[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 12

- 15900 Non

- Argument Calendar

________________________ D.C. Docket No. 1:12

- cv - 01277

- JOF

DENISE DEMAREE, MEGAN HUMPHREYS, ALLISON JONES, CLARE MANSEL L, MARY MCCOY, TIM MCKINNEY, MIKE MITCHELL, JANET STALLING, RAY SPLAWN, SANDY WADE, Plaintiffs

- Appellants,

versus FULTON COUNTY SCHOOL DISTRICT, Defendant

- Appellee.

________________________ Appeal from the United States District Court for the Northern District of Georgia

________________________ (April 8, 2013) Case: 12-15900 Date Filed: 04/08/2013 Page: 1 of 122 Before MARCUS , MARTIN and FAY , Circuit Judges.
PER CURIAM: Plaintiffs

- Appellants Denise Demaree, Megan Humphreys, Allison Jones, Clare Mansell, Mary McCoy, Tim McKinney, Mike Mitchell, Janet Stalling, Ray Splawn, and Sandy Wade, elementary school orches tra and band teachers, appeal from the district court’s final order dismissing their suit against the Fulton County School District (“School District”) . Plaintiffs’ complaint alleg ed that the School District violated their rights (and those of about 40 other s ) under the Equal Protection Clause of the United States and Georgia Constitutions when the teachers lost their jobs during a reduction in force (“RIF”) implemented by the School
District in 2010

. On appeal, Plaintiffs argue that the district court erred in holding that : (1) there was a rational basis for the School District’s different treatment of Plaintiffs and all other employees ; (2) the exception to the application of non

mutual offensive collateral estoppel delineated in United States v. Mendo za , 464 U.S. 154 (1984), extended to the School District; and ( 3 ) the equal protection issue was not “actually litigated” in Lee v. Fulton County Board of Education , 2010

- CV

193987 (Ga. Sup. Ct. 2011) . After thorough review, we affirm. We review a judgme nt on the pleadings de novo

. Cannon v. City of W. Palm Beach , 250 F.3d 1299, 1301 (11th Cir. 2001). “Judgment on the pleadings is appropriate where there are no material facts in dispute and the moving party is

Case: 12-15900 Date Filed: 04/08/2013 Page: 2 of 123 entitled to judgment as a matter of law.” Id. W e may affirm the district court’ s judgment on any ground that the record supports. Lucas v. W.W. Grainger, Inc. , 257 F.3d 1249, 1256 (11th Cir. 2001). The relevant allegations, for purposes of the motion for judgment on the pleadings, are these. Pl aintiffs were employed by the School District as elementary instrumental (band and orchestra) music teachers during the 2009

- 2010 school year. Plaintiffs’ teaching contracts were all non

- renewed at the conclusion of the 2009

- 2010 school year, as the resul t of a RIF instituted by the Fulton County Board of Education in the spring of 2010. The RIF described a five

- step analysis considering factors of performance and tenure. T he first step eliminated employees who did not have tenure and who had performance issues. Each step in the process went further into non

- tenured and tenured positions, culminating in the fifth step which eliminated employees based on tenure if not enough positions were eliminated by the first four steps. The positions of elementary orchestra and band school teachers, however, were not eliminated through this five

- step analysis. Instead, the School District voted to non

- renew all elementary band and orchestra teachers because those positions were deemed “non

- essential” functions. Th ese positions were described as “programs/fu nctions eliminated.” The non

- renewal of the elementary school band and orchestra teachers reduced the School District staff by 54 positions.

