NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0874n.06 Nos. 10-5595, 10-5597 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

MARYSEGER, P laintif f-App ellant,

v. K EN TU C K

Y HI G H SC HO OL A T H L E T I C ASSOCIATI ON, Defendan t-Appellee.

RICHARD EVAN S, et al., P laintif fs-App ellants,

v. K EN TU C K

Y HI G H SC H O O L A T H L ET I C ASSOCIATI ON, Defendan t-Appellee. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON AP P EAL F ROM THE UNIT ED STATE S DISTRI CT COURT F OR THE WEST ERN DISTRICT OF KENTUCK Y

Before: G IBBO NS and SUTTO N, Circ uit Jud ges, and ADAMS, Distric t Judge * J U LI A SM I TH G I BB ON S, C ir c ui t J ud g e. Plaintiffs-appellants Richard a n d N a n c y E v a n s , as next frie nds and pare nts of E.E.E., Mary Seg er, as next frie nd and pare nt of C.S. and Ce.S., a nd

The Honora

ble J ohn R. Adams, United States District J udg e for the Norther n District of * Ohio, sitti ng by

desig nation. -1-Nos. 10-5595, 10-5597

Seger v . Kentucky

High School Athletic Association Evan Comer, as next friend and pare nt of E.C., appea l the district court’s order g ranting the motions t o d i s miss filed by the defe ndant-a ppellee, the Kentucky Hig h School Athletic Associatio n (“K HSAA”)

. Plaintiffs alleg e violations of their rig hts under the First and Four teenth Amendments throug h the application of KHSAA By law 13, which place s limit s on the amount and ty pe of meritbased scholarship assistance a student can rec eive and still rema in elig ible to participa te in KHSAAg overne d high sc hool athletics. The district cour t dismi ssed the fe dera l c laims with prejudice a nd

rema nded the plaintiffs’ rema ining state law claims to J eff erson Circuit Court. For the rea sons that follow, we a ffirm. I

. There are no materia l fac t u al d i s p utes in this case . The plaintiffs, rathe r, challeng e the application of c erta in KHSAA rules. A. The Kentucky Hig h School Athletic Association is a voluntary , unincorporated association consisting of over 280 public, private, and p ar o chial schools. The Kentucky Boa rd of Educa tion (“K BE” ) has desig nated the KHSAA as its ag ent to manag e interscholastic athletics. The KHSAA’s member schools are responsible for the promulg ation of the KHSAA’s re gu l at i ons, known as by laws, g overning participa tion in KHS AA -s an ctioned sporting events. The KB E then revie ws, approve s, and incorpor ates these by laws into its own administ rative r eg ulations. The application of KHSAA By law 13 is at issue in this case . By law 13 conce rns the elig i b i l i t y of student athletes at non-public schools who rec eive cer tain ty pes and amounts of financ ial aid. The parties do not dispute the purpose of the by law, which is to preve nt and deter the -2-Nos. 10-5595, 10-5597

Seger v . Kentucky

High School Athletic Association

rec ruitment of student athletes by KHSAA member schools. To preve nt this improper rec ruitment, the KHSAA place s cer

tain restric tions on the amount and form of financial aid non-public school students can a cce pt and still remain elig ible to pla y KHSAA-sa

nctioned sports. B y law 13 divides

acc eptable financ ial aid into two cate g ories: (1) need- based financ ial aid and (2) merit-base d financ ial aid. Merit-ba sed financ ial aid is awa rded based on aca demic or test perf ormanc e. I t must have been made available to the entire student body throug h a competitive application proce ss and must be made a ccor ding to published, objec tive criter ia. I n addition to th e s e r e s tric ti o ns, a student acc epting merit-base d aid must comply with sever al other conditions found in By law 13 in order to maintain his or her interscholastic athletic elig ibilit y . Two of these restric tions are pa rticularly rele vant in this case. First, a st udent may only acc ept up to 25% of the cost of tuition in merit-base d aid. Second, a student may not acc ept financ ial aid from a “funding source that is not under t he custody and control of t he member school or i ts g overning board.” Un d er this provision, independe nt g roups are not prohibited from making merit-base d financ ial aid awa

