IN THE COURT OF CHANCERY IN THE STATE OF DELAWARE

IN RE THE NEW MAURICE J. MOYER ACADEMY, INC. CONSOLIDATED 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. Mc C owan 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 Davi s, 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. Christo pher 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 ’ schoo ls 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. Maur ice 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.

1decision 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, fol lowing 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 chos e 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 schoo l 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 Consti tution 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 tha t 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.

2I also conclude that, altho ugh 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 revo ked 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 bel ow, 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 cha rter 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 The se 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, th e 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 Staf f 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.

3Plaintiffs Shau ni e ce 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 the se citizens and their minor children together as the “Individual Plaintiffs.”
Plaintif f The City of Wilmington , a Delaware municipal corporation, filed suit as
parens pa triae for the benefit of minor citizens w ho attend or wish to attend New Moyer

. Defendant Delaware Department of Educa tion (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 officia l capacity as the Secretary. Defendant Delaware State Board of Education (the “State Board”) , an entity within the Department , is the governing body of the Delawa re school system. T he 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. The y are sued solely in their official capacities as members of the State Board.
B. The Predeces sors to New Moyer In 2006, the Dep artment granted a charter for a school named The Maurice J. Moyer Academy, Inc. (“Old Moyer”) , which would be located in the City of Wilmington

.

4In February 2010, the Secretary of the Depar tment 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 fr om 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 an d 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.

5current Vice Chair man . 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 projecte d 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 serv ices

. 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.

6Board [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 purs uant 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 Moye r’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 educat ional 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 Chairm an, 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 CW00100 2

.

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

or Performing Arts based on the information submitted

. 21
In its report, t he 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 “speci fying 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 L anguage s, Visual Arts, and Perfo rming A r ts 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 iss uance of a charter to New Moyer , subject to the condition s 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 emp loyee inquired about the status of New Moyer’s services agreement with

21 Id.

22 Id. at CW00100 6 (condition #16)

. 23 Id. ( condition # 10 ).

24 Defs. ’ Ex. 5 at DOE

- MOYER00149 8

. 25 Id.

26 Curry Aff. ¶ 5.

8K12. T he 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 agre ement 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 a n Edu cation Products and
S ervices A greement (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 st udents , and New Moyer became “respo nsible 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.

9in 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 r eceive approval of its curriculum

. Thus, when New Moyer opened in fall 2012, it lacked a curricu lum approved by the Department. 32 O n 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 subm itted a p roposed 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 a cademic 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. I d. at CW00096 8 ( § 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.

10which academic performance was rated, New Moyer received two ratings of “exceeds standard,” two ratings of “meets standard,” six ra tings 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 O n 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, 201 2 , New Moy er applied to the Department to modify its charter by changing its curriculum and by decreas ing its authorized enrollment. 41

37 Id. at CW001085.

38 Pls.’ Ex. 39 at CW00074 4; Pls.’ Ex. 13 at CW001009.

39 Carwell Aff. ¶ 4.

40 Defs.’ Ex. 8.

41 Pls.’ Ex. 15.

11Regarding 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
t he 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 charte r 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 Chair man understood the importance of this meeting. Beforehand, i n 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
i s no more! ” 46

42 Id. at CW001056

- 57 ; Carwell Aff. ¶ 5.

43 Defs.’ Ex. 9 at MOYER

- COVERDALE000164.

44 Id. at MOYER

- COVERDALE0001 54

- 63

. 45 Defs.’ Ex. 10 at DOE

- MOYER001628.

46 Defs.’ Ex. 11

.

12After 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 “Correctiv e 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 pa rt 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 O n 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 Ne w Moyer’s curriculum “continue[d] to lack coherence, appropriate progression s 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

- MOYER00175 8

. 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 Standard s 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.

13improvement over the submiss ions 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 en tered 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 monito red 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 ag reement 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 CW00049 2 (assurance #13 ).

55 Pls.’ Ex. 18 at CW000561.

56 Id. at CW000559.

14school’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 Februar y 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

“ Correctiv e 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) T he Performance Agreement additionally provide s that, “[i]f the [Department] finds that the school is not making satisfactory progress toward its performance target s 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.

15for New Moyer to correct any systemic noncompliance in its special education procedures (“Prong 2 ”)

. 62 These deadl ines 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 st udent records were still noncompliant. 64 On June 23, 2014, the Department sent a letter to New Moyer outlin ing 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
T he Compliance Agreement required New Moyer to correct the 29 noncompliant student record s 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.
16satisfy Prong 2, to corre ct any systemic noncompliance in New Moyer’s special education procedures , until November 3, 2014. 69 The Department rated the o verall academic performance of New Moyer for the
2013

- 2014 academic school year to be “far below standard.” 70 Of th e seventeen
cat egories in which academic performance was rated (the fifteen categories from the prior year plus two new c ategories), New Moyer received zero ratings of “exceeds standard,”

one ratin g of “meets standard,” three rat ings 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 S tate. 72
For the 2013

- 2014 academic year, t he percentage of students scoring “proficient” according to Delaware state standards was 2 3.1 % 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.

