OPINION
INTRODUCTION
This сase 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
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-pаge 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.
BACKGROUND
Factual Background
In 1996, the Supreme Court issued its decision in United States v. Virginia (VMI”),
In 2008, the Delaware General Assembly amended its charter school laws in accоrdance 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)).
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 au-thorizer of Prestige Academy, a same-gender school, and shall provide oversight to such school. The Department of Education, with the approval of the Statе Board, may waive any provisionsin 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.l) 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 tеst 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, resulting in an overall school rating of “F.” (See D.I. 9 ex. A)
Coinciding with Reach’s impending renewal deadline was a July 2013 amendment to the Delaware Code, which changed the renewal process for charter schools; the DOE’s charter application procedure was also revised. See 79 Del. Laws ch. 51, §§ 1-2 (July 1, 2013); see also D.I. 11 ex. A at 7-8; D.I. 7 ex. 4 ¶ 3. Amended 14 Del. C. § 514A(c) now mandates that the DOE issue a renewal report by April 30th to provide guidance to charter schools in danger of non-renewal. Reach did not benefit from this amendment, however, since Reach’s renewal application year was 2013 and the amend
Reach submitted its charter renewal application by the deadline of September 30, 2013. (D.I. 1 ¶ 26) On October 7, Reach met with the Charter School Accountability Committee (“CSAC”) to discuss its renewal application. On October 15, the CSAC — citing the poor performance of Reach’s students — issued a preliminary report recommending that Reach’s charter not be renewed. (D.I. 1 ¶ 27; see also D.I. 14 App. at A85) On October 23, a public hearing lasting several hours was held in Dover, Delaware at which Reach students and their parents testified about the school’s significance in the community. (D.I. 1 ¶ 28; see also D.I. 3 ex. D) After receiving supplemental materials responding to concerns raised at the October 15 meeting, the CSAC met once more on November 4 to discuss Reach’s renewal application. (D.I. 1 ¶ 29; see also D.I. 14 App. at A115-20) On November 6, a second public hearing was conducted, during which Reach made a final effort to persuade the DOE to grant its application, including by presenting testimony from representatives of the NAACP and submitting data related to the recent test scores of Reach students. (D.I. 1 ¶ 30; D.I. 3 exs. E, G) These efforts failed and the next day the CSAC issued its final report recommending denial of Reach’s renewal application. (D.I. 1 ¶ 32; D.I. 14 App. at A121) On November 12, Reach’s application for renewal was officially denied when Secretary Murphy informed the State Board of Education that he was not recommending renewal of Reach’s charter.
Procedural Background
On November 25, 2013, Reach and several of its students filed this suit against the Delaware Department of Education and Secretary Mark Murphy. Plaintiffs assert five causes of action: (1) deprivation of their constitutional right to equal protection under the Fourteenth Amendment and 42 U.S.C. § 1983; (2) a discrimination action under Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681; (3) a violation of their right to due process under the Fourteenth Amendment and 42 U.S.C. § 1983; (4) violations of Delaware law relating to 14 Del. C. § 506; and (5) violations of Delaware law relating to 14 Del. C. § 514A. (D.I. 1) On December 11, 2013, Plaintiffs filed an emergency Motion for a Preliminary Injunction
After ordering and receiving letters concerning Plaintiffs’ motion (D.I. 8, 9), on December 13 thе Court held a teleconference to discuss how the case would proceed. At the conclusion of the teleconference, the Court directed the parties to
On January 2, 2014, the Court heard oral argument on both motions. (See D.I. 12-13) The next day, January 3, the Court issued its memorandum order granting in part and denying in part Defendants’ Motion to Dismiss, and granting Plaintiffs’ Motion for a Preliminary Injunction. (D.I. 18) Specifically, the Court dismissed Plaintiffs’ Due Process and state law claims, and dismissed Reach as a party due to lack of standing. (Id.) The Court found that the Individual Plaintiffs had sufficiently plead claims upon which relief may be granted with respect to Equal Protection and Title IX. (Id.) Finally, the Court granted the Individual Plaintiffs’ preliminary injunction motion on the surviving claims and, as relief, extended Reach’s charter by one school year, subject to any reasonable conditions the DOE might impose. (Id. at 10-11)
MOTION TO DISMISS
I. Legal Standards
When presented with a motion to dismiss for failure to state a claim, pursuant to Federal Rules of Civil Procedure 12(b)(6), courts conduct a two-part analysis. See Fowler v. UPMC Shadyside,
Second, courts determine “whether the facts alleged in the complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief.’ ” Fowler,
When a Rule 12(b)(6) motion relies on the absence of Article III standing, it is analyzed pursuant to Federal Rule of Civil Procedure Rule 12(b)(1). See Ballentine v. United States,
II. Standing
The Court agrees with Defendants that Reach lacks standing to press any of the claims in the complaint. (D.I. 11 ¶¶ 11-12) To establish standing, a plaintiff must satisfy three requirements: (1) an injury in fact, which is an invasion of a legally-protected interest that is both “concrete and particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical;’ ” (2) a causal connection between the injury and the conduct complained of; and (3)' it is “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife,
A. Reach as Charter Holder and Reach as Charter School
Defendants argue that Reach lacks standing because charter schools have a legal status equivalent to that of a school district, and a school district lacks standing to sue the State that created it.
