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Indiana Coalition for Public Education v. McCormick

United States District Court, S.D. Indiana, Indianapolis Division

September 6, 2018



          Hon. Jane Magnus-Stinson, Chief Judge

         Indiana's Charter School Act (or “Act”), Ind. Code § 20-24-1-1, et seq., permits private and public universities (among other entities) to “authorize” public charter schools. Grace College, a religious institution, is among the private schools designated by the Act as an authorizer. The Indiana Coalition for Public Education (“Coalition”) is an organization that advocates for traditional public schooling and opposes the diversion of funds to charter schools. The Coalition brought suit not against Grace College, but against Seven Oaks Classical School, Inc. (“Seven Oaks”), a school authorized by Grace College, and the Superintendent of Public Instruction, alleging that the Act violates the Establishment Clause of the U.S. Constitution by permitting Grace College to act as an authorizer. The parties have filed cross-motions for summary judgment. [Filing No. 79; Filing No. 81; Filing No. 82.]

         The Court does not have the authority to reach the merits of the Coalition's claims. The Coalition ultimately fails to establish that its injuries are fairly traceable to the Act's authorizing provision or that they are redressable by the relief available in this Court, and therefore fails to establish the “irreducible constitutional minimum of standing.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Therefore, for the reasons described below, the Court DENIES the Coalition's Motion, GRANTS IN PART Defendants' Motions, and DISMISSES the Coalition's claims WIHTOUT PREJUDICE for lack of subject-matter jurisdiction.


         Legal Standard

          The parties move for summary judgment under Rule 56, which provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Defendants' standing arguments, which reach the Court's subject-matter jurisdiction, fall “under Rule 12(b)(1), not Rule 56.” Chicago Joe's Tea Room, LLC v. Vill. of Broadview, 894 F.3d 807, 814 (7th Cir. 2018). However, because “a defendant challenging jurisdiction need not accept as true the allegations in the complaint and may ask the court to decide the jurisdictional issue by considering additional documents and affidavits, ” a jurisdictional challenge under Rule 12(b)(1) at the summary judgment stage “makes the motion look a lot like a summary judgment motion.” Id.As the Supreme Court has explained, “[E]ach element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561. This means that, at the summary judgment stage, the plaintiff “can no longer rest on . . . ‘mere allegations'” to establish standing, “but must ‘set forth' by affidavit or other evidence ‘specific facts' which . . . will be taken to be true.” Id. (quoting Fed.R.Civ.P. 56(e)).

         As Lujan explains, Defendants' jurisdictional challenge at this stage borrows the evidentiary requirements and procedures from summary judgment procedure under Rule 56. Thus, Defendants assert that there is no genuine issue of material fact as to the Coalition's standing to bring this lawsuit, such that the Court should dismiss this matter for lack of subject-matter jurisdiction. Cf. Fed. R. Civ. P. 56(a). Whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Cf. Fed. R. Civ. P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Cf. Fed. R. Civ. P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Cf. Fed. R. Civ. P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of the motion to dismiss. Cf. Fed. R. Civ. P. 56(e).

         The Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, dismissal under Rule 12(b)(1) is appropriate if those facts are not outcome determinative. Cf. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not suffice to defeat a motion to dismiss supported by admissible evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         In response to a Rule 12(b)(1) motion that is supported by evidence, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Lujan, 504 U.S. at 561; cf. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The Court need only consider the cited materials, Fed. R. Civ. P. 56(c)(3), and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the . . . motion before them, ” Johnson, 325 F.3d at 898.



         As explained above, the Court must address its subject-matter jurisdiction before it may consider the merits of the Coalition's claims. The following background, based on the undisputed evidence, focuses on the facts relevant to the Coalition's standing, while providing additional information to assist in understanding the parties' dispute.

