       IN THE COURT OF CHANCERY IN THE STATE OF DELAWARE


IN RE THE NEW MAURICE J. MOYER                  CONSOLIDATED
ACADEMY, INC.                                   C.A. No. 10398-CB




                                       OPINION

                            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.


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


1
    14 Del. C. ch. 5.
2
    14 Del. C. § 501.
3
    Id.


                                             1
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.


                                              2
       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.    BACKGROUND 4

       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.”


4
  These are the preliminary facts as I find them based on the documentary evidence and
affidavits from the following individuals submitted by the parties in conjunction with
Plaintiffs’ preliminary injunction motion: (i) Rev. Christopher T. Curry, Ph.D, Chairman
of the Board of Directors of New Moyer (“Curry Aff.”); (ii) John H. Carwell, Jr., an
Education Associate at the Department (“Carwell Aff.”); (iii) Donna R. Johnson, the
Executive Director of the State Board and a non-voting member of the Committee
(“Johnson Aff.”); (iv) Barbara Mazza, an Education Associate at the Department and a
voting member of the Committee (“Mazza Aff.”); (v) Mary Kate McLaughlin, the Chief
of Staff for the Department (“McLaughlin Aff.”); (vi) Jennifer Nagourney, the Executive
Director of the Department’s Charter School Office (“Nagourney Aff.”); and (vii) Shelley
Rouser, the Director of K-12 Initiatives and Educator Engagement for the Department
(“Rouser Aff.”) No depositions were taken in connection with Plaintiffs’ preliminary
injunction motion.


                                            3
       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.




                                               4
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




5
    Defs.’ Ex. 1 at DOE-MOYER001418-21.
6
    77 Del. Law Ch. 327; 145th General Assembly, SB 310 § 384.
7
    Defs.’ Ex. 2.
8
    Defs.’ Ex. 3.
9
    Defs.’ Ex. 4; Carwell Aff. ¶ 12.
10
     Pls.’ Ex. 9.


                                              5
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


11
   Id. at CW000416, 495, 498. Although the composition of the Moyer Board has
changed since New Moyer received its charter, the identity of its members is immaterial
to this opinion.
12
     Id. at CW000491-94.
13
     Id. at CW000414.
14
     Id. at CW000415.


                                             6
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 thirteen of the fourteen criteria required for

approval under the Charter School Act. 19 The only criterion not satisfied was New

Moyer’s educational programming. 20 Regarding New Moyer’s proposed curriculum, the

Committee approved Science and Health Education; conditionally approved Math and




15
  Id. at CW000417-18. The signed application states that the Moyer Board “has worked
closely with K12 in the development of [the] application.” Id. This representation is at
odds with the affidavit of Moyer Board’s Chairman, which implies that the Moyer Board
was not involved in the preparation of the application. See Curry Aff. ¶ 6.
16
     Pls.’ Ex. 9 at CW000434.
17
     Defs.’ Ex. 6 at DOE-MOYER000208.
18
     Pls.’ Ex. 12.
19
     See 14 Del. C. § 512.
20
     Pls.’ Ex. 12 at CW001002.


                                           7
Social Studies; but did not approve Physical Education, World Languages, Visual Arts,

or Performing Arts based on the information submitted. 21

           In its report, the Committee recommended that the State Board approve New

Moyer’s charter application, subject to twenty-three conditions.        Those conditions

included requiring the Moyer Board to submit to the Department a proposed Performance

Agreement “specifying measurable objectives with annual targets that is acceptable to the

Secretary” by February 15, 2012. 22 The Committee also required New Moyer to submit

its curricula for Math, Social Studies, Physical Education, World Languages, Visual Arts,

and Performing Arts for review and approval by the Department by August 1, 2012. 23

           On April 21, 2011, the Secretary recommended, and the State Board approved, by

a 6-0 vote, the issuance of a charter to New Moyer, subject to the conditions in the

Committee’s final report. 24 The charter would permit New Moyer to begin operations

starting with the 2012-2013 academic year 25 and to remain open through the 2015-2016

academic year. 26

           On February 7, 2012, nearly ten months after New Moyer received a charter, a

Department employee inquired about the status of New Moyer’s services agreement with
21
     Id.
22
     Id. at CW001006 (condition #16).
23
     Id. (condition # 10).
24
     Defs.’ Ex. 5 at DOE-MOYER001498.
25
     Id.
26
     Curry Aff. ¶ 5.


                                              8
K12. The employee forwarded to Curry a copy of the draft services agreement that the

Moyer Board had submitted in its charter application and encouraged Curry to consult an

attorney regarding a final agreement. 27

         On July 1, 2012, New Moyer officially took over operations at the former location

of Old Moyer. As of August 23, 2012, New Moyer still had not submitted an executed

services agreement to the Department. When a Department employee inquired about the

status of that agreement on August 23, Curry stated that New Moyer’s counsel was in

“the process of drafting the K12 Agreement.” 28

         By December 3, 2012, New Moyer and K12 executed an Education Products and

Services Agreement (the “Services Agreement”), which was dated to be effective

retroactively as of July 1, 2012. 29 Under the Services Agreement, K12 would provide

educational services to New Moyer’s students, and New Moyer became “responsible for

monitoring K12’s performance under, and compliance with, the terms of this Agreement




27
   Carwell Aff. ¶ 14; Curry Aff. Ex. C. The preliminary record does not reflect that
anyone at the Department had authored any part of that draft agreement or that the
Department mandated that the Moyer Board agree to the particular provisions of that
draft.
28
     Defs.’ Ex. 7.
29
     Pls.’ Ex. 11 at CW000967, 990.


                                             9
in accordance with Applicable Law.” 30 The Services Agreement continues through the

2015-2016 academic year, unless terminated earlier. 31

         D.      New Moyer’s Performance in its First Year (2012-2013)

         New Moyer failed to meet the August 1, 2012, deadline the Committee had set in

its April 2011 report to submit and receive approval of its curriculum. Thus, when New

Moyer opened in fall 2012, it lacked a curriculum approved by the Department. 32 On

November 19, 2012, the Department instructed New Moyer to submit the outstanding

curricula for approval no later than December 31, 2012. 33 This deadline was extended

further to May 31, 2013, by which time New Moyer submitted a proposed curriculum for

approval. 34 On June 11, 2013, content specialists at the Department prepared an internal

report noting certain deficiencies in New Moyer’s proposed curriculum. 35

         The Department rated the overall academic performance of New Moyer for the

2012-2013 academic school year to be “below standard.” 36 Of the fifteen categories in


30
  Id. at CW000972 (§ 3.1). The Services Agreement provides that Delaware law is the
applicable law. Id. at CW000968 (§ 1.2).
31
     Id. at CW000973 (§ 5.1).
32
     Carwell Aff. ¶ 2.
33
     Defs.’ Ex. 8.
34
     Carwell Aff. ¶ 3.
35
     Pls.’ Ex. 28.
36
   Pls.’ Ex. 26 at CW001085. The ratings system the Department used contains four
ratings, in descending order: (1) exceeds standard, (2) meets standard, (3) does not meet
(or below) standard, and (4) far below standard. Id. at CW001077.


                                           10
which academic performance was rated, New Moyer received two ratings of “exceeds

standard,” two ratings of “meets standard,” six ratings of “below standard,” and five

ratings of “far below standard.” 37 For the 2012-2013 academic year, the percentage of

students scoring “proficient” according to Delaware state standards was 49.6% in English

Language Arts and 40.3% in Math, both of which were slightly below the 20th percentile

for all schools in the State. 38

         E.      New Moyer Requests to Modify its Curriculum

         During its first year of operation, New Moyer deviated from the online instruction

method set forth in its charter application without obtaining the Department’s written

approval. 39 On November 19, 2012, the Department instructed New Moyer to submit a

proposed charter modification regarding this change in instruction method no later than

December 31, 2012. 40

         On December 17, 2012, New Moyer applied to the Department to modify its

charter by changing its curriculum and by decreasing its authorized enrollment. 41




37
     Id. at CW001085.
38
     Pls.’ Ex. 39 at CW000744; Pls.’ Ex. 13 at CW001009.
39
     Carwell Aff. ¶ 4.
40
     Defs.’ Ex. 8.
41
     Pls.’ Ex. 15.


                                             11
Regarding the curriculum, New Moyer sought to change its instructional method for core

academic courses from online instruction to traditional, classroom instruction. 42

         On May 30, 2013, the Committee met with New Moyer representatives to discuss

the charter modification proposal. 43 On June 27, 2013, the Committee recommended that

the Department deny New Moyer’s request because of deficiencies in its proposal,

including the curricula for English Language Arts, Math, and Social Studies. 44

         On July 18, 2013, the State Board was informed that the Secretary had denied

New Moyer’s charter modification request. Because this charter modification required

approval by both the Secretary and the State Board, the State Board took no further action

on New Moyer’s request. 45

         On July 25, 2013, the Department met with representatives of New Moyer to

discuss its curriculum. Moyer Board’s Chairman understood the importance of this

meeting. Beforehand, in a July 18 email, Curry stated that the meeting “should not be

taken lightly. We will be given hard deadlines and if we do not produce, Moyer’s future

is no more!” 46




42
     Id. at CW001056-57; Carwell Aff. ¶ 5.
43
     Defs.’ Ex. 9 at MOYER-COVERDALE000164.
44
     Id. at MOYER-COVERDALE000154-63.
45
     Defs.’ Ex. 10 at DOE-MOYER001628.
46
     Defs.’ Ex. 11.


                                             12
         After the July 25 meeting, the Department sent New Moyer a “Curriculum

Refinement Review,” which provided detailed feedback on New Moyer’s curriculum. 47

Similarly, on July 26, 2013, the Department provided New Moyer with a “Corrective

Action Plan,” which set forth “the expectations of the Department, the deadlines that

must be met, and the areas in which the Department will engage in ongoing monitoring of

[New] Moyer’s progress.” 48 The Department further informed New Moyer that, as part

of the Corrective Action Plan, it would conduct site visits during September and October

2013. 49

         During the Corrective Action Plan period, the Department provided feedback on

New Moyer’s curriculum in reports dated October 3, 2013, October 27, 2013, and

January 9, 2014. 50 On November 8, 2013, the Department also provided New Moyer

with a report explaining certain observations in its monitoring of the Corrective Action

Plan, noting that New Moyer’s curriculum “continue[d] to lack coherence, appropriate

progressions and alignment with assessments, and [did] not align to Common Core State

Standards.” 51      The report further noted that the Department had “found little


47
     Carwell Aff. ¶ 9, Ex. E.
48
     McLaughlin Aff. ¶ 2.
49
     Id. Ex. B at DOE-MOYER001758.
50
   Rouser Aff. ¶ 4, Exs. A-C. A Department employee noted in an affidavit that
“[s]everal overarching areas of misalignment of New Moyer’s curriculum with the State
Standards for math, English language arts (ELA), science and social studies were
identified in each of these reports.” Id. ¶ 5.
51
     McLaughlin Aff. ¶ 5, Ex. E.


