Park Hills Music Club v. BOARD OF ED., ETC., C-3-80-552.

• Decision Date: 23 April 1981
• Docket Number: No. C-3-80-552.,C-3-80-552.
• Parties: PARK HILLS MUSIC CLUB, INC. et al., Plaintiffs, v. BOARD OF EDUCATION OF the CITY OF FAIRBORN, COUNTY OF GREENE, STATE OF OHIO et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

512 F. Supp. 1040

PARK HILLS MUSIC CLUB, INC. et al., Plaintiffs, v. BOARD OF EDUCATION OF the CITY OF FAIRBORN, COUNTY OF GREENE, STATE OF OHIO et al., Defendants.

No. C-3-80-552.

United States District Court, S. D. Ohio, W. D.

April 23, 1981.

Anthony B. Pennington, Pennington & Kotecha, Springfield, Ohio, for plaintiffs.

Joseph R. Fodal, Schlafman & Fodal Co., L.P.A., Fairborn, Ohio, for defendants.

DECISION AND ENTRY DISMISSING PLAINTIFFS' COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION UPON COURT'S OWN MOTION; DEFENDANTS' MOTION TO DISMISS DEEMED MOOT AND NOT RULED UPON; TERMINATION ENTRY

RICE, District Judge.

The captioned cause came to be heard upon the Defendants' Motion, pursuant to Fed.R.Civ.P. 12(b)(6), seeking an Order of the Court dismissing the Complaint for the reason that it fails to state a claim upon which relief can be granted.

Plaintiffs in this cause are: (1) the Park Hills Music Club, Inc. (the Club), a nonprofit Ohio corporation whose primary purpose is to promote and assist the activities of the music department at Park Hills High School (the School), in the school district for the City of Fairborn, Ohio; (2) fourteen minor students of the School, who are also members of the Park Hills Viking Guard Marching Band or its auxiliary units (the Band); and (3) twenty-one adult parents of the aforementioned minors, who are also members of the Club.

The Complaint contains class action allegations for the benefit of similarly situated adults and minors. However, Plaintiffs' motion for certification of the class has only been recently filed and is not yet at issue.

The Defendants are the Principal of the School, the Superintendent of Fairborn City Schools, and all members of the Fairborn Board of Education.

The Complaint alleges that the Band participated with thirty other school bands in a four-state regional competition, held in Cincinnati, Ohio, in October, 1980. The primary objective of the Band's participation in this competition was to secure from the Orange Bowl Committee (OBC) an invitation to participate with winners from ten other regions in the Orange Bowl National Competition and the King Orange Jamboree Parade, to be held in Miami, Florida, on December 31, 1981. The Band participated in the regional competition with the permission or acquiescence of all Defendants. The Band was selected as the winner of the regional competition and was, accordingly, extended an invitation to participate in the Florida activities by the OBC.

In November, 1980, the Defendant Board members "decided against permitting such participation" by the Band in the Florida competition and parade. Apparently, the Board's decision to refuse permission was based upon the advice and recommendation of the other Defendants, and was in accordance with Board Policy No. 4.29, which states:

A school activity may not involve students on long and expensive trips. Out-of-state trips and trips outside the United States by school-sponsored performing groups will not be approved during the school year, during school vacations, or during summer vacations.

In December, 1980, the Defendant Principal notified the OBC, by letter, that a decision had been made to refuse permission for the Band's participation in the Florida activities.

Finally, it is alleged that the musical instruments used by the Band, as well as the Band uniforms, are the property of the Club. It appears that the expense of the Band's participation in the Florida activities would be borne solely by the Club.

Based on the preceding factual allegations, Plaintiffs' demand that the Court: (1) declare Policy No. 4.29 unconstitutional and unenforceable; (2) temporarily and permanently enjoin Defendants from (a) enforcing Policy No. 4.29, (b) interfering with Plaintiffs' participation in the Florida competition or parade, or (c) retaliating against Plaintiffs for such participation; and (3) award Plaintiffs damages in the amount of one million dollars.