As a threshold matter, the Court must examine the distinction between a charter holder and a charter school. If Reach Academy for Boys and Girls, Inc. as the holder of a charter, is a legally distinct entity from the charter school Reach Academy for Girls, then the standing inquiry may be affected. Plaintiffs contend that “[wjhereas Reach might have an issue suing Defendants in its capacity as a Charter School, that fact should not preclude it from filing suit in its capacity as a private Delaware corporation that is a Charter Holder.” (D.I. 16 at 4) In attempting to distinguish between the corporate entity and the school, Plaintiffs observe that, absent judicial relief, “the school itself will cease to exist. In the event of non-renewal, Reach, on the other hand, will not cease to exist but will still be a private non-profit corporation with assets and liabilities that have to be administered pursuant to its corporate charter and its by-laws.” (D.I. 15 at 8)
Defendants are correct. Generally speaking, Delaware law makes no substantive distinction between a charter holder and a charter school. See generally 14 DE Admin. Code 275.2.1. Beyond the initial application process, a charter holder does not exist or act separately from the charter school; among other things, the two share a common board of directors. See 14 DE Admin. Code 275.2.1 (defining board of directors of charter school as board of directors of applicant at time of charter approval). Delaware law makes explicit that a charter school’s board of directors is deemed a public body with the same standing and authority, except for the power to tax, as a board of education of a traditional public school district. See 14 Del. C. §§ 503, 1041(1). The situation is different in Tennessee, where a sponsor is a distinct entity separate from the governing body of the charter school, possessing the power to bind the governing body to contracts. See Project Reflect,
Thus, the Court finds no legally cognizable distinction between Reach’s capacity as a charter holder and Reach’s capacity as a charter school as affects the standing analysis.
B. Reach’s Standing is Equivalent to that of a School District
A political subdivision “created by a state for the better ordering of government, has no privileges or immunities under the Federal Constitution which it may invoke in opposition to the will of its creator.” Williams v. Mayor & City Council of Baltimore,
Delaware law unambiguously provides that the legal status of a charter school is equivalent to that of a public school district. See 14 Del. C. §§ 503, 504. Unlike Pocono Mountain and Project Reflect — where the state law was silent with respect to the charter school’s capacity to bring suit — in Delaware the statute expressly provides that “[a] charter school may sue or be sued to the same extent and on the same conditions as a public school district.” 14 Del. C. § 504(d); see also Pocono Mountain,
C. Reach Lacks Standing
As it is a charter school, Reach lacks standing to sue Defendants. Nonetheless, Reach analogizes itself to school districts that were found by the Supreme Court to have standing to sue the State of Washington concerning desegregation laws in Washington v. Seattle School District No. 1,
Reach also cites to Rogers v. Brochette,
Therefore, the Court concludes that Reach lacks standing and the claims it asserts must be dismissed.