                                           13
improvement over the submissions that resulted in the denial of [New Moyer’s]

modification application in July, 2013.” 52

           F.    New Moyer’s Performance in its Second Year (2013-2014)

           On September 24, 2013, after New Moyer had operated for one academic year,

New Moyer and the Department entered into the Performance Agreement, 53 which had

been a condition of New Moyer’s charter. 54 The Performance Agreement set forth

certain performance expectations for New Moyer, including:

           By 2015, [New Moyer’s] expectation is to achieve the overall rating of
           “Meets” or “Exceeds” standard as measured by the Academic Performance
           Framework. Each year, [New Moyer] will show growth within [its] overall
           rating putting [it] on track to achieve [its] academic performance
           expectations. This progress will be monitored through [its] annual
           performance review. 55

The Performance Agreement would “continue in full force and effect during the term of

the school’s charter and any subsequent renewal term thereof.” 56          Although the

Performance Agreement is styled as a contract, it does not include any representations or

warranties, covenants, or other obligations on behalf of the Department. Indeed, the

Performance Agreement provides that “in the sole discretion of the [Department], with

the assent of the [State Board], this agreement may be amended at such time as the


52
     Id.
53
     Pls.’ Ex. 18.
54
     Pls.’ Ex. 12 at CW001006 (condition #16); Pls.’ Ex. 9 at CW000492 (assurance #13).
55
     Pls.’ Ex. 18 at CW000561.
56
     Id. at CW000559.


                                              14
school’s charter may be renewed under the provisions of 14 Del. C. § 515(b) or subjected

to review under 14 Del. C. § 515(c).” 57

          In January 2014, the Department conducted an on-site monitoring visit of New

Moyer’s special education services. The Department found 67 of 68 student records to

be noncompliant with regulations under the federal Individuals with Disabilities

Education Act, including the requirement of Individualized Education Plans (“IEPs”). 58

In February 2014, the Department notified New Moyer in writing of the on-site

monitoring results. 59

          On February 27, 2014, the Department met with representatives of New Moyer to

discuss its observations, to conduct a “Root Cause Analysis,” and to develop a

“Corrective Action Plan” to ensure New Moyer’s compliance with federal and State

special education regulations. 60 On March 7, 2014, the Department provided certain

professional development services to New Moyer representatives. 61 The Department set

a deadline of April 1, 2014, for New Moyer to correct noncompliance in the 67 IEPs

previously identified as noncompliant (“Prong 1”), and another deadline of May 1, 2014,

57
   Id. at CW000559 (§ 2) The Performance Agreement additionally provides that, “[i]f
the [Department] finds that the school is not making satisfactory progress toward its
performance targets the [Department], with the assent of the [State Board], may place the
school’s charter on formal review pursuant to 14 Del. C. § 515(c).” Id. (§ 3(b)).
58
     Mazza Aff. ¶ 4.
59
     Id. ¶ 5.
60
     Id. Ex. A.
61
     Id. ¶ 7, Ex. B.


                                            15
for New Moyer to correct any systemic noncompliance in its special education

procedures (“Prong 2”). 62 These deadlines were extended twice, ultimately to May 16,

2014 (for Prong 1) and May 31, 2014 (for Prong 2). 63

          In May and June 2014, the Department reviewed New Moyer’s updated files for

Prong 1 and concluded that 29 student records were still noncompliant. 64 On June 23,

2014, the Department sent a letter to New Moyer outlining its monitoring of New

Moyer’s compliance with special education regulations. 65 Because of the outstanding

noncompliance, the Department required New Moyer to enter into the Compliance

Agreement, 66 which it did in July 2014. 67

          The Compliance Agreement required New Moyer to correct the 29 noncompliant

student records by September 19, 2014. On September 19, the Department reviewed

New Moyer’s updated files and orally informed New Moyer that it was in compliance

with Prong 1. 68 The Department then further extended the deadline for New Moyer to




62
     Id. ¶ 6.
63
     Id. ¶ 7.
64
     Id. ¶ 8.
65
     Id. ¶ 9.
66
     Id. Ex. C.
67
     Id. Ex. D.
68
     Id. ¶ 12; Curry Aff. ¶¶ 27-28, Ex. M.

                                              16
satisfy Prong 2, to correct any systemic noncompliance in New Moyer’s special

education procedures, until November 3, 2014. 69

           The Department rated the overall academic performance of New Moyer for the

2013-2014 academic school year to be “far below standard.” 70          Of the seventeen

categories in which academic performance was rated (the fifteen categories from the prior

year plus two new categories), New Moyer received zero ratings of “exceeds standard,”

one rating of “meets standard,” three ratings of “below standard,” and thirteen ratings of

“far below standard.” 71     The test scores of New Moyer students on the Delaware

Comprehensive Assessment System were the lowest of any charter school in the State. 72

For the 2013-2014 academic year, the percentage of students scoring “proficient”

according to Delaware state standards was 23.1% in English Language Arts, a decrease

from 49.6% for the prior year; 10.2% in Math, a decrease from 40.3% in the prior year;

6.2% in Science, a decrease from 12.1% in the prior year; and 0% in Social Studies, a

decrease from 39.3% in the prior year. 73



69
   Mazza Aff. ¶ 12. On November 3, 2014, the Department          reviewed 26 individual
student records and concluded that ten were noncompliant         with special education
regulations. Id. ¶ 13. Plaintiffs note, logically, that these    additional examples of
noncompliance cannot support the decision to revoke Moyer’s      charter since they were
found after that decision had been made in October 2014.
70
     Pls.’ Ex. 26 at CW001085.
71
     Id.
72
     Pls.’ Ex. 31 at CW000666.
73
     Pls.’ Ex. 39 at CW000744-45; see also Pls.’ Ex. 26 at CW001078.


                                            17
         The Department also measured the growth of New Moyer students during the

academic year. 74 The percentage of New Moyer students meeting their academic growth

targets fell from 70% in English Language Arts and 55.2% in Math for the 2012-2013

year to 28.1% in English Language Arts and 39.5% in Math for the 2013-2014 year. 75

Although 61% of New Moyer’s student body for the 2013-2014 year had attended a

different school in the prior year, there was only a “nominal difference” between the

growth rate performances in these subjects for students who attended New Moyer for

both 2012-2013 and 2013-2014 compared to those who attended for only 2013-2014. 76

         G.      New Moyer Again Requests to Modify its Curriculum

         On May 13, 2014, New Moyer applied for a major modification of its charter to

adopt a curriculum provided by SpringBoard in English Language Arts and Math. 77 The

Department had earlier suggested the SpringBoard curriculum to New Moyer in March

and April 2014. 78 SpringBoard, which several Delaware schools use, would allow New




74
     Johnson Aff. ¶ 6.
75
     Pls.’ Ex. 26 at CW001077.
76
   Defs.’ Ex. 16 (“Students who attended Moyer in both 12-13 and 13-14 met 40% of
their Math targets, compared to 34% of students attending Moyer in only 13-14.
Similarly for ELA, 27% of students who attended for both 12-13 and 13-14 met their
targets, compared to 25% of students who attended for only 13-14.”).
77
     Pls.’ Ex. 27.
78
     Curry Aff. ¶¶ 13-14.


                                           18
Moyer to “use Delaware certified teachers to deliver instruction in [its] core courses,”

while continuing to use online instruction in its elective courses. 79

           On June 12, 2014, the Committee met with New Moyer representatives to discuss

its modification request. On June 17, 2014, the Committee issued an initial report on

New Moyer’s request in which it expressed concern about implementing a new

curriculum, and requested additional information regarding New Moyer’s professional

development and teacher instruction plans. 80

           On July 9, 2014, the Committee again met with representatives of New Moyer. 81

The Committee agreed to recommend New Moyer’s request for charter modification

pending submission of satisfactory documents by July 14, 2014, to address six areas of

concern, which included providing a plan to fill student knowledge gaps in the proposed

transition from K12 to SpringBoard and professional development for teachers. 82

           On July 21, 2014, the Committee issued its final report recommending non-

approval of New Moyer’s charter modification request. 83 New Moyer had adequately

addressed only two of the Committee’s six areas of concern by July 14. 84 The four

unsatisfactory areas of concern included student knowledge gaps. According to the
79
     Pls.’ Ex. 27 at CW000597, 600.
80
     Pls.’ Ex. 29 at CW001093-94.
81
     Pls.’ Ex. 30 at CW000676.
82
     Id. at CW000682.
83
     Id. at CW000683.
84
     Id.