Case: 12-15900 Date Filed: 04/08/2013 Page: 3 of 124 One group besides elementary orchestra and band teachers was also plac ed in the “programs/functions eliminated”

-- Grades 1 thr ough 3 paraprofessional s. However, the 165 Grades 1 th r ough 3 paraprofessional s were not eliminated as a group like the elementary orchestra and band teachers ; rather, they were analyzed through the five

- step RIF process. This resulted in some of the Grades 1 through 3 paraprofessionals ’ continued employment in other paraprofessional positions. Both the paraprofessionals and the orchestra and band teachers are certified to teach Pre

- K through 12th grade. In this action, Plaintiff s allege d that they we re similarly situated with the Grades 1 through 3 paraprofessionals and that the School District had no rational basis for treating the two groups differently

. The district court rejected their claims , and this timely appeal follows. First, we reject the merits of the Plaintiffs’ Equal Protection c laim. The Fourteenth Amendment of the federal Constitution provides : “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. xiv, § 1. Thus, “all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr. , 473 U.S. 432, 439 (1985). “The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” Id. at 440. “This standard is easily met.” Leib v. Hillsborough Cnty

.

Case: 12-15900 Date Filed: 04/08/2013 Page: 4 of 125 Pub. Transp. Comm’n , 558 F.3d 1301, 130 6 (11th Cir. 2009); Deen v. Egleston , 597 F.3d 1223, 1230 (11th Cir. 2010) (“rational review” standard gives states “wide latitude” when crafting “social or economic” legislation). However, the “State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” City of Cleburne , 473 U.S. at 446

- 47. The Supreme Court has further held that: [E]qual protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonab ly conceivable state of facts that could provide a rational basis for the classification. FCC v. Beach Comm c’ns , 508 U.S. 307, 313

- 14 (1993); see also Panama City Med

. Diagnostic, Ltd. v. Williams , 13 F.3d 1541, 1545 (deference must be given to legislatur e “because lawmakers are presumed to have acted constitutionally despite the fact that, in practice, their laws result in some inequality ”) (quotation omitted)

. On a “rational

- basis review” the classification bears a “strong presumption
of validity” and a party challenging the classification must “negat iv e every conceivable basis which might support it.” Beach Comm c’n s , 508 U.S. at 314

- 15 (quotation omitted)

. A legislature need not articulate its reasons for enacting a
statute. Id. at 315. The Court con tinued: Defining the class of persons subje ct to a regulatory requirement

-- much like classifying governmental beneficiaries

-- inevitably requires that some persons who have an almost equally strong claim to favored treatment be Case: 12-15900 Date Filed: 04/08/2013 Page: 5 of 126 placed on different side s of the line, and the fact [that] the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration.
Id. at 315

- 16 (quotation omitted)

. It is undisputed that the RIF and its application to Plaintiff s does not involve a suspect class or a fundamental right. Therefore, Plaintiffs’ claims are analyzed under a rational basis review. The rational basis test asks “(1) whether the government has the power or authority to regulate the particular a rea in question, and (2) whether there is a rational relationship between the government’s objective and the means it has chosen to achieve it.” Lieb , 558 F.3d at 1306. Plaintiffs
argue that the School District did not have rational basis for treating th e two groups of employees within the RIF’s “programs/functions eliminated” differently with regard to which employees would be retained. However, i t is clear that under Georgia law, “teachers” and “paraprofessionals” are treated differently. There are different educational and background requirements for the positions and different protections once an individual is in the positio n. For instance, teachers have a state

- mandated salary scale , are required to have an annual employment agreement , and have ce rtain due process rights if terminated . O.C.G.A. § § 20

- 2

- 2 12 , 20

- 2

- 211(b) , & 2 0

- 2

- 942. Georgia law defines a paraprofessional as “a person who may have less than professional

- level certification

. . . and does a portion of the professional’s job or

Case: 12-15900 Date Filed: 04/08/2013 Page: 6 of 127 tasks under the s upervision of the professional, and whose decision

- making authority is limited and regulated by the professional.” O.C.G.A. § 20

- 2

- 204(a)(1). Paraprofessionals are not required to be issued an annual employment agreement, have no state

