United States District Court, D. New Mexico
R. Jordan, The Law Offices of David R. Jordan, P.C., Gallup,
New Mexico, for Plaintiffs.
M. Sanchez and Carlos J. Padilla, Cuddy & McCarthy, LLP,
Albuquerque, New Mexico, for Defendant.
ORDER GRANTING MOTION TO DISMISS
Kelly, Jr., United States Circuit Judge.
MATTER is before the court on Defendant Gallup McKinley
County School District's Motion to Dismiss filed October
8, 2018. ECF No. 9. Upon consideration thereof, the motion is
well taken and should be granted.
brought this action on behalf of their child, who is a
student at Middle College High School (MCHS), a charter
school in Gallup, New Mexico, against the Gallup McKinley
County School District (“School District”).
Pl.'s Resp. to Mot. to Dismiss 3-4 (ECF No. 12); see
generally Compl. (ECF No. 1-1). According to the
Complaint, School District Superintendent Mike Hyatt imposed
new School District safety regulations, effective July 1,
2018, which directed that all “dances or like
events” be restricted to students from the nine high
schools of the School District's “regular”
school system. Compl. ¶¶ 3, 6-7; see also
E-mail from Mike Hyatt, Superintendent, Gallup McKinley Sch.
Dist., to ALLPrincipalsDistLis@gmcs.k12.nm.us (Apr. 20, 2018)
(ECF No. 10-1). The directive was one of four new or
modified rules meant to “increase . . . safety and
protocols, ” which included active shooter training and
an enforceable dress code to ensure easy identification of
intruders. E-Mail from Michael Hyatt 1-2. Superintendent
Hyatt also notified the School District of other safety
measures under consideration, such as the construction of
fences to limit physical access to school grounds and the
installation of “video doorbell systems” that
require visitors to “buzz” in during school
hours. Id. at 2.
assert that MCHS students are a part of the School District,
that they present no unique safety risk, and that their
exclusion from Superintendent Hyatt's list of
“regular” schools constituted specific and
intentional discrimination that had no rational basis. Compl.
¶¶ 8-9. Because, Plaintiffs assert, MCHS is a
publicly funded school within the School District, MCHS
students and “regular” school students are
similarly situated, and MCHS students have been
“singled out and intentionally discriminated
against.” Id. at ¶¶ 8, 10. They thus
allege their exclusion violates the Equal Protection Clauses
of both the New Mexico and United States Constitutions.
Id. at ¶¶ 3, 10. Plaintiffs assert the
School District policy caused them injury, and they requested
a preliminary and permanent injunction prohibiting its
enforcement. Id. at 3 & ¶ 11.
October 8, 2018, the School District moved to dismiss the
Complaint pursuant to Fed. R. Civ P. 12(b)(1) and 12(b)(6).
ECF No. 9. This court held an evidentiary hearing on April
25, 2019 and heard argument as to Plaintiffs' requested
preliminary injunction. It denied Plaintiffs' request on
May 7, 2019 and asked the assigned magistrate judge to hold a
status conference. Begay-Platero v. Gallup McKinley Cty.
Sch. Dist., No. 18-CV-00861-PJK-SCY, 2019 WL 2008888
(D.N.M. May 7, 2019). On May 16, 2019, the magistrate judge
advised that the stay on discovery (ECF No. 18) should be
continued and the motion to dismiss should be resolved.
See ECF No. 24.
School District moves to dismiss for both lack of federal
subject matter jurisdiction and failure to state a claim.
Although Plaintiffs adequately plead facts giving rise to
federal subject matter jurisdiction, they ultimately fail to
state a claim upon which relief can be granted.
This Court Has Federal Subject Matter Jurisdiction Over
court must have federal subject matter jurisdiction to hear
the merits of a case. Fed.R.Civ.P. 12(b)(1). The School
District argues that the Plaintiffs have not suffered an
injury-in-fact under federal law and therefore have no
standing. It first argues that Plaintiffs do not have a
fundamental constitutional right to either a public education
or public extracurricular activities. Def.'s Mot. to
Dismiss 8. Relatedly, the School District argues that because
Plaintiffs have no constitutional right to extracurricular
activities, they have failed to establish a “concrete
and particularized” and “actual or imminent
injury.” Mot. to Dismiss 17 (quoting Lujan v. Defs.
of Wildlife, 504 U.S. 555, 560-61 (1992)). The School
District is correct that access to a public education and
ancillary benefits is not a fundamental constitutional right.
See San Antonio Indep. Sch. Dist. v. Rodriguez, 411
U.S. 1, 36-37 (1973). But the failure to establish a
fundamental right implicates the standard of review of the
state action; it does not eliminate jurisdiction. See
Cohon ex rel. Bass v. New Mexico Dep't of Health,
646 F.3d 717, 730 (10th Cir. 2011) (noting state action is
reviewed for rational basis when neither a suspect class nor
a fundamental right is implicated).
of whether state action infringes upon a fundamental right,
the Equal Protection Clause guarantees that “those who
‘appear similarly situated' are not treated
differently without, at the very least, ‘a rational
reason for the difference.'” SECSYS, LLC v.
Vigil, 666 F.3d 678, 684 (10th Cir. 2012) (quoting
Engquist v. Oregon Dep't of Agric., 553 U.S.
591, 602 (2008)). This is the essence of the Plaintiffs'
claim. See Pls.' Resp. to Def.'s Mot to
Dismiss 5 (“The point of this lawsuit is that Defendant
allows students from many high schools to attend all District
events. Defendant arbitrarily and capriciously excludes MCHS
students, an action which the constitution forbids.”).
Whether a plaintiff has set forth facts supporting either
wholly arbitrary action or sufficient similarity among
disparately treated individuals is a question best assessed
under Fed.R.Civ.P. 12(b)(6). Suffice it to say, this court
retains subject matter jurisdiction over this
Plaintiffs Fail to State a Claim Upon Which ...