                                              19
Committee, New Moyer failed to provide “a detailed plan for placing students in courses,

[and] an indication of the specific data that will be used to place students or determine

deficits in prerequisite skills and knowledge.” 85

         On August 5, 2014, the Committee held a public hearing in Dover, Delaware on

its final report. 86 According to the transcript, no representative of New Moyer addressed

the Committee at this hearing. On August 21, 2014, at a State Board meeting, the

Secretary announced his decision to accept the Committee’s recommendation and deny

New Moyer’s charter modification request. 87 In light of the Secretary’s decision, the

State Board took no further action on New Moyer’s request. 88

         H.     The Department Places New Moyer under “Formal Review”

         On July 17, 2014, with the assent of the State Board, the Secretary sent a letter to

the Moyer Board informing its members that New Moyer was being placed on Formal

Review. 89 The Secretary set forth seven areas in which New Moyer was noncompliant


85
  Id. The other unsatisfactory areas were: (i) Common Core standards for mathematical
practice; (ii) assessments; and (iii) pacing instruction. Id.
86
     Defs.’ Ex. 14.
87
     Defs.’ Ex. 15 at DOE-MOYER001752.
88
   Id. Plaintiffs note that, on August 19, 2014, Curry requested to meet with the
Department’s curriculum professionals to discuss New Moyer’s charter modification
request. Pls.’ Reply Br. Ex. B. The evidence reflects that there was no such meeting
before or after the August 21, 2014, State Board meeting. Curry Aff. Ex. H.
89
   Pls.’ Ex. 31. The Formal Review notice came one month after the University of
Delaware, the Delaware Academy for School Leadership, and the Department released a
Comprehensive School Review of New Moyer on June 17, 2014. Defs.’ Ex. 17. The
report noted, among other findings, that New Moyer “lacks a clear mission and vision

                                              20
with State law and/or its charter: (i) academic performance; (ii) special education

services; (iii) educational programming; (iv) discipline and attendance; 90 (v) student

assessment; (vi) staff credentialing; and (vii) financial and administrative operations. 91




that focus instruction and to provide a unifying purpose,” and that “[t]here is an
organizational structure disconnect among board, school leadership, staff, and K12
management.” Id. at DOE-MOYER001141. The report also noted that “[s]tudents report
that they do not feel safe in school” in part because “the front door is routinely unlocked
so anyone can get into the halls and classrooms.” Id. at DOE-MOYER001181.
90
   Under the category of disciple and attendance, the letter identified six items of concern.
The first item reported that the out of school suspension rate for New Moyer students for
the 2013-2014 academic year was 61% as opposed to the State average of 9%. Pls.’ Ex.
31 at CW000667. Plaintiffs make much of the fact that, on October 8, 2014, New Moyer
informed the Department that its suspension data were incorrect because one student was
listed as suspended for 400 days after he no longer attended the school. Curry Aff. ¶¶ 30-
32, Ex. P. The Department reviewed the issue and concluded that their records and
statistics were not affected by this error because their analysis did not rely on the data
field in which the error was made. Nagourney Aff. ¶ 4, Ex. A. Plaintiffs have not
identified any discrepancies regarding the five other items the Department had identified
concerning discipline and attendance, three of which the Secretary identified in his letter
of October 13, 2014 (in addition to the 61% suspension rate), as part of the grounds for
his revocation decision concerning the issue of discipline and attendance. See Pls.’ Ex.
43 at CW000825.
91
     Pls.’ Ex. 31 at CW000666-67.


                                             21
Attached to the Secretary’s letter was a timeline for the Formal Review process. 92 The

Secretary’s Formal Review notice was also posted on the Department’s website. 93

         I.    The Committee Recommends Revocation of New Moyer’s Charter

         As required by Section 515(c) of the Charter School Act, the Department

appointed the Committee to conduct an initial review of New Moyer to determine

whether New Moyer was in compliance with its charter and all applicable laws and

regulations, and, if not, to determine whether remedial measures were appropriate. 94 On

August 5, eleven representatives of New Moyer, including four members of the Moyer




92
   The attachment outlining the Formal Review timeline is not in the record but is
publicly available. See Formal Review Process Timeline, Delaware Department of
Education (Sept. 2, 2014), available at http://www.doe.k12.de.us/cms/lib09/DE01922744
/Cntricity/Domain/151/Formal%20Review%20Process/2014-15%20Formal%20Review/
UpdatedMJMFormalReviewTimeline.pdf. I take judicial notice of this information
because it is not subject to reasonable dispute. D.R.E. 201(b); In re Lear Corp. S’holder
Litig., 967 A.2d 640, 656 (Del. Ch. 2008) (taking judicial notice on plaintiffs’
preliminary injunction motion).
93
   The original link to the Secretary’s Formal Review notice inadvertently directed to a
notice for a different charter school. On July 18, 2014, the day after the Formal Review
notice was posted online, this issue was brought to the attention of the Charter School
Office, and the website link was corrected that day. Nagourney Aff. ¶ 8; Defs.’ Ex. 19.
When this action was filed on November 25, 2014, however, the link to the New Moyer
Formal Review notice again had been directed to the wrong document. Defendants assert
that this error likely was caused by an update to the Department’s website on November
7, 2014—nearly a month after the Secretary and the State Board would vote to revoke
New Moyer’s charter. Nagourney Aff. ¶ 8; Pls.’ Ex. 32. There is no evidence reflecting
that the link was, in fact, incorrect between July 18 and November 7. I credit the
Nagourney affidavit and conclude for purposes of this opinion that the correct Formal
Review notice was available on the Department’s website from July 7 to November 7.
94
     Pls.’ Ex. 39 at CW000744; Pls.’ Ex. 31 at CW000666.


                                           22
Board, met with the Committee to discuss the seven areas identified in the Secretary’s

Formal Review notice. 95 Two members of the public also attended this meeting. 96

         Also on August 5, 2014, immediately following the Committee’s public hearing

on New Moyer’s charter modification request to use SpringBoard, the Committee held a

public hearing in Dover on the Formal Review process. The transcript of this Committee

meeting reflects that: (i) New Moyer was notified of the hearing in the Secretary’s

Formal Review notice; (ii) on July 18, 2014, a notice of the meeting was placed on the

Department’s website and on the State’s online public meeting calendar; and (iii) also on

July 18, a notice of the hearing was published in The News Journal and Delaware State

News. 97 Keenan Dorsey, the principal of New Moyer, made comments on the record. 98

         On August 7, 2014, the Committee issued its Initial Report recommending that

New Moyer be found noncompliant with its charter and relevant Delaware regulations

based on the same seven areas of noncompliance identified in the Secretary’s Formal

Review notice. 99 New Moyer was given the opportunity to respond in writing to the

Initial Report by August 22, 2014.




95
     Defs.’ Ex. 18 at DOE-MOYER001278-87.
96
     Id. at DOE-MOYER001279.
97
     Pls.’ Ex. 33 at CW000700.
98
     Id. at CW000704-07; Nagourney Aff. ¶ 7.
99
     Defs.’ Ex. 18 at DOE-MOYER 001287-88.


                                           23
          On August 19, 2014, New Moyer submitted a written response. 100 In its response,

New Moyer asserted that its population was “severely underprivileged, underserved and

underprepared” in that 75% of the current student body was new to the school; 32% of

the student body was identified as special needs students; and the students who attend the

school had reading proficiencies that, on average, were three grade levels below their

target grade level. 101 New Moyer further explained that, despite turnover in its special

education department, it hired a Special Education Director in February 2014, who in

turn hired three special education teachers and four paraprofessionals for the 2014-2015

academic year. 102 As to the suspension rate, New Moyer noted that its “zero tolerance

approach” to disciplinary infractions was perhaps an “overcorrect[ion],” and that it had

submitted to have an on-campus School Resource Officer. 103


100
      Pls.’ Ex. 20.
101
   Id. at CW000730 (“6th grade is reading on average at a 5th grade level; 7th grade is
reading on average at a 4th grade level; 8th grade is reading on average at a 4th grade
level; 9th grade is reading on average at a 6th grade level; [and] 10th grade is reading on
average at a 7th grade level.”).
102
      Id. at CW000732.
103
   Id. at CW000734. New Moyer also represented that it would not seek a charter
renewal if it did not make significant improvements:

          The State has our further commitment, and we will make it binding in
          whatever fashion the State desires, that should we not make significant
          improvements in special education documentation and reporting during this
          school year and show measurable growth in student achievement during
          that same time, the [Moyer] Board will not seek renewal at the end of its
          charter term.”

Id. at CW000730.


                                             24
            On August 29, 2014, the Committee held a public meeting in Dover, Delaware.

Seven representatives of New Moyer, including two members of the Moyer Board,

attended, as well as two representatives from the public. 104          At this meeting, the

Committee unanimously agreed that New Moyer was noncompliant with four of the

seven areas identified in the Secretary’s Formal Review notice: (i) academic

performance; (ii) special education services; 105 (iii) educational programming; and (iv)

school discipline. 106      Before the Committee voted on its recommendation to the

Department regarding the appropriate remedial measures, one Committee member noted

how he did not consider probation appropriate for New Moyer:

            [The Committee member] also stated that, if areas of noncompliance in
            student achievement were not as significant as they are and the previous
            two years had not been as difficult as they were, it would be easier to
            recommend probation and place faith in [New] Moyer. He explained that
            there was too much history over the last two years and the issues
            concerning services to Special Education students make it difficult to set
            aside. 107

A majority of the Committee then voted (by a 3-0 vote, with one member abstaining) to

recommend that New Moyer’s charter be revoked, effective June 30, 2015. 108


104
      Pls.’ Ex. 39 at CW000747; see also Pls.’ Ex. 34.
105
   The Committee’s report for the August 29 meeting references that, of the 67 out of 68
IEPs that had been found noncompliant, 29 remained noncompliant and that the
Department would be returning to New Moyer in September to determine whether these
29 IEPs have been brought into compliance. Pls.’ Ex. 39 at CW000748-49.
106
      Id. at CW000751.
107
      Id.
108
      Id.


                                               25
          On September 5, 2014, the Committee issued its Final Report, which

recommended, for the four reasons listed at its August 29 meeting, revocation of New

Moyer’s charter, effective June 30, 2015. 109 New Moyer was given the opportunity to

respond in writing to the Final Report by September 15, 2014, but New Moyer declined

to do so. 110

          J.     The Secretary and the State Board Revoke New Moyer’s Charter

          On September 10, 2014, the Department and the State Board held a joint public

hearing in Wilmington, Delaware to discuss the Committee’s Final Report. 111            The

transcript of this joint hearing reflects that: (i) on July 19, 2014, New Moyer was notified

of the hearing; (ii) on August 18, 2014, a notice of the hearing was placed on the

Department’s website and on the State’s online public meeting calendar; and (iii) also on

August 18, a notice of the hearing was published in The News Journal and Delaware

State News. 112 Six representatives of New Moyer, including three Moyer Board members

and its principal, made comments on the record. 113


109
   Pls.’ Ex. 39. Plaintiffs contend that the Final Report did not specifically address New
Moyer’s request to modify its charter to change its English Language Arts and Math
instruction from K12 to SpringBoard, but the SpringBoard curriculum was one of the
subjects discussed at this meeting. A Committee member “clarified for the record that
[New] Moyer is still implementing SpringBoard notwithstanding the fact that the recent
charter modification application was denied.” Id. at CW000749.
110
      Nagourney Aff. ¶ 10.
111
      Pls.’ Ex. 40.
112
      Id. at CW000756; Nagourney Aff. ¶ 7.
113
      Pls.’ Ex. 40 at CW000758, 763, 768, 771, 774, 779.