- mandated salary scale, and have no Fair Dismissal Act rights. As the School District also notes, after the RIF, there were no more elementary band/orchestra teaching positions for which Plaintiffs may have been retained , whereas there were remaining elementary par aprofessional positions. Further, n o party disputes that each elementary music teacher position eliminated generated a cost savings $68,536 for the School District; while each paraprofessional position saved $27,246. There is also no dispute that the Fulton County School District faced a $ 140 million budget shortfall which led to the implementation of the RIF

. Based on these circumstances , a multitude of rational bases could be adduced in support of the two groups’ differing treatment under the RIF. For example, given that the elementary orchestra and band teachers must have an annual employment agreement and have certain due process rights if terminated, the School District court certainly have found it more efficient to eliminate this
gro up as a whole, without giving them the opportunity to be retained. Paraprofessionals, on the other hand, do not need annual contracts and have no due process rights if terminated, which suggests that rehiring them on an individualized basis might be less involved. Plaintiffs do not rebut these differenc es.

Case: 12-15900 Date Filed: 04/08/2013 Page: 7 of 128 Moreover, since paraprofessionals are supervised, the School District could have found that their transition to other grades would be relatively easy. Elementary orchestra and band teachers, however, a s teachers, are not supervis ed in the same way , and their transition to other kinds of music instruction, or different grades, may not be as easy. Indeed, while Plaintiffs have said that they
are certified to teach Pre

- K through 12 th grade , no where have they mentioned that they could actually easily t each in other positions . Because Plaintiffs have failed to meet their burden of negating “ every conceivable basis which might support ” the RIF’s classification, Beach Commc’ns , 508 U.S. at 315 (quotation omitted) , the
district court did not err in rejecting their Equal Protection claim. We also are unpersuaded by Plaintiffs’ argument that the School District is collaterally estopped from defending against Plaintiffs’ Equal Protection claims due to the decision of the Fulton County Superior Court in Lee

. Offensive, non

mutual collateral estoppel is a doctrine under which a plaintiff asserts that a defendant is barred from litigating an issue based on a decision rendered in a case in which the plaintiff was not involved. See Parklane Hosiery Co. v. Shore , 439 U.S. 322, 327

- 28 (1979). In Mendoza , 464 U.S. at 162, t he United States Supreme Court held that the federal government is not subject to offensive, non

- mutual collateral estoppel. We have extended Mendoza to hold that state gov ernments are

Case: 12-15900 Date Filed: 04/08/2013 Page: 8 of 129 not subject to offensive, non

- mutual collateral estoppel. Hercules Carriers, Inc. v. Claimant State of Fla. Dep ’ t of Transp. , 768 F.2d 1558, 1579 (11th Cir. 1985)

. In Mendoza , the Supreme Court reasoned that government litigation differs significantly from private litigation, and those differences merit exemption from the doctrine. 464 U.S. at 16 0

. For instance , government litigation frequently involves interpret ing the Constitution

-- a task often only achieved in g overnment litigation

. Id. Stifling the litigation of constitutional issues with offensive, non

mutual collateral estoppel would therefore prevent the development and clarification of constitutional law. Id. In addition , the government has limited litigation resources, whi ch may dictate litigation strategy. Id. at 161. Further , the government creates public policy through litigation, which may justify alternative legal positions. Id. The Supreme Court also said that offensive, non

- mutual collateral estoppel would frustrate judicial economy because it would force government to vigorously defend every claim to the point of exhaustion to avoid the doctrine, creating more litigation than it alleviates. Id. at 163

. We have likewise held that offensive, non

- mutual collateral estoppel does
not apply against a state government for many of the same reasons. Hercules , 768 F.2d at 1579. In so doing, we recognized the differences in litigation considerations between the government and private litigant s, as detailed by Mendoza

. Id. at 1578. S everal district courts in this Circuit have similarly

Case: 12-15900 Date Filed: 04/08/2013 Page: 9 of 1210 extended Mendoza and Hercules to bar offensive, non

