The opinion of the court was delivered by: James E. Boasberg United States District Judge
The public-education landscape in the District of Columbia has changed. The advent of public charter schools, coupled with demographic shifts, has resulted in substantially decreased enrollment in certain neighborhoods over the last fifteen years. In response, the District of Columbia Public Schools has promulgated its Consolidation and Reorganization Plan, which closes fifteen under-utilized schools, reassigns those students, and reallocates the savings to other schools -- all in an effort to maximize resources and improve education citywide. Plaintiffs -- guardians of children who attend closing schools and Advisory Neighborhood Commission members whose districts allegedly comprise such schools -- have brought this suit, claiming that the closures violate a host of constitutional, federal, and state provisions. They assert, in essence, that the closures discriminate against poor, minority, and disabled students and were enacted without sufficient ANC input. Hoping to block the implementation of the Plan, Plaintiffs now ask this Court for a preliminary injunction.
Few topics, understandably, incite our passions more than the education of our children. Toss into the mix the future of neighborhood institutions, whose familiarity and history may resonate deeply, and quite a volatile brew emerges. It is thus hardly surprising that assorted constituencies may possess varied opinions on the wisdom and necessity of the Plan and Schools Chancellor Kaya Henderson's strategy. Yet every adverse policy decision does not yield a constitutional claim. In this case, there is no evidence whatsoever of any intent to discriminate on the part of Defendants, who are actually transferring children out of weaker, more segregated, and under-enrolled schools. The remedy Plaintiffs seek -- i.e., to remain in such schools -- seems curious, given that these are the conditions most people typically endeavor to escape. In any event, as Plaintiffs have no likelihood of ultimate success on the merits of their suit, they cannot prevail in this Motion here.
While the parties quarrel about the legal analysis, the underlying facts here are essentially uncontested.
The District of Columbia Public Schools runs the District's traditional, local public-school system. See D.C. Code §§ 38-171 to -172. As Chancellor, Kaya Henderson acts as DCPS's chief executive officer. See D.C. Code § 38-174(a). Not all D.C. public schools fall within DCPS's sphere, however. In 1996, Congress authorized the operation of charter schools in the District, which exist as public schools outside of DCPS control. See District of Columbia School Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321-107 (1996). Since then, children in many parts of the city have flocked to charters; indeed, more than half of public-school students in Wards 1, 5, and 7 and more than a third in Wards 4, 6, and 8 now attend public charter schools instead of DCPS schools. See Opp., Exh. B (Office of Chancellor, DCPS, DCPS Proposed Consolidations and Reorganization: Better Schools for All Students ("Proposed Consolidation Plan") (Nov. 15, 2012)) at 8. By contrast, only 14% of students in Ward 2 attend charters, and no Ward 3 student does. See id. The number of school-age children has likewise fallen across the city, although -- again -- unevenly. While the population of school-age children in the last ten years has decreased by at least 1500 children in each of Wards 1, 4, 5, 6, 7, and 8 (including nearly 4000 in Ward 8), Ward 2 has lost only 761 children, and Ward 3 has actually gained 272 children during that time. See id. at 7. As a result, many DCPS schools are only partially full -- particularly in certain parts of the city.
Responding to these demographic shifts and after obtaining recommendations from an educational consulting company, see Opp., Exh. A (Memorandum from Educ. Res. Strategies to Chancellor Henderson (Aug. 17, 2012)), in November 2012, Chancellor Henderson proposed closing twenty under-enrolled DCPS schools over the next two years. See Proposed Consolidation Plan at 16. Most of those slated for closure used less than half of their buildings' capacities, and five schools had building-utilization rates under 25%. See id. at 17-22. DCPS explained that closing these under-enrolled schools would decrease overhead, allowing schools to spend less per pupil, while putting more students in modern facilities and giving more students access to programs and staff that can be justified only for large schools, thereby improving the overall quality of education. See id. at 10-14. Plaintiffs question whether the closings will actually bring down spending, pointing out that similar benefits projected from DCPS closures in 2008 never materialized. See Reply at 3 & n.4 (citing Exh. F (Yolanda Branche, D.C. Auditor, Audit of the Closure and Consolidation of 23 Public Schools (Sept. 6, 2012))). Fourteen of the twenty schools proposed for closure were in Wards 5, 7, and 8, plus two schools each in Wards 2, 4, and 6. See Proposed Consolidation Plan at 16. The proposal suggested no changes in Wards 1 or 3. See id. at 23 (building-utilization rate is 74% in Ward 1 and 109% in Ward 3).
