United States District Court, D. Delaware
REACH ACADEMY FOR BOYS AND GIRLS, INC., O.G., by her parent and next friend, T.W., by her parent and next friend, T.W., by her parent and next friend, S.O., by her parent and next friend, Plaintiffs,
DELAWARE DEPARTMENT OF EDUCATION and MARK MURPHY in his capacity as Secretary of the Delaware Department of Education, Defendants
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Duane D. Werb, WERB & SULLIVAN, Wilmington, DE.
Charles J. Brown, III, GELLERT SCALI BUSENKELL & BROWN, LLC, Wilmington, DE, Attorneys for Plaintiffs.
Catherine T. Hickey, Joseph Clement Handlon, Kenisha LaShelle Ringgold, DEPARTMENT OF JUSTICE, Wilmington, DE, Attorneys for Defendants.
Leonard P. Stark, U.S. District Judge.
This case arises from unique factual circumstances and presents the Court with difficult issues of first impression implicating the public availability of same-gender education in the State of Delaware. On November 12, 2013, the State of Delaware, through its Department of Education and Secretary of Education (" DOE" or " Defendants" ), made the decision not to renew the charter of Reach Academy for Girls (" Reach" ), thereby effectuating the closing of the only all-girls public school in the State of Delaware. Reach filed suit in federal court, alleging violations of Equal Protection, Title IX of the Education Act (20 U.S.C. § 1681), Due Process, and two provisions of Delaware's Charter School Act (14 Del. C. § § 506 & 514A). (D.I. 1) (" Complaint" ) The Complaint is also filed on behalf of individual students at Reach
through their parents and guardians  (" Individual Plaintiffs" and, with Reach, " Plaintiffs" ). In their suit, Plaintiffs seek an order that Defendants renew Reach's charter for a five-year term.
Plaintiffs filed a Motion for a Preliminary Injunction (D.I. 7) and Defendants filed a Motion to Dismiss. (D.I. 10) After a hearing on January 2, 2014, on January 3 the Court granted in part and denied in part Defendants' Motion to Dismiss and granted Plaintiffs' Motion for a Preliminary Injunction. (D.I. 18) Although the Court issued an 11-page Memorandum Order at that time, it stated it would provide further explanation in a later opinion. Today's Opinion sets forth in detail the reasoning of the Court.
In 1996, the Supreme Court issued its decision in United States v. Virginia (" VMI " ), 518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996), relating to state-sanctioned schools that deny applicants admission on the basis of gender. The Supreme Court held that " Virginia's categorical exclusion of women from the educational opportunities [the Virginia Military Institute] provides denies equal protection to women; " " [n]either federal nor state government acts compatibly with equal protection when a law or official policy denies to women, simply because they are women, full citizenship stature -- equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities." Id. at 515-16. In 2006, the United States Department of Education (" U.S. Department of Education" ) issued regulations relating to the requirements for the opening and operation of same-sex schools receiving federal funding pursuant to the No Child Left Behind Act of 2001, 20 U.S.C. § 6301 et seq. See generally 34 C.F.R. § 106.34.
In 2008, the Delaware General Assembly amended its charter school laws in accordance with the U.S. Department of Education regulations to allow applicants an opportunity to apply for and create same-gender charter schools. See 76 Del. Laws ch. 202, § § 1-6 (2008) (codified at 14 Del. C. § 506(a)(3)). However, this opportunity was made available for only a limited period. Section 506 limits the acceptance of applications for a same-sex charter school by providing that " [t]he same-gender charter school provisions shall sunset, for any new charter applications, on June 30, 2013, unless the General Assembly has otherwise acted to extend such date prior to its expiration." 14 Del. C. § 506(a)(3)e.
At the time Section 506 was adopted, Delaware had one all-boys school, Prestige Academy, and no all-girls charter school. The new law reflects this state of affairs, providing:
[T]he Department of Education, with approval of the State Board of Education, shall be considered the approving authorizer of Prestige Academy, a same-gender school, and shall provide oversight to such school. The Department of Education, with the approval of the State Board, may waive any provisions
in this Chapter that would limit the school from opening for the 2008-2009 school year. Any subsequent same-gender charter school shall make its application to the Department of Education and the State Board of Education.
14 Del. C. § 506(a)(3)c. Subsection 506(a)(3)d calls for the creation of a " substantially equal" " same-gender charter school of the opposite gender . . . matching in grade level and marketed towards similar demographics [as Prestige Academy]."
In 2009, Reach was approved as the all-girls counterpart to Prestige, and in 2010 Reach began conducting classes for several grade levels. (D.I. 1 ¶ ¶ 8, 10, 20 n.1) From the very start, Reach had difficulties. Less than two months after opening its doors to its first students, Reach came under the scrutiny of the DOE for financial mismanagement and was placed under formal review. (D.I. 1 ¶ ¶ 10-12) With the school threatened with closure, Reach's Board of Directors was in turmoil, and in May 2011 all of the directors resigned. (D.I. 1 ¶ 13-15) Under the direction of a new board, in June 2011 Reach filed suit in the Delaware Court of Chancery seeking to enjoin the DOE from closing Reach. (D.I. 1 ¶ 16) Before the Chancery Court was required to make any ruling on the merits, the DOE and Reach came to an agreement whereby the DOE recommended that Reach remain open but also be placed on probation. (D.I. 1 ¶ 18)
Under new leadership, enrollment for the 2012-2013 school year was robust, as Reach expanded from offering four grade levels (kindergarten, first, fifth, and sixth) in the 2010-2011 school year to now offering eight grade levels (kindergarten through third and fifth through eighth). (D.I. 1 ¶ 20 n.1) Because state funding for a charter school is based on its enrollment in September of any given year, the number of students enrolled at a charter school is key to its continued viability. (D.I. 1 ¶ 10) Reach's increased enrollment meant an improved financial status, and in May 2013 the DOE removed Reach from probation. (D.I. 1 ¶ 19) In June 2013, the DOE approved a modification of Reach's charter and authorized it to enter into a long-term lease to occupy a recently-vacated school complex. (D.I. 1 ¶ 22)
Reach's application for a renewal of its charter was due in September 2013. In July 2013, Reach students' results on the Delaware Comprehensive Assessment Scores (" DCAS" ), the statewide test used to monitor student performance, were poor. The scores placed Reach students' performance in Delaware's lowest-performing category of " Falls Far Below Standard" in both math and reading, ...