rds, but the g roup must subject its ai d to the revie w and control of the member school or its g overning board. Thus, if a student wer e to acc ept more than 25% of the cost of tuition in merit-base d aid or acc ept financ ial aid from a g roup outside the revie w and control of the school

or g overning board, this student would be ineligible to pa rticipate in K

HSAA-sponsore d athletics. I n its definitions section, the by law descr ibes sever al differ ent classifications of s ch o o ls in c lu d in g : d is trict-oper ated schools (A1), Roman Catholic schools (J1), other relig io u s s c h o o ls ( M 1 ) , an d p ri vate, non-re ligiously aff iliated schools (R1). The latter three are g rouped into a broade r cate g ory of non-public schools. The by law define s a non-public school’s “g overning board” as “the

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Seger v . Kentucky

High School Athletic Association entity having oversig ht over the member school” and states that the g overning board for a non-public school “shall be deter

mined by school ty

pe.” I t further define s the g overning board of a J 1 (Roman Catholic) school as the Catholic arc hdiocese in which the school is located. These sections, dividing schools betwee n public and non-public schools and def ining the “g overning board” of non-public member sc hools, are the only instances in B y law 13 that utiliz e the J1 designa tion.

B. Plaintiffs-appellants are the pare nts of four non-public school students who bring this action on behalf of their c hildren. “E.E .E.” is a ninth-g rade student at Presenta tion Acade my , a Catholic all-g irls school, located in L ouisvill e, Ke ntucky . She claims that the rule limiting mer it-based a id to 25% of tuition preve nted her from acc epting additional scholarship awa rds, which she claims she

was offe red, in order to maintain her KHSAA athletic elig ibilit y . “C.S.” is a twelfth-g rade student at Presentatio n Aca demy , who claims to have turned down a Mason Scholarship merit-base d financ ial aid awa

rd to maintain her elig ibilit y to participa te in sports. The org anization that awa rded the Mason Scholarship was found to be outside of the cus t o d y an d co ntrol of the school and its g overning board, the arc hdiocese of L ouisvill e. “Ce.S.,” the y oung er sister of C.S., is in the eig hthg rade at Presentation Aca demy

. She was also offe red a Mas o n S ch olarship, but she acc epted the

awa rd. Be cause she acc epted this aid from a g roup outside the control of the school’s g overning board, she was decla

red ineligible to participa te in KHSAA-sa nctioned sports. Finally , “E.C.” is a ninth-g rade student at Walden School, a non-public, non-re ligiously aff iliated sch o o l l ocate d in L ouisvill e, Kentucky

. She claims she lost her KHSAA athletic elig ibilit y when she acc epted a meritbased f inancial a id awar d in excess of 25% of he r cost of tuition.

-4-Nos. 10-5595, 10-5597

Seger v . Kentucky

High School Athletic Association The Evans Plaintiffs, on behalf of E.E.E., and Seg er, on behalf of C.S. and Ce.S., orig inally filed separate complaints in J eff erson Ci rcuit C ourt. These complaints made essentially the s ame claims— that By

law 13 is unfair, discriminatory , arbitra ry , and capr icious. Seg er later joined the Evans Action, making the same discrimination and arbitra ry and capr icious claims as wer e orig inally made in her separ ate complaint. Comer, on behalf of E.C., also joined the Evans Action, likewise claiming that the re g ulation was discriminatory , arbitra ry , and ca pricious. The KHSAA removed the case s to feder al cour t after it was deter

mined that the pl aintiffsappellants wer e asser

ting ri ghts under the United States Constit ution. The KHSAA then filed motions to dismiss all claims in both case s pursuant to Fe dera l Rule of C ivil Procedur e 12(b)(6). The district court considere d the motions to dismiss collectively and g rante d them on April 20, 2010. The court dismiss ed with pr ejudice all of the plaintiffs’ claims based on fede ral law and rema nded their re maining sta te law c laims to the origina l state court. I I

. We revie w t he dis trict court’s dismi ssal of a c omplaint pursuant to Rule 12(b)(6) de novo

