A. Standard for Preliminary Injunction
In order to prevail on their motion, plaintiffs must
demonstrate (1) a substantial likelihood of success on the
merits; (2) that they will suffer irreparable harm absent the
relief requested; (3) that other parties will not be harmed if
the requested relief is granted; and (4) that the public
interest supports granting the requested relief. Taylor v.
Resolution Trust Corp., 56 F.3d 1497, 1505-06 (D.C.Cir. 1995);
Washington Area Metro. Transit Comm'n v. Holiday Tours, Inc.,
559 F.2d 841, 843 (D.C.Cir. 1977). In determining whether to
grant urgent relief, the Court must "balance the strengths of,
the requesting party's arguments in each of the four required
areas." CityFed Fin. Corp. v. Office of Thrift Supervision,
58 F.3d 738, 747 (D.C.Cir. 1995). "If the arguments for one factor
are particularly strong, an injunction may issue even if the
arguments in other areas are rather weak." Id.
It is particularly important for plaintiffs to demonstrate a
substantial likelihood of success on the merits. Morgan Stanley
DW Inc. v. Rothe, 150 F. Supp.2d 67, 73 (D.C. 2001). Where a
plaintiff cannot show a likelihood of success on the merits, "it
would take a very strong showing with respect to the other
preliminary injunction factors to turn the tide in plaintiff['s]
favor." Davenport v. Int'l Brotherhood of Teamsters, AFL —
CIO, 166 F.3d 356, 367 (D.C.Cir. 1999).
Because preliminary injunctions are extraordinary forms of
judicial relief, courts should grant them sparingly. See Morgan
Stanley DW, 150 F. Supp.2d at 73. "As the Supreme Court has
said, `[i]t frequently is observed that a preliminary injunction
is an extraordinary and drastic remedy, one that should not be
granted unless the movant, by a clear showing, carries the
burden of persuasion.'" Id. (quoting Mazurek v. Armstrong,
520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997)).
B. Likelihood of Success on the Merits
Plaintiffs have not demonstrated a substantial likelihood of
success on the merits of their claim. As plaintiffs acknowledge,
the Secretary's selection of the committee members can only be
overturned if it is arbitrary, capricious, or otherwise in
violation of law. See Amended Compl. ¶ 27. "A party seeking to
have a court declare an agency action to be arbitrary and
capricious carries `a heavy burden indeed.'" Wisconsin Valley
Improvement Co. v. Fed. Energy Regulatory Comm'n, 236 F.3d 738,
745 (D.C.Cir. 2001) (citation omitted).
As described by Education, the committee included six
representatives of state education officials, four
representatives of local education officials, four
representatives of principals and teachers, one representative
of business interests, two representatives from Education, and
seven representatives of students. See 67 Fed. Reg. at 9224; 67
Fed. Reg. at 9935. Thus, under Education's calculation, there are
14 representatives of state and local educators and education
officials and 7 representatives of students.
Plaintiffs' contention that a majority of the negotiating
committee must be comprised of representatives of parents and
students is unconvincing. Section 1901(b)(3)(B) only requires an
"equitable balance" between representatives of parents and
students and representatives of educators and education
officials. "Equitable balance" does not mean "equal number," nor
does it mean that one group must have more representatives than
the other. The House Conference Report that plaintiffs cite
provides no support for their position, and indeed states that
"[t]he Conferees do not intend . . . to require strict numerical
comparability among these representatives." H.R.Conf.Rep. No.
107-334, at 809. It also explains that "the Secretary [should]
have flexibility in selecting the conferees." Id. The Court is
thus not persuaded that, given this deferential standard, a
committee with 14 representatives of one group and 7
representatives of another group is per se not equitably
Nor is plaintiffs' allegation that there are actually only two
representatives of parents and students on the committee
ultimately persuasive. In the February 28, 2002, notice in the
Federal Register, Education identified the following
individuals as "Representing students (Including At-risk
Students, Migrant Students, Limited English-Proficient Students,
Students with Disabilities, and Private School Students)":
Tasha Tillman, parent, Colorado Springs (CO).
Minnie Pearce, parent, Detroit (MI).
Arturo Abarca, teacher, Helitrope Elementary School,
Los Angeles Unified School District (CA).
Maria Seidner, Director, Bilingual Education, Texas
Dr. Alexa Pochowski, Associate Commissioner, Kansas
Department of Education.
Myrna Toney, Director of Migrant Education, Wisconsin
Department of Education.
John R. Clark, Assistant Superintendent, Department
of Education, Diocese of Allentown (PA).
67 Fed. Reg. at 9224. The Court does not agree with plaintiffs
that the latter five individuals should be counted as educators
or education officials simply because they are employed by
schools or state or local education agencies. An individual's
employment or experience as an educator and education official
does not necessarily preclude him or her from representing the
interests of parents and students. Even if, as plaintiffs argue,
such an individual would ordinarily be sympathetic to the
mission of educators/education officials or their views on
government regulation, this does not mean that the individual
could not sufficiently detach himself from that perspective
(assuming he or she held it) to represent the interests of
parents and students.
Moreover, plaintiffs have come forward with no evidence to
rebut Education's argument that it believed when it made the
selections that the five individuals at issue were well-suited
to serve as representatives of students. Christine O. Wolfe,
Counselor to the Deputy Secretary of the Department of
Education, explains that Education "was extremely mindful" of
the equitable balance requirement, and "carefully considered the
topics to be negotiated and how best to represent the interests
of parents and diverse groups of students with respect to the
technical issues raised by these topics." Declaration of
Christine O. Wolfe ¶ 6. Education paid particular attention to
language from the NCLBA's legislative history suggesting that
Education obtain advice and recommendations from representatives
of special populations of students, such as migrant students,
limited English proficient students, and homeless students.
Id. Education also believed that it was important to represent
the interests of students with disabilities and private school
students receiving Title I services. Id.
According to Ms. Wolfe, Education concluded that
. . . students, particularly limited English
proficient students, students with disabilities, and
migrant students, could be best represented on the
specific issues under negotiation by individuals who
had expertise in developing standards and assessments
for special populations, sensitivity to the needs of
these populations, and experience in
advocating the needs of these students with reference
to standards and assessments within state and local
education systems. [Education] believed that such
individuals' perspectives and personal experiences in
addressing the educational needs of these children
with reference to the topics to be negotiated made
them far more capable than lobbying and advocacy
groups to represent the interests of students.
Id. 1 7. Accordingly, Education selected each of the five
individuals at issue to represent a "group of students
commonly served by Title I — at risk, limited English
proficient, and migrant students, students with disabilities,
and private school students." Id. Ms. Wolfe provides a brief
biography of each of the five selectees, and identifies why
Education believed that each was qualified to represent the
interest of students in one of the identified groups. Id.