C.M. v. Bentley, Case No. 2:13–CV–591–WKW.

CourtUnited States District Courts. 11th Circuit. Middle District of Alabama
Writing for the CourtW. KEITH WATKINS
Citation13 F.Supp.3d 1188
PartiesC.M., by and through his next friend, Tracy MARSHALL, et al., Plaintiffs, v. Robert J. BENTLEY, M.D., et al., Defendants.
Docket NumberCase No. 2:13–CV–591–WKW.
Decision Date08 April 2014

13 F.Supp.3d 1188

C.M., by and through his next friend, Tracy MARSHALL, et al., Plaintiffs,
Robert J. BENTLEY, M.D., et al., Defendants.

Case No. 2:13–CV–591–WKW.

United States District Court, M.D. Alabama, Northern Division.

Signed April 8, 2014

Motion granted.

[13 F.Supp.3d 1191]

Jack Richard Cohen, Jerri K. Katzerman, Maria V. Morris, Martha Geron Gadd, Morris Seligman Dees, Montgomery, AL, for Plaintiffs.

David Bryson Byrne, Jr., Office of the Governor, State Capitol, James William Davis, State of Alabama, William G. Parker, Jr., Office of the Attorney General, Montgomery, AL, for Defendants.

W. KEITH WATKINS, Chief Judge.

Plaintiffs C.M., A.Q., S.G., R.A., J.S., J.R., L.M., and K.R., all minors suing by and through next friends, bring this action against Defendants Governor Robert J. Bentley, State Superintendent of Education Dr. Thomas R. Bice, State Commissioner of Revenue Julie P. Magee, and State Comptroller Thomas L. White, Jr., for declaratory and injunctive relief. In a facial challenge, Plaintiffs allege that the Alabama Accountability Act (“the AAA”) violates their right to equal protection under the Fourteenth Amendment. Defendants move to dismiss Plaintiffs' complaint on the grounds that Plaintiffs lack standing and that the case is unripe. Defendants contend that even if Plaintiffs meet jurisdictional requirements, they fail to allege a violation of the Equal Protection Clause. Additionally, Governor Bentley argues that he is not a proper defendant.

The motion to dismiss has been fully briefed and argued orally. ( See Docs. # 26, 31, 34, 35.) Upon careful consideration of the helpful arguments of counsel, the relevant law, and Plaintiffs' allegations, the court finds that the motion is due to be granted for failure to state a claim upon which relief can be granted.


The court exercises subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. The parties do not contest personal jurisdiction or venue.


A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the court's subject matter jurisdiction. McElmurray v. Consol. Gov't of Augusta–Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir.2007). On a Rule 12(b)(1) facial attack, the court evaluates whether the plaintiff “has sufficiently alleged a basis of subject matter jurisdiction” in the complaint and employs standards similar to those governing Rule 12(b)(6) review. Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1335 (11th Cir.2013).

When evaluating a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must take the facts alleged in the complaint as true and construe them in the light most favorable to the plaintiff.

[13 F.Supp.3d 1192]

Resnick v. AvMed, Inc., 693 F.3d 1317, 1321–22 (11th Cir.2012). To survive Rule 12(b)(6) scrutiny, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “[F]acial plausibility” exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).


To place the background in context, an abridged version of Plaintiffs' contentions is important. This is a facial challenge to the AAA; this is not a disparate impact case. No suspect class is involved, but a discrete classification is. The discrete classification upon which Plaintiffs rely is variously stated as those students who cannot afford to escape failing schools (based upon financial circumstances and distance from a participating nonfailing school), or those students who are unable to access a governmental benefit for the same reasons. The cause of the alleged disparity is the AAA's requirement that certain students bear the costs of transportation to transfer from their failing school to a nonfailing school, a potentially disabling factor for many students residing in the largely poor and rural Black Belt region of Alabama. Plaintiffs' complaint is with the terms on which the AAA provides access to nonfailing schools.

Plaintiffs admit there is presently no fundamental right to an effective public education, and that the AAA did not cause the failing schools. The issue of a fundamental right to some minimal quantum of education is in play only for purposes of evaluating the level of judicial scrutiny of Plaintiffs' equal protection claim. There is no stand-alone constitutional claim arising from the State's denial of a right to receive a nonfailing public education.