. W inget v. JP Morgan C

hase Bank, N.A. , 537 F.3d 565, 572 ( 6th Cir. 2008). I n assessing a motion to dismiss under Rule 12(b)( 6), this court construes the complaint in the light most favor able to the plaintiff, acc epts the plaintiff’s fac tual alleg ations as true, and d et er mines whether the complaint “conta in[ s] sufficie nt fac tual matter, acce pted as true, to state a claim t o relief that is p l au s i b le on its fac e.” Ashcroft v. Iqbal , 129 S. Ct. 1937, 1949 (2009) (interna l quotation and citation omitted). Fur thermore , this a

ppeal involves constitutional que stions, which are questions of law and subject

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Seger v . Kentucky

High School Athletic Association to de novo revie w. Johnson v. Ec on. Dev . Corp. of C nty. of Oakland , 241 F.3d 501, 509 (6th Cir. 2001). A. All of the plaintiffs alleg e that the restric tions found in By law 13 are discriminatory

. When assessing whether a law or regulation discriminates i n a manner that violates the Four teenth Amendment, we must first deter mine the proper d egr ee o f s crutiny to apply

. Strict scrutiny is applied when a law or reg ulation discriminates based on a “suspec t” classification, such as rac e, or interfe res with the exercise of a “funda mental” rig ht, such as the rig ht to control the upbring ing and education of one’s c hildren or the f ree dom of relig ion. See, e .g., Rege nts of Univ. of California v. Bakk e , 438 U.S. 265, 290–91 (1 9 7 8) (ra ce) ; Mey er v. Nebraska , 262 U.S. 390, 400–401 (1923) (par ental control over educa tion of a child); Church of Lukum i B abalu A ye v. City of Hialeah , 508 U.S. 520, 531–32 (1993) (fr ee exercise of relig ion). An intermediate form of scrutiny is applied in

case s wher e the l aw o r reg ulation discriminates based on a “quasi-suspect” classifica tion, such as g ender

. See, e.g., Craig v. Boren , 429 U.S. 190, 197 (1976). Finally , a law that discriminates on any other basis need only satisfy the rational basis test. See, e.g., Massachusetts Bd. of R et. v. Murgia, 427 U.S. 307, 312 (1976) (discr imination based on ag e). The Evans plaintiffs and Seg er arg ue that By law 13 is discriminatory on the basis of relig ion and t hat s trict scrutiny should there fore be applied. Their arg ument is without merit. Contrary to the plaintiffs’ belief, the mere g rouping of Catholic schools into a classification labeled as “J1

- Roman Catholic schools” does not, in itself, constitute discrimination on the basis of relig ion. By law 13 uses the J 1 desig nation only to g roup Ca t h o l i c schools into a broade r cate g ory of non-public

-6-Nos. 10-5595, 10-5597

Seger v . Kentucky

High School Athletic Association schools and to define the “g overning board” of a Catholic s ch o o l as the arc hdiocese in which the school is located. I n all other respe cts J 1 Catholic schools are trea ted the same as other non-re ligious schools. This desig nation does not amount to fac ial discrimination. The by law does not discriminate on the basis of relig ion in its a pplication either. I t applies to all member schools, restric ting the amount and ty pe of financ ial aid that any student can rec eive. The restric tions apply in the same manner to all non-public schools, reg ardle ss of whether a school is relig iously aff

ilia t ed

. T h u s , By law 13 is a neutra l law of g ener al applicability

. There fore , it is analy zed under a standard simi lar to rational basis revie w. See E mp’t. Div., Dep’t of Human Res. of Oregon v. Sm ith , 494 U.S. 872, 888–90 (1990); Hialeah , 508 U.S. at 531. Plaintiffs also argue that By law 13 interfe res with their “funda mental rig ht” as p arents to control the upbring ing and education of their children. Whil e the Supreme Court has found this rig ht to be fundame ntal, see, e.g., Mey er , 262 U.S. at 400–401; Pierce v. Soc'y of the Sisters of the Holy Names of Jesus and Mary , 268 U.S. 510, 530–535 (1925), it is not abridg ed by By law 13. The by law only re s t ri ct s t he amount and ty pe of financ ial aid that a student can rec eive and reta in KHSAA athletic elig ibilit y . I t does not limit a pare nt’s ability to send his or her child to a non-public school

or limit the amount of aid a student can rec eive when he or she also chooses not to participa te in sports. Fur

thermore , “[i] t is well-e stablished that students do not have a g ener al constitutional rig ht to pa rticipate in e x trac urricula r athletics.” Lowery v. Euve rard , 497 F.3d 584, 588 (6th Cir. 2007) (citing Brentwood Acad. v. Tennessee Secondary S ch