                                             26
         On October 9, 2014, at a public meeting of the State Board, the Secretary

announced his decision to accept the recommendations of the Committee’s Final Report

to revoke New Moyer’s charter, effective June 30, 2015. 114 The Secretary explained that

the Final Report “highlight[s] significant problems with the school’s academic

performance and its program,” specifically noting:

      • New Moyer “is at the bottom of the traditional district schools and charter schools
        in regards to student achievement”;

      • The percentage of students at New Moyer who tested proficient for the 2013-2014
        academic year was 10% in Math, 23% in English Language Arts, 6% in Science,
        and 0% in Social Studies;

      • The proficiency scores of New Moyer’s students for the 2013-2014 academic year
        were lower than the proficiency scores for the 2012-2013 academic year, “which
        also fell far below state averages”; and

      • Significant challenges the school faced with respect to special education needs,
        including the requirements for IEPs and adequate staffing. 115



114
      Pls.’ Ex. 41 at CW001154.
115
      Id. In summation, the Secretary stated:

         While the public record makes clear the school’s dedication to
         improvement, my decision must be based upon evidence and not intentions.
         The accountability committee has determined that the school has failed to
         comply with its charter and satisfy in its operation of the school the criteria
         set forth in the charter law. To note specifically two areas, the school has
         failed to meet the academic standards and special education services
         criteria.

Id. After the revocation decision had been made, the Secretary spoke at a meeting of the
Wilmington City Council and discussed the reasons why the Department was
recommending a new assessment test for the State. Plaintiffs contend that the Secretary
stated that Delaware’s current testing standards, the performance on which was a basis
for the decision to revoke New Moyer’s charter, were unreliable. Pls.’ Op. Br. 25. Based
on my review of the relevant parts of the recording identified by Defendants, Defs.’ Ans.

                                                27
The State Board then unanimously agreed (by a 7-0 vote) with the Secretary to revoke

New Moyer’s charter. 116

          On October 13, 2014, sixty-one working days (excluding the Labor Day holiday)

after the Secretary’s Formal Review notice, the Secretary notified New Moyer by letter of

his and the State Board’s decision to revoke New Moyer’s charter, effective June 30,

2015. 117 The letter outlined the four areas of noncompliance that formed the basis for the

revocation decision: (i) academic performance (pursuant to New Moyer’s Performance

Agreement); (ii) special education services (pursuant to Section 512(7) of the Charter

School Act); (iii) educational programming (pursuant to Section 512(6) of the Charter

School Act); and (iv) discipline and attendance (pursuant to Section 512(11) of the

Charter School Act). 118

          K.     Procedural History

          On November 25, 2014, three Individual Plaintiffs and the City of Wilmington

filed an action (C.A. No. 10398) against the Department, the Secretary, the State Board,



Br. 32-33 n.21, the Secretary noted how the Department wanted to improve on what was
already “one of the most sophisticated assessments in the country.”
116
    Pls.’ Ex. 41 at CW001155. Plaintiffs note that neither the Secretary nor the State
Board acknowledged at the October 9 meeting that New Moyer had, as of the September
19 deadline, satisfied Prong 1 of its Compliance Agreement for special education
services. Although Plaintiffs are correct, it bears mention that the public comment period
for the revocation decision closed on September 15 (before the September 19 deadline).
See Formal Review Process Timeline, referenced supra. at n. 92.
117
      Pls.’ Ex. 43.
118
      Id. at CW000824-25.


                                            28
and each of its members. On November 26, 2014, five other Individual Plaintiffs and

New Moyer filed another action (C.A. No. 10402) against the Department, the Secretary,

and the State Board. On December 2, 2014, I entered an order consolidating these two

actions.

       On December 3, 2014, I granted the parties’ stipulated order for expedited

proceedings. On December 5, 2014, Plaintiffs filed a Consolidated Complaint. 119

       On December 19, 2014, Plaintiffs moved for a preliminary injunction “enjoining

Defendants from implementing the decision revoking New Moyer’s charter and closing

the New Moyer School at the close of the current school year (June 2015).” Plaintiffs

request a ruling before January 14, 2015, the deadline for students to apply to the school

of their choice under the Delaware School District Enrollment Choice Program (the

“Choice Program”).

       Also on December 19, 2014, Defendants moved to dismiss the Consolidated

Complaint under Court of Chancery Rule 12(b)(6) for failure to state a claim. On

January 2, 2015, I heard oral argument on Plaintiffs’ motion for a preliminary injunction

and Defendants’ motion to dismiss.




119
    The Consolidated Complaint asserts seven causes of action: failure to comply with the
Delaware Choice Program (Count I); further violation of the Charter School Act (Count
II); due process (Count III); breach of charter contract (Count IV); breach of implied
covenant (Count V); parens patriae claims (Count VI); and arbitrary and capricious
decision-making (Count VII).


                                           29
         Given the exigencies of Plaintiffs’ preliminary injunction application, this opinion

addresses the issues necessary to resolve Plaintiffs’ motion, but I also have considered the

parties’ briefing on Defendants’ motion to dismiss.

III.     LEGAL ANALYSIS

         A.     The Legal Standard

         “[A] motion for preliminary injunctive relief requires [the Court] to take a step

that, procedurally speaking, is extraordinary: to make a ‘preliminary’ determination of

the merits of a cause before there can be a final adjudication of [Plaintiffs’] claims.”120

To obtain a preliminary injunction, Plaintiffs must establish three elements: (i) a

reasonable probability of success on the merits; (ii) irreparable harm absent interim relief;

and (iii) that the balance of the equities favors the relief requested. 121 “This burden is not

a light one, and an ‘extraordinary remedy’ like a preliminary injunction ‘will never be

granted unless earned.’” 122 Although “[a] strong showing on one element may overcome

a weak showing on another element,” Plaintiffs must still demonstrate all three

elements. 123




120
    Frazer v. Worldwide Energy Corp., 1987 WL 8739 (Del. Ch. Feb. 19, 1987), reprinted
at 13 Del. J. Corp. L. 294, 303 (1987).
121
   See Revlon, Inc. v. MacAndrews & Forbes Hldgs., Inc., 506 A.2d 173, 179 (Del.
1986).
122
   Wayne Cty. Empls.’ Ret. Sys. v. Corti, 954 A.2d 319, 329 (Del. Ch. 2008) (quoting
Lenahan v. Nat’l Computer Analysts Corp., 310 A.2d 661, 664 (Del. Ch. 1973)).
123
      See Cantor Fitzgerald, L.P. v. Cantor, 724 A.2d 571, 579 (Del. Ch. 1998).


                                              30
         B.      Reasonable Probability of Success on the Merits

         In support of their preliminary injunction application, Plaintiffs advance claims

that “collectively comprise a due process claim or set of claims under the Fourteenth

Amendment” of the United States Constitution. 124 The precise demarcation of Plaintiffs’

constitutional claims is unclear. Plaintiffs asserted both procedural and substantive due

process challenges in their briefs concerning the decision to revoke New Moyer’s charter,

although they acknowledged at oral argument that their due process claims are primarily

procedural and not substantive. 125 Because the City of Wilmington concedes that its

claims as parens patriae are identical to those of the Individual Plaintiffs’ claims, 126 I

address only the claims of the Individual Plaintiffs and New Moyer in this opinion.

                 1.       Procedural Due Process Claim

         The Due Process Clause of the Fourteenth Amendment provides, “[N]or shall any

State deprive any person of life, liberty, or property, without due process of law.” When

a plaintiff asserts a violation of the Due Process Clause, the threshold question “is




124
      Pls.’ Op. Br. 43.
125
   Tr. of Oral Arg. 10 (“I don’t think we are arguing that this is primarily a substantive
due process case.”), 40 (“The parties have focused on procedural due process in the
briefing.”).
126
   Pls.’ Reply Br. 26 n.12 (“[T]he claims of the Individual Plaintiffs and the City are
identical[.]”); see also Harden v. Christina School Dist., 924 A.2d 247, 267 n.120 (Del.
Ch. 2007).


                                             31
whether the plaintiff has been deprived of a protected interest in ‘property’ or

‘liberty.’” 127

            A property interest entitled to procedural due process under the Due Process

Clause is created and defined not by the Constitution, but rather by “existing rules or

understandings that stem from an independent source such as state law—rules or

understandings that secure certain benefits and that support claims of entitlement to those

benefits.” 128 “To have a property interest in a benefit, a person clearly must have more

than an abstract need or desire for it. He must have more than a unilateral expectation of

it. He must, instead, have a legitimate claim of entitlement to it.” 129

            As a general matter, “[w]hen the decision to grant or withhold a benefit is

entrusted to the discretion of a government actor, one has no constitutional property

interest in obtaining that relief.” 130 “If the decisionmaker is not ‘required to base its

decisions on objective and defined criteria,’ but instead ‘can deny the requested relief for

any constitutionally permissible reason or for no reason at all,’ the State has not created a

constitutionally protected . . . interest.” 131 In other words, there is no protected property


127
      Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) (citations omitted).
128
      Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972).
129
      Id.
130
   Suryanto v. Att’y Gen. of U.S., 398 F. App’x 830, 834 (3d Cir. 2010) (citing Conn. Bd.
of Pardons v. Dumschat, 452 U.S. 458, 564 (1981)).
131
    Olim v. Wakinekona, 461 U.S. 238, 249 (1983) (finding no legitimate claim of
entitlement where there were “no standards governing the administrator’s exercise of his
discretion” to transfer an inmate) (citation omitted).