         A. The Parties

         The Coalition is a nonprofit association located in Monroe County, Indiana, which advocates for the funding of its local public school corporations, the Monroe County and Richland-Bean Blossom Community School Corporations, and against the diversion of funds to private and charter schools. [Filing No. 79-4 at 1.] Among other activities, the Coalition contributed funds to a successful referendum to support the Monroe County School Corporation, opposed the chartering of Seven Oaks, and helped the town of Stinesville keep its elementary school open despite budgetary issues. [Filing No. 79-3 at 2-4; Filing No. 79-5 at 4-5; Filing No. 79-13 at 23.]

         The Coalition's members include teachers, employees, board members, volunteers, and parents of schoolchildren at the two Monroe County public school corporations. [Filing No. 79-3 at 1; Filing No. 79-5 at 3.] These individuals report that their school corporations have suffered budget cuts, programming cuts, and a school closure, all of which negatively impact their abilities to educate students. [See generally Filing No. 79-3; Filing No. 79-5; Filing No. 79-13.] They attribute at least some of these budgetary constraints to the loss of students from the school corporations to Seven Oaks;[1] as explained in greater detail below, Indiana provides school funding (as relevant here) on a per-student basis. See Ind. Code §§ 20-43-4-2, 20-43-6-3, 20-43-3-8. [See generally Filing No. 79-3; Filing No. 79-5; Filing No. 79-13] Where the students go, so too does the money.

         The remaining Defendants include Intervenor-Defendant Seven Oaks, a secular public school chartered by Grace College, [Filing No. 81-1 at 25; Filing No. 81-3 at 2], and Superintendent of Public Instruction Jennifer McCormick. [See Filing No. 1 (Complaint); Filing No. 91 (dismissing Defendant James Betley).] The State Board of Education, for which Ms. McCormick serves as chairperson, consists of eleven members, Ind. Code § 20-19-2-2.2(a), and is responsible for establishing educational policy, Ind. Code § 20-19-2-14. Ms. McCormick also serves as director of the Department of Education, Ind. Code § 20-19-3-2-a separate entity from the Board-which is responsible for “distribut[ing] state tuition support distributions” to charter school organizers. Ind. Code § 20-24-7-2.

         The remaining entity critical to this case is nonparty Grace College, an “evangelical Christian community of higher education which applies biblical values in strengthening character, sharpening competence, and preparing for service.” [Filing No. 79-2 at 4.] Grace College requires its students to “accurately represent[] the Lord Jesus Christ . . . to the ends of the earth.” [Filing No. 79-2 at 7.] Grace College is an authorizer of charter schools under Indiana law, Ind. Code 20-24-1-2.5, and has granted charters to a total of four schools, including Seven Oaks, [Filing No. 81- 2 at 6]. The Coalition did not sue Grace College, and Grace College has not sought to intervene in this case.

         B. Charter Authorization System[2]

         With the stated goals of providing “innovative and autonomous programs” to serve “different learning styles” and offer “choices” and “flexibility, ” Ind. Code § 20-24-2-1, the Charter School Act created a group of “authorizers” to consider applications from prospective organizers wishing to operate “nonsectarian and nonreligious” public charter schools, Ind. Code § 20-24-1-4; e.g., Ind. Code §§ 20-24-1-2.5, 20-24-1-3, 20-24-3-1. The Act names as authorizers the mayor of Indianapolis, the Charter School Board, [3] and state and private nonprofit colleges, among others. Ind. Code § 20-24-1-2.5. Prior to July 1, 2015, this meant that any college providing a “four (4) year educational program” could authorize a charter school, Ind. Code § 20-24-1-2.5(5) (2013) (amended 2015); a subsequent amendment requires colleges to seek approval from the state board prior to becoming authorizers, though the amendment grandparented any college (such as Grace College) that had issued a charter prior to July 1, 2015, Ind. Code §§ 20-24-1-2.5(5), 20-24-2.2-1.2. Authorizers must “adopt standards of quality charter school authorizing, as defined by a nationally recognized organization with expertise in charter school authorizing.” Ind. Code § 20-24-2.2-1.5. At least three such standards exist, [see Filing No. 79-17 at 6], and the Coalition has not identified any evidence suggesting that any of these standards (including the standards followed by Grace College, [see Filing No. 81-2 at 8-35]) permit religious considerations in the authorizing process.

