
d. St. Paul’s is unlikely to succeed on its procedural-due-process claim.
St. Paul’s alleges that AHSAA “depriv[ed] [St. Paul’s] of its aforementioned
constitutionally protected rights without due process, including notice and an opportunity to be
heard at a meaningful time and in a meaningful manner” (doc. 1 at ¶ 154). One alleging a violation
of procedural due process must show “(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). St. Paul’s has no liberty or property interest in
competing in a particular classification; hence, St. Paul’s also has no procedural due-process claim.
St. Paul’s also cannot prevail because it cannot show that it received inadequate process.
The AHSAA Constitution (doc. 24-2 at 20-34) does not require notice to all or any members prior
to the Central Board of Control’s adopting a rule. After the Board adopted the CBF, St. Paul’s on
January 31, 2018 appeared before and was heard by the Board as to St. Paul’s concerns; St. Paul’s
appealed the Board’s decision to adopt the CBF; and St. Paul’s was heard again by the Board on
March 13, 2018 (doc. 24-2 at 8-9 [¶¶ 27-32], 117-24). This is adequate process under the
circumstances. See Grayden, 345 F.3d at 1232 (“due process is a flexible concept that varies with
the particular circumstances”); St. Patrick High Sch. v. New Jersey Interscholastic Athletic Ass’ns,
2010 WL 715826, *4 (D.N.J. Mar. 1, 2010) (stating that “due process hearing requirements are
determined by the interests at stake,” that “participation in interscholastic athletics is not a
constitutionally protected right,” and that “the Court is mindful of this when assessing whether the
process here was sufficient”); McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (“the state
33
may cure a procedural deprivation by providing a later procedural remedy”).
St. Paul’s also alleges that AHSAA violated procedural due process “by applying the CBF
in an ex post facto manner,” in that “[a]t the time the CBF was adopted, the Association knew
specifically how it would impact (in its initial application) each private school because the rule is
based on and, in fact, penalizes prior athletic performance” (doc. 1 at ¶ 154). This does not state
a claim for a procedural due-process violation. Also, “[a]n ex post facto law is ‘any law which
imposes a punishment for an act which was not punishable at the time it was committed; or imposes
additional punishment to that then prescribed,’” Raymer v. Enright, 113 F.3d 172, 174 (10th Cir.
1997), and “[t]he ex post facto bar applies only to criminal laws,…not to civil regulatory regimes,”
Waldman v. Conway, 871 F.3d 1283, 1293 (11th Cir. 2017). The ex post facto principle has no
application in this civil case. Also, the CBF is not a “penalty.” Moving up a classification can
just as well be viewed as a reward for success and an opportunity for more against better
competition. St. Paul’s 5A championships after the Multiplier moved St. Paul’s from 4A to 5A in
2000 are proof of this.
e. St. Paul’s is unlikely to succeed on its claim for a declaratory judgment as to its
rights under the AHSAA Handbook, Constitution, or Bylaws.
Citing the same alleged “rights” forming the bases for St. Paul’s due-process claims, St.
Paul’s avers that AHSAA “adopted the CBF in breach of its duties, and in direct violation of the
rights, interests, and expectations of its private school members, under the Association Handbook,
Constitution, and Bylaws” (doc. 1 at ¶¶ 157-62). Most if not all of the so-called “rights” are mere
expectations. For example, St. Paul’s claims that it has a “right” to “have [AHSAA] abide by its
charter mission to provide fair and balanced sporting events, so that all student-athletes have the
opportunity to participate in an environment of ‘pure’ competition” (doc. 1 at ¶ 159c). AHSAA’s
aspiration of fostering fair, balanced, and “pure” competition does not confer any right, nor is such
34
an aspiration a specific promise amenable to enforcement by a court. See Ullmo ex rel. Ullmo v.
Gilmour Acad., 273 F.3d 671, 677 (6th Cir. 2001) (“Indefinite and aspirational language does not
constitute an enforceable promise[.]”).
There is also no basis for St. Paul’s interpretation that “pure” competition means
classification by enrollment only. Such classification would have competitive advantages for some
schools and disadvantages for others. Classifying St. Paul’s by enrollment would put it in Class
4A, where it would enjoy an advantage of having, on average, 24 more players on its roster than