III. Procedural Claims
Plaintiffs
A. Fourteenth Amendment Procedural Due Process
When a plaintiff sues under 42 U.S.C. § 1983 for a state actor’s failure to provide procedural due process, courts undertake a two-stage inquiry: determining (1) whether “the asserted individual interests are encompassed within the Fourteenth Amendment’s protection of ‘life, liberty, or property;’” and (2) whether the procedures available provided the plaintiff with “due process of law.” Robb v. City of Philadelphia,
The interest Plaintiffs assert, the renewal of Reach’s charter, is not an interest protected by the Fourteenth Amendment’s Due Process Clause. Delaware law provides that a charter “may be renewed for successive 5-year terms,” vesting the DOE with the discretion to renew or not renew charters. 14 Del. C. § 514A(b) (emphasis added). Just as no protected property interest was found in other cases involving charter schools, neither, here, do Plaintiffs have such an interest. See Jackson v. Pocono Mountain School District,
Even if Plaintiffs had a protected property interest, they were provided with constitutionally adequate processes. Plaintiffs allege that “Reach was exposed to a terribly flawed process” (D.I. 7-1 at 18), consisting of “sham public hearings that do no more than pay lip service to the concept of due process” (D.I. 15 at 2), which subjected Reach to a “kangaroo process in a quasi-star chamber environment” (id. at 6), culminating in Defendants’ “knee-jerk response” (D.I. 1 ¶ 88) to use Reach as its “sacrificial lamb” (D.I. 1 at 25). The materials which the Court is permitted to consider at this stage establish that Plaintiffs’ allegations cannot be proven.
Renewal decisions for a five-year extension of a charter must result from a process involving (a) grounding in evidence of the school’s performance over the term of the charter, (b) data used that is made available to the school and the public, and (c) a public report summarizing the eviden-tiary basis for each decision. (D.I. 14 at 6) (citing 14 Del. C. § 514A(g)) Here, after
B. State Law Claim under 14 Del.C. § 506
In Count IV, Plaintiffs allege that “at no point- during Reach’s initial application process through its initial five year term did DOE provide any technical assistance to Reach regarding its academic program.” (D.I. 7-1 at 3) Plaintiffs contend this is a violation of 14 Del. C. § 506(a)(3)d, which requires the DOE to “work with the education community on a plan for recruitment and technical assistance for applicants of a same-gender charter school of the opposite gender [from Prestige]” (emphаsis added). Specifically, Plaintiffs claim that “[i]f not explicit, at least implicit, in the mandate ... to render technical assistance to Reach is that this obligation does not end the minute that DOE approved the Reach charter but ... continues so as to ensure that the State of Delaware ... provide[s] equal education opportunities to both genders.” (D.I. 1 ¶ 77)
Section 506(a)(3)d mandates technical assistance'to assist in the initial creation of a charter school similar to Prestige, meaning that the DOE was statutorily obligated to assist Reach with its initial application. The statute does not require the DOE also to ensure Reach’s success by providing it with technical assistance on an ongoing, continuous basis. Hence, Count IV must be dismissed.
C. State Law Claim under 14 Del. C. § 514A
Invoking 14 Del. C. § 514A, Plaintiffs contend, “Reach was never advised that its charter was in jeopardy of non-renewal as current state law mandates.” (D.I. 7-1 at 19) (emphasis added) Section 514A(c) provides that “[n]o later than April 30, the approving authority shall issue a charter school renewal report and charter renewal application guidance to any charter school whose charter will expire the following year.” However, as Defendants observe, this section was not added to Delaware law until June 2013 — well after the April 30 deadline in the statute. The renewal report deadline did not exist prior to the June 2013 amendment. (D.I. 11 ¶ 33 (citing 79 Del. Laws ch. 51, §§ 1, 2 (effective July 2013))) Plaintiffs cannot
IV. Discrimination Claims
Plaintiffs allege that the decision to close Reach, combined with the sunset provision of Section 506, creates a situation that indefinitely deprives Delaware girls, but not Delaware boys, of the opportunity to attend a state-provided same-sex school. (D.I. 1 ¶¶ 47-51) As the Court held previously, the Individual Plaintiffs have standing to pursue their Equal Protection and Title IX claims (“Discrimination Claims”). (D.I. 18 ¶3) The Individual Plaintiffs allege an invasion of a legally-protected interest to be free from discrimination based on gender, a concrete and particularized injury of not being afforded the benefits of single-gender education, which — due to Defendants’ decisions — is not merely speculative. (D.I. 1 ¶ 2) Defendants do not appear to contest the Individual Plaintiffs’ standing to pursue the Discrimination Claims. (See Jan. 2 Hr’g Tr. at 68-69) Rather, Defendants argue that, as a matter of law, the Equal Protection Clause and Title IX are not violated when a state has only one same-sex charter school. (D.I. 11 ¶¶ 14-18)
