Showing posts with label Delaware. Show all posts
Showing posts with label Delaware. Show all posts

Thursday, June 05, 2014

Girls' Charter School Wins Preliminary Injunction to Remain Open for Now

A case being litigated in a federal district court in Delaware is raising interesting questions about Title IX's application to charter schools.  Last November, the Delaware Department of Education decided not to renew the charter for Reach Academy for Girls, which would have the effect of closing the state's only public single-sex school for girls.  Reach students sued the state, arguing that the school's closure amounted to a violation of Title IX and the Constitution's Equal Protection Clause, because the state continues to charter, and thus fund, the all-boys Prestige Academy.  This imbalance is further underscored by the fact that Delaware law now prohibits issuing new charters to single-sex schools; only existing charter schools may continue to apply for renewal. So for the plaintiffs, Reach is their only opportunity for single-sex education. 

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. 
(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.
See 34 C.F.R. 106.34(c).

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).

Tuesday, February 04, 2014

"Failing" Girls' Charter School in Delaware Sues State for Nonrewal

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).

Friday, February 03, 2012

Sexual Harassment Roundup

Federal courts recently issued decisions in a couple of Title IX sexual harassment decisions.

The Ninth Circuit Court of Appeals recently upheld a lower court's decision to dismiss claims filed by a former student that the University of the Pacific failed to protect her from sexual assault by three members of the men's basketball team because they were deliberately indifferent to an earlier rape involving one of the assailants in her case. The court of appeals rejected that a general description of the attackers in the earlier rape and an officer's "suspicion" as to his identity constituted "actual notice" that a student involved in the plaintiff's rape was a threat to fellow students, as required for Title IX liability to attach. The court also rejected the plaintiff's argument that the university's Judicial Hearing Board's decision to expel one rather than all three of the assailants constituted deliberate indifference. The decision to suspend two of the assailants instead, and subject them to sexual assault awareness education and a probationary status, was not an unreasonable response to known incident of sexual assault. Doe v. University of the Pacific, 2012 WL 269901 (9th Cir. Jan. 31, 2012).

A federal district court in Delaware dismissed a Title IX lawsuit against Caesar Rodney High School, in which the plaintiff, a student, alleged that school officials were indifferent to her report that she was being physically abused by her boyfriend who was also a student. The court concluded that the school responded reasonably to the student's and her mother's reports about the violence, including having the assailant arrested and suspending him for criminal violence that occurred on school grounds, allowing the plaintiff to leave early from her classes and changing her locker assignment to limit her exposure to him in the hallway, and calling the police to report harassing text messages he sent to her outside of school. The court rejected the plaintiff's argument that school did not protect her from harassment by the assailant's friends, because she did not allege that she had reported to this to appropriate school officials or to any school personnel with sufficient time for response. The court also discounted alleged statements by school officials that plaintiff argued indicated their indifference (such as the plaintiff being told she is a "strong girl" who could overcome what was happening to her), reasoning that the statements were "rebutted by the actions taken" to address incidents of harassment. P.K. ex rel. Hassinger v. Caesar Rodney High School, 2012 WL 253439 (D. Del. Jan. 27, 2012)