United States District Court, D. Delaware
S.M., by her parent and next friend, D.C., by her parent and next friend, N. W., by her parent and next friend, T.P., by her parent and next friend, and T.P., by her parent and next friend,
Delaware Department of Education and Mark Murphy in his capacity as Secretary of the Delaware Department of Education
For S.M., by her parent and next friend, D.C., by her parent and next friend, N.M., by her parent and next friend, T.P., by her parent and next friend, T.P., by her parent and next friend, Plaintiffs: Duane D. Werb, LEAD ATTORNEY, Werb & Sullivan, Wilmington, DE; Charles J. Brown, III, Gellert Scali Busenkell & Brown, LLC, Wilmington, DE.
For Delaware Department of Education, Mark Murphy, in his capacity as Secretary of the Delaware Department of Education, Defendants: Catherine T. Hickey, LEAD ATTORNEY, Department of Justice, Dover, DE; Joseph Clement Handlon, Kenisha LaShelle Ringgold, Oliver James Aidan Cleary, Ralph K. Durstein, III, LEAD ATTORNEYS, Department of Justice, Wilmington, DE.
HONORABLE LEONARD P. STARK, UNITED STATES DISTRICT JUDGE.
Students attending Reach Academy for Girls (" Reach" ) have filed suit in federal district court once again. Almost exactly one year ago, in Reach Academy for Boys and Girls, Inc. v. Delaware Department of Education, C.A. No. 13-1974-LPS (filed Nov. 25, 2013) (D. Del.) (hereinafter " Reach II " ), I granted Reach students a preliminary injunction, requiring the Delaware Department of Education (" DOE" ) and its Secretary, Mark Murphy (" Secretary" and with DOE, " Defendants" ), to extend Reach's charter for one more year. See Reach II, 8 F.Supp.3d 574 (D. Del. 2014); Reach II, 46 F.Supp.3d 455, 2014 WL 2445804 (D. Del. May 30, 2014). Rather than proceed to a trial that was scheduled for last July, the parties to last year's suit settled, so I was not required to resolve the plaintiffs' request that Defendants be ordered to renew Reach's charter for a full five-year renewal term. ( See Reach II (D.I. 28))
On December 18, 2014, the Secretary accepted the recommendation of Delaware's Charter School Accountability Committee (" CSAC" ) and, at the State Board of Education (" SBE" ) meeting, denied Reach's application for its charter to be renewed for five years. ( See D.I. 11 at 4) According to Defendants, at the meeting the Secretary expressed his continued concerns with Reach's academic performance, noting that " although the school had made nominal gains, the students were still not reaching proficiency, and not enough of the students were making sufficient growth to maintain or achieve proficiency within three years or by 10th grade." ( Id.)
On December 31, several current Reach students -- identified by their initials, S.M., D.C., N.W., T.P., and T.P. (" Plaintiffs" ) -- initiated this lawsuit, alleging eight causes of action, including constitutional and statutory violations, as well as breach of the settlement agreement that resolved last year's litigation. (D.I. 1) One week ago, on Monday, January 5, Plaintiffs filed a motion for expedited preliminary injunctive relief. (D.I. 3) I ordered and received briefing over the ensuing several days (D.I. 4, 11, 12) and heard oral argument on the motion last Friday, January 9. ( See Transcript (" Tr." ))
At the hearing, all parties requested that I rule expeditiously, and before Wednesday, January 14, which is the deadline for parents and guardians to submit " choice" applications so that students may attend a preferred school -- including a charter school like Reach -- in the 2015-2016 school year. I agree that, under these circumstances, it is important for me to make a decision quickly.
The issue before me is not whether Reach should remain open. Instead, what I must decide is whether the Plaintiffs have come forward, in the very first weeks of their lawsuit, with sufficient evidence to show that they are likely to succeed on the merits of any of the legal claims alleged in their complaint.
After reviewing the materials submitted by the parties, and considering the briefing and the discussion at last week's hearing, I have concluded that Plaintiffs have failed to meet their burden. Therefore, for reasons I explain below, the Plaintiffs' motion for a preliminary injunction must be denied.
A preliminary injunction is an " extraordinary remedy." NutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir. 1999). In assessing Plaintiffs' request for this rarely-granted relief, I am required to consider four factors: " (1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably injured by denial of relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting the preliminary relief will be in the public interest." Council of Alt. Political Parties v. Hooks, 121 F.3d 876, 879 (3d Cir. 1997). If, as I find here, Plaintiffs fail to meet their burden to demonstrate a likelihood of success on the merits, a preliminary injunction is not warranted, " regardless of what the equities seem to require." Adams v. Freedom Forge Corp., 204 F.3d 475 (3d Cir. 2000).
In Count I of their complaint, Plaintiffs allege, pursuant to 42 U.S.C. § 1983, gender discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. " In order to bring a successful section 1983 claim for the denial of equal protection, plaintiffs must prove the existence of purposeful discrimination." Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 151 (3d Cir. 2005). In Count II, Plaintiffs allege a violation of Title IX, 20 U.S.C. § 1681(a), which provides: " No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."
I granted a preliminary injunction in the litigation last year based on my finding that the plaintiffs there were likely to succeed on the merits of their claims that closing Reach -- the only all-girls public school in Delaware -- would violate the Equal Protection Clause and Title IX. In ruling for the plaintiffs in the earlier case, I emphasized that I was " presen[ed] [with] difficult questions arising in what appears to be a unique factual and legal context." Reach II, 8 F.Supp.3d at 577. One key fact was that Delaware was continuing to fund an all-boys public school, Prestige Academy (" Prestige" ). But also crucial was the fact that when I granted relief last year, Delaware had a statute -- a " sunset provision" -- which precluded the DOE from even considering any new applications for a single-sex charter school. See 14 Del. C. § 506(a)(3)(c) (" The 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." ).
I explained in my opinions last year that it was the combination of Prestige's continued public funding and the sunset provision in the Delaware Code which made it likely that closure of Reach would constitute impermissible gender discrimination. I wrote: " On the facts here -where Delaware is providing boys the opportunity for a single-gender public school education and, for no articulated reason, is forever depriving its girls of the same opportunity-- Plaintiffs are likely ...