By way of showing entitlement to the relief demanded, Plaintiffs set forth in the Complaint ten theories of unlawful infringement by Defendants of Plaintiffs' federal constitutional rights (either alone or in conjunction with various infringements of state constitutional, statutory, and common law rights) and one theory predicated solely on Defendants' violation of a state statute. The alleged infringements by Defendants of Plaintiffs' federal constitutional rights may be summarized as follows: (1) infringement of the right to interstate travel; (2) infringement of the right to free speech in the form of musical expression; (3) infringement of the right to associate and assemble for the purpose of producing music; (4) infringement of the right to liberty, including the right to seek, pursue, and achieve happiness and amusement in music; (5) infringement of the right to equal protection of the laws in the exercise of other fundamental rights; (6) infringement of the right to equal protection of the laws in the nonselective enforcement of same; (7) infringement of the right to use and enjoy personal property, including musical instruments and uniforms, or the right to just compensation for deprivation of the use of such property; (8) infringement of the right to procedural due process, including notice and hearing in the promulgation and application of Policy No. 4.29; (9) infringement of the right to due process by promulgation of Policy No. 4.29 in vague form, and application of same in an overbroad manner; and (10) infringement of the right to due process by promulgation of a policy which is neither necessary nor rationally related to the promotion of education or any legitimate state interest.

Defendants' motion to dismiss is based solely upon the proposition that there is no student right or property interest in participation in extracurricular activities which is protected by the federal constitution. See, e. g., Glenn v. Harper, No. C76-106 (N.D.Ohio, Mar. 17, 1978), aff'd 620 F.2d 302 (6th Cir. 1980). The Court agrees with this proposition. In accordance with a number of the cases cited by Defendants, see, e. g., Glenn v. Harper, supra; Hamilton v. Tennessee Secondary School Athletic Assoc., 552 F.2d 681 (6th Cir. 1976), such a proposition might present problems for those of Plaintiffs' theories which postulate a denial of due process in connection with Plaintiffs' extracurricular activities.¹

However, were the Court to reach Defendants' motion, which the Court finds it need not do, it would not be able to agree with the broader conclusion which Defendants draw from the above proposition, i. e., that Plaintiffs have on that account alone necessarily failed to state any federal constitutional claim. For example, it is also a well-settled proposition that the state may not withdraw a benefit, as a penalty for the recipient's exercise of a constitutional right, even if the benefit itself is not of constitutional dimensions. Mt. Health City Board of Education v. Doyle, 429 U.S. 274, 283-84, 97 S.Ct. 568, 574-575, 50 L.Ed.2d 471 (1977) (infringement in discharging nontenured teacher on account of First Amendment expression); Gilpin v. Kansas State High School Activities Assoc., 377 F.Supp. 1233, 1240-41 (D.Kan.1973) (violation of equal protection by denying female participation in extracurricular athletics); Kite v. Marshall, 494 F.Supp. 227, 232-33 (S.D.Tex. 1980) (athletic ineligibility because of attendance at summer basketball camp violates family right to privacy). Thus, if the present case involved Defendants' termination of the Park Hills band program because of the student Plaintiffs' exercise of a constitutional right, then Plaintiffs might have a constitutional claim to reinstatement of the band program even though Plaintiffs would not appear to have had a constitutionally recognized right or interest in participating in such program in the first instance.

However, the Court declines to decide Defendants' Rule 12(b)(6) motion because it finds that it lacks subject matter jurisdiction, and that dismissal of the Complaint is, therefore, warranted under Fed.R. Civ.P. 12(h)(3).² The Court reaches this conclusion because it finds, upon close scrutiny of the Complaint and upon extensive reflection on the explicit and implicit allegations contained, therein, that the Complaint fails to present, or even to demonstrate, the existence of any "real controversy" between the parties which substantially implicates a constitutional right, or raises a federal question, as is required by Article III, section 2, of the Constitution and 28 U.S.C. §§ 1331, 1343, 2201-2202.³

It must be emphasized that the only actions of the Defendants pleaded in the Complaint are the decision to refuse permission or approval for the Band's participation in the Florida activities, and the communication of that decision to the OBC. There is no explicit allegation that Defendants are actually obstructing or preventing the Band's trip to Florida, and no explicit allegation that the Defendants are planning to penalize Plaintiffs if the Band makes the trip. There is no indication that the Band either is being prevented from making the trip, or, in fact, will not be making the trip for any reason; or that Plaintiffs' interests are threatened with injury or will be injured by anybody (even if only by deprivation of a non-constitutional benefit) if the Band makes the trip. Thus, even if the Band's proposed participation in the Florida activities should implicate some constitutional values (e. g., rights to interstate travel, free speech, due process, equal protection), there is simply no factual allegation in the Complaint that such values are presently threatened or will be infringed should the Band continue to insist on making the trip.

There are, perhaps, two possible exceptions to the preceding analysis. First, as indicated, it is alleged that the Board refused to extend its approval for the Florida venture. Implicitly, Plai...