In re New Maurice J. Moyer Acad., Inc.

108 A.3d 294

In re the New Maurice J. Moyer Academy, Inc.

CONSOLIDATED C.A. No. 10398–CB

Court of Chancery of Delaware.

Date Submitted: January 2, 2015

Date Decided: January 9, 2015

Kurt M. Heyman, Melissa N. Donimirski and Dawn Kurtz Crompton of Proctor Heyman LLP, Wilmington, Delaware; Michael P. Migliore and Christofer C. Johnson of City of Wilmington Law Department, Wilmington, Delaware; Attorneys for Plaintiffs Shauniece Anderson, for her minor child S.A.; Shatana Turner, for her minor child D.T.; Alvin Alexander, for his minor children Z.A. and O.A.; and The City of Wilmington.

William E. Manning, James D. Taylor, Jr. and Allison J. McCowan of Saul Ewing LLP, Wilmington, Delaware; Attorneys for Plaintiffs The New Maurice J. Moyer Academy, Inc.; Judi Kennedy, for her minor child K.D., Jemuel Anderson, for his minor child J.K.A.J.; Jacqueline Bailey, for her minor child J.L.; Shalonda Davis, for her minor child O.D.; and Darcel Earl, for her minor child C.G.

Joseph C. Handlon, Scott W. Perkins, Catherine T. Hickey, Ilona Kirshon and Roopa Sabesan of Department of Justice State of Delaware, Wilmington, Delaware; Max B. Walton and N. Christopher Griffiths of Connolly Gallagher LLP, Newark, Delaware; Ryan P. Newell of Connolly Gallagher LLP, Wilmington, Delaware; Attorneys for Defendants.

OPINION

BOUCHARD, C.

I. INTRODUCTION

In 1995, the General Assembly adopted the Delaware Charter School Act.¹ The purpose of the Act was “to create an alternative to traditional public schools operated by school districts and improve public education overall by establishing a system of independent ‘charter’ schools throughout the State.”² To that end, the Act “offers members of the community a charter to organize and run independent public schools, free of most state and school district rules and regulations governing public education,” and with the use of public funds, “as long as they meet the requirements of [the Act], and particularly the obligation to meet measurable standards of student performance.”³

Today, over 30 charter schools operate in the State of Delaware. This action concerns one of them. Maurice J. Moyer Academic Institute (“New Moyer”) is a charter school located in Wilmington, Delaware serving grades 6–12. In 2011, it was granted a four-year charter that started with the 2012–2013 school year, and expires at the end of the 2015–2016 school year.

In this action, the operator of New Moyer, parents representing several of its students, and the City of Wilmington seek a preliminary injunction to enjoin the Delaware Department of Education, the Secretary of Education for the State of Delaware, and the Delaware State Board of Education from implementing their October 2014 decision to revoke New Moyer's charter and to close the school at the end of the current school year, in June 2015, one year before the charter expires. As discussed below, following an extensive process set forth in the Charter School Act, this decision was made because, among other reasons, New Moyer is the lowest performing charter school in the State based on the State's testing standards.

New Moyer serves some of the most economically disadvantaged students in the State of Delaware. They face significant academic challenges. It is natural to be sympathetic to Plaintiffs' desire to keep New Moyer's doors open for an additional school year so that the families who chose New Moyer can continue to send their children to what they view as their only practical option to attend a school in their neighborhood. It is the responsibility of State officials, however, to make the tough decisions concerning whether a charter school is meeting its obligations under the Charter School Act.

The primary issue before the Court is whether Plaintiffs have demonstrated a reasonable probability that they have been denied due process under the Fourteenth Amendment of the United States Constitution with respect to the decision to revoke New Moyer's charter. For the reasons discussed below, I conclude they have not. More specifically, I conclude that New Moyer does not have a constitutionally protected property interest in its charter and that its students do not have a constitutionally protected interest in graduating from New Moyer and that, even if they did, Plaintiffs have failed to demonstrate that it is reasonably probable they were not afforded due process.

I also conclude that, although the Charter School Act expressly prohibits judicial review of the merits of a decision to revoke a school's charter, it impliedly affords the school the right to challenge whether one of the statutorily required grounds upon which a charter may be revoked was made after the exercise of due diligence and good faith. The evidence Plaintiffs have presented, however, is insufficient to demonstrate that it is reasonably probable this standard was not met here.

For these and the other reasons explained below, Plaintiffs' motion for a preliminary injunction is denied.