other 4A schools (doc. 24-1 at 12-13). Those other schools probably would not view this as fair,
balanced, or “pure” competition. In fact, the so-called “right” to provide fair, balanced, and “pure”
competition can just as easily be construed as supporting AHSAA’s implementing measures for
competitive balance.
St. Paul’s also claims a “right” to “have [AHSAA’s] ‘power to classify’ exercised in a
manner that does not discriminate against private schools” (doc. 1 a ¶ 159b). But AHSAA’s
Constitution gives the Central Board of Control “full authority to adopt rules and regulations which
shall be…binding upon all members,” and the “power to classify member schools into two or more
divisions” (doc. 24-2 at 30 [§ VII(i)], 31 [§ VII(l)]). The Constitution does not say that the Board
can only classify based on enrollment, cannot classify private schools differently, or cannot change
the rules on classification. Moreover, St. Paul’s has known and accepted since 2000, when the
Board adopted the Multiplier, that the Board could and did classify private schools differently. St.
Paul’s therefore cannot have the “right” it claims, and even if St. Paul’s ever had such right, St.
Paul’s has long since forfeited, waived, become estopped to assert, or become barred by laches
from asserting it.
Alabama law precludes the declaratory relief the School seeks. The Alabama Supreme
35
Court has stated that courts should very seldom and only in very limited circumstances interfere
with AHSAA rules or decisions. See Scott v. Kilpatrick, 237 So. 2d 652, 655 (Ala. 1970);
Alabama High Sch. Athletic Ass'n v. Rose, 446 So. 2d 1, 5 (Ala. 1984). The court has explained
that “[p]articipation in high school athletics…is a privilege which may be claimed only in
accordance with the standards set up for participation,” that “[t]he member schools are in better
position to promulgate rules governing [such] participation” and “are fully cognizant of the reasons
underlying such rules,” and that if “the member schools vest final enforcement of the association’s
rules in boards of control, then a court should not interfere in such internal operation of the affairs
of the association.” Scott, 237 So. 2d at 655. “The traditional philosophy in [such] areas…is much
like that associated with religious societies and other voluntary associations—a hands-off
philosophy. In other words, it’s their show; let them run it.” Rose, 446 So. 2d at 5. These
principles apply not only to AHSAA’s enforcement of its rules but also to the adoption and validity
of AHSAA’s rules. See Kubiszyn v. Alabama High Sch. Athletic Ass’n, 374 So. 2d 256, 257-58
(Ala. 1979) (citing Scott, affirming dismissal of complaint “which questioned the constitutionality
of” by-law concerning eligibility).
The “burden on the challenger to overcome the presumption favoring [AHSAA’s] absolute
authority in the conduct of its own affairs is a heavy one.” Rose, 446 So. 2d at 5. Courts can only
get involved “if the acts of [the] association are the result of fraud, lack of jurisdiction, collusion,
or arbitrariness.” Scott, 237 So. 2d at 655. And even then, the “averments of fraud, collusion, or
arbitrariness [must be] supported by clear and convincing evidence.” Rose, 446 So. 2d at 5.
St. Paul’s cannot meet this burden, by clear and convincing evidence or otherwise. St.
Paul’s does not allege fraud, lack of jurisdiction, or collusion, and it cannot prove arbitrariness.
AHSAA’s adoption of the CBF was the product of months of study and discussions by a committee
36
on which private schools were well represented. The committee unanimously recommended the
CBF, and the Central Board of Control, which also included a private-school representative,
unanimously adopted it. The CBF, like the Multiplier, is rationally related to AHSAA’s legitimate
goals of promoting competitive balance and preserving combined public-private competition. It
is not something that AHSAA just arbitrarily decided to adopt.
2. St. Paul’s is not faced with any actual, imminent, and irreparable injury.
A “showing of irreparable injury is the sine qua non of injunctive relief.” Siegel v. LePore,
234 F.3d 1163, 1176 (11th Cir. 2000) (internal quotation marks omitted). The “asserted irreparable
injury ‘must be neither remote nor speculative, but actual and imminent.’” Id.
St. Paul’s claims that it will suffer irreparable injury in that “the CBF will force [St.
Paul’s]…to compete against substantially larger schools, two or three times their sizes,” thereby
