In the United States District Court for the Southern District of Alabama Southern Division
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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 * The ALABAMA HIGH SCHOOL * ATHLETIC ASSOCIATION and * STEVEN P. SAVARESE, as Executive * Director of the Alabama High School * Athletic Association, * * Defendants. * COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Plaintiff St. Paul’s Episcopal School (“St. Paul’s”) brings this civil action against Defendant Alabama High School Athletic Association (the “Association”) and Defendant Steven P. Savarese, its Executive Director, seeking preliminary and permanent injunctive and declaratory relief to invalidate the Association’s newly-implemented classification rule on constitutional and other grounds. The new rule improperly singles out one class of Association members (private schools) for adverse and discriminatory treatment and exposes private school students competing in contact and collision sports to greater risks of injury. A companion motion for preliminary injunction and expedited hearing will follow. TABLE OF CONTENTS I. INTRODUCTION .............................................................................................................. 1 II. JURISDICTION AND VENUE ......................................................................................... 4 III. PARTIES ............................................................................................................................ 4 A. St. Paul’s Episcopal School .................................................................................... 4 B. The Association and Savarese ................................................................................ 6 i. The Association serves both private and public schools. ........................... 6 ii. The Association’s governing structure. ...................................................... 8 iii. The Association is a state actor for purposes of 42 U.S.C. § 1983 and the U.S. Constitution......................................................................................... 8 IV. FACTS .............................................................................................................................. 10 A. The Association Exists to Promote Athletic Participation and Pure Competition Among All its Member Schools. .......................................................................... 10 B. The Association’s Authority to Classify Schools to “Promote Athletic Competition”......................................................................................................... 12 C. The Association’s Private School “Student Multiplier” Rule: The First Act of Discrimination....................................................................................................... 14 D. The Association’s New Private School “Competitive Balance Factor.” .............. 15 i. Bias persists against private schools. Lawmakers threaten action........... 16 ii. The Association acts to keep lawmakers satisfied.................................... 18 iii. The Association receives warnings about the safety of the CBF.............. 19 iv. The Association adopts the CBF despite warnings from medical experts.21 v. Alabama stands alone in its treatment of private school students. ........... 23 vi. St. Paul’s asks the Association to reconsider the CBF. ............................ 23 E. The Effect of the CBF on Private School Athletic Programs. .............................. 25 F. The CBF Does Not Offset Any Purported “Unfair Advantages” of Private Schools.................................................................................................................. 27 i. Public schools regularly engage in open enrollment. ............................... 27 ii. The Alabama Accountability Act promotes and subsidizes open enrollment. ................................................................................................ 29 iii. The Accountability Act scholarships/tax credits directly impact athletic programs. .................................................................................................. 31 iv. Open enrollment does not necessarily mean broad geographic enrollment. ................................................................................................ 32 v. Open enrollment does not determine athletic achievement. ..................... 32 G. The CBF, By Design, Exposes Private School Student-Athletes to Higher Risks of Personal Injury...................................................................................................... 38 i. Student-athletes from small schools are at the highest risk of personal injury......................................................................................................... 38 ii. The CBF, by design, increases the risk of personal injury among private school student-athletes.............................................................................. 43 iii. The Association consciously disregarded known risks to player safety... 44 V. CAUSES OF ACTION..................................................................................................... 47 VI. PRAYER FOR RELIEF ................................................................................................... 54 I. INTRODUCTION 1. This action arises from the Association’s adoption of arbitrary and discriminatory measures that favor public school athletic programs, penalize private school success, and create greater risks of injury for private school students participating in contact and collision sports. 2. The Association is an organization of public and private schools formed by its members to promote their athletic programs, coordinate fair and balanced rules of competition, and “[e]nhance the health and safety of all participants.”1 Since 1948, the Association has classified all its member schools into separate divisions on the basis of enrollment. Classification based on school size is universally accepted as critical to providing opportunities for fair competition and enhancing the safety of those students engaged in competition. This especially is understood to be true and necessary in collision sports, such as football, where teams with fewer and smaller athletes will be expected to incur far more injuries if required to compete against larger teams. However, at times in the past and again just recently, the Association’s governing body has used its “classification authority” to appease demands of state lawmakers and certain public schools that private school members, solely because of their private character, must be treated differently than public schools. 3. In 1999, the Association was pressured to eliminate private schools from the organization, or at least segregate them to a separate playoff system.2 Short of eliminating these institutions, the Association adopted a measure (the first of its kind in the United States) to artificially inflate private school enrollment numbers by a factor of 1.35 to force them to play 1 2017–2018 AHSAA Handbook at 1, 94. 2 John T. James, How Much Does a Private School Student Count? A Critical Analysis of the Athletic Multiplier, 10 J. CATH.EDUC. 409, 410 (2007) (explaining that the Association “had two proposals from the membership that sought to eliminate private schools from the association or to create a separate association.”). 1 against larger schools. The premise of this “Student Multiplier” was founded on an unsubstantiated assumption that all private schools, as a class, enjoy “unfair” advantages against public schools because, reportedly, private school students “participate” in sports in greater percentages than public school students. The Student Multiplier caused many private schools, like St. Paul’s, to play at least one class above their true enrollment numbers. 4. The Student Multiplier, of late though, has failed to pacify lingering prejudices against private schools. In 2016 and again in 2017, Alabama lawmakers introduced bills to segregate public and private school competition in the Association. Fueled by new public pressure to do something, anything, the Association “convened” a task force to respond to a purported “private vs. public school problem.” 5. But while Association leaders instructed their task force to focus on private schools as the root of public school problems, it cannot be denied that many of the most difficult challenges confronting public schools in all endeavors (athletic and scholastic) are socioeconomic. In Alabama, as in all America, “the most successful public schools are in wealthier zip codes, and the worst public schools are in the poorest zip codes.”3 According to one task force member, the “haves and have nots,” the urban/rural divide, and the proliferation of “city school districts” that siphon tax revenue out of county coffers, further limiting the resources available to already struggling schools, are issues the task force considered but refused to tackle. Instead, to forestall government intervention, the Association capitulated to public pressures by endorsing a narrative that private schools continue to have “unfair” advantages because, the Association suggests, private schools have no geographic boundaries. The Association calls this new culprit “open enrollment.” The Association has not, however, explained how the notion of 3 V. Strauss, Public Education’s Biggest Problem Gets Worse,WASH.POST (Sept. 14, 2011). 2 open enrollment benefits athletic pursuits. Moreover, the idea that open enrollment