[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-15900

Non-Argument Calendar

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D.C. Docket No. 1:12-cv-01277-JOF

DENISE DEMAREE, 

MEGAN HUMPHREYS, 

ALLISON JONES, 

CLARE MANSELL, 

MARY MCCOY, 

TIM MCKINNEY,

MIKE MITCHELL, 

JANET STALLING, 

RAY SPLAWN, 

SANDY WADE, 

 Plaintiffs - Appellants,

versus

FULTON COUNTY SCHOOL DISTRICT, 

 Defendant - Appellee. 

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Appeal from the United States District Court

for the Northern District of Georgia

________________________

(April 8, 2013)

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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 orchestra and band teachers, appeal 

from the district court’s final order dismissing their suit against the Fulton County 

School District (“School District”). Plaintiffs’ complaint alleged that the School 

District violated their rights (and those of about 40 others) 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 nonmutual offensive collateral estoppel delineated in United States v. Mendoza, 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-CV193987 (Ga. Sup. Ct. 2011). After thorough review, we affirm.

We review a judgment 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 

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entitled to judgment as a matter of law.” Id. We 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. Plaintiffs 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 result 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. The 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. These positions were described

as “programs/functions eliminated.” The non-renewal of the elementary school

band and orchestra teachers reduced the School District staff by 54 positions.

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One group besides elementary orchestra and band teachers was also placed 

in the “programs/functions eliminated” -- Grades 1 through 3 paraprofessionals. 

However, the 165 Grades 1 through 3 paraprofessionals 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, Plaintiffs alleged that they were 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 claim. 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.

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Pub. Transp. Comm’n, 558 F.3d 1301, 1306 (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 reasonably conceivable state of facts that could

provide a rational basis for the classification.

FCC v. Beach Commc’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

legislature “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 “negative every 

conceivable basis which might support it.” Beach Commc’ns, 508 U.S. at 314-15

(quotation omitted). A legislature need not articulate its reasons for enacting a 

statute. Id. at 315. The Court continued:

Defining the class of persons subject 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 

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placed on different sides 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 Plaintiffs 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 area 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 the two groups 

of employees within the RIF’s “programs/functions eliminated” differently with 

regard to which employees would be retained. 

However, it 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 position. For instance, teachers have a state-mandated salary 

scale, are required to have an annual employment agreement, and have certain due 

process rights if terminated. O.C.G.A. §§ 20-2-212, 20-2-211(b), & 20-2-942. 

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 

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tasks under the supervision 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 paraprofessional positions. Further, no 

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 

group 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 differences. 

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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, as teachers, are not supervised

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 12th grade, no where have they mentioned that

they could actually easily teach 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, nonmutual 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, the 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 governments are 

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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 160. For instance, government litigation frequently 

involves interpreting the Constitution -- a task often only achieved in government 

litigation. Id. Stifling the litigation of constitutional issues with offensive, nonmutual collateral estoppel would therefore prevent the development and

clarification of constitutional law. Id. In addition, the government has limited

litigation resources, which 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 litigants, as detailed by 

Mendoza. Id. at 1578. Several district courts in this Circuit have similarly 

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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 pilot’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 estoppel 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.

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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 

the 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-mutual 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 government. As a result, offensive, nonmutual 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, non-mutual collateral estoppel should apply

here because 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 

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there is no U.S. Supreme Court certiorari process in place to resolve conflicts

amongst the courts. 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, the School District, like the federal and state 

governments, needs litigation flexibility, so, for example, they are not forced to 

completely exhaust every administrative hearing, which wastes resources and 

increases litigation. Finally, given all of the similarities between 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.

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