                                               32
interest where the decision to remove a benefit is left to the “unfettered discretion” of the

government actor. 132        Conversely, the State may create a constitutionally protected

interest by placing a “substantive limitation on official discretion” to grant, deny, or

remove a benefit. 133

                        a.      New Moyer Has No Protected Property Interest 134

       New Moyer contends that the charter it received from the Department to operate a

school is “a government license, not a contract,” and thus constitutes a protected property




132
   See Roth, 408 U.S. at 566-67 (concluding a nontenured university professor had no
property interest in his position because “State law . . . clearly leaves the decision
whether to rehire a nontenured teacher for another year to the unfettered discretion of
university officials.”).
133
    See Mullen v. Thompson, 155 F. Supp. 2d 448, 452 (W.D. Pa. 2001) (citing Olim, 461
U.S. at 249-50) (“[S]tate law that establishes purely procedural rules does not create
federal due process rights. Rather, only those state laws that place a substantive
limitation on official discretion in the decision to grant or deny the benefit itself—not in
the process leading to that decision—create a property interest that is entitled to
constitutional protection under the Due Process clause.”) (“Mullen I”), aff’d, 31 F. App’x
77 (3d Cir. 2002); see also Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442
U.S. 1, 11-12 (1979) (“accept[ing] respondents’ view that the expectancy of release
provided in [a] statute is entitled to some measure of constitutional protection” where the
state statute provided that the board of parole “shall order” the release of a committed
offender who is eligible for release on parole unless the board determines that the release
should be deferred for one of four enumerated reasons); Griffeth v. Detrich, 603 F.2d
118, 121 (9th Cir. 1979) (finding a legitimate claim of entitlement for “persons who
claim to meet the eligibility requirements” where the state’s welfare application
regulations were “comprehensive and definite” and “greatly restrict[ed] the discretion of
the intake eligibility worker”).
134
   Defendants challenge New Moyer’s standing to assert any claims in this action. For
purposes of Plaintiffs’ preliminary injunction motion only, I assume that New Moyer has
standing.


                                               33
interest. 135 In opposition, Defendants argue that, because “the decision to withhold,

grant, or revoke a public school charter is a discretionary one,” the charter New Moyer

received from the Department was a “privilege” and thus not a protected interest. 136

         In my opinion, New Moyer does not have a constitutionally protected property

interest in its charter because, under Delaware law, the Department’s decision to revoke

its charter was discretionary. In adopting the Charter School Act, the General Assembly

created a statutory scheme governing the Department’s oversight of Delaware charter

schools. A charter may be issued by an approving authority (i.e., a public school district

or the Department) with the approval of the State Board. 137 The Charter School Act

prescribes certain actions an approving authority must take, and others are left to the

approving authority’s discretion.      I conclude, for the reasons that follow, that the

Department’s decision to revoke New Moyer’s charter falls within the latter category.

         The Department’s decision to revoke New Moyer’s charter implicates Sections

515(f) and 516(2) of the Charter School Act. Under Section 516(2), an approved charter

“shall be subject to revocation or probation, after the exercise of due diligence and good

faith,” if the approving authority (here, the Department) determines that “[t]he school

fails to comply with its charter or to satisfy, in its operation of the school, the criteria set




135
      Pls.’ Op. Br. 48.
136
      Defs.’ Ans. Br. 36.
137
      14 Del. C. § 503.


                                              34
forth in [Section] 512.” 138 Thus, the Department’s determination under Section 516(2)

about whether New Moyer’s charter was subject to possible revocation or probation uses

the mandatory “shall” and is qualified by reference to the sixteen criteria specified in

Section 512, which are the conditions required for the issuance of a charter. Critically,

however, under Section 515(f), the ultimate decision to revoke a charter is permissive as

the statute uses the term “may” and is not qualified by reference to any criteria:

         If the approving authority determines that the criteria for remedial action set
         forth in § 516 of this title have been satisfied, it may revoke the charter and
         manage the school directly until alternative arrangements can be made for
         students at the school or place the school on a probationary status subject to
         terms determined by the approving authority which are directly relevant to
         the violation or violations. 139

In my view, the ability of the Department to revoke a charter is discretionary because

there are no substantive limits on the Department’s decision-making process. Although

the Department does not have the discretion to revoke a charter unless that charter is

subject to revocation under Section 516, once a charter is subject to revocation, Section

515(f) affords the Department the discretion to revoke or not to revoke it. No provision

of the Charter School Act sets forth any criteria that mandates or prohibits revocation

under Section 515(f). Because the Department’s decision to revoke a charter ultimately




138
    14 Del. C. § 516(2). A charter shall also be subject to revocation or probation if, after
the exercise of due diligence and good faith, the approving authority determines that
“[t]he school, or its representatives, has committed a material fraud on the approving
authority or misappropriated federal, state or local funds.” 14 Del. C. § 516(1).
139
      14 Del. C. § 515(f) (emphasis added).


                                               35
is discretionary and not subject to any substantive limits, I conclude that New Moyer has

no legitimate claim of entitlement to the four-year charter it received. 140

         My conclusion is supported by Chief Judge Stark’s recent decision in Reach

Academy for Boys and Girls, Inc. v. Delaware Department of Education, 141 in which he

addressed whether students had a protected property interest in a charter where the

Department decided not to renew the charter after its initial term. Under Section 514A(b)

of the Charter School Act, the Department has the authority to decide, at the end of a

charter’s term, whether to renew the charter: a charter “may be renewed for successive 5-

year terms.” 142 There is no mandatory “shall” or objective criteria that prescribes, one

way or the other, whether to renew a charter. Focusing on the use of the word “may” in

Section 514A(b), Chief Judge Stark concluded that the plaintiffs—individual students

who attended the charter school—had no constitutionally protected property interest in




140
    New Moyer also asserts that the Performance Agreement is a basis for its
constitutionally protected property interest. I disagree. The language of the Performance
Agreement, providing that it would “continue in full force and effect during the term of
the school’s charter,” does not supersede or otherwise restrict the Department’s discretion
under Section 515(f) to revoke New Moyer’s charter before its expiration. The
Department perhaps could have entered into such an arrangement with New Moyer, but
such an agreement would have vastly different provisions than the one-sided terms of the
Performance Agreement, which impose no obligations on the Department and expressly
recognize the Department’s right to place a charter on formal review. See supra note 57.
Thus, New Moyer has no legitimate claim of entitlement as a Constitutional matter to its
charter under the Performance Agreement.
141
   2014 WL 2445804, -- F. Supp. 2d – (D. Del. May 30, 2014), modifying 8 F. Supp. 3d
(D. Del. 2014).
142
      14 Del. C. § 514A(b) (emphasis added).


                                               36
the school’s charter because the Charter School Act vested the Department “with the

discretion to renew or not renew charters.” 143

          The use of the “may” in Section 515(f)—without any specific criteria to guide the

Department’s determination of whether a charter subject to revocation should actually be

revoked—is analytically similar to the use of the “may” in Section 514A. Although

Section 515(f) operates differently than Section 514A(b) in that only Section 515(f)

references the criteria incorporated into Section 516, this is a distinction without a

difference in my view. There is no statutory analogue for when a charter “shall be

subject” to renewal because there is no need for one. By its terms, a charter exists for a

specified term and then expires.

          The ultimate decision under Section 515(f) whether to revoke a charter subject to

revocation, much like the decision under Section 514A(b) whether to renew a charter

whose term is about to expire, is within the discretion of the Department. Thus, just as in

Reach Academy, where Chief Judge Stark concluded that the plaintiffs did not have a

constitutionally protected interest in a charter because the Department had discretion

under Section 514A(b) to decide whether or not to renew a charter, 144 I conclude that

New Moyer does not have a constitutionally protected property interest in its charter

because the Department has the discretion under Section 515(f) to decide whether or not

to revoke the charter.


143
   Reach Academy, 2014 WL 2445804, at *7. Reach Academy, like this case, involved a
preliminary injunction motion and a motion to dismiss for failure to state a claim.
144
      See id.


                                             37
         This conclusion also is consistent with the substantial authority cited by

Defendants finding there to be no constitutionally protected interest in a charter school,

both in the context of addressing revocation of a charter 145 and non-renewal of a

charter. 146 New Moyer, by contrast, relies solely on Northside Urban Pathways Charter

School v. State Charter School Appeal Board. 147 That case is inapposite.

         The key issue before the Northside Urban court was whether a Pennsylvania state

agency had subject matter jurisdiction to hear an appeal of a school district’s decision to

deny a charter school’s charter modification request. 148 Although the court noted that a




145
    See, e.g., Project Reflect, Inc. v. Met. Nashville Bd. of Pub. Educ., 947 F. Supp. 2d
868, 878 (M.D. Tenn. 2013) (concluding that a charter school did not have a
constitutionally protected interest in its charter under Tennessee law because the statutory
provision governing charter revocation “uses the language of discretion, not entitlement,
and only minimally conditions that exercise of discretion”); see also Project Sch. v. City
of Indianapolis, 2012 WL 3114573, at *3 (S.D. Ind. July 31, 2012) (concluding that there
was no protected property interest in a charter under Indiana law because “the charter
school statute frames the decision to revoke a charter as a discretionary matter”).
146
   Pinnacle Charter Sch. v. Bd. of Regents of the Univ. of N.Y., 969 N.Y.S.2d 318, 320-
21 (N.Y. App. Div. 2013) (“[T]he New York Charter Schools Act . . . creates no
constitutionally protected property interest in the renewal of a charter[.]”); State v.
Williamson, 141 S.W.3d 418, 427-28 (Mo. Ct. App. 2004) (“[J]ust as a prospective
charter school has no protected property interest at stake regarding an initial charter
application, the school also has no protected property interest under the [Missouri]
Charter Schools Act with regard to renewal of its charter.”).
147
      56 A.3d 80 (Pa. Commw. 2012).
148
   Id. at 84 (citing Foreman v. Chester-Upland School Dist., 941 A.2d 108, 115 (Pa.
Commw. 2008) (concluding, in determining whether a state agency had authority to
modify a charter as a contract, that “the relationship between a school district and a
charter school is not contractual, but regulatory”)).


                                            38
“charter school has a protected property interest in its charter” 149 under the Pennsylvania

Charter School Law, the court did not address the significance of statutory provisions like

those in the Delaware Charter School Act, discussed above, which expressly afford the

approving authority the discretion to decide whether or not to renew or revoke a charter.

                          b.    The Individual Plaintiffs Have No Protected Property
                                Interest

            The Individual Plaintiffs contend they have a protected property interest in New

Moyer’s charter under the Due Process Clause because Delaware law “grants an express

entitlement to the students of choice schools to graduate from their school of choice.” 150

In support, the Individual Plaintiffs rely exclusively on their interpretation of Section

407(a)(1) of the Choice Program, which provides that “a pupil accepted for enrollment”

in a choice school “shall be entitled to remain enrolled therein until graduation from the

school.” 151 Based solely on this statute, the Individual Plaintiffs contend that the State

must provide (and has failed to provide) appropriate procedural due process before

depriving them of their property interest in graduating from New Moyer. 152

            Defendants, in opposition, contend that the Individual Plaintiffs do not have a

legally protected property interest in New Moyer’s charter because Delaware students do

not have a State-created right to graduate from a particular school.           Specifically,

149
      Id.
150
      Pls.’ Op. Br. 47.
151
      14 Del. C. § 407(a)(1).
152
      Pls.’ Reply Br. 15-17; Pls.’ Op. Br. 47-48.