17The Department also measured the growth of New Moyer st udents 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 dif ference” 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 SpringB oard in English Language Arts and M ath. 77 The Department had earlier suggested the SpringBoard curriculum to New Moyer in March and April 2014. 78 Sprin gBoard, 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.

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

w hile continuing to use online instruction in its e lective 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 re quest in which it expressed concern about implementing a new curriculum, and requeste d 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
T he Committee agreed to recommend New Moyer’s request for charter modific ation pending submission of satisfactory documents b y 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 Spring B oard and professional development for teacher s. 82
On Jul y 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 . A ccording 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.

19Committee, 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, n o representative of New Moyer addresse d the Committee at this hearing. On August 21, 2 014, 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 re quest. 88
H . The Department Places New Moyer under “Formal Review” On July 17, 2014, with the assent of the State Board, the Secre tary 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 af ter 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 Revie w 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
20with State law and/ or its charter: (i) academic performance; (ii) special education services ; (iii) educational program ming ; (iv) discipline and attendance; 90 (v) student assessment; (vi) staff cred entialing; and (vii) financial and administrative operation s . 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]tudent s 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 cate gory of disciple and attendance, the letter identified six items of concern. The first item reported that t he 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.

21Attached 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 a vailable. 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’ prel iminary 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 t o 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. T here 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 Depa rtment’s website from July 7 to November 7

. 94 Pls.’ Ex. 39 at CW000744 ; Pls.’ Ex. 31 at CW000666.

22Board , met with the Committee to discuss the seven areas iden t ified in the Secretary’s Formal Review notice

. 95 Two members of the public also attended this meeting. 96
Also o n August 5, 2014, immediately following the Committee’s public hearing

on New Moyer’s charter modification request to use SpringBoard , the Commit tee 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) o n 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 o f 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 ident ified in the Secretary’s Formal Review n otice

. 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

.

23On August 19, 2014, New Moyer submitted a written response. 100 In its response, New Moyer asserted that it s 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 p roficiencies 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 ou r 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 achieve ment during that same time, the [Moyer] Board will not seek renewal at the end of its charter term.” Id. at CW000730.

24On August 29, 2014, the Commit tee held a public meeting in Dover, Delaware.
Seven r epresentatives of New Moyer, including two members of the Moyer Board , attended , a s 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 program ming ; and (iv) school discipline. 106 B efore 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 fait h 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 the se 29 IEPs have been brought into compliance. Pls.’ Ex. 39 at CW000748

- 49.

106 Id. at CW000751.

107 Id.

108 Id.

25On September 5, 2014, the Co mmittee issued its Final Report, which recommended, for the four reasons listed at its August 29 meeting , revocation of New Moyer’s charte r , 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 N ews . 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 N ew 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 C W000749.

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.

26On October 9, 2014, at a public meeting of the State Board, the Secretary announced his decision to accept the recommendations of t he 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% i n 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 cha llen ges the school faced with respect to special education needs, including the requirement s for I EPs and adequate staffing

. 115

114 Pls.’ Ex. 41 at CW001154.

115 Id. In summation, the Secretary stated : While the public record makes clear the s chool’s dedication to improvement, my decision must be based upon evidence and not intentions. The accountability committee has determined that the s chool has failed to comply with its charter and satisfy in its operation of the s chool the criteria set fo rth in the charter law. To note specifically two area s , the s chool 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 Ci ty 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 standar ds, 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.
27T he State Board then unanimo usly 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 outli ned 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) e ducational 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 “o ne 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 Pron g 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 Proc ess Timeline , referenced supra. at n. 92.

117 Pls.’ Ex. 43.

118 Id. at CW000824

- 25.

28and each of its members. On November 26, 2014, five other Individual Plaintiffs and
New M oyer 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
pro ceedings. 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 Sch ool 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 Progr am”). 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

an d 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 impli ed covenant (Count V); parens patriae claims (Count VI); and arbitrary and capricious decision

- making (Count VII).

29Given 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’ det ermination of the merits of a cause before there can be a final adjudication of [ Plaintiffs’ ] claims.” 120 To obtain a preliminary injunction, Plaintiff s must establish three elements: (i) a reasonable probability of success on the merits; (ii) irreparable h arm 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, In c. 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).

30B . 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 s ubstantive 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 Wilmingto n 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).

31w hether 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 o r 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).

32interest where the decision to remove a benefit is left to the “unfet tered discretion” of the government actor. 132 Conversely, the State may create a constitutionally protected interest by placing a “ substantive limit ation 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 de cision 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 dis cretion 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. 20 02) ; 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 sta tute 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 di scretion 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.

33interest. 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 prop erty interest in its charter because, under Delaware law, the Dep artment’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 implic ates 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) deter mines 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.