         A prospective organizer initiates the application process by submitting a proposal to an authorizer. Ind. Code § 20-24-3-4(a). The proposal must provide a variety of information ranging from governance structure, Ind. Code § 20-24-3-4(b)(3)(C), to instructional methods, Ind. Code § 20-24-3-4(b)(3)(F), to admission criteria, Ind. Code § 20-24-3-4(b)(3)(H), to financial plans, Ind. Code § 20-24-3-4(b)(3)(M). The authorizer is then responsible for reviewing the application pursuant to its “procedures, practices, and criteria, ” which must be “consistent with nationally recognized principles and standards for quality charter authorizing.” Ind. Code § 20-24-3-4.5. Prior to issuing a charter, the authorizer must conduct a public hearing in the school corporation where the proposed charter school would be located. Ind. Code § 20-24-3-5.5. Authorizers must annually report all charter proposals to the Indiana Department of Education, including the reasons for any rejections and the length of any approvals. Ind. Code § 20-24-3-10.

         A charter may only be granted for a period of three to seven years, Ind. Code § 20-24-4-1(a)(5)(A), after which the organizer and authorizer may agree to a renewal, Ind. Code § 20-24-4-1(a)(6)(B). A charter school must “not remain in the lowest category or designation of school improvement . . . in the third year after initial placement in the lowest category or designation” as determined by the State Board of Education. Ind. Code § 20-24-2.2-2(a). An authorizer wishing to renew a charter school that does not comply with these minimum standards must petition and appear before the state board. Ind. Code § 20-24-2.2-2(b)-(c). The state board may take any appropriate action, including ordering the closure of the underperforming school. Ind. Code § 20-24-2.2-2(d).

         The authorizer must conduct a performance review of a charter school at least once every five years, as specified in the charter. Ind. Code § 20-24-4-1(a)(6)(A). The charter must also specify its own standards for renewal, grounds for revocation of a charter prior to its expiration, and accountability and assessment methodology, among other details. Ind. Code § 20-24-4-1(a). Additionally, the charter school and authorizer must set annual performance goals “designed to help each school meet applicable federal, state, and authorizer expectations.” Ind. Code § 20-24-4-1(b).

         If an organizer's charter school proposal is rejected by an authorizer, the organizer may amend its proposal and submit the amended proposal to the same authorizer or may submit a proposal to another authorizer. Ind. Code § 20-24-3-11. There are no limitations on the number of times an organizer may submit a charter school proposal, see id., nor is the decision to grant a charter reviewable by a state official outside of the improvement standards set forth above, [Filing No. 79-26 at 2-3]. Once authorized, a charter school receives state financial support in the same manner as all other Indiana public school corporations. Ind. Code § 20-24-7-15.

         Under Indiana law, the funding follows the student, meaning that a public school's state funding is based upon the number of attending students. Ind. Code §§ 20-43-1-8, 20-43-6-3. Charter schools, moreover, are not restricted by school corporation boundaries, but instead “must be open to any student who resides in Indiana.” Ind. Code § 20-24-5-1. Indiana law also provides a mechanism for requesting transfers to school corporations outside of the boundaries of a student's local corporation. Ind. Code § 20-26-11-5. Finally, Indiana also has an uncapped voucher program for students meeting certain income- or non-income-based criteria who wish to take their per-student funding to an eligible private school. Ind. Code §§ 20-51-4-1 to -12. Many of the private schools participating in Indiana's voucher program are religious schools. Indiana Department of Education, 2018-2019 Participating Choice Schools, (Feb. 7, 2018), (current list of schools participating in Indiana's voucher program).

         C. Seven ...

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