                                               39
Defendants argue that the Individual Plaintiffs’ proffered interpretation of Section

407(a)(1) of the Choice Program directly conflicts with the plain language of Section

516(2) of the Charter School Act, which permits the Department to revoke New Moyer’s

charter, and thereby close the school, if it fails to comply with its obligations under its

charter. 153 Read together, according to Defendants, Section 407(a)(1) “generally allows a

student to remain enrolled until graduation at a school that remains open and

operational,” while Section 516(2) “applies to the determination of whether a charter

school remains in compliance with statutory requirements and its charter.” 154 I agree.

          In my opinion, Section 407(a)(1) of the Choice Program does not provide

Delaware students a legitimate claim of entitlement to graduate from a school at which

they are enrolled. 155 The Choice Program, particularly Section 407, is a student-centered

statute. Section 407(a)(1) provides, in relevant part:


153
      Defs.’ MTD Op. Br. 26-27.
154
      Id. 28.
155
    My analysis of the meaning of Section 407 is guided by familiar principles of
statutory interpretation:

          In interpreting a statute, Delaware courts must ascertain and give effect to
          the intent of the legislature. If the statute is found to be clear and
          unambiguous, then the plain meaning of the statutory language controls. . . .
          [A] statute is ambiguous only if it is reasonably susceptible of different
          interpretations, or if a literal reading of the statute would lead to an
          unreasonable or absurd result not contemplated by the legislature. . . .
          Courts also should ascribe a purpose to the General Assembly’s use of
          statutory language, and avoid construing it as surplusage, if reasonably
          possible.

In re Krafft-Murphy Co., Inc., 82 A.3d 696, 702 (Del. 2013).


                                               40
         (a)(1) A pupil accepted for enrollment in a school or program pursuant to
         this chapter shall be entitled to remain enrolled therein until graduation
         from the school or completion of the program provided that the pupil
         continues to meet the requirements for such school or program[.]

The plain language of Section 407(a)(1) means that, once a choice school accepts a

student for enrollment, that school may terminate the student’s enrollment for only

certain specified reasons. Similarly, Section 407(a)(2), which is not at issue here, limits

the ability of a student accepted for enrollment at a choice school to change his or her

choice school during a two-year period to only certain specified reasons.

         Although Section 407(a)(1) is to be construed broadly, 156 a necessary and

fundamental implication of Section 407(a) is that a school must be open for these Choice

Program protections to attach. As Plaintiffs recognized at oral argument, the protections

of Section 407 are available only if, for example, the school is adequately funded. 157 In

the case of New Moyer, this means that the protections of Section 407(a) are available

only if the school has a charter to operate.

         Plaintiffs’ interpretation of Section 407 is plainly incorrect in my view because it

would allow the student-centered provision of Section 407 to eviscerate the school-

centered provisions of the Charter School Act and the General Assembly’s express

directive for the Department to oversee public education in the State, which includes the



156
   14 Del C. § 401(b) (“It is therefore the intent of the General Assembly that this
chapter be construed broadly to maximize parental choice in obtaining access to
educational opportunities for their children.”).
157
      Tr. of Oral Arg. 11-12.


                                               41
authority to revoke and to not renew a charter. Nothing in Section 407 indicates that the

General Assembly intended the statute to have this effect.

       In light of the distinct subject matters addressed by the Choice Program and the

Charter School Act, both of which were adopted by the General Assembly on July 10,

1995, I conclude that Section 407(a)(1) was not intended to create a legitimate claim of

entitlement that would prevent the Department from exercising its statutory discretion

under Section 515(f) to revoke New Moyer’s charter unless it satisfied the Individual

Plaintiffs’ rights under the Due Process Clause. 158 In short, neither Section 407(a) nor

any other provision of the Delaware Constitution, Delaware statutory law, or Delaware

common law that has been identified endows Delaware students with the right to

graduate from a particular school. 159 Thus, I conclude that the Individual Plaintiffs do

not have a protected property interest in graduating from New Moyer.




158
   The fact that, as discussed above, the Department has broad discretion in determining
whether to renew a charter is further legal support for my conclusion that Delaware
students do not have a constitutionally protected interest in attending New Moyer. See
Reach Academy, 2014 WL 2445804, at *7 (“The interest Plaintiffs assert, the renewal of
Reach’s charter, is not an interest protected by the Fourteenth Amendment’s Due Process
Clause.”).
159
    Accord Mullen v. Thompson, 31 F. App’x 77, 79 (3d Cir. 2002) (“[Pennsylvania
students] have no constitutionally cognizable property or liberty interest in attending the
individual school of their choice.”); Pocono Mountain Charter School v. Pocono
Mountain School Dist., 442 F. App’x 681, 685 n.5 (3d Cir. 2011) (“[S]tudents do not
have a cognizable liberty or property interest in going to a school of their choice.”).


                                            42
                          c.      Even if New Moyer and the Individual Plaintiffs Had
                                  Protected Property Interests, They Received Due Process

            “Only after finding the deprivation of a protected interest [does the Court] look to

see if the State’s procedures comport with due process.” 160 Assuming, for the sake of

argument, that New Moyer had a protected interest in its charter and that the Individual

Plaintiffs had a protected interest in graduating from New Moyer, Plaintiffs have still

failed to show a reasonable probability of success on their procedural due process claims.

            Plaintiffs’ procedural due process challenges are straightforward. They contend

that Defendants gave inadequate notice on the Department’s website about the Formal

Review notice. They also contend that Defendants “failed to provide Plaintiffs with

ample opportunity to be heard” by (i) not permitting a reasonable opportunity to

introduce evidence, to examine witnesses, or to make argument; and (ii) holding the

Committee’s public hearing in Dover. 161              In response, Defendants have submitted

evidence disputing Plaintiffs’ contention concerning the website and further assert that

the requirements of the Due Process Clause are flexible such that a trial-like proceeding

was not “required or warranted” to revoke New Moyer’s charter. 162 Thus, Defendants

argue that the statutorily prescribed process they undertook provided “more than ample

notice and an opportunity to be heard” than the Due Process Clause requires. 163


160
      Sullivan, 526 U.S. at 59.
161
      Pls.’ Op. Br. 52.
162
      Defs.’ Ans. Br. 50.
163
      Id.


                                                 43
         “The essence of due process is the requirement that ‘a person in jeopardy of

serious loss (be given) notice of the case against him and opportunity to meet it.’” 164

“The opportunity to present reasons, either in person or in writing, why proposed action

should not be taken is a fundamental due process requirement.” 165               In Mathews v.

Eldridge, the United States Supreme Court set forth several factors that a court must

balance in determining the procedural process due in a given situation:

         First, the private interest that will be affected by the official action; second,
         the risk of an erroneous deprivation of such interest through the procedures
         used, and the probable value, if any, of additional or substitute procedural
         safeguards; and finally, the Government’s interest, including the function
         involved and the fiscal and administrative burdens that the additional or
         substitute procedural requirement would entail. 166

The Mathews test, as the Supreme Court has repeatedly recognized, is one of

“flexibility.” 167



164
      Mathews v. Eldridge, 424 U.S. 319, 348 (1976) (citation omitted).
165
      Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985).
166
      Mathews, 424 U.S. at 335.
167
  Heller v. Doe, 509 U.S. 312, 332 (1993) (quoting Greenholtz v. Inmates of Neb. Penal
& Corr. Complex, 442 U.S. 1, 13 (1979)).

   Plaintiffs contend that “procedural due process can also be offended when
governmental action violates protected rights in an arbitrary and capricious manner.”
Pls.’ Reply Br. 27. They cite two cases for support: (i) Ridings v. Unemployment
Insurance Appeal Board, 407 A.2d 238 (Del. Super. 1979), in which the plaintiff alleged
a lack of procedural due process because he could not testify in support of his claim
before the state unemployment benefits board; and (ii) Chung v. Park, 514 F.2d 382, 387
(3d Cir. 1975), in which a terminated college professor challenged, on due process
grounds, the procedures imposed at a pre-termination hearing before an arbitration panel.
In my opinion, when the quotations cited by Plaintiffs from Ridings and Chung are
analyzed in context, they are not persuasive support for Plaintiffs’ argument. In any

                                                44
         In my opinion, Plaintiffs received adequate due process of the Department’s

decision to revoke New Moyer’s charter. It is undisputed that New Moyer received the

Formal Review notice and Defendants have submitted an affidavit, which I credit,

attesting that the notice was available on the Department’s website from July 18, 2014

(the day after the Formal Notice was issued) until November 7, 2014, by which time the

revocation decision had been made and announced publicly. 168 No evidence has been

submitted that anyone who wished to attend the Committee’s hearing on August 5, its

meeting on August 29, or the State Board and Department’s joint hearing on September

10 was unaware of the opportunity to do so, or that the statutorily required notice of those

hearings was not provided. 169

         The record further reflects that Defendants followed the process required by the

Charter School Act 170 before revoking New Moyer’s charter, including:

      • On July 17, 2014, providing the Formal Review notice to New Moyer;

      • Appointing the Committee to conduct a review;

      • On August 5, 2014, holding a meeting between the Committee and New Moyer to
        discuss the areas of concern identified in the Formal Review notice;




event, Plaintiffs’ contention is inconsistent with the United States Supreme Court’s more
recent precedents cited above, including Mathews and its progeny, which focus the
procedural due process inquiry on the provision of notice and an opportunity to be heard.
168
      See supra note 93.
169
      See 29 Del. C. § 10004(e).
170
      14 Del. C. §§ 515(b)-(d).


                                            45
      • On August 5, 2014, holding a public hearing in Dover before the Committee
        issued its Initial Report;

      • Providing New Moyer the opportunity to review and comment on the Committee’s
        Initial Report by August 22, 2014;

      • On August 29, 2014, holding a public meeting in Dover to discuss the
        Committee’s Initial Report and New Moyer’s response;

      • Providing New Moyer the opportunity to review and comment on the Committee’s
        Final Report by September 15, 2014; and

      • On September 10, 2014, holding a joint public hearing of the Department and the
        State Board in Wilmington to discuss the Committee’s Final Report.

