Appeal from the United States District Court for the Central District of California. Harry L. Hupp, District Judge, Presiding. D.C. No. CV-89-7376-HLH.
Before: Fletcher, Canby and Boochever, Circuit Judges.
Plaintiffs Santa Monica Community College District, Dr. Richard Moore and Louis Jones, Jr. appeal the district court's order dismissing with prejudice their claims under the Thirteenth and Fourteenth Amendments and 42 U.S.C. §§ 1981, 1983, 1985 and 2000d, on grounds that some defendants were protected by the Eleventh Amendment, the plaintiffs lacked standing, and the plaintiffs failed to state a violation of constitutional rights. We affirm the judgment, but for different reasons from those stated by the district court.
The Commission on Athletics ("COA") is the intercollegiate athletics rule-making arm of the California Association of Community Colleges ("CACC"). Its role is similar to that played by the NCAA in relation to four-year colleges. In April, 1983, the COA granted Santa Monica Community College District ("SMCCD" or "Santa Monica") permission to make "first contact" with student athletes at twelve high schools within the neighboring Los Angeles Community College District ("LACCD") attendance area. Athletic recruiting outside a college's own district is generally prohibited by CACC's Athletic Code. Exemptions to districts other than Santa Monica have never been authorized.
On January 1, 1988, the State of California modified its previous rules which limited interdistrict community college attendance and passed "free-flow legislation" permitting students to enroll in any community college regardless of their district of residence. An ad hoc committee was formed to examine the continued need for Santa Monica's exemption in light of this major change in enrollment policy. The ad hoc committee met on April 10, 1989, and recommended that the exemption be ended with regard to four of the twelve LACCD high schools. The Southern California Athletic Conference ("SCAC") and the Western State Conference ("WSC"), representing 23 community colleges, voted on April 12, 1989, to recommend that COA rescind SMCCD's athletic recruiting privilege at all twelve high schools. On October 27, 1989, the COA voted to rescind SMCCD's athletic recruiting privilege, thus banning SMCCD from first contact with athletes outside its own district.
It is undisputed that this action placed Santa Monica on equal footing with other community colleges in California, all of which are prohibited by Athletic Code section 7.01 from engaging in interdistrict athletic recruiting. All community colleges are, however, permitted to engage in general-purpose recruiting at the invitation of high schools in other districts. Indeed, Santa Monica has an "Outreach" program which visits twenty Los Angeles high schools at their invitation. Outreach counselors are not prevented from talking with student athletes who attend the general recruitment programs. Nor are Santa Monica coaches and athletic staff prohibited from speaking to or answering questions from out-of-district student athletes who approach the college. Outreach counselors and athletic staff are prohibited only from approaching out-of-district student athletes for purposes of soliciting their participation in Santa Monica's athletic program.
In their briefs and oral argument plaintiffs assert their belief that the state-wide rule allowing general or academic recruiting but disallowing athletic recruiting is unconstitutional because its impact falls almost exclusively on blacks. However, that is not the content of the complaint filed in the present case. Plaintiffs make no challenge to the state-wide ban on interdistrict athletic recruiting. Rather, they allege that the COA's decision to rescind SMCCD's special athletic recruiting privilege was motivated by racial animus.
On December 21, 1989, Plaintiffs SMCCD, Dr. Richard Moore (Superintendent of SMCCD and President of Santa Monica College), and Louis Jones, Jr. (a student-athlete at Venice High School, one of the twelve schools at which Santa Monica previously engaged in athletic recruiting) filed a complaint seeking a preliminary injunction and permanent injunctive and declaratory relief based on 42 U.S.C. §§ 1981, 1983, 1985 and 2000d and the Thirteenth and Fourteenth Amendments. Plaintiffs filed four declarations in support of their motion for a preliminary injunction; defendants filed five declarations in opposition.*fn1 In a five-page "minute order" dated February 5, 1990, the district court denied the plaintiffs' motion for preliminary injunction, dismissed the pendent claims, and granted defendants' motion to dismiss the complaint but with leave to amend. The court dismissed all of the non-individual defendants on Eleventh Amendment grounds but indicated that the Eleventh Amendment would not protect individual defendants sued in their official capacity from claims for declaratory and injunctive relief. The court dismissed the complaint as a whole on the basis that no violation of constitutional rights under the federal constitution was alleged. Many of the facts recited in the minute order, assumed to be true for the purpose of the ruling, were taken from the declarations.
In reaching its conclusion, the court held that "a college's 'right' to recruit athletes is not protected by the United States Constitution" and that Louis Jones, Jr. was not deprived of any "right" to be recruited because he "is free to attend SMCC, and play football there if he is good enough to make the team." The court concluded that "since black students, athletic students, and any other variety of students, may attend SMCC, the ban on athletic recruitment does not deprive such students of any rights. SMCCD has no right to enlist the United States Constitution in aid of its athletic program, and should relegate itself to claims arising under state law, if any." In the course of its order the court also found it "plainly apparent that the claimed discrimination against blacks does not exist and that such consideration is merely advanced as the cover for SMCCD's grievance over the restriction on its athletic recruitment."
Plaintiffs filed a Second Amended Complaint on February 23, 1990. Defendants moved to dismiss. Among their papers in opposition was a "Request for Judicial Notice" of all the papers filed in connection with the preliminary injunction. Plaintiffs did not object to this request. The district court subsequently dismissed the plaintiffs' Second Amended Complaint in a minute order dated April 16, 1990. The district court acknowledged that some of the facts recited in the order were "taken from plaintiffs' prior complaint or from judicial notice as requested by defendants."
The court dismissed the LAACD defendants both on Eleventh Amendment grounds and on the basis that no claim for an injunction or declaratory relief could be stated against them since they lacked the power to reverse CACC decisions. While noting that the Eleventh Amendment would not obviate a claim against the individual CACC defendants, it found that "the real difficulty with the complaint is that the facts alleged do not show the violation of any constitutional right. . . . The essence of the problem is that there is no substance to the argument that an athlete has a right to be recruited." The court further found that Jones had been deprived of no rights at all since he "can take the bus up Lincoln Blvd from Venice to Santa Monica, walk into the football coach's office, and inquire if SMCC is interested in him" and since he may enroll at Santa Monica and may attend Santa Monica's Outreach program.
The court also held that "the matter may be restated in terms of standing. SMCCD and its president are not the people whose constitutional rights are allegedly taken away, and do not stand in their shoes. . . . And, plaintiff Jones, the quarterback from Venice, has had no damage since he can do anything he would otherwise do." The district court concluded by stating: "The Constitution is too important a document to be trivialized in the interests of an athletic recruitment program." The court then entered a separate order dismissing the action and entering final judgment for purposes of Rule 54(a). The plaintiffs filed a timely notice of appeal. They also seek attorneys' fees for the appeal pursuant to 42 U.S.C. § 1988. ...