To promote its proposal and gather community feedback, DCPS took its show on the road. The City Council held two hearings on the closures. See Opp., Exh. D (Office of Chancellor, DCPS, Better Schools for All Students: DCPS' Consolidation and Reorganization Plan ("Final Consolidation Plan") (Jan. 2013)) at 2. DCPS itself convened meetings throughout the city, including four ward-based public meetings that drew 780 participants. See id. In addition, DCPS e-mailed ANC Commissioners with schools slated for closure in their districts, along with some of the incoming ANC Commissioners-elect, to ask for reactions. See Defs. Notice of Correction & Clarification, Exh. A (Decl. of Shanita Burney, Exh. 1 (E-mail from Josephine Robinson, DCPS, to ANC Commissioners (Nov. 13, 2012))). DCPS also sent a summary of the proposal home in the backpack of every child attending a school on the closure list. See Opp., Exh. C (Decl. of Peter Weber), ¶ 7.
This desire for community input was no charade. On the contrary, the feedback yielded real changes in DCPS's final Plan, released January 17, 2013. Five schools proposed for closure will now remain open: two in Ward 2, one in Ward 7, and two in Ward 8. See Final Consolidation Plan at 4-5. At five other schools, moreover, assignments for the departing students changed. See id. In choosing schools to receive the students, DCPS particularly focused on "safety and walkability." Id. at 7. DCPS estimated that savings from the revised proposal would total $8.5 million, see id. -- an estimate that Plaintiffs, of course, contest -- which sum would then be plowed back into schools throughout the city. See id. at 6.
All fifteen schools on the final closure list lie east of Rock Creek Park, a historical dividing line within the city. East of the Park, residents are generally poorer and overwhelmingly black and Hispanic; west of the Park, residents are wealthier and mostly white. The halls of the closing schools reflect those demographics. In DCPS schools as a whole, 68.4% of students are black; 13.8% are Hispanic; 3.7% are Asian, other, or unknown; and 9.2% are white. See Mot., Exh. A (Aff. of Mary Levy), ¶ 16. In the schools slated for closure, by contrast, 93.7% of students are black; 5.9% are Hispanic; 0.4% are Asian, other, or unknown; and less than 0.1% (2 out of 3053) are white. See id. The figures skew similarly, if less starkly, for disabled students: 27.7% of students in the closing schools are in special education, versus 14.2% of students in DCPS overall. See id.
The D.C. Council will meet on May 22 to consider the Mayor's proposed budget, which reflects the school closures. While the Council (like any other legislative body) may alter funding levels, see D.C. Code § 38-173(b), the District assured the Court during the preliminary-injunction hearing that the Mayor's decision to proceed with the school consolidation is final. The school-closure Plan is therefore ripe for judicial review.
Seeking to block implementation of the Plan, five Plaintiffs filed this suit in D.C. Superior Court on March 29, 2013, naming Chancellor Henderson, Mayor Vincent Gray, and the District of Columbia as Defendants. (The Court will collectively refer to all Defendants as "the District.") Two Plaintiffs -- Karlene Armstead and Ericka Black -- are ANC Commissioners who say they never received the legally required notice of the school closures. See Compl., ¶¶ 2, 5,
65. The other three Plaintiffs -- Shannon Smith, Marlece Turner, and Brenda Williams -- are guardians of children who attend schools slated for closure. See Mot., Exh. D (Aff. of Shannon Smith), ¶¶ 1-2; Mot., Exh. E (Aff. of Marlece Turner), ¶ 1; Mot., Exh. G (Aff. of Brenda Williams), ¶ 1. All of the guardians' children are black or Hispanic and live east of the Park. See Compl., ¶¶ 28, 30. Two have serious disabilities that will allegedly make the disruptions caused by the school closures particularly difficult. See Turner Aff., ¶¶ 5, 9-10 (Asperger's and ADHD); Williams Aff., ¶¶ 1-2, 7, 9 (unable to walk or talk and frequent seizures). While the Complaint does not say so directly, both sides have assumed that Smith, Turner, and Williams sue on behalf of their children as next friends, and the Court will make the same assumption for purposes of this Opinion, although subsequent amendment should make this explicit.
In their Complaint, Plaintiffs allege that the District violated D.C. statutes requiring notice to ANC Commissioners and consideration of their views, the D.C. Sunshine Amendment, the Constitution's equal-protection guarantee (asserted under 42 U.S.C. § 1983), Title VI of the Civil Rights Act, the Individuals with Disabilities Education Act, the Americans with Disabilities Act, the Rehabilitation Act, and the D.C. Human Rights Act. See Compl., ¶¶ 56-94.