“creat[ing] a completely unfair competitive environment” (doc. 1 at ¶ 77). In other words, St.
Paul’s does not think it will win enough games in Class 6A. But St. Paul’s has voluntarily
scheduled 6A and 7A competition for years, and has a proven record of success against 6A and
7A teams in, for example, football and baseball (doc. 24-1 at 15-18, 152-57). St. Paul’s concern
that it may not win enough in the future is speculative. See Bishop McGuiness, slip op. [doc. 24-
9] at 25 (finding that “[a]ny harm about which [private school] has complained that it ‘could
suffer,’” including “lack of competitiveness at the 6A level,” was “speculative”). Also, courts
have held that schools’ or students’ not being able to compete at all is not irreparable harm, so it
necessarily follows that being able to compete, and merely having to do so against better
competition, is not irreparable harm. See St. Patrick High Sch. v. New Jersey Interscholastic
Athletic Ass’ns, 2010 WL 715826, *1 (D.N.J. March 1, 2010) (association’s banning high school’s
basketball team from tournament would not cause school irreparable harm, as such did “not rise
37
to the type of harm injunctive relief is intended to remedy”); Sharon City Sch. Dist. v. Pennsylvania
Interscholastic Athletic Ass’n, 2009 WL 427373, *2 (W.D. Pa. Feb. 20, 2009) (“Certainly the
possibility that the School District may lose a playoff game if [player ruled ineligible] does not
compete cannot constitute ‘irreparable harm.’”); McGee v. Virginia High Sch. League, Inc., 801
F. Supp. 2d 526, 531 (W.D. Va. 2011) (“Courts have routinely rejected the notion that a student
suffers irreparable harm by not being permitted to participate in interscholastic athletics.”); Dziewa
v. Pennsylvania Interscholastic Athletic Ass'n, Inc., 2009 WL 113419, *7 (E.D. Pa. Jan. 16, 2009)
(“ineligibility for participation in interscholastic athletic competitions alone does not constitute
irreparable harm”).
St. Paul’s also claims that it will suffer irreparable harm because competing against 6A
schools will place St. Paul’s “students playing contact sports (basketball and soccer) and collision
sports (football) at a heightened risk of injury” and that St. Paul’s “student-athletes will be exposed
to heightened risks of injury in football competition by being forced to compete against teams with
substantially more and larger athletes” (doc. 2 at ¶ 77). There is little or no doubt that some of St.
Paul’s football, basketball, and/or soccer players will suffer injuries, but that will happen no matter
whether they compete at the 1A, 2A, 3A, 4A, 5A, 6A, or 7A level. Safety is a concern in playing
these sports, especially football, at any classification, and players are exposed to a certain level of
risk that is avoidable only by not playing. St. Paul’s argument regarding football concussions and
sub-concussive impacts is not so much one against classifying St. Paul’s 6A as it is an argument
against playing football.
St. Paul’s claims there is an added but unquantified increment of risk if St. Paul’s competes
at the 6A level. AHSAA has produced medical evidence and facts to the contrary (doc. 24-1 at
pp. 7-13, 78-80; doc. 24-3 at 1-33; doc. 24-6 at 1-16). In any event, the alleged added increment
38
has to be small compared with the risks that already exist in competing at the 5A or 4A level.
What is more, St. Paul’s has for years exposed its students to the added risk, because St. Paul’s
has for years voluntarily played 6A and 7A teams in football, soccer, and basketball (doc. 24-1 at
15-18). See Bishop McGuinness, slip op. [doc. 24-9] at 27 (private school’s argument premised
“on the notion that competition in Class 6A is unsafe” was “suspect” because school “plays Class
6A teams by choice during the pre-season and regular season”). St. Paul’s apparently has had no
concerns about what its complaint now calls “extreme risks of serious injury” from competing
against 6A teams (doc. 1 at ¶ 133). St. Paul’s actions are a more accurate gauge than its words as
to what St. Paul’s really believes about the risks. In addition, St. Paul’s has failed to produce any
evidence that its students have sustained more injuries against 6A-7A than 1A-5A competition.
See Bishop McGuinness, slip op. [doc. 24-9] at 27 (“no evidence has been presented that [private
school’s teams] suffered greater or more frequent injuries” in games against 6A teams). Nor has
St. Paul’s produced any football-roster comparisons showing that 6A schools, on average, have