The parties are in agreement that, at least for some students, there may be inherent benefits in single-gender education. (Tr. at 69 (“Certainly, the Court can take judicial notice of the fact that single-gender education is more beneficial than coed education and therefore they have alleged an injury in fact.”)) Defendants contend, however, that “so long as the state makes available to one gender ‘education equal’— in whatever form — to [the single-gender public school offering] available for the other gender,” then neither the Equal Protection Clause nor Title IX are violated. (D.I. 11 ¶ 14) Defendants cite to the U.S. Department of Education’s regulations under 34 C.P.R. § 106.34(c)(1) in support of their position, as these federal regulations provide that “a recipient ... must provide students of the excluded sex a substantially equal single-sex school or coeducational school.” (D.I. 11 ¶ 16) (emphasis added)
The Court disagrees with Defendants. The closure of Delaware’s only publicly-funded all-girls school without any opportunity for another publicly-funded all-girls school even to be considered, while the State funds the all-boys Prestige Academy, states a claim that survives a motion to dismiss. Therefore, the Discrimination Claims as brought by the Individual Plaintiffs will not be dismissed.
PRELIMINARY INJUNCTION
I. Legal Standards
A preliminary injunction is an “extraordinary remedy,” and courts consider four factors when faced with a request to grant one. NutraSweet Co. v. Vit-Mar Enters., Inc.,
(1) whether the movant has shown a reasonable probability of success on the merits;[11 ]
(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.
II. Mandatory Injunction
Defendants assert that Plaintiffs are seeking a mandatory injunction, an even more extreme form of relief, which imposes a “particularly heavy” burden on Plaintiffs to make a showing under each prong of the applicable legal standard. (D.I. 14 at 13) (citing Punnett v. Carter,
Plaintiffs counter that the injunction they seek would, instead, preserve the status quo. To Plaintiffs, the “status quo is that the individual Reach students, and Delaware female students in general, are attending, or have an option to attend, a single gender public school just like the option that is available for the male students through Prestige Academy.” (D.I. 16 at 1) From this perspective, “[i]t is only through an extension of the Reach Charter for one year that the status quo can be preserved.” (D.I. 16 at 1) In Plaintiffs’ view, then, the ordinary preliminary injunction standard applies.
Neither side is completely correct. The status quo is that the Individual Plaintiffs are attending Reach Academy, and may do so for the remainder of the current school year, but are not permitted to choоse to attend Reach Academy for the 2014-15 school year, since Reach Academy will not be permitted to operate in 2014-15. Thus, the preliminary relief Plaintiffs seek would alter the status quo. However, that alteration is not truly analogous to the injunctions involved in the cases on which Defendants rely for their heightened standard. In Hart Intercivic, Inc. v. Diebold, Inc.,
These cases are simply not comparable to the circumstances presented here. Reach is presently open and has all the resources to enable it to be operating in the 2014-15 school year. It is not as if Plaintiffs are asking the Court to order Defendants to create a new school out of nothing. Thus, the Court finds the mandatory injunction standard inapplicable.
III. Likelihood of Success on the Merits
In Counts I and II, Plaintiffs challenge “the decision of DOE to deny Reach’s charter renewal application,” asserting claims pursuant to 42 U.S.C. § 1983 and Title IX based on allegations that Defendants’ decision “deprives] the female students of Delaware the same educational opportunity for a single gender public education that is afforded the male students in Delaware.” (D.I. 1 ¶ 2) Plaintiffs contend that, due to the sunset provision of Section
Defendants correctly note the absence of any “compelling authority demonstrating that [Plaintiffs] will succeed on the merits.” (D.I. 14 at 26) Howеver, this asks too much — Plaintiffs are not required to cite “compelling” authority nor show they certainly “will” prevail. Instead, at this stage of the proceedings, Plaintiffs have met their burden to show that indefinitely depriving Delaware’s girls of access to same-gender education, while at the same time providing that option to Delaware’s boys for at least several more years, is likely to be found to be a violation of Plaintiffs’ rights under the Equal Protection Clause and Title IX.
