IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION

Transcription

1 Case 1:13-cv MW-GRJ Document 111 Filed 04/22/14 Page 1 of 20 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION KIM COOK et al., Plaintiffs, v. CASE NO. 1:13-cv-72-MW-GRJ PAMELA STEWART, in her official capacity as Florida Commissioner of Education, et al., Defendants. / ORDER GRANTING IN PART AND DENYING IN PART STATE DEFENDANTS MOTION TO DISMISS Before this Court is the State Defendants Motion to Dismiss the First Amended Complaint, ECF No. 60, filed November 18, For the reasons set forth below, the Motion to Dismiss is granted in part and denied in part. Specifically, the Motion to Dismiss is granted as to Plaintiffs challenges to the Florida Student Success Act ( Act ), but it is denied as to Plaintiffs challenges to the district evaluation policies adopted pursuant to the Act. Furthermore, because the State Defendants played a vital role in the development and approval of those policies, and because Plaintiffs sufficiently pled facts to support this theory in the Amended Complaint, the State Defendants are not dismissed from this suit, but will rather be retained as defendants for the challenges to the district policies. 1

2 Case 1:13-cv MW-GRJ Document 111 Filed 04/22/14 Page 2 of 20 I. BACKGROUND For the purpose of increasing student learning growth[,] in 2011, the Florida Legislature enacted the Student Success Act (1)(a), Fla. Stat. A key provision of the Act calls for annual teacher evaluations, which must be based upon data and indicators of student learning growth assessed annually by statewide assessments or, for subjects and grade levels not measured by statewide assessments, by school district assessments.... Id (3)(a). Under the Act, at least 50 percent of a teacher s annual evaluation (or 40 percent if less than three years of data are available) must be based on student learning growth using an approved formula. Id (3)(a). As required under section (7)(a) of the Act, the state developed a formula to assess student learning growth on the Florida Comprehensive Assessment Test ( FCAT ). The state s formula, known as the FCAT VAM, does not cover all teachers, however. Because the FCAT only tests reading in grades 3 through 10 and math in grades 3 through 8 and the FCAT VAM requires at least one year of FCAT scores as a baseline to assess student growth, the FCAT VAM is only required for assessing certain teachers; that is, teachers who teach students reading in grades 4 through 10 and math in grades 4 through 8 (hereinafter Type A teachers or FCAT teachers). Id (7)(b). The majority of Florida teachers are non-fcat teachers; that is, they teach students in grades 4-10 but in subjects other than reading and math ( Type B 2

3 Case 1:13-cv MW-GRJ Document 111 Filed 04/22/14 Page 3 of 20 teachers), or they teach students who do not take the FCAT or do not have a baseline score to calculate the FCAT VAM because their students are in kindergarten through grade 3, and grades 11 and 12 ( Type C teachers). The FCAT VAM is not directly applicable to these non-fcat teachers. The Act specifies that these non-fcat teachers should be evaluated using another equally appropriate formula to be developed by their school districts. Id (3)(a). So far, however, most local school districts have not created tests for student learning growth covering the non-fcat subjects and grades taught in their schools, and have therefore not developed their own formulas. They will not be required to do so until the school year. In the meantime, the Act temporarily 1 provides other options for school districts to evaluate non-fcat teachers, which has given rise to the problems complained about in this case. For Type B teachers, the Act provides the following option: For classroom teachers of courses for which the district has not implemented appropriate assessments under [section] (8) or for which the school district has not adopted an equally appropriate measure of student learning growth..., student learning growth must be measured by the growth in learning of the classroom teacher s students on statewide assessments Section (7)(e), Florida Statutes expires July 1,