more or larger football players than St. Paul’s does. AHSAA has produced such comparisons, and
they do not show, on average, the disparity St. Paul’s claims (doc. 24-1 at ¶ 4; doc. 24-1 at 7-13,
78-80). The comparisons also show that, on average, St. Paul’s has 24 more players than do other
schools in the 4A classification the School prefers (doc. 24-1 at 11, 13). St. Paul’s competing in
4A would simply shift the alleged risk associated with one school’s having more players, from St.
Paul’s to other schools.
For all of these reasons, St. Paul’s has not made any clear showing that unless a
preliminary injunction is granted, actual irreparable harm is imminent.
3. The injury that AHSAA and its member schools would suffer from a preliminary
injunction outweighs any threatened injury to St. Paul’s.
There is practically no weight on St. Paul’s side of the scale. All of the weight is on
39
AHSAA’s side, because the harm to AHSAA from an injunction would be substantial. AHSAA
has already reclassified private schools based on the Multiplier and CBF, and AHSAA and member
schools have scheduled their football and other fall seasons accordingly (doc. 24-2 at 9-10 [¶¶ 34
& 35], 126-34; doc. 24-1 at 83-86). An injunction requiring different classification would nullify
these carefully planned schedules, require re-working them in a very short time, and affect far
more teams than just St. Paul’s (doc. 24-2 at 9-10 [¶¶ 34 & 35]; doc. 24-1 at 83-86). See Bishop
McGuiness, slip op. [doc. 24-9] at 26-27 & n.18 (finding that balance of harms favored association
and not private school, stating that moving school down a class “would either require the
reclassification of another school to Class 6A or result in an uneven Class 6A bracket for the end-
of-season championship tournament”). An injunction would also harm AHSAA in that, after its
Classification Committee, which included five private-school representatives, spent months
studying and discussing alternatives and finally recommended the CBF, and after the Central
Board of Control, which also included a private-school representative, deliberated and adopted the
CBF, the Committee’s and Board’s efforts would effectively be discarded.
4. A preliminary injunction would be adverse to the public interest.
“[N]o public interest is served by enjoining the application and enforcement of a rule that
the plaintiff has failed to show is likely to be held unconstitutional.” Bishop McGuiness, slip op.
[doc. 24-9] at 28. Nor is it in the public interest to cast aside the hard work of the Classification
Committee, and the efforts of the Central Board of Control, in coming up with what they concluded
was a fair way to address the divergent concerns of AHSAA’s public- and private-school
membership. Also, it is not in the public interest, including the interest of parents, students,
coaches, teachers, school administrators, and others, to throw out existing school classifications
and the scheduling based thereon, causing undue hardship to AHSAA, member schools, and others
40
affected (doc. 24-1 at 83-86; doc. 24-2 at 9-10 [¶¶ 34 & 35]). Moreover, AHSAA, as an association
of hundreds of schools both public and private, is more representative of the “public” than St.
Paul’s. The complete absence of any Plaintiff other than St. Paul’s, and the fact that other private
schools have expressed disagreement with St. Paul’s tactic and have advised AHSAA of their
appreciation of and support for AHSAA, its processes, and its efforts (doc. 24-1 at 170-76),
undermines St. Paul’s contention that an injunction would be in the public’s (as opposed to just St.
Paul’s) interest.
CONCLUSION
St. Paul’s has not met and cannot meet any of the four prerequisites for a preliminary
injunction, or the heightened burden in this case for a mandatory preliminary injunction. St. Paul’s
18-year delay in seeking an injunction against the Multiplier, and its months-long delay in seeking
an injunction against the CBF despite the imminence of football season and the herculean task that
AHSAA and member schools would face if AHSAA had to reclassify all schools based on
enrollment and AHSAA and member schools had to then practically start over with scheduling,
also weigh heavily against granting a preliminary injunction. The Court should deny St. Paul’s
motion.
s/ C. Mark Bain__________________
James E. Williams
C. Mark Bain
mbain@mewlegal.com
MELTON, ESPY & WILLIAMS, P.C.
P.O. Drawer 5130
Montgomery, AL 36103
(334) 263-6621
41
s/ William E. Shreve, Jr.