A. Likelihood of Success on Count I
Section 1983 prohibits the “deprivation of any rights, privileges, or immunities secured by the Constitution.” 42 U.S.C. § 1983. Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” City of Monterey v. Del Monte Dunes,
Plaintiffs claim they were deprived of equal protection of the laws under the Fourteenth Amendment. (D.I. 1 ¶¶ 47-51) The Fourteenth Amеndment’s Equal Protection Clause is “essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr.,
Gender classifications under law are not inherently “proscribed classification[s].” United States v. Virginia,
Defendants contend that equal protection is not typically violated when a state offers optional, single-gender public schools, so long as the state makes available to both genders “education equal” options. See Vorchheimer v. School Dist. of Philadelphia,
Plaintiffs are likely to succeed in showing that there are unique benefits to same-gender schooling opportunities for at least some students. Defendants state in their Reply that they “do not dispute that single-gender education has potential benefits and is, in obvious respects, different from coed education.” (D.I. 17 ¶ 21) This is consistent with the apparent policy decision of Delaware’s lawmakers, who by enactment of the amended Section 506 mandated the creation of two same-gender charter schools. Given the conceded benefits of same-sex education for some students, and not just boys, Defendants have failed to show that providing such benefits to boys while depriving girls of the same benefits serves important governmental objectives.
Defendants argue that “there are no allegations in the Complaint that Defendants took any action based on the gender of Reach students,” and therefore the Individual Plaintiffs have failed to show the purposeful discrimination required for an Equal Protection violation. (D.I. 17 ¶ 24) Defendants continuе: “[T]hat their decision not to renew Reach’s charter results in the elimination of the only single-gender charter school for girls does not make their decision gender-based governmental action. At least, Plaintiffs provide the Court with no support for it to reach such a conclusion.” (Id.) But this analysis ignores the additional fact that the State of Delaware — including Defendants — is not even permitted to consider offering the same benefits to girls that it currently provides to boys. On the facts here— where Delaware is providing its 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 to show an Equal Protection violation.
B. Title IX
In Count II, Plaintiffs contend that the “interplay between the sun-setting
For all the reasons already stated in connection with Plaintiffs’ Equal Protection claim, Plaintiffs are also likely to succeed on the merits of their Title IX claim.
In arguing for a contrary conclusion, Defendants rely heavily on the federal regulations issued under Title IX, which appear to contemplate the existence of single-gender charter schools, even in the absence of single-gender charter schools of the opposite gender. See 34 C.F.R. 106.34(c). The regulations provide:
(c) Schools.
(1) General Standard. Except as provided in paragraph (c)(2) of this section, a recipient that operates a public nonvocational elementary or secondary school that excludes from admission any students, on the basis of sex, must рrovide students of the excluded sex a substantially equal single-sex school or coeducation school.
(2) Exception. A nonvocational public charter school that is a single-school educational agency[13 ] under State law may be operated as a single-sex charter school without regard to the requirements in paragraph (c)(1) of this section.
Thus Defendants conclude that, “Plaintiffs’ [discrimination claims] fail[ ] because there is no claim or proof that Reach students do not have educational opportunities substantially equivalent to a single-gender, all-male school.” (D.I. 14 at 3)
Plaintiffs read Section 106.34(c)(1) — requiring that districts “must provide students of the excluded sex a substantially equal single-sex school or coeducational school” — as meaning that Delaware must provide both options to students of both sexes. To Plaintiffs, in this context “or” means “and,” so “[i]n the context of this regulation, the word ‘or’ is referring to the options that the state has to make available to the excluded sex.” (D.I. 16 at 5; see also id. at 6 (“This regulation is clearly referring to the options that must be available to the students and does not mean that the state gets to limit the students’ options to whatever the state decides.”))
The Court finds neither side’s reasoning persuasive. Plaintiffs’ reading is a stretch.
Consequently, the Court finds that Plaintiffs are likely to show that Defendants’ conduct violated Title IX.