4 Case 1:13-cv MW-GRJ Document 111 Filed 04/22/14 Page 4 of 20 Id (7)(e) (emphasis added). For Type C teachers, the Act mandates that measurable learning targets must be established based upon the goals of the school improvement plan and approved by the school principal. Id. The Act also allows district superintendents to draw instructional personnel into the state formula by assigning them to an instructional team and to base those teachers evaluations on the student learning growth of the instructional team s students on statewide assessments. Id. The Act does not define the term instructional team, nor does it require that teams be structured in a way that actually allows teachers to work together on the instruction of the team s students. This option is being used as an expedient way to assign FCAT assessment data, typically from FCAT reading scores, to evaluate Type C, and even some Type B, teachers under the student growth dictates of the Act. 2 Although the school districts, with the approval of the State Defendants, have gone about using these temporary options in a variety of ways through their evaluation policies, the general flaw that Plaintiffs complain of is the same. Plaintiffs contend that the FCAT VAM was designed for a limited purpose in evaluating FCAT teachers. When properly used, the FCAT VAM represents an individual measurement, known as a value-added measurement, of the contribution made by FCAT teachers to their students FCAT scores in the subjects taught in 2 This Court conducted a hearing on April 9, As noted at the hearing, while this option is being used as an expedient, it is problematic whether the original Act permits the application of the instructional team approach to Type C classroom teachers. 4

5 Case 1:13-cv MW-GRJ Document 111 Filed 04/22/14 Page 5 of 20 their classes. When applied to non-fcat teachers, however, Plaintiffs contend that the FCAT VAM is irrational because it was not designed to measure, and is not capable of measuring, the individual contribution of non-fcat teachers to student improvement in the subjects taught in their classes. For example, when the FCAT VAM is applied to Type B teachers, the FCAT VAM does not reflect student improvement in the subjects actually taught by the teachers. So these teachers, despite being required to teach a mandated curriculum, are being assessed on their students improvement in a different course that they do not teach. Worse still, Type C teachers are being evaluated on the basis of what are referred to as school-wide FCAT VAMs. In elementary schools the school-wide FCAT VAMs are typically calculated on the fourth and fifth graders FCAT results, and in high schools the school-wide scores are calculated on the ninth and tenth graders FCAT results. The school-wide FCAT VAMs do not reflect an individual teacher s performance because they are the same for all teachers in the school. Thus while the FCAT VAM may work as designed and intended when applied to FCAT teachers, when applied to non-fcat teachers, Plaintiffs contend that the FCAT VAM provides nothing close to an individual measurement of the teacher s contribution to student improvement in the subjects taught in their classes. 5

6 Case 1:13-cv MW-GRJ Document 111 Filed 04/22/14 Page 6 of 20 Although there are variations in district policies, Plaintiffs complain that most non-fcat teachers in Florida have been evaluated based on FCAT reading scores. This is true of the individual Plaintiffs in this case, who teach subjects such as health sciences, art, music, biology, and 11th and 12th grade math. Their individual evaluations are based on the FCAT reading scores of their own students or the study body of the schools where they teach, even though their assigned teaching duties require them to focus on subjects other than reading. The Act requires these evaluations to be considered when making employment decisions affecting teachers, such as rate of pay, renewal of contracts, terminations, and reductions in force. Yet the evaluations fail to reflect an individualized assessment of their students learning growth in the subjects that the teachers teach. Because of this, Plaintiffs filed suit against the Florida Commissioner of Education and members of the State Board of the Florida Board of Education in their official capacities ( the State Defendants ). They have also filed suit against the school boards of Alachua County, Hernando County, and Escambia County ( District Defendants ). They raise as-applied and facial challenges to the Act as violating their rights to substantive due process and equal protection under the law. With the elimination of the FCAT and the new tests that are required for the school year, the relief sought by Plaintiffs has been limited to an injunction 6

7 Case 1:13-cv MW-GRJ Document 111 Filed 04/22/14 Page 7 of 20 prohibiting use of any evaluations of non-fcat teachers who were evaluated using the FCAT VAM. In assessing the Plaintiffs claims, it is important to note that even if the Plaintiffs make a plausible showing that the Act is flawed and unfair, a valid constitutional claim to invalidate the Act requires more. It requires a showing that the Act violates a fundamental right or that the Act is not rationally related to legitimate governmental interests. Washington v. Glucksberg, 521 U.S. 702, , 728, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997). II. STANDING The essence of the standing question... is whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, , 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977) (quoting Warth v. Seldin, 422 U.S. 490, , 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975)). Article III standing requires that a plaintiff demonstrate three things: first, that she has suffered an injury in fact, or an invasion of a legally protected interest which is... concrete and particularized ; second, that there exists a causal connection between the injury and the conduct complained of ; and third, that it is likely, as opposed to merely speculative, that the injury will be redressed by a 7