. A thletic Ass'n , 180 F.3d 758, 763 (6th Cir. 1999), rev'd on other grounds , 531 U.S. 288 (2001)). The fundame ntal rig ht of parents to control the education of t heir children does not extend to a right t o demand that th ei r children be allowed

-7-Nos. 10-5595, 10-5597

Seger v . Kentucky

High School Athletic Association to participa te without restric tions in extracurr icular sports in the educational setting that the pare nts have f ree ly chosen. Be cause the by law does not discriminate based on a “suspec t” or “quasi-suspe ct” classification nor interfe re with the exercise of any fundame ntal rig ht, it is subjec t to revie w under the ra tional basis standard. B. To pass rational basis revie w, a classif i cation must be rationally rela ted to further ing a leg itimate state interest. See, e.g., Murgia, 427 U.S. at 312. Rational basis revie w i s “is the most rela x ed and tolerant form of j udicial s crutiny . . . .” Dallas v. Stanglin , 490 U.S. 19, 26 (1989). A law or regulation subject to rational basis revie w is acc orded a strong presumption of validity

. See FCC v. Beac h Commc’ns , 508 U.S. 307, 314 (1993). Moreove r, “those attacking the rationality of the

. . . classification have the burden to neg ative ever y conce ivable basis which might support it.” Id

. at 315 (citations and internal quotation marks omitted). “A State

. . . has no obligation to produce evidenc e to sustain the rationality of a statutory classification.” Heller v. Doe by Doe , 509 U.S. 312, 320 (1993). Rather, a classification under rati o n al b asi s revie w must be upheld “if there is any

rea sonably conce ivable state of fac ts that could provide a rational basis for the classification.” Beac h Commc’ns , 508 U.S. at 313. “A classification having some rea sonable basis does not [fail rational basis revie w] mere ly beca use it is not made with mathematica l nicety , or beca use in prac tice it results in some inequality .” Lindsl ey v. N atural Carbonic Gas Co. , 220 U.S. 61, 78 (1911). I nstead, the law mus t mere ly “find some footing in t h e re al i t i es of t he subj ect addresse d by the l eg islation” to survive rational basis review

. Heller , 509 U.S. at 321.

-8-Nos. 10-5595, 10-5597

Seger v . Kentucky

High School Athletic Association The purpose of By

law 13 is to preve nt and dete r t h e rec ruitment of student athletes by preve ntin g KHSAA member schools from “pay ing” student athletes to play at that school. The plaintiffs do not c halleng e the leg itimacy of the KHSAA’s interest in preve nting improper athletic

rec ruitment but instead argue that the by law’s provisions are not rationally rela ted to further ing this objective. C.S. and Ce.S. challeng e the By law 13 provision that states that a student will be ineligible to participa te in school athletics if he or she acc epts financ ial aid from a source not under the custody and control of t h e m em b er s chool or its g overning board. This control provision has a rational

connec tion to the purpose of avoiding the use of financ ial aid as an improper athletic rec ruiting tool. The provision helps deter third-par ty funding source s from assisting s ch o o ls in participa ting in improper athletic rec ruitment. Whil e the org anization that provides the Mason Scholarship may not have made its decisions based on any consideration of rec ipient athletic ability , this is not nece ssarily the case for eve ry potential third-par ty funding source . Moreove r, the control provision works in

conce rt wit h t he other restric tions on financ ial aid and makes the other provisions easie r to administer. The provision makes schools more invested in and acc ountable for enfor cing the other b y l aw provisions. I t helps schools better monit or and preve nt students from accidenta lly ru n n i n g afoul of the restric tions on merit-base d aid and losing their athl et i c el i gi bility

. I t also potentially deter s violations of the rec ruitment prohibition by placing a school’s reputa tion at stake—a t least to

an extent g reater than i f third-par ty funding source s operated completely independe ntly of school oversig ht—since the school is more immediately connec ted to any rec ruiting v i olations.