IV. Irreparable Injury
To obtain a preliminary injunction, a plaintiff must “demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial. .The preliminary injunction must be the only way of protecting the plaintiff from harm.” Instant Air Freight Co. v. C.F. Air Freight, Inc.,
Plaintiffs argue that, without temporary relief, “Reach faces the impossible task of attempting to retain and recruit students while facing school closure during the critical period that students have for exercising their school choice options.” (D.I. 7-1 at 21) Plaintiffs illustrate the potential harm to Reach by describing the financiаl problems confronted by other charter schools in Delaware that have been threatened with closure. (Id. at 21-24) As already noted, funding for charter schools is dependent on enrollment numbers. (D.I. 1 ¶ 10) Plaintiffs thus argue that without a preliminary injunction before the January 8, 2014 deadline for “choice applications” to attend a specific school in the 2014-15 school year, the “DOE’s threatened non-renewal of [Reach’s] charter obviously [will have] a very negative impact on a parent’s willingness to consider Reach as an option for their children,” causing a precipitous drop in enrollment and lack of financial viability — even if Plaintiffs prevail at trial. (D.I. 7-1 at 23-24)
Defendants acknowledge that “Reach may be irreparably harmed,” but insist “equally if not more important is the irreparable harm to children who continue to attend Reach or plan to attend Reach next year.” (D.I. 14 at 26) Defendants urge the Court to deny the preliminary injunction because “[o]n balance, the greater irreparable harm will befall Reach students because the students will be able to attend one of the worst acadеmically performing schools in the State for another year.” (Id. at 23)
The Court does not agree with Defendants’ assertion that granting the request
Therefore,‘the Court finds that the Individual Plaintiffs will be irreparably harmed in the absence of an order that Reach’s charter be renewed for an additional academic year.
Y. Balance of Hardships and the Public Interest
Before issuing a preliminary injunction, courts also must weigh the potential harm to the moving party, in the absence of the requested relief, against the potential harm, if any, to the nonmoving party (and others not subject to the action) if the relief is granted. See Council of Alternative Political Panties,
Plaintiffs argue that the irreparable harm to them in the absence of a preliminary injunction (described above) would outweigh any harm that might be suffered by Defendants as a result of a Court order to renew Reach’s charter for one additional year while this case proceeds to trial and a final judgment. Plaintiffs further assert that the “public interest is served by demanding Defendants comply with Federal and State law.” (D.I. 7-1 at 24)
The Court agrees with Plaintiffs. “In the absence of legitimate, countervailing concerns, the public interest clearly favors the protection of constitutional rights.” Council of Alternative Political Parties,
Yet it is important to point out that there are harms to Defendants from the Court’s ruling, and those harms factor into the public interest analysis as well. That is, there are “legitimate, countervailing concerns” on Defendants’ side of the ledger.
Charter schools are mandated to meet measurable standards of student performance, see 14 Del. C. § 501, and Defendants are “statutorily required to determine
The Court further agrees with Defendants that “the public interest cautions against judicial interposition in the operation of a state public school system.” (D.I. 14 at 8) It seems likely that the success of Delaware’s charter school system depends, in part, on the State’s ability to close a failing school — and on the understanding of all interested constituencies that the State can and will, when necessary, revoke or not renew some charters. It is not in the public interest for courts to make it more difficult for the State to properly exercise this authority and implement hard decisions supported by educational expertise. See Richard Milburn Public Charter Alternative High School v. Cafritz,
Though Defendants’ concerns carry serious weight, the Court has determined that, on balance, the public interest favors preliminary relief for the Individual Plaintiffs.
CONCLUSION
The difficulty of this case stems from the absence of any single-sex public charter school option for girls, now and — under current law — forever, all while Delaware provides that very option to boys. If the DOE’s denial decision stands, all boys in the State of Delaware will have an option of attending a single-gender public charter school, while at the same time no girl in the State of Delaware will have such an option. At a time when the choice deadline was just weeks away, yet this case'was still in its earliest stages, the parties presented the Court with only two courses of action: Defendants’ planned imminent closure of Reach or Plaintiffs’ request for a one-yеar extension of operations while this case could be litigated to a conclusion. Given the Court’s findings, Plaintiffs’ proposal was clearly the better of the two.
