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Harpswell Coastal Academy v. M.S.A.D. 75

Superior Court of Maine, Cumberland

June 16, 2016

HARPSWELL COASTAL ACADEMY, et al., Petitioners
v.
M.S.A.D. 75, Respondent

          MICHAEL E. CAREY ESQ., DAVID W. BERTONI ESQ.

          AMY DIETERICH ESQ., BRYAN M. DENCH ESQ.

          ORDER

          Thomas D. Warren Justice, Superior Court

         Before the court is a Rule 80B appeal brought by Harpswell Coastal Academy, Wesley Withers, Carrie Withers, and John Doe.[1] Oral argument was held on May 24, 2016.

         In this action petitioners seek to establish that students at charter schools have a statutory right to try out for athletic teams and other extracurricular activities at their local public schools. Specifically, petitioners bring a Rule 80B appeal from a decision by MSAD 72 Superintendent Bradley Smith not to allow the son of petitioners Wesley and Carrie Withers, a student attending Harpswell Coastal Academy who is designated as "John Doe" in this action, to try out for the 8th grade basketball team at Mt. Ararat Middle School.

         In addition to their Rule 80B appeal, petitioners have asserted a claim for a declaratory judgment that respondent MSAD 75's policy violates 20-A M.R.S. § 2415 and a section 1983 claim that John Doe has been deprived of equal educational opportunity under the U.S. Constitution. The parties have agreed that the parties will have 45 days from the issuance of this order to complete discovery on those causes of action, which will then be in order for dispositive motions and/or trial, Turning to the Rule SOB appeal, review under Rule SOB is for the purpose of determining whether there was an abuse of discretion, an error of law, or findings not supported by substantial evidence. E.g., Camp v. Town of Shapleigh 2008 ME 53 ¶ 9, 943 A.2d 595. Petitioners base their claim in this case on the theory that the, decision challenged was an error of law.

         At the outset, there are several jurisdictional issues. Respondent MSAD 75 has noted those issues but expressly stated at oral argument that it is not seeking to avoid a decision, Moreover, under the circumstances of this case, the appeal raises the same issues as petitioners' request for a declaratory judgment.

         Briefly stated, one problem with the Rule 80B appeal is that the Mt. Ararat 8th grade basketball season is long over. Both sides agree, however, that this is a recurring issue and has apparently already recurred with John Doe, who this spring unsuccessfully sought to try out for the Mt, Ararat 8th grade baseball team. In the court's view, the specific SOB appeal is moot, although it is not disputed that there remains a live controversy for purposes of a declaratory judgment. Petitioners nevertheless contend that the "capable of repetition yet evading review" exception to mootness applies to 80B appeals as well as to their other claims.

         The second problem with a Rule SOB appeal is whether an appeal in this case "is provided by statute or is otherwise available by law" as set forth in Rule 80B(a). No statute provides for an appeal in this case. Under Law Court precedent, Rule 80B review is "otherwise available" if it is in the nature of review formerly available under the common law extraordinary writs. Lyons v. MSAD 43, 503 A.2d 233, 236 (Me. 1986). Petitioners argue that review of the challenged decision by the Superintendent would have been available through certiorari because the decision was quasi-judicial. In the court's view, this is highly doubtful.

         Nevertheless, assuming that the Rule 80B appeal is properly before the court, the court will affirm the decision of the Superintendent for the reasons set forth in its January 16, 2016 order denying petitioners' motion for a stay and/or preliminary injunction. As noted in that order, the governing statute provides in pertinent part as follows:

If a public charter school student applies for and receives written approval from the superintendent of the school administrative unit of the noncharter public school or the superintendent's designee, who may withhold such approval, the public charter school student is eligible to participate in extracurricular activities not offered by the student's public charter school at the noncharter public school within the attendance boundaries of which the student's custodial parent or legal guardian resides or the noncharter public school from which the student withdrew for the purpose of attending a public charter school. The superintendent of the school administrative unit or the superintendent's designee may withhold approval only if the public charter school the student attends provides the same extracurricular or interscholastic activity or if the noncharter public school does not have the capacity to provide the public charter school student with the opportunity to participate in the extracurricular or interscholastic activity. If approval is withheld, the superintendent of the school administrative unit or the superintendent's designee shall provide a written explanation to the public charter school student or the student's parent or guardian stating the reason or reasons for the decision to withhold approval. If a public charter school student is allowed to participate in the noncharter public school's extracurricular activities, the public charter school student is eligible for extracurricular activities at the noncharter public school subject to eligibility standards applied to full-time students of the noncharter public school. A school administrative unit or noncharter public school may not impose additional requirements on a public charter school student to participate in extracurricular activities that are not imposed on full-time students of the noncharter public school....

20-A M.R.S. § 2415(2) (emphasis added).

          There is no dispute that Harpswell Coastal Academy did not have an 8th grade basketball team. In withholding approval for John Doe to try out for the Mt. Ararat 8th grade basketball team, Superintendent Smith was acting pursuant to a July 2015 policy adopted by MS AD 75 which states that an MSAD 75 school

does not have capacity to provide a charter school student the opportunity to participate in extracurricular activity when all available slots and positions for the activity are taken by regularly enrolled students. A student enrolled in MSAD 75 schools will not be denied the opportunity ...

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