In January, the court issued a preliminary decision that denied the state's motion to dismiss and issued a preliminary injunction. But the time constraints of enrollment had required the court to make that decision quickly, so it promised to provide fuller explanation in a later opinion, which it issued recently. The court's recent opinion reaches the same conclusion regarding the plaintiff's likelihood of success on the merits, a key factor to obtaining a preliminary injunction, but reveals more of its reasoning regarding Title IX's application to charter schools.
The regulations that interpret the statute contain the following provisions that relate to charter schools:
(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 provide students of the excluded sex a substantially equal single-sex school or coeducation school.
See 34 C.F.R. 106.34(c).(2) Exception. A nonvocational public charter school that is a single-school educational agency under State law may be operated as a single-sex charter school without regard to the requirements in paragraph (c)(1) of this section.
So, the regulation requires a funding recipient that operates a school for one sex to also operate a "substantially equal" single-sex or coeducational schools for members of the other sex. But it exempts nonvocational charter schools from that requirement. The Delaware DOE relied on the exception provision as the basis for its argument that Title IX does not apply to its decisions relating to the issuing of charters. But the court disagreed, reasoning that the exception provision applies only to the charter school itself. The exception means that Prestige Academy, for example, does not have to also operate as a school for girls. The state of Delaware, on the other hand, is still required to comply with (c)(1), the "General Standard" provision that requires "substantially equal" coed or single sex alternatives.
But does Delaware violate that provision simply by failing to provide an all-girls charter school? After all, the court pointed out, the requirement is to provide a substantially equal single sex school or coeducational school to students of the excluded sex. The regulation does not require both, and thus seems to contemplate that coed alternatives could be "substantially equal" and thus compliant with the Title IX regulations. That question is not addressed at this preliminary stage of the litigation.
It's a question that might not be necessary, to address, however, given that the plaintiff's other argument was that Delaware's failure to charter an all-girls school violates the Equal Protection Clause. The court's Equal Protection Clause analysis is not bound by the particularities of the Title IX regulations. It could ultimately conclude that the state's offering a single-sex school for boys but not for girls is unlawful, regardless of whether the coeducational alternatives are just as good. Because even if the coed alternatives are deemed just as good, they are still different from a single-sex environment. Which means that the boys of Delaware who want a single sex experience can have one, but not the girls. The court's preliminary Equal Protection analysis suggests that the plaintiffs are likely to prevail on arguments along these lines.
Finally, the court seems to address the point I was most worried about when I blogged about this case back in January, which is the fact that Delaware dropped Reach Academy for a reason -- it had financial problems and its students did not do well on statewide tests. I argued that renewing the charter of a "failing" girls school is not an alternative to discrimination, because it still perpetuates separate-but-unequal. However, the court points out that Reach seems to be pulling itself together. Its facilities and enrollment have improved, and it is no longer on probationary status with the state. The court concludes its opinion by suggesting, "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."
So Reach will continue to operate, at least for now. Litigation is likely to continue as the state can theoretically appeal or seek to dismiss the case on other grounds, while the plaintiff can move for an injunction of permanent nature.
Reach Academy for Boys and Girls d/b/a Reach Academy for Girls v. Delaware Department of Education, 2014 WL 2445804 (D. Del. May 30, 2014).
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