A charter school for girls, along with several of its students, has sued the Delaware Department of Education, alleging that the state's failure to renew the school's charter violates Title IX and the Equal Protection Clause. The state concluded that the plaintiff, Reach Academy for Girls, is a failing school based on the low standardized test scores posted by its students, and did not renew its charter on those grounds. But Reach and its students argue that unless it is renewed for another five-year term, the state will violate Title IX and Equal Protection by supporting a charter school for boys but none for girls. They seek an injunction against the state that would allow the charter to continue for another five years.
The federal district court in Delaware recently dismissed the claims filed by the school itself, which does not have individual rights under either Title IX or the Constitution. But the court did grant a preliminary injunction based on the claims against the state filed by the students. As a result, Reach's charter remains in effect for the time being, until the court determines after further analysis (and possibly a trial) whether a permanent injunction is warranted.
The court concluded that the student plaintiffs satisfied their burden of showing a likelihood of success on the merits, one of the key requirements for obtaining a preliminary injunction. The court's analysis is sparse at this early stage of litigation; it simply noted that the plaintiffs do not have to prove that the state had discriminatory intent, only that its decision resulted in a discriminatory impact on students of one sex. The court reasoned that the plaintiffs will likely prevail, notwithstanding the fact that it reads the Department of Education's Title IX regulations governing charter schools (see 34 C.F.R. 106.34(c)) to not require parity in the number of schools authorized for each sex.
I would expect the court to examine Title IX's application to charter schools more closely in its forthcoming decisions related to the permanent injunction. It certainly seems like a more complicated issue than the court's preliminary decision made it seem. After all, if the state of Delaware were enjoined from revoking the charter of a failing school for girls, that too would arguably constitute a violation of Title IX since the state's only charter school opportunities for boys are of higher quality than the charter school opportunities available for girls. In the athletic context, to borrow an analogy, funding recipients have already learned that you can't outsource away your obligation to comply with Title IX. Just as a high school can't say, "it's not our fault that the municipal field that the city lets us use for softball is of lesser quality than the baseball field we have on campus," the state of Delaware should not get away with saying "it's not our fault that the private schools we've chartered are providing inferior education to girls." Therefore, the court's granting of a permanent injunction would, I think, put the state in a genuine dilemma. I don't know how the court will resolve it, but I will point out that the dilemma itself underscores my skepticism of single-sex education in the first place: "separate but equal" is hard to ensure.
Decision: Reach Academy for Boys and Girls d/b/a Reach Academy for Girls v. Delaware Department of Education, 2014 WL 229473 (D. Del. Jan. 3, 2014).