8 Case 1:13-cv MW-GRJ Document 111 Filed 04/22/14 Page 8 of 20 favorable decision. Nat l Parks Conservation Ass n v. Norton, 324 F.3d 1229, 1241 (11th Cir. 2003) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, , 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)). The presence or absence of standing is measured as of the time suit is commenced. Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1275 (11th Cir. 2003). To the extent that Plaintiffs seek declaratory and prospective injunctive relief, see ECF No. 48, they must demonstrate a real and immediate threat of future injury to satisfy the injury in fact requirement of standing. Focus on the Family, 344 F.3d at 1274 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 103, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983)). The requirement of immediacy, however, does not mean that the future injury must happen in the colloquial sense of soon or precisely within a certain number of days, weeks, or months, only that the anticipated injury occur within some fixed period of time in the future. Fla. State Conference of NAACP v. Browning, 522 F.3d 1153, 1161 (11th Cir. 2008). The future injury must also pose a realistic danger and cannot be merely hypothetical or conjectural. Id. Plaintiffs seek to base standing upon a number of alleged harms both past and future. The most obvious and concrete of the future harms is the threat of imminent economic harm in the form of lost pay due to both past and future irrationally and erroneously low performance ratings. ECF No. 78, at 13. The Act 8

9 Case 1:13-cv MW-GRJ Document 111 Filed 04/22/14 Page 9 of 20 provides in relevant part that school districts must base a portion of each employee s compensation upon performance as measured under section , Florida Statutes. Taking Plaintiffs allegations as true, they are at risk of making less money in the future than they would have absent the irrational evaluation system authorized by the Act. Although it is by no means certain that any harm of this sort will befall any particular plaintiff, the threat is concrete and particularized enough to satisfy Article III. First, because performance evaluations are conducted each year for most teachers, the future harm would occur within some fixed period of time in the future. Second, the harm is not hypothetical or conjectural ; there is a realistic chance that any particular Plaintiff will receive or has received a lower rating than she otherwise would have received as a result of the allegedly irrational evaluation system, and thus will receive less pay than she would have under a rational system. Finally, in assessing the adequacy of these allegations, it must be kept in mind that [a]t the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we presum[e] that general allegations embrace those specific facts that are necessary to support the claim. Bennett v. Spear, 520 U.S. 154, 168, 117 S. Ct. 1154, 137 L. Ed. 2d 281 (1997) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)). 9

10 Case 1:13-cv MW-GRJ Document 111 Filed 04/22/14 Page 10 of 20 Plaintiffs allegations also easily meet the second and third prongs of the Article III standing test. While it is true that in a particular case it might be difficult to show that an irrational and erroneously low student growth score portion of a teacher s evaluation rating actually caused the overall rating to be lower than it would have been in the absence of the irrational evaluation system, to require such a showing particularly at the motion to dismiss stage would be inconsistent with the second prong of the standing inquiry. See, e.g., Focus on the Family, 344 F.3d at 1273 (explaining that in evaluating Article III's causation... requirement, we are concerned with something less than the concept of proximate cause, and that even harms that flow indirectly from the [challenged] action... can be said to be fairly traceable to that action for standing purposes ). As for the third prong, an injunction against the application of that part of the Act that authorizes the allegedly irrational evaluations would prevent the future harms from occurring to Plaintiffs. For these reasons, Plaintiffs have standing to pursue their claims. III. APPLICABILITY OF ST. ANN v. PALISI Before turning to an analysis of the Act, it is necessary to determine under what standard the constitutionality of the Act should be reviewed. Plaintiffs contend that the Act implicates a fundamental liberty interest[] by impos[ing] punishments and other legal burdens on individuals for actions over which they had no responsibility or ability to control. ECF No. 48, 92. If such a 10