In sum, throughout this process, New Moyer was given adequate notice and a meaningful

opportunity to be heard before the Department revoked its charter. In fact, numerous

New Moyer representatives attended Committee meetings and the public hearings, and

New Moyer submitted a written response to the Committee’s Initial Report.              New

Moyer’s decision not to respond in writing to the Committee’s Final Report does not

change the fact that New Moyer had a meaningful opportunity to do so.

         Given the respective interests of Plaintiffs and Defendants under the Mathews test,

the Due Process Clause did not require, in my view, that Plaintiffs have the opportunity

to formally introduce evidence, 171 to examine witnesses, or to make argument at a trial-

like proceeding. In my opinion, those additional procedures are not warranted given the

procedures already in place under the Charter School Act, and any arguable benefit

derived from them would be outweighed by the significant fiscal, administrative, and


171
   As discussed above, Plaintiffs were afforded the opportunity to submit written
comments to the Committee and did so on at least one occasion.


                                             46
logistical burdens of imposing such requirements on the approving authority whenever it

is necessary to determine whether any of the over 30 charter schools in Delaware 172 is

violating the terms of its charter and whether remedial measures should be ordered—a

process that is to be completed within 60 working days. 173

         Finally, I am not persuaded that Defendants acted unconstitutionally by holding

the Committee’s public meetings and a public hearing in Dover, where the main office of

the Department is located, as opposed to Wilmington.          Plaintiffs do not suggest the

Committee was legally required to meet in Wilmington, and they have not offered any

evidence that Defendants’ decision to hold those hearings in the State capital was out of

the ordinary for that type of proceeding. The final public hearing held by the Department

and the State Board on September 10, moreover, was held in Wilmington.

         For the reasons explained above, even assuming arguendo that New Moyer had a

protected interest in its charter and/or that the Individual Plaintiffs had a protected

interest in graduating from New Moyer, Plaintiffs have failed to demonstrate a reasonable

probability of success on the merits of their procedural due process claims.




172
   I take judicial notice of the number of charter schools currently operating in Delaware
because this fact is not subject to reasonable dispute. See About Us, Delaware Charter
Schools Network, available at http://decharternetwork.org/About-Us. D.R.E. 201(b).
173
      14 Del. C. § 515(c).


                                            47
                        d.     Plaintiffs Have Failed to Show a Reasonable Probability
                               of Demonstrating that Defendants Violated the Charter
                               School Act Procedures

         Plaintiffs argue that the Department failed to comply with the Charter School Act

in two respects when it revoked New Moyer’s charter: (i) by not revoking New Moyer’s

charter effective immediately as opposed to making the revocation effective at the end of

the 2014-15 school year; and (ii) by sending the Secretary’s letter formally revoking New

Moyer’s charter 61 days after the Formal Review notice, which is one day after the 60-

working-day deadline in Section 515(b). 174           Plaintiffs contend that these alleged

violations deprived Plaintiffs of a protected interest in violation of the Due Process

Clause. 175 Assuming, without deciding, that Plaintiffs’ legal theory is viable, Plaintiffs

are unlikely to succeed on the merits of either claim in my view.

         As to the first claim, Section 515(f) provides that the Department “may revoke the

charter and manage the school directly until alternative arrangements can be made for

students at the school or place the school on a probationary status.” 176 Although this

language implies that the Department may revoke a charter immediately, nothing in the

statute expressly addresses when a revocation decision must become effective. Nor does

the statute expressly prohibit the Department from making a revocation effective at a

future date. In another context, the General Assembly’s use of the word “may” has been


174
      Pls.’ Reply Br. 20; Pls.’ Op. Br. 50-51.
175
      Pls.’ Reply Br. 17-18 n.10.
176
      14 Del. C. § 515(f).


                                                 48
interpreted to mean “a permissive approach that authorizes [action] by the means

specified, but not ruling out [action] by other means.” 177 In my opinion, interpreting

Section 515(f) in this manner is consistent with the apparent intent of the statute to

facilitate an orderly transition for the students when the Department decides to revoke a

charter. 178 Thus, I conclude that, under Section 515(f), the Department has the discretion,

which it exercised with respect to New Moyer’s charter, to revoke a charter effective at a

future date. 179

       As to the second claim, assuming that Plaintiffs’ interpretation of the 60-working

day requirement is correct, 180 which I need not decide, a one-day violation of the 60-


177
    See, e.g., Biolase, Inc. v. Oracle P’rs, L.P., 97 A.3d 1029, 1033-34 (Del. 2014)
(concluding that it was “sensible and reasonable” to interpret 8 Del. C. § 141(b), which
provides that a director “may resign . . . upon notice given in writing,” to not preclude a
director from resigning orally).
178
   See also 14 Del. C. § 515(i) (“In the event of a charter school closure for any reason,
the approving authority shall oversee and work with the closing school to ensure a
smooth and orderly closure and transition for students, parents and employees, as guided
by the closure protocol.”).
179
    Plaintiffs’ Section 515(f) challenge is curious. Given that Plaintiffs are seeking to
preserve the ability of the current Board to oversee the management of New Moyer until
the end of the 2015-16 school year, it is surprising that they would object to the current
management structure not being displaced immediately.
180
   None of the parties submitted any legal authority interpreting the 60-working day
requirement in Section 515(c). Defendants contend that, although the Secretary did not
send his letter notifying New Moyer of the decision to revoke its charter until 61 working
days after the Formal Review notice was issued, the decision had been publicly
announced, and thus was “issued” within the meaning of Section 505(c), at the public
hearing held on October 9, 2014, which was within the required 60-working day period.
Defs.’ Ans. Br. 53. There is also a legitimate argument that the 60-working-day
requirement is merely directory rather than truly mandatory. See, e.g., Bartley v. Davis,
519 A.2d 662, 667 (Del. 1986) (“There is no universal standard or test for determining

                                            49
working day deadline in Section 515(c) is hyper-technical and does not amount to a

constitutional violation of due process. Plaintiffs have not shown any prejudice from the

one-day delay, let alone prejudice that, without more, would constitute a violation of the

Due Process Clause.

                2.     Substantive Due Process Claim

         As Plaintiffs acknowledged at oral argument, the thrust of their application for a

preliminary injunction is predicated on their procedural due process claims addressed

above. Insofar as Plaintiffs raised substantive due process claims in their briefs, they can

be addressed in short order.

         Under the Third Circuit’s decision in Nicholas v. Pennsylvania State University, 181

which cites extensive supporting authority and which I find to be persuasive here, the

protections of substantive due process attach only where a plaintiff has demonstrated

deprivation of an interest that is considered a “fundamental” right under the United States

Constitution. 182 Defendants contend that any protected interest of Plaintiffs, if it exists,




whether a statute is directory or mandatory. . . . The question is, what did the legislature
intend that the consequences of noncompliance with the statutory command be?”).
181
      227 F.3d 133 (3d Cir. 2000).
182
   Id. at 140 (citing, inter alia, Nilson v. Layton City, 45 F.3d 369, 372 (10th Cir. 1995);
McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (en banc); Sutton v. Cleveland
Bd. of Educ., 958 F.2d 1339, 1351 (6th Cir. 1992); Huang v. Bd. of Governors of Univ. of
N.C., 902 F.2d 1134, 1142 n. 10 (4th Cir. 1990)) (“[W]e believe that a careful review of
the case law does reveal one guiding principle: whether a certain property interest
embodies this ‘particular quality’ is not determined by reference to state law, but rather
depends on whether that interest is ‘fundamental’ under the United States Constitution.”).


                                              50
“does not rise to the level of a ‘fundamental’ right.” 183 I agree.

         Plaintiffs have cited no federal or state authority in which a court has held that

students have a fundamental right under the Constitution to attend a particular school or

that a charter school has a fundamental right under the Constitution to remain open. In

the absence of any such authority, and in light of the United States Supreme Court’s

directive that a court should “exercise the utmost care” when asked to “break new

ground” in the jurisprudence of substantive due process, 184 I decline to find that any

supposed protected interest Plaintiffs have advanced constitutes a “fundamental” right. 185

         This conclusion logically follows from my prior conclusion, for the reasons

explained above, that neither the Individual Plaintiffs nor New Moyer have established

the existence of a protected property interest regarding New Moyer’s charter under the

Due Process Clause for purpose of invoking the protections of procedural due process.

Thus, I decline Plaintiffs’ request to second-guess the substantive merits of the




183
      Defs.’ MTD Op. Br. 51.
184
   Collins v. City of Harker Heights, Tex., 503 U.S. 115, 125 (1992) (“[T]he Court has
always been reluctant to expand the concept of substantive due process because
guideposts for responsible decisionmaking in this unchartered area are scarce and open-
ended.”).
185
    “The mere novelty of such a claim is reason enough to doubt that ‘substantive due
process’ sustains it; the alleged right certainly cannot be considered ‘so rooted in the
traditions and conscience of our people as to be ranked as fundamental.’” Reno v. Flores,
507 U.S. 292, 303 (1993) (citations omitted).


                                              51
Department’s decision to revoke New Moyer’s charter through the prism of a substantive

due process analysis. 186

                 3.       The Lack of Judicial Review Claim

         Plaintiffs assert that the Charter School Act violates their rights to due process

under the Constitution insofar as it “purports to preclude judicial review of the decision”

of the Department to revoke New Moyer’s charter. 187          Defendants respond that the

Charter School Act properly precludes a direct appeal, but that a limited right of appeal is

available in the form of certiorari review in the Superior Court (but not in the Court of

Chancery), which Plaintiffs failed to pursue. 188 For the reasons discussed below, I find


186
    Plaintiffs made essentially three contentions in support of their substantive due
process claim: (i) the Committee purportedly did not consider material facts in its Final
Report, such as the role of K12 in New Moyer’s academic performance; (ii) the
Department purportedly treated New Moyer differently than other charter schools with
similar academic performance issues; and (iii) the Department purportedly failed to
consider New Moyer’s request to implement the SpringBoard curriculum before revoking
its charter. Pls.’ Op. Br. 54-58. Were one to engage in a substantive due process
analysis, the standard of review that would apply to the Department’s revocation of New
Moyer’s charter, as non-legislative action, is “shocks the conscience,” which
encompasses “only the most egregious conduct.” Cnty. of Sacramento v. Lewis, 523 U.S.
833, 846 (1998); United Artists Theatre Circuit, Inc. v. Twp. of Warrington, PA, 316 F.3d
392, 399-400 (3d Cir. 2003) (“[E]xecutive action violates substantive due process only
when it shocks the conscience but that the meaning of this standard varies depending on
the factual context.”). Without engaging in a point-by-point review of the merits, the
Department’s ultimate decision to revoke New Moyer’s charter instead of placing New
Moyer on probation does not shock the conscience, in my view, given that New Moyer
indisputably was the lowest performing charter school in the State during the 2013-14
academic year based on the State’s testing standards, and given that its academic
performance had declined markedly from the prior year.
187
      Pls.’ Op. Br. 58.
188
   Defs.’ Ans. Br. 56. On December 30, 2014, the same day their reply brief on the
present motion was due, Plaintiffs moved to amend the Consolidated Complaint to add a

                                              52
(1) that the Charter School Act implies that a charter school may challenge whether the

Department’s decision to revoke a charter was made “after the exercise of due diligence

and good faith” but may not challenge the merits of a decision to revoke a charter, and (2)

that evidence Plaintiffs have presented fails to demonstrate that it is reasonably probable

the Department did not exercise due diligence or act in good faith in this case.