-9-Nos. 10-5595, 10-5597

Seger v . Kentucky

High School Athletic Association Acc ording ly , this provision has a rational connec tion to the purpose of deter ring the use of financ ial aid as a n improper athletic rec ruitment tool. Plaintiffs E.E.E. and E.C. challeng e the By law 13 provision that provides that a student will be inelig ible to participate in KSHAA-sponsore d athletics if he or she rec eives merit aid in excess of 25% of tuition. Plaintiffs argue that they persona lly wer e not rec ruited for their athletic abilities. I ndeed, the provision is overinclusive in that it restricts the amount of merit-base d aid any student

ca n re ce i v e ev en if there is no suspicion whatsoeve r that a particula r awa rd is being used for improper athletic rec ruitment purposes. Plaintiffs also argue that the bylaw’ s re s t ri ctions are underinc lusive beca

use a student may rec eive an awa rd of up to 100% of tuition without any further KHSAA revie w if he or she qualifies for need- based aid. Whil e acc urate , the plaintiffs’ arguments

are unavailing

. “Eve n if the cla ssification involved .

. . is to some extent both underinc lusive and overinc lusive, and hence the line draw n [i s] imperfe ct, it is never theless the rule that

. . . perf ection is by no means require d.” Vance v. Bradley , 440 U.S. 93, 108 (1979) (quoting Phillips Chem. Co.

v. Dumas Indep. Sch. Dist. , 361 U.S. 376, 385 (1960) (qu o t at i o n marks omitted)). See also New Y ork City T

r a n s i t Auth. v. Beazer , 440 U.S. 568, 592 (1979) (finding that an overly -broa d law, althoug h “proba

bly unwise,” was not u n co nstitut ional under rational basis revie w); Breck v. Michigan , 203 F.3d 392, 396 (6th Cir. 2000) (“Rational basis scrutiny

. . . tolerate s some imprecision in classifying otherwise simil arly situated people wher e a state has deter mined that some distinction is warr anted.” ). Her e, the KHSAA has enac ted a broad rule to limit imprope r athletic rec ruiting car ried out throug h the use of prete x tual “mer it-based” aca demic scholarships. The 25% cap on merit-base d aid

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Seger v . Kentucky

High School Athletic Association may not be a p er fe ct rule, and there might indeed be better methods of preve nting the harm of i m p roper rec ruitment, but a perf ect, well-tailore d rule is not require d. I nstead, Plaintiffs b ea r t h e burden of establishing that this rule is in no way rationally rela ted to the g overnme nt’s stated leg itimate interest, and they have not done so. The provision limit ing merit-base d awa rds to 25% of tuition does have a rational connec tion to the l eg itimate state i ntere st as i t also wor k s i n conce rt with the ot her provisions in By law 13 to reduc e im proper athletic recruitment. For example, if a student de sires to maintain elig ibilit y , the by law require s that merit-base d aid be g iven solely on “ac ademic/test perf ormanc e” with selec tion of rec ipients based on published, objective criter ia. The 25% cap provision reinfor ces the g oal behind this restr ic tion. Reinforc ement is neede d beca use even “objec tive” aca demic indicators, such

as a student’s g rade point aver ag e, have built-in subjective components that can be manipulated by parties seeking to stay within the letter of the regulation while evading its spirit. A school attempting to rec ruit a student-athlete (or reta in a student-athlete who is curr ently enrolled) could g uide the student toward easie r classes and teac hers who g rade more leniently or provide additional aca demic help unavailable to non-re cruits. These tactics co u l d potentially boost the student’s G.P.A. and qualify the student for a “mer it-based” scholarship. Even an indicator as objective as a standardized test perf ormanc e can be manipulated throug h means such as the provision of additional tutoring or test prepa ration cla sses to targ eted student-athlete re cruits. I nstead of attempting to r eg ulate all these potential loopholes one-by -one, the KHSAA has appar ently decide d to deter such m anipulation by simply capping the amount of merit-based a id a

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Seger v . Kentucky

High School Athletic Association student can r ece ive and still be elig ible to play school sports. The 25% cap on merit-aid provision is, there fore , rationally rela ted to the KHSAA’s interest in preve nting improper athletic rec ruitment. I I I

. For the fore g oing rea sons, we aff irm the decision of the district court. Finally , we would note that our decision addre sses only the plaintiffs’ fede ral constitutional claims and does not aff ect any claims they

might pursue under state law.

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