This conclusion is bolstered by the facts that, in the months leading up to Defendants’ closure decision, Reach had moved into its new, larger facilities, on which it has signed a long-term lease; Reach had achieved full enrollment and had grown to its final grade configuration of K-8; and Reach had been removed from DOE probation in May 2013. (D.I. 1 ¶ 19) Now may be a particularly auspicious moment for Reach' to turn its academic performance around. At minimum, another year of operations will provide additional data that should enable all interested parties to make an accurate assessment of Reach’s program and competency.
Hence, for the reasons provided here, as well as those stated in the earlier Memorandum Order, the Court has decided to grant Plaintiffs’ motion for a preliminary
Notes
. The students are O.G., T.W., another T.W., and S.O., each student by her parent and next friend. (D.I. 1)
. The рarties filed a stipulation of dismissal on 'May 2, 2014. (D.I. 31) The Court subsequently sought the parties' views as to whether the Court should adhere to its plan and issue this opinion, and no party objected.
.The Court uses the terms "same-sex” and "same-gender” interchangeably throughout this Opinion, and does the same with the terms "single-sex” and "single-gender.”
. It may be that Reach's influx of students contributed to the low scores. For grades five through eight — the grades represented in Reach's DCAS scores — 82% of Reach’s students enrolled with scores below proficient in math, and 68% enrolled with scores below proficient in reading. (D.I. 7-1 ex. 4 ¶¶ 12-13; see also D.I. 14 App. at A91 (noting that there were only 23 students who had attended Reach for three years))
. Although the State Board is required to assent to the Secretary’s decision to approve a charter or revoke a charter, the Secretary's decisions denying non-renewal of a charter are final. See 14 Del. C. §§ 511(c), 514A(f); see also 14 DE Admin. Code 275.10.3 ("Charters shall be renewed only if the school receives a satisfactory performance review.”).
. Plaintiffs initially requested relief in the form of a temporary restraining order or a preliminary injunction. (D.I. 7) The Court, after conferring with the parties, decided to proceed only on the preliminary injunction. (See Dec. 13, 2013 Hr’g Tr. at 27)
. The Court need not address Defendants' additional argument that Reach lacks third party standing (D.I. T1 ¶ 12), as Reach does not assert it has standing on this basis.
. Plaintiffs appeared to concede at oral argument that the Individual Plaintiffs are parties only to Counts I and II, that is the Equal Protection and Title DC claims. (See Jan. 2 Hr’g Tr. (hereinafter "Tr.”) at 55) As the Complaint is unclear on this point, the Court will address all five claims.
. All references to "Plaintiffs” in the remainder of this opinion are solely to the Individual Plaintiffs.
. At oral argument, Defendants admitted that Secretary Murphy may not have had access to all materials in the record when he made his decision (although Defendants maintain he had access to the underlying data). (See Tr. at 38 — 40) The regulations require all decisions to be “base[d] on the record.” 14 DE Admin. Code 275.3.8.
. The Third Circuit uses “reasonable probability of success’’ interchangeably with “likelihood of success.” See, e.g., Allegheny Energy, Inc. v. DOE, Inc.,
. A finding that Plaintiffs are likely to succeed on the merits is not, as Defendants suggest, a "legal conclusion that a single-gender education is so inherently unique that Defendants are cоnstitutionally required to provide parity." (D.I. 17 ¶ 19) It may be that the State could lawfully fund two all-boys schools and only one all-girls school; it may also be that the State could lawfully fund one all-boys school and no all-girls schools, so long as the State was also willing to entertain new applications for single-sex charter schools. These are not the facts before the Court, so the Court draws no conclusions as to them.
. Public school districts and, in Delaware, charter schools, see 14 Del. C. § 503, are defined as “Local Educational Agencies.” See 20 U.S.C. § 1401(19) (defining Local Educational Agency as “public authority” created for "administrative control” of elementary and secondary schools).
. Plaintiffs' idea seems to be that since each student only attends one school (at a time), she need be provided at any one time only with a single-sex "or” coeducational school, but she also must be provided the opportunity to choose between the two options.
. Importantly, the Court’s order expressly allows Defendants, at all times — including during the 2014-15 school year — to exercise its ordinary powers of oversight, including by seeking to revoke Reach’s charter and by imposing reasonable conditions on Reach's continued operations.