11 Case 1:13-cv MW-GRJ Document 111 Filed 04/22/14 Page 11 of 20 fundamental right were implicated, the Act or at least that portion of the Act that allows for the evaluation of Type B or Type C teachers based on FCAT Reading or Math scores would be subject to strict scrutiny in a substantive due process analysis. See Doe v. Moore, 410 F.3d 1337, (11th Cir. 2005). If, on the other hand, the Act does not implicate this fundamental interest, it is subject to review under the less demanding rational basis standard. Id. at Plaintiffs rely heavily on St. Ann v. Palisi, 495 F.2d 423 (5th Cir. 1974), 3 a case involving two school children who were removed from school pursuant to a regulation that allowed children to be punished for their guardians misconduct. The St. Ann court applied a strict scrutiny analysis to the regulation because it implicated the requirement of personal guilt ; that is, the requirement that punishment... be founded upon an individual's act or omission, not... his status, political affiliation or domestic relationship, something the court identified as a fundamental element in the American scheme of liberty. St. Ann, 495 F.2d at The court found that the schoolchildren s removal from school was a punishment so as to implicate this fundamental right because (1) the regulation at issue explicitly stated that schoolchildren could be liable to suspension or other punishment, and (2) a suspension was a significant enough deprivation that it would trigger procedural due process protections. See id. at Decisions of the Fifth Circuit prior to October 1, 1981 are binding within the Eleventh Circuit. Bonner v. City of Pritchard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc). 11

12 Case 1:13-cv MW-GRJ Document 111 Filed 04/22/14 Page 12 of 20 If read in a vacuum, perhaps St. Ann could be construed to support Plaintiffs position. However, a close study of the case law on which the St. Ann panel relied makes it clear that not all legal burdens are punishments, and that only true punishments implicate the fundamental right to be punished only upon personal guilt. When legal burdens not amounting to punishments are imposed upon individuals for actions beyond their control, the law authorizing such burdens is subject only to rational basis review. See, e.g., Wiemann v. Updegraff, 344 U.S. 183, , 73 S. Ct. 215, 97 L. Ed. 216 (1952) (invalidating oath requirement for state employees that failed to distinguish between knowing and innocent membership in a subversive organization as an assertion of arbitrary power and patently arbitrary or discriminatory ). Such legal burdens may very well violate substantive due process protections, but not because they implicate a fundamental right; rather, the imposition of a legal burden on an individual for conduct outside her control may very well be irrational or arbitrary. St. Ann s strict scrutiny analysis is inapplicable in this case because the Act does not authorize anything amounting to a punishment. The types of punishment for the conduct of others that have triggered something other than the typical rational basis review have either been criminal in nature or have, as in St. Ann, involved the special case of burdens imposed on children for their parents conduct. See Scales v. United States, 367 U.S. 203, , 81 S. Ct. 1469, 6 L. 12

13 Case 1:13-cv MW-GRJ Document 111 Filed 04/22/14 Page 13 of 20 Ed. 2d 782 (1961) ( [G]uilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to the relationship of that status or conduct to other concededly criminal activity..., that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause of the Fifth Amendment. ) (emphasis added); In re Alien Children Ed. Litig., 501 F. Supp. 544, 573 (S.D. Tex. 1980), aff d sub nom. Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982) (explaining that [c]ases involving classifications which punish children for acts committed by their parents, while not subject to strict judicial scrutiny, are subject to a heightened form of the rational basis test). This Court need not map the universe of cognizable punishments within the meaning of St. Ann; it suffices for the purposes of this case to say that no adverse actions authorized by the Act, including those actions that may affect the terms of Plaintiffs employment, constitute punishments so as to trigger any recognized fundamental right under substantive due process. As such, the Act is subject to review under the deferential rational basis standard, not strict scrutiny. IV. FACIAL CHALLENGE TO THE ACT When conducting a rational basis review of a legislative act, court[s] must accept a legislature s generalizations even when there is an imperfect fit between means and ends. Locke v. Shore, 634 F.3d 1185, 1197 (11th Cir. 2011) (quoting 13