Cooper C. Thurber
cooper.thurber@phelps.com
William E. Shreve, Jr.
william.shreve@phelps.com
PHELPS DUNBAR, LLP
Post Office Box 2727
Mobile, Alabama 36652-2727
(251) 432-4481
ATTORNEYS FOR DEFENDANTS
CERTIFICATE OF SERVICE
I hereby certify that I have on June 11, 2018 I electronically filed the foregoing with the
Clerk of Court using the CM/ECF system, which will send notification of such filing to the
following:
Russel Myles, Esquire

rmyles@mcdowellknight.com
T. Hart Benton, III, Esquire
tbenton@mcdowellknight.com
11 N. Water Street, Suite 13290
Mobile, AL 36602
Charles Mark Bain, Esquire

mbain@mewlegal.com
James E. Williams, Esquire
Melton, Espy & Williams,, P.C.
P.O. Drawer 5130
Montgomery, AL 36103
s/William E. Shreve, Jr.

WILLIAM E. SHREVE, JR.
42

AHSAA Response

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

AHSAA Response

Uploaded by

Copyright:

Available Formats

Case 1:18-cv-00241-WS-B Document 25 Filed 06/11/18 Page 1 of 42

IN THE UNITED STATES DISTRICT COURT

ST. PAUL’S EPISCOPAL SCHOOL, )

DEFENDANTS’ BRIEF IN OPPOSITION TO

ATTORNEYS FOR DEFENDANTS

REQUIREMENTS FOR PRELIMINARY INJUNCTION……….16

ST. PAUL’S CANNOT MEET ANY OF THE PREREQUISITES……….19

St. Paul’s is unlikely to succeed on the merits……….19

St. Paul’s is unlikely to succeed on its claims as to the Multiplier……….20

St. Paul’s is unlikely to succeed on its equal-protection claim……….21

St. Paul’s is unlikely to succeed on its substantive-due-process claim……….29

St. Paul’s is unlikely to succeed on its procedural-due-process claim……….33

St. Paul’s is unlikely to succeed on its on its claim for a declaratory

A preliminary injunction would be adverse to the public interest……….40

Balance Factor in November 2017.

basketball, and done very well in football against 6A and 7A schools.

deny St. Paul’s motion.

Constitution, Bylaws, and rules (doc. 24-2 at 2 [¶ 6]).1

B. St. Paul’s athletic programs.

Championships” (doc. 24-13 at 1).

C. AHSAA’s adoption of the Multiplier.

at 4 [¶¶ 10 & 11]).

In response and in an effort to avoid splitting post-season play, AHSAA’s then-Executive

15 to a higher division (doc. 24-1 at 22).

D. St. Paul’s success in Class 5A.

Multiplier, St. Paul’s would have been classified 4A.

E. The Classification Committee’s recommendation that AHSAA adopt the Competitive

In 2016, AHSAA formed a 15-member Classification Committee to study the relationship

2 at 6 [¶ 21]). Anthony McCall, Athletic Director of Montgomery Academy, a private school,

Schools (doc. 24-2 at 6 [¶ 21], 109; doc. 24-4 at 2-5).

Committee considered a number of alternatives to address competitive imbalance, including

years in post-season play (doc. 24-4 at 4, 20).

narrowly tailored to address the disproportionately large numbers of championships won by

teams in all sports (10.4%) (doc. 24-4 at 5 [¶ 13]).

Mr. McCall, Co-Chair of the Committee from Montgomery Academy, states in an

12. As a representative of a non-public school on this Committee, I saw firsthand

deliberations” (doc. 24-8 at 3 [¶¶ 8-9]).

In June 2017, the 15-member Classification Committee unanimously voted to recommend

F. AHSAA’s adoption of the CBF.

G. Effect of the Multiplier and CBF on St. Paul’s.

H. St. Paul’s appeal.

I. St. Paul’s safety concerns.

or 5A, but 4A, thereby avoiding the alleged added risk.

those suffered in competition against 1A-5A schools.

J. Reaction to St. Paul’s suit by other private schools.

private schools have written AHSAA expressing their support of AHSAA.

that included “unanimous recommendation of a Classification Task Force comprised of

A. REQUIREMENTS FOR PRELIMINARY INJUNCTION.

A “preliminary injunction is an extraordinary and drastic remedy[.]” Suntrust Bank v.

be adverse to the public interest.” Jefferson County, 720 F.2d at 1519.

for a mandatory (as opposed to a prohibitive) preliminary injunction. A “typical preliminary

becomes a ‘mandatory or affirmative injunction.’”). “Mandatory preliminary relief is particularly

a…preliminary injunction.” Mortensen v. Mortgage Elec. Registration Sys., Inc., 2010 WL

injunction.” Id. (quoting Max-Planck-Gesellschaft Zur Forderung Der Wissenschaften E.V. v.

that speedy action is not required.”).

“complet[ed] a large portion of the construction”).

B. ST. PAUL’S CANNOT MEET ANY OF THE FOUR PREREQUISITES.

1. St. Paul’s is unlikely to succeed on the merits.

a. St. Paul’s is unlikely to succeed on its claims as to the Multiplier.

b. St. Paul’s is unlikely to succeed on its equal-protection claim.

“‘explicitly or implicitly guaranteed by the Constitution’”); Denis J. O’Connell High Sch. v.

(“private schools have not historically been considered a suspect class”).

72 (1981) (emphasis in original).4

possessed by private schools which have contributed to private schools’ winning a