- mutual collateral estoppel from applying to local government entities. Tugz Int ’ l, L.L.C. v. Canaveral Port Auth. , 2005 WL 6046066 (M.D. Fla. 2005); Petchem v. Canaveral Port Auth. , 2005 WL 1862412 (M.D. Fla. 2005).
In Tugz , the district court held that a captain, who wrecked a ship, could not use the administrative law decision, regarding his pil ot’s license, in litigation against the local port authority. 2005 WL 6046066 , at *7. In Petchem , the district
court applied Mendoza and Hercules , holding that “ whatever differences there may be between the litigation burdens faced by the Port Authority and the federal government or the Port Authority and a state government, they are, in the main, a matter of degree and not of kind.” Petchem , 2005 WL 1862412 , at *3

. 1 The Petchem court further noted that a local government agency, such as a port authority, is likely to be more financially restricted than the federal or state government, making application of the exclusion even more important. Id. We agree. In the case at hand, excluding a school district from offensive,

non - mutual collateral est oppel is based on the same reasoning in Hercules and Mendoza

. To begin with , a school district is a political subdivision of the State of

1 In so holding, the court observed that: “there is no basis in this case for concluding that the Port Authority is a state government in the sense contemplated by the court in Hercules Carriers and certainly is, in no sense, the federal government, there is no question that it is a governmental entity.” 2005 WL 1862412, at *3. The same is true here of the School District

.

Case: 12-15900 Date Filed: 04/08/2013 Page: 10 of 1211 Georgia. Greene County School Dist. v. Circle Y Const., Inc. , 728 S.E.2d 184, 185 n.2 (Ga. 2012) (noting that a local school system is a political subdivision of
th e state); accord Thornton v. Clarke County School Dist. , 514 S.E.2d 11, 12 n.1 (Ga. 1999)

. Additionally , the litigation at hand involves constitutional interpretation; thus, applying offensive, non

- mutu al collateral estoppel would hinder the court from developing and clarifying essential constitutional law. It is also true that school districts must sometimes promote educational policy through the courts, which may merit alternative interpretations of a law or case; thus, offensive, non

- mutual collateral estoppel would prevent the development of educational policy through litigation. Most importantly, a school district has a limited litigation budget, much more limited than the federal or state governmen t. As a result , offensive, non

mutual collateral estoppel would force the school district to spend more on litigation because each claim would have to be utterly exhausted. Furthermore, this kind of claim exhaustion would actually increase the overall litigation, thus exhausting government resources, instead of promoting judicial economy as estoppel is intended to do. Plaintiffs argue that offensive, no n - mutual collateral estoppel should apply
here becaus e unlike a federal or state government, a local government entity is not subject to suit in a vast geographic area , the nature of litigation is more limited, and

Case: 12-15900 Date Filed: 04/08/2013 Page: 11 of 1212 there is no U.S. Supreme Court certiorari process in place to resolve conflicts amongst the co urts

. However, as the School District notes, a local government entity may be sued outside of its geographical borders. For example, the School District regularly contracts with vendors from across the country, sends students and employees outside of its borders, and is regularly in situations in which litigation outside of Fulton County could result. As for any difference between the nature of the federal government’s litigation and of a local government agency’s litigation , it is merely a matter of degree, not kind. Notably, this particular case casts the School District as an employer, but the School District must wear numerous litigation hats ranging from providing special education to local taxation to procurement. As a result, t he School Distric t , like the federal and state governments, needs litigation flexibility , so, for example, they are not force d to completely exhaust every administrative hearing, which wastes resources and increases litigation. Finally, given all of the similarities betwe en federal, state and local governments highlighted above, the fact that there is no certiorari process to resolve circuit splits on the local level does not demand application of offensive,

non - mutual collateral estoppel. AFFIRMED. Case: 12-15900 Date Filed: 04/08/2013 Page: 12 of 12