14 Case 1:13-cv MW-GRJ Document 111 Filed 04/22/14 Page 14 of 20 Deen v. Egleston, 597 F.3d 1223, (11 th Cir. 2010)). [A] legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data. FCC v. Beach Commc ns, Inc., 508 U.S. 307, 315, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993). Furthermore, [a] statute survives rational basis review even if it seems unwise... or if the rationale for it seems tenuous. Locke, 634 F.3d at 1196 (quoting Romer v. Evans, 517 U.S. 620, 632, 116 S. Ct. 1620, 134 L. Ed. 2d 955 (1996)). If a rational basis exists for the enacting government body to believe that the legislation would further the hypothesized purpose a law will pass rational basis review. Restigouche, Inc v. Town of Jupiter, 59 F.3d 1208, 1214 (11th Cir. 1995). Plaintiffs purport to challenge numerous portions of the amended Act on their face. ECF No. 48, 99, 104. These portions of the Act are now codified in various sections of chapter 1012 of the Florida Statutes. See (1)(c)(4-5),.22(1)(e),.2315(5)(b),.28(6),.33(1)(a),.33(5),.335(2)(c)(2-3),.34,.3401, Fla. Stat. In essence, however, Plaintiffs challenge is to certain provisions of section ; namely, those provisions that authorize the evaluation of individual teachers on the basis of students and/or subjects they do not teach. ECF No. 48, 98. The other portions of the Act under attack authorize (or mandate) certain employment actions to be taken on the basis of employee evaluation ratings. See, e.g., (5)(b) (requiring school districts to notify parents if their children 14

15 Case 1:13-cv MW-GRJ Document 111 Filed 04/22/14 Page 15 of 20 are assigned to teachers with sufficiently low ratings). There is no doubt that if the evaluation system set out in section is itself rational, the Florida Legislature s authorization of various employment actions on the basis of ratings produced by that system is rational. Cf. United States v. South Carolina, 445 F. Supp. 1094, 1107 (D.S.C. 1977), aff d sub nom. Nat l Educ. Ass n v. South Carolina, 434 U.S. 1026, 98 S. Ct. 756, 54 L. Ed. 2d 775 (1978) (finding that the use of National Teacher Examinations for both certification and pay purposes meets the rational relationship standard ). The proper object of judicial scrutiny for Plaintiffs challenge is therefore the evaluation system contained in section , Florida Statutes. More specifically, the Plaintiffs challenge is to the following portion of the Act: For classroom teachers of courses for which the district has not implemented appropriate assessments under [section] (8) or for which the school district has not adopted an equally appropriate measure of student learning growth..., student learning growth must be measured by the growth in learning of the classroom teacher s students on statewide assessments (7)(e), Fla. Stat. (emphasis added). This portion of the Act, together with the directive that a performance evaluation must be based [in part] upon... student learning growth, authorizes the evaluation of Type B teachers based on the FCAT scores of their students. (Type C teachers can no longer be evaluated based on FCAT scores under the amended Act. See (1), Fla. Stat.) 15

16 Case 1:13-cv MW-GRJ Document 111 Filed 04/22/14 Page 16 of 20 As for Type B teachers, the inquiry is this: Could a legislature rationally believe that evaluating a teacher based on his or her students performance on a statewide assessment in a different subject advances a legitimate state interest? The answer, albeit troubling, is yes. First, it is rational to believe that a teacher has an effect on his or her students performance on statewide assessments in other subjects. Second, it is rational to believe that there might be a way to measure that effect, so that a performance evaluation could be based upon the student learning growth measured by those assessments. Finally, it is entirely rational to believe that tying various facets of the terms of employment salary, eligibility for promotions, etc. to those evaluations might incentivize better teaching, thus advancing the state s interest in increasing student learning growth. The fact that some of these beliefs might be based on rational speculation unsupported by evidence or empirical data does not doom the Act under the deferential rational basis standard. See Beach Commc ns, Inc., 508 U.S. at 315. The facial challenge to the Act thus fails. As for Type C teacher, the inquiry is this: Could a legislature rationally believe that evaluating a teacher based on students performance of students who are not taught by the teacher but attend the teacher s school advances a legitimate state interest? The answer, albeit even more troubling, is yes. As the State Defendants assert, it is conceivable that professional teachers could positively 16