34forth 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 ult imate 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 s atisfied, 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 discret ion 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 set s 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).

35is 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 en d 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 th e 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 constitutiona lly 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 discret ion 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 tha n the one

- sided terms of the P erformance 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 C onstitutional 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).

36the school’s charter because the Charter School Act vested the Depar tment “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. T here 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, j ust as in Reach Academy , where Chief Judge Stark concluded that the plaintiff s 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 inter e st in its c harter 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.

37This conclusion also is consistent with the substantial authority cited by Defendants finding there to be no constitutionally p rotected 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 North side Urban Pathways Charter School v. State Charter School Appeal Board

. 147 That case is inapposite. The key issue before the North side Urban c ourt 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. Edu c . , 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 stat utory 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) (co ncluding 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. , 9 69 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.3 d 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 sch ool 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 protect ed 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 exclusivel y 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 Indivi dual 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.

39Defendants argue that the Individual Plaintiffs’ proff ered 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 l ead 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 c hoice 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 ch oice 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 pro visions 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.

41authority to revoke and to not renew a charter. Nothing in Section 407 indicates that the
Genera l 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 Du e Process Clause. 158 In short, n either 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.”).

42c. 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 Defend ants 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 reasonabl e opportunity to introduce evidenc e, 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 th e 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 oppor tunity 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 p rocess 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 re asons, 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 proce dural 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 su bstitute procedural safeguar ds; 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 Supr eme 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)). Plaintif fs 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 Boar d , 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 con text, they are not persuasive support for Plaintiffs’ argument . In any
44In 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, providin g the Formal Review notice to New Moyer;

• Appoint ing the Committee to conduct a review;

• On August 5, 2014, h olding a meeting betw een 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 d ue 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, holdi ng 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 th e 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 b efore the Department revoked its charter. In fact, numerous New Moyer represe ntatives attended Committee meetings and the public hearings, and New Moyer submitted a written response to the Committee’s I nitial R eport. New Moyer’s decision not to respond in writing to the Committee’s Final Report does not change the fact that New Mo yer 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 out weighed 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.

46logistical burdens of imposing such requirements on the approving authority whenever it is necessary to determine whether any of the over 30 charter school s in Delaware 172 is violating the terms of its c harter 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 Dove r, 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 i n 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 N ew 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 pr ocess claims.

172 I take judicial notice of the number of charter schools currently operating in Delaware because this fact is no t 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).

47d. Plaintiffs Have Failed to Show a Reasonable Probability of Demonstrating that Defendants Violated the Charter School Act Procedures Plaintiffs argue that the D epartment 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 charte r 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, n othing in the
statute expressly add resses 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).

48interpreted 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 ord erly 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
f

uture 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 writ ing,” 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 closur e 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 not ifying 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 Octo ber 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
49working day deadline in Section 515(c) is hyper

- technical and does not am ount 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 Plaint iffs 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 Unit ed 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 13 3 (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. B d. 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 b y 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 t he 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 reluc tant 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 ce rtainly 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).

51Department’s decision to revoke New Moyer’s charter through the prism of a substanti ve 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 Departme nt 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 co ntentions 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 d ifferently 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.” Cn ty. 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

a nd good faith” but may not challenge the merits of a decision to revoke a charter, and (2) that evidence Plaintiffs have presented fail s to demonstrate that it is reasonabl y probab le the Department did not exercise due diligence or act in good faith in th is 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 authori ty 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 wi thin 20 days of the local board’ s decision stating the reasons why it believes the local board decision was in error.

. . . T he arbitrator shall convene a hearing and de termine 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 Depart ment 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 ha s 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 la w 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.

53decision shall be final and not subject to arbitration or judicial review. ” 189 This provision plainly evidences the General Assembly’s intention that the meri ts 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 fa ith [.]” 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 r evocation 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 5 16 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.

54diligence 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 pres ent motion, the parties provided no authorities concerning the meaning of “due diligence and good faith.” The Court’s research shows that t his specific standard appears in only two provisions of the entire Delaware Code: Sections 512 and 516 of the Charte r 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 refer ence sources that reasonable persons use to determine the ordinary meaning of words, [Delaware courts] often rely on them for assistance in de termining the plain meaning of undefined terms. ” 193 Black’s Law Dictionary defines “due diligence” as “[t]he dilige nce 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
atte ntion 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 b e useful in construing statutes[.]”).

194 Black’s Law Dictionary at 488 (8th ed. 2004).

55generally 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 comme rcial 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 probab le New Moyer could prove successfully at trial that the Department did not exercise due diligence and good faith when it determined that New Moyer fail ed 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. ”)

.

56criteria 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
Mo yer’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

m aterial information reasonably available to it, including through the statutory process that required public meeting s 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 intent ion 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 reaso n 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 comp ly 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 N ew 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.

57the seven areas of potential violations identified in the Secr etary’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.
* * * * *
Bec ause 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 s tandard 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