       The Charter School Act provides that the availability of appellate review of the

approving authority’s decision to revoke a charter depends on the identity of the

approving authority. Under Section 515(g), if a local school district decides to revoke a

charter it granted, the charter school may pursue in arbitration a claim to demonstrate

why that decision was in error:

       [i]f a local school district which is an approving authority decides to revoke
       the school’s charter or place the school on probationary status, the applicant
       may file for arbitration in writing with the American Arbitration
       Association in Philadelphia within 20 days of the local board’s decision
       stating the reasons why it believes the local board decision was in error. . . .
       The arbitrator shall convene a hearing and determine whether the local
       board’s decision was in error. . . . The arbitrator’s decision shall be final
       and binding upon the parties.

By contrast, under Section 515(h), “[i]f the approving authority is the Department and it

decides to revoke the school’s charter or place the school on probationary status, its



cause of action for review by writ of certiorari. Defendants filed an opposition to that
motion on December 31, 2014, which raises significant issues concerning whether the
Court of Chancery has subject matter jurisdiction over such a claim. See Maddrey v.
Justice of Peace Court 13, 956 A.2d 1204, 1207 (Del. 2008) (“[T]he Superior Court has
original and exclusive jurisdiction among trial courts under the Delaware Constitution to
issue common law writs of certiorari to inferior tribunals[.]”). Because Plaintiffs did not
fairly present a claim for certiorari review in connection with their application for a
preliminary injunction, I do not consider this issue in resolving the present motion.


                                             53
decision shall be final and not subject to arbitration or judicial review.” 189 This provision

plainly evidences the General Assembly’s intention that the merits of a decision to revoke

a charter (i.e., whether that “decision was in error”) shall not be subject to judicial review

when that decision is made by the Department.

         On the other hand, Section 516 of the Charter School Act, which enumerates the

two reasons for which a charter may be revoked, expressly provides that the charter

“shall be subject to revocation or probation, after the exercise of due diligence and good

faith[.]” 190 By necessary implication, this provision contemplates that a charter school

may seek judicial review to challenge whether the approving authority complied with the

“due diligence and good faith” standard in determining that one of the reasons for

revocation has been satisfied. 191 If this were not the case, the inclusion of the “due




189
   I note that Section 515(h) does not preclude Plaintiffs from asserting their Due Process
Clause claims by operation of the Supremacy Clause of the United States Constitution.
190
      14 Del. C. § 516 (emphasis added).
191
    The procedures governing the oversight and revocation process outlined in Section
515 of the Charter School Act afford the “applicant” or the “school” certain rights to
receive notice and the opportunity to review and comment on the Committee’s initial
report as well as to respond to the Committee’s final report. See 14 Del. C. §§ 515(b)-
(d). The statute also affords the “applicant” the right to arbitrate a revocation decision by
a local school district. Id. § 515(g). Based on these provisions, I find that the right of
review implied in Section 516 extends to New Moyer but does not extend to the
Individual Plaintiffs. For the avoidance of doubt, as I noted at the outset of my legal
analysis, I have not addressed in this opinion whether New Moyer has standing.


                                             54
diligence and good faith” language in Section 516 would be rendered meaningless

because no check would exist to ensure the standard was satisfied. 192

          In briefing the present motion, the parties provided no authorities concerning the

meaning of “due diligence and good faith.” The Court’s research shows that this specific

standard appears in only two provisions of the entire Delaware Code: Sections 512 and

516 of the Charter School Act, neither of which defines either “due diligence” or “good

faith.”

          Absent a definition in the Charter School Act, I must look elsewhere to determine

the plain meaning of “due diligence and good faith.” “Because dictionaries are routine

reference sources that reasonable persons use to determine the ordinary meaning of

words, [Delaware courts] often rely on them for assistance in determining the plain

meaning of undefined terms.” 193 Black’s Law Dictionary defines “due diligence” as

“[t]he diligence reasonably expected from, and ordinarily exercised by, a person who

seeks to satisfy a legal requirement or to discharge an obligation,” and it further defines

“diligence” as “[a] continual effort to accomplish something” and “[c]are; caution; the

attention and care required from a person in a given situation.” 194 These definitions are


192
   “[W]ords in a statute should not be construed as surplusage if there is a reasonable
construction which will give them meaning[.]” Oceanport Indus., Inc. v. Wilmington
Stevedores, Inc., 636 A.2d 892, 900 (Del. 1994).
193
   Freeman v. X-Ray Assocs., P.A., 3 A.3d 224, 227-28 (Del. 2010); see also Ingram v.
Thorpe, 747 A.2d 545, 548 (Del. 2000) (“Dictionary definitions of undefined terms can
be useful in construing statutes[.]”).
194
      Black’s Law Dictionary at 488 (8th ed. 2004).


                                              55
generally consistent with how the term “due diligence” is construed in the Delaware

Uniform Commercial Code, 195 and they also are captured well in the familiar concept of

the duty of care in Delaware corporate law. 196 Black’s Law Dictionary also defines

“good faith” as “[a] state of mind consisting in (1) honesty in belief or purpose, (2)

faithfulness to one’s duty or obligation, (3) observance of reasonable commercial

standards of fair dealing in a given trade or business, or (4) absence of intent to defraud

or to seek unconscionable advantage.” 197 This definition is a functional analogue of the

Delaware corporate law concept of good faith. 198

         Applying these concepts here, I conclude that the evidence of record is insufficient

to demonstrate that it is reasonably probable New Moyer could prove successfully at trial

that the Department did not exercise due diligence and good faith when it determined that

New Moyer failed to comply with its charter and to satisfy, in its operation of the school,




195
    See 6 Del. C. § 1-202 (“An organization exercises due diligence if it maintains
reasonable routines for communicating significant information . . . and there is reasonable
compliance with the routines.”).
196
   See, e.g., Aronson v. Lewis, 473 A.2d 805, 812 (Del. 1984) (“[D]irectors have a duty
to inform themselves, prior to making a business decision, of all material information
reasonably available to them.”).
197
      Black’s Law Dictionary at 713 (8th ed. 2004).
198
    See, e.g., In re Walt Disney Co. Deriv. Litig., 906 A.2d 27, 67 (Del. 2006) (“A failure
to act in good faith may be shown, for instance, where the fiduciary intentionally acts
with a purpose other than that of advancing the best interests of the corporation, where
the fiduciary acts with the intent to violate applicable positive law, or where the fiduciary
intentionally fails to act in the face of a known duty to act, demonstrating a conscious
disregard for his duties.”).


                                              56
criteria set forth in Section 512 of the Charter School Act. 199 In my opinion, the record

demonstrates that the Department properly exercised due diligence in finding that New

Moyer’s charter was subject to revocation for many of the same reasons, discussed

above, that demonstrate that the Plaintiffs were afforded appropriate due process. In

particular, the record shows that the Department actively sought to avail itself of all

material information reasonably available to it, including through the statutory process

that required public meetings and hearings and that permitted New Moyer to submit

written responses.

       Regarding the Department’s good faith, there is no persuasive evidence in the

record to suggest that the Department acted with an improper motive, 200 with an intention

to violate Delaware law, or in conscious disregard of the Charter School Act. Indeed, of

199
   Plaintiffs referenced the due diligence and good faith standard in their papers for the
purpose of arguing that Defendants’ conduct was arbitrary and capricious, see Pls.’ Op.
Br. 52, but they did not argue specifically that this standard was not met. Nonetheless, in
the interest of completeness, I consider whether the evidence of record is sufficient to
demonstrate a reasonable probability of success on such a claim.
200
    In my opinion, the overwhelming weight of the evidence in the preliminary record
disproves Plaintiffs’ speculation that Defendants wanted to shut down New Moyer for
any reason other than those first listed in the Secretary’s Formal Review letter, all of
which are grounds for revocation under Section 512 of the Charter School Act. Rather,
the evidence shows that Defendants repeatedly sought in good faith to help New Moyer
comply with the Charter School Act. For example, when the Department first discovered
that New Moyer was in violation of its charter during its first year by using a different
instruction method than that specified in its charter, the Department worked with New
Moyer to modify its charter, rather than take other remedial action. Similarly, it was the
Department that first suggested the SpringBoard curriculum to New Moyer, which
undermines Plaintiffs’ contention that Defendants were wedded to the use of K12 at New
Moyer. The inability of New Moyer to obtain Department approval to modify its charter
or to use the SpringBoard curriculum was not the product of any ulterior or improper
motives of Defendants.


                                            57
the seven areas of potential violations identified in the Secretary’s Formal Review notice,

only four areas formed the basis of the Department’s decision to revoke New Moyer’s

charter. This reflects a good faith effort by Defendants to determine whether New Moyer

was in violation of its charter and/or applicable law, and, if so, whether remedial

measures were appropriate.

                                           *****

         Because Plaintiffs have failed to demonstrate a reasonable probability of success

on the merits of any of the claims they have advanced on this motion, Plaintiffs have not

satisfied the standard to earn a preliminary injunction. I thus need not address the

elements of irreparable injury or the balance of the equities. 201

IV.      CONCLUSION

         For the foregoing reasons, Plaintiffs’ motion for a preliminary injunction is

DENIED.

         IT IS SO ORDERED.




201
      See Cantor Fitzgerald, 724 A.2d at 579.


                                                58