17 Case 1:13-cv MW-GRJ Document 111 Filed 04/22/14 Page 17 of 20 impact all students at their schools by fostering an encouraging learning environment, influencing and inspiring other teachers, exhibiting leadership, participating in school-wide strategic efforts, or otherwise making efforts to improve overall student learning. ECF No. 60 at 15. Even if the Plaintiffs disagree and insist that a professional teacher s entire sphere of influence is limited to students formally assigned to his or her classroom, it would not be irrational for the Legislature to believe otherwise. Id. Despite serious flaws indentified by the Plaintiffs with the system, the legislature could rationally conclude that such evaluations further the state s legitimate purpose. In so holding, this Court reiterates that the Act survives rational review even if it seems unwise or if the rationale for it seems tenuous. This Court cannot, and will not, allow its own critical views of a flawed initiative to color its analysis. V. AS APPLIED CHALLENGE TO THE ACT There are two ways of construing Plaintiffs as-applied challenge to the Act. First, Plaintiffs could mean as-applied in the usual sense; that is, they could mean that the Act, while constitutional on its face, is unconstitutional as applied to them. See, e.g., Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1308 (11th Cir. 2009) ( An as-applied challenge... addresses whether a statute is unconstitutional on the facts of a particular case or to a particular party. ) (internal citations and quotations omitted). This theory suffers from a significant defect: the 17

18 Case 1:13-cv MW-GRJ Document 111 Filed 04/22/14 Page 18 of 20 Act has only been and will only be applied to Plaintiffs through the mechanism of the evaluation policies adopted by the District Defendants and approved by the State Defendants. Under such circumstances, the proper object of judicial scrutiny is the policies themselves, not the Act. See, e.g., Nebraska ex rel. Stenberg v. United States, 238 F.3d 946, 949 (8th Cir. 2001) (construing an as-applied constitutional challenge to a statute as a challenge to regulations promulgated under the statute since the statute was not self-executing ); see also Amatel v. Reno, 156 F.3d 192, 195 (D.C. Cir. 1998) (analyzing constitutionality of regulations rather than authorizing statute since there is no suggestion that any[one]... does or will apply the statute directly; so far as appears, all enforcement is mediated through the regulations ). But the Amended Complaint, read in its entirety and construed in a light favorable to Plaintiffs, also appears to mean as-applied in the more colloquial sense of as implemented. In other words, Plaintiffs are advancing a theory under which the State Defendants can be sued for the allegedly unconstitutional district policies because they approved and helped develop those policies. The Amended Complaint states that the State Defendants are responsible for approving... the evaluation policies that Florida school districts adopt to comply with the Act, ECF No. 48, 16-17; that school districts, with... DOE approval, evaluated Type C teachers using FCAT scores, id. at 42 (emphasis added); and that school 18

19 Case 1:13-cv MW-GRJ Document 111 Filed 04/22/14 Page 19 of 20 districts,... with the approval of the... DOE, plan to continue evaluating Type B teachers using their students FCAT scores in the future, id. at 101 (emphasis added). These allegations are enough to support this second type of as-applied claim. Insofar as the as-applied challenge directed at the State Defendants is a challenge to their implementation of the Act via their approval of the district evaluation policies, dismissal is only appropriate if the policies themselves are constitutional. However, that issue is not before this Court at this time. The Motion to Dismiss consistently defends the Act as having a rational basis which it does but does not discuss how or why the policies are rational except in the most general and conclusory terms. See ECF No. 60, at In fact, the Motion to Dismiss seems to treat the Act and policies as one creature for purposes of the rational basis analysis, ignoring the fact that they are separate legislative actions, and that it is entirely possible that the policies could flunk rational basis review despite the Act passing muster under that standard. See, e.g., Brown v. N.C. Div. of Motor Vehicles, 166 F.3d 698, 704 (4th Cir. 1999) (explaining that a statute itself which may speak only in general terms may be facially constitutional, despite the fact that the regulations promulgated under it are unconstitutional ). For these reasons, Plaintiffs challenges to the district evaluation policies are not dismissed. For these reasons, 19

20 Case 1:13-cv MW-GRJ Document 111 Filed 04/22/14 Page 20 of 20 IT IS ORDERED: Defendants Motion to Dismiss the First Amended Complaint, ECF No. 60, is granted in part and denied in part. Specifically, the Motion to Dismiss is GRANTED as to Plaintiffs challenges to the Florida Student Success Act, but it is DENIED as to Plaintiffs challenges to the district evaluation policies adopted pursuant to the Act. SO ORDERED on April 22, s/mark E. Walker United States District Judge 20