Simultaneous with the filing of their Complaint, Plaintiffs moved for a temporary restraining order and a preliminary injunction. The District removed the case to federal court on April 2, and the next day, the Court held a joint telephone call with the parties. Because Plaintiffs did not need a decision until May 22, they agreed to withdraw their TRO motion and proceed solely with their Motion for a Preliminary Injunction. The Court held a hearing on that Motion on May 10, and this Opinion follows five days later.
A preliminary injunction "is an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. NRDC, Inc., 129 S. Ct. 365, 376 (2008). "A plaintiff seeking a preliminary injunction must establish  that he is likely to succeed on the merits,  that he is likely to suffer irreparable harm in the absence of preliminary relief,  that the balance of equities tips in his favor, and  that an injunction is in the public interest." Id. at 374. Before the Supreme Court's decision in Winter, courts weighed the preliminary-injunction factors on a sliding scale, allowing a weak showing on one factor to be overcome by a strong showing on another. See Davenport v. Int'l Bhd. of Teamsters, 166 F.3d 356, 360-61 (D.C. Cir. 1999). This Circuit, however, has suggested, without deciding, that Winter should be read to abandon the sliding-scale analysis in favor of a "more demanding burden" requiring Plaintiffs to independently demonstrate both a likelihood of success on the merits and irreparable harm. Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011); see also Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009).
Whichever way Winter is read, it is clear that a failure to show a likelihood of success on the merits is alone sufficient to defeat a preliminary-injunction motion. In Arkansas Dairy Co-op Ass'n v. USDA, 573 F.3d 815 (D.C. Cir. 2009), a case that postdates Winter, the court decided that it "need not proceed to review the other three preliminary injunction factors" because the plaintiff had "shown no likelihood of success on the merits." Id. at 832; see also Apotex, Inc. v. FDA, 449 F.3d 1249, 1253 (D.C. Cir. 2006) (pre-Winter case holding no need to address other preliminary-injunction factors where plaintiff had little likelihood of succeeding on the merits); Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 304 (D.C. Cir. 2006) ("a preliminary injunction will not issue" upon showing of irreparable harm unless plaintiffs also satisfy other three preliminary-injunction factors; "[u]nsupported or undeveloped allegations of government establishment, for example, while sufficient to make out irreparable injury, will not withstand scrutiny concerning the movant's likelihood of success on the merits, thereby defeating a request for preliminary injunction"). It follows that, upon finding that a plaintiff has failed to show a likelihood of success on the merits, the Court may deny a motion for preliminary injunction without analyzing the remaining factors.
Mapping onto the two categories of Plaintiffs in this case are the two types of claims brought: the ANC Commissioners assert process-related claims, while the guardians of children who attend closing schools submit civil-rights claims. As always, the Court must begin with jurisdiction -- here, with questions about standing. Because standing appears an insurmountable hurdle for the ANC Commissioners, the Court need look no further at their claims. Instead, it may move straight to the guardians' civil-rights counts. Grouping similar legal theories together, the Court will begin its merits analysis with the alleged violations of the Equal Protection Clause and Title VI. Next, it will examine the IDEA, the ADA, and the Rehabilitation Act. It will end with the DCHRA and the Sunshine Amendment.
Plaintiffs' opening brief provides only the barest sketch of their legal arguments, focusing instead on policy positions better directed to the government's other branches. In their Reply, Plaintiffs double down on their Equal Protection Clause argument, explaining it more thoroughly, but almost completely ignore their other civil-rights claims. Taking that emphasis as a signal of where Plaintiffs believe they are most likely to succeed on the merits, the Court pays special attention to this question and, conversely, declines to search out arguments Plaintiffs could have made in support of their other civil-rights causes of action.
A. Standing 1. Legal Standard
Article III of the Constitution limits the power of the federal judiciary to the resolution of "Cases" and "Controversies." U.S. Const. art. III, § 2; see also Allen v. Wright, 468 U.S. 737, 750 (1984) (discussing the case-or-controversy requirement). "This limitation is no mere formality: it 'defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded.'" Dominguez v. UAL Corp., 666 F.3d 1359, 1361 (D.C. Cir. 2012) (quoting Allen, 468 U.S. at 750). Because "standing is an essential and unchanging part of the case-or-controversy requirement of Article III," Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), finding ...