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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 01-3158

NOEL MULLEN, a minor; MICHAEL MULLEN; NAOMI MUL LEN, his wife, in their own right and as parents and legal guardians of NOEL MULLEN; RICHARD ALEX, a minor; ROBERT ALE X, a minor; JEROME ALEX; MARY ANN ALEX, his wife, in their ow n right and as parents and legal guardians of RICHARD ALEX a nd ROBERT ALEX, minors; LARA WALKER, a minor; MICHAEL WA LKER, a minor; LARRY WALKER; JEAN C. WALKER, his wife, in their own right and as legal guardians of LARA WALKER and MICHAEL WALKER, minors; ASHLEY MAIER, a minor; BRENDA MAIER, an adult in her own right and as parent and legal g uardian of ASHLEY MAIER; ASHLEY LOWREY, a minor; RONALD LOW REY; WENDY LOWREY, his wife, in their own rights and as pa rents and legal guardians of ASHLEY LOWREY; CHRISTOPHER TA VORMINA, a minor; KIM TAVORMINA, an adult in her own righ t and as parent and legal guardian of CHRISTOPHER TAVORMI NA; RONELL MURRAY, a minor; MICHAEL MURRAY, SR., REVEREND, a n adult in his own right and as parent and legal guardian of RONELL MURRAY,

Appellants

v.

JOHN W. THOMPSON, individually and as Superintend ent of the City of Pittsburgh School District and Secretar y of the Board of Directors of the City of Pittsburgh School District; RICHARD R. FELLERS, individually and as Executive Director of Business Affairs; ALEX MATTHEWS, ind ividually and as President and member of the Board of Public Education; RANDALL TAYLOR, individually and as F irst Vice President and member of the Board of Public Ed ucation; EVELYN B. NEISER, individually and as Second Vice President and member of the Board of Public Education; MARK A. BRENTLEY, SR., individually and as a Member of th e Board of Education; JEAN FINK, individually and as a Memb er of the Board of Education; DARLENE HARRIS, individually and as a Member of the Board of Education; WILLIAM SCOT T ISLER, individually and as a Member of the Board of Ed ucation; MAGGIE SCHMIDT, individually and as a Member of t he Board of Education; JEAN E. WOOD, individually and as a Me mber of the Board of Education; THE SCHOOL DISTRICT OF THE CITY OF PITTSBURGHOn Appeal from the United States District Court

for the Western District of Pennsylvan ia (D.C. Civil No. 01-cv-01087) District Judge: Hon. Gary L. Lancaste r

Submitted Under Third Circuit LAR 34.1( a) March 7, 2002

Before: SCIRICA and COWEN, Circuit Judg es, RESTANI*, Judge, United States Court of Internat ional Trade

(Filed March 25, 2002)

_______________

OPINION

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*Honorable Jane A. Restani, Judge, United States Co urt of International Trade, sitting by designation.

COWEN, Circuit Judge In this case, Plaintiffs appeal from the dismi ssal of their various civil rights claims which arise out of the closing of numerous public s chools in the City of Pittsburgh, Pennsylvania. Because there is no error in the Dis trict Court's determination that it did not have subject matter jurisdiction over these cla ims, we will affirm. I. Plaintiffs are nine students enrolled in the P ittsburgh public schools and their respective parents. Defendants are John Thompson, the Superintendent of the School District of the City of Pittsburgh, and members of the Pittsburgh Board of Education. Taking, as we must, the Plaintiffs allegations as t rue, the essential facts of this case are as follows. On November 10, 2000, a local Pittsburgh newspaper published a story about 24 schools in the school district listed for closing. On November 14, 2000, the district officially announced plans to close eighteen school s. On November 30, 2000, the School Board held a public meeting and allowed the public to address the fiscal year 2001budget. Although the meeting was advertised earlie r in a newspaper of

general circulation, the advertisement did not specifically mention the issue of school closings. Nonetheless, several of the Plaintiffs and others s howed up at the meeting and voiced opinions in opposition to the closings. Members of the public were successful in preventing the closing of some schools, but Plainti ffs did not have the

same success. On December 20, 2000, the School Board cast a 5-4 vote to enact a budget for fiscal year 2001. The budget included the closings of eight different public schools. Thereafter, Plaintiffs filed the present action to enjoin the School Board from closing the schools. Plaintiffs' claims were grounded in the C ivil Rights Act of 1871 (42 U.S.C.  1983) and asserted violations of the First Amendmen t right to petition the government for redress of grievances and the 14th Amendment's guar antee of due process of law. Defendants moved to dismiss the case pursuant to Fe deral Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. The District Court agreed with Defendants and dismissed the case for lack of subje ct matter jurisdiction, holding that the actions of the School Board did not run counter to the federal Constitution. This appeal followed. II. Plaintiffs contend that the School Board's dec ision to close the schools before the full time provided for in section 7-780 violates th e First Amendment's language guaranteeing the right to petition the government f or redress of grievances. More specifically, Plaintiffs assert that public pressur e was successful in preventing the closings of some schools. Thus, had Plaintiffs had more time to speak out, they could have been successful as well. We are sympathetic to the assertion that Plain tiffs apparently had less time than mandated by state law (under section 7-780) to voic e opinions opposing the closings before those closings became final. Nevertheless, we are not persuaded that the alleged failure to comply with the purely procedural mechan ism of section 7-780 rises to the level of a First Amendment violation. Section 1983 is a critical method for vindicating thedenial of federally guaranteed rights but that stat ute may not be invoked

every time local officials allegedly act contrary to state or local procedural law. In our view, Plaintiffs' complaints are more properly left to the Pennsylvan ia state courts, which may take whatever action is permissible under state law to r edress the fact that a state statute was not complied with by local officials. Indeed, the state courts of Pennsylvania have redressed violations of section 7-780 in the past. We express no opinion on how such state-level litigation should proceed or what ultim ate result should be reached. Plaintiffs also argue that the premature schoo l closing decision violated their 14th Amendment due process rights. We are not convinced . The District Court correctly analyzed the substance of this issue and properly c oncluded that Plaintiffs have no constitutionally cognizable property or liberty int erest in attending the individual school of their choice. See Mullen v. Thompson, 155 F. Su pp.2d 448, 451-53 (W.D. Pa. 2001). While Pennsylvania law clearly guarantees an adequa te free public education generally, the contours of that right are not nearly as specif ic as Plaintiffs here contend. If the Defendants had denied Plaintiffs access to any free public education, that would be a different matter. However, without a constitutiona lly recognized property or liberty interest, there is no need for further inquiry on t he due process question. See, e.g., Paul v. Davis, 424 U.S. 693, 711-712 (1976). III. Even if all facts asserted by Plaintiffs are t rue, there is no potential for relief under the provisions of 42 U.S.C.  1983 since no violations of the federal Constitution have occurred. The District Court was correct to grant Defendants' Motion pursuant to Rule 12(b)(1) and dismiss the cause of action for lack o f subject matter jurisdiction. For all of the foregoing reasons, the order of the District Court entered August 1, 2001 will be affirmed.

TO THE CLERK: Please file the foregoing opinion.

/s/ Robert E. Cowen United States Circuit Judge