The injury alleged is purely an equal protection denial: Plaintiffs suffer unequal treatment. The requested remedy is arguably mean: Withdraw benefits from those students who can afford to escape nonfailing schools. The only remedy requested thus far would leave Plaintiffs in exactly the same situation to which they are currently subject, but with the company of their better-situated classmates. The equal treatment requested is, in effect, equally bad treatment.

A. The Alabama Accountability Act of 2013 1. Enactment

On February 14, 2013, the Alabama House of Representatives passed H.B. 84, which later became the AAA. The original bill allowed local school systems to seek waivers from certain State Department of Education requirements in order to implement creative educational programs. On February 28, 2013, the State Senate passed an amended version of H.B. 84. A conference committee convened to reconcile the two versions of the bill. Plaintiffs allege that the Republican majority members of the committee conferred without the two minority members, added nineteen pages of new text to the proposed law, and named it the Alabama Accountability Act of 2013.

The revisions to the legislation included provisions defining “failing schools” and authorizing parents of children in failing schools to transfer to nonfailing public and “nonpublic”— i.e., private—schools. The new provisions authorized the issuance of refundable state income tax credits of

[13 F.Supp.3d 1193]

roughly $3,500 to parents transferring children from failing schools, directed the Alabama Department of Revenue to divert funds from the State's Education Trust Fund (“ETF”) to pay the credits, and authorized individual and corporate income tax credits up to a combined $25,000,000 for student participants in a new scholarship program. The conference revisions to the bill were passed in both the House and Senate on the same day, and the Governor signed the AAA into law on March 14, 2013. The legislature later amended the law's definition of “failing schools” and added provisions for schools and school systems to refuse students seeking transfer from failing schools. The amended version of the AAA was signed into law on May 20, 2013.

2. Details

The AAA defines “failing school” as

[a] public K–12 school that is one or more of the following:

a. Is labeled as persistently low-performing by the State Department of Education, in the then most recent United States Department of Education School Improvement Grant application.

b. Is designated as a failing school by the State Superintendent of Education.

c. Does not exclusively serve a special population of students and, until June 1, 2017, has been listed three or more times during the then-most recent six years in the lowest six percent of public K–12 schools on the state standardized assessment in reading and math or, on or after June 1, 2017, has, during the then-most recent three years, earned at least one grade of “F” or, during the then-most recent four years, earned at least three grades of “D” on the school grading system developed pursuant to Section 16–6C–2. In the event sufficient rules required to implement the grading system provided for by Section 16–6C–2, have not been implemented pursuant to the Alabama Administrative Procedure Act in time to provide a sufficient record to implement this subdivision by June 1, 2017, then a failing school shall be a school that has been listed in the lowest 10 percent of public K–12 schools in the state standardized assessment in reading and math.

Ala.Code § 16–6D–4(3).1 “To provide educational flexibility and state accountability for students in failing schools,” the AAA authorizes the payment of “an Alabama income tax credit to a parent of a student enrolled in or assigned to attend a failing school to help offset the cost of transferring the student to a nonfailing public school or nonpublic school of the parent's choice.” Id. at § 16–6D–8(a)(1). A parent who elects to send a child to a nonpublic school may not receive tax credits for the tuition and mandatory fees paid to the nonpublic school unless the nonpublic school participates in a separate scholarship program created by the AAA, discussed infra. See id. at § 16–6D–4(9) (defining nonpublic schools as private schools participating in and complying with the requirements of the scholarship program). Nonpublic schools that comply with the AAA and participate in the scholarship

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program are also subject to various “academic accountability standards.” Id. at § 16–6D–9(c)(2)

Plaintiffs represent that the value of the tax credit is approximately $3,500. They arrive at this figure because the AAA provides that the tax credit shall be for an amount equal to eighty percent of the average annual state cost of attendance for a public K–12 student during the relevant tax year or the actual cost of attending a nonfailing public school or nonpublic school, whichever is less. Ala.Code § 16–6D–8(a)(1). “Actual cost” is calculated by adding together any tuition amounts or mandatory fees charged by the school as a condition...

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