II. BACKGROUND⁴

A. The Parties

Plaintiff The New Maurice J. Moyer Academy, Inc., a non-stock, non-profit Delaware corporation, operates Maurice J. Moyer Academic Institute, a charter school serving grades 6–12 in the City of Wilmington, Delaware. Although these two entities are technically distinct, I refer to them interchangeably as “New Moyer.”

Plaintiffs Shauniece Anderson, Shatana Turner, Alvin Alexander, Judi Kennedy, Jemuel Anderson, Jacqueline Bailey, Shalonda Davis, and Darcel Earl are Delaware citizens who filed suit on behalf of their minor children who currently attend New Moyer. I refer to these citizens and their minor children together as the “Individual Plaintiffs.”

Plaintiff The City of Wilmington, a Delaware municipal corporation, filed suit as parens patriae for the benefit of minor citizens who attend or wish to attend New Moyer.

Defendant Delaware Department of Education (the “Department”) is the State agency that oversees public education in Delaware.

Defendant Mark T. Murphy is, and was as of the date of the revocation decision, the Secretary of Education for the State of Delaware (the “Secretary”). Murphy is sued solely in his official capacity as the Secretary.

Defendant Delaware State Board of Education (the “State Board”), an entity within the Department, is the governing body of the Delaware school system. The State Board administers and supervises the charter schools of Delaware.

Defendants Teri Quinn Gray, Jorge L. Melendez, Gregory G. Coverdale, Jr., G. Patrick Heffernan, Randall L. Hughes, II, Barbara B. Rutt, and Jerry M. Whittaker are, and were as of the date of the revocation decision, the seven members of the State Board. They are sued solely in their official capacities as members of the State Board.

B. The Predecessors to New Moyer

In 2006, the Department granted a charter for a school named The Maurice J. Moyer Academy, Inc. (“Old Moyer”), which would be located in the City of Wilmington. In February 2010, the Secretary of the Department recommended, and the State Board agreed, not to renew Old Moyer's charter.⁵

In 2010, the General Assembly directed the Department to manage a school at the location of Old Moyer from July 1, 2010, until June 30, 2012.⁶ Pursuant to the General Assembly's directive, in July 2010, the Department contracted with K–12 Classroom DE, LLC (“K12”) to provide educational services for the 2010–2011 academic year.⁷ In July 2011, after issuing a request for proposals for a third party to provide educational services for the 2011–2012 academic year,⁸ the Department awarded that contract to K12.⁹

C. New Moyer is Formed and Receives a Charter from the Department

On January 3, 2011, a group of individuals (the “Moyer Board”) submitted an application to the Department to operate a charter school at the former location of Old Moyer.¹⁰ The application, which reflected the “consensus” of the Moyer Board members on the new school's “mission, goals and organization,” was signed by all members of the Moyer Board, including the current Chairman, Christopher Curry (“Curry”), and the current Vice Chairman.¹¹ The application set forth forty-seven separate “assurances” of the Moyer Board should it receive a charter. Those assurances included, for example, that the school would “[b]e in full compliance with 14 Delaware Code, Chapter 5” (the Charter School Act); that the Moyer Board would “not implement any modifications to the charter school program or operation without the express written consent of the Department”; and that the Moyer Board and the school would “[c]omply with the provisions for a Performance Agreement, as required by the Secretary.”¹²

The Moyer Board contemplated that the new school, New Moyer, would serve 365 students in grades 6–12 in its first year and would expand to serve 600 students in grades 6–12 in its fourth year.¹³ Anticipating that New Moyer's demographics would be similar to those of its predecessors, the Moyer Board projected that the student body would be predominantly economically disadvantaged (with over 90% qualifying for free or reduced lunch) and minority (with over 99% being African American), and that approximately 25% of its students would need special education services.¹⁴

According to its application, the Moyer Board “intend[ed] to contract with [K12] for educational and management services in the operation of the school if the Moyer Board [were] granted a charter.”¹⁵ The Moyer Board further stated that it found K12, which offered an online instruction method, to be “the premier provider of curriculum, systems, and services” in digital education.¹⁶ The application also included a draft services agreement between New Moyer and K12 pursuant to which K12 would provide educational services to New Moyer's students through the 2020–2021 academic year, unless terminated earlier.¹⁷

On April 1, 2011, the Charter School Accountability Committee (the “Committee”) issued a final report on New Moyer's charter application.¹⁸ The Committee found that New Moyer satisfied...