SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

Civil Division

VALERIE JABLOW, et al., Case No. 2018 CA 005755 B

Judge: Hon. Elizabeth Wingo
Plaintiffs, Next Event: Preliminary Injunction Hearing
Date: September 14, 2018
v.

DISTRICT OF COLUMBIA,

Defendant.

DEFENDANT’S OPPOSITION TO PLAINTIFFS’

MOTION FOR A PRELIMINARY INJUNCTION

This case arises out of the Mayor’s selection of members of a panel tasked with assisting

her in the selection of a new Chancellor of the District of Columbia Public Schools (DCPS).

Plaintiffs challenge the current panel composition, arguing that D.C. Code § 38-174 requires a

panel comprised exclusively of teachers, parents, and students. On September 4, 2018, Plaintiff’s

Motion for a Temporary Restraining Order was denied by the Judge-in-Chambers, Hon. Jeanette

J. Clark.

Defendant District of Columbia (the District) hereby opposes Plaintiffs’ Motion for a

Preliminary Injunction, and states as follows:

BACKGROUND

Pursuant to D.C. Code § 38-174(b)(1), the Mayor shall “[e]stablish a review panel of

teachers, including representatives of the Washington Teachers Union, parents, and students

(“panel”) to aid the Mayor in his or her selection of Chancellor.” In making her nomination for

Chancellor, “[t]he Mayor shall consider the opinions and recommendations of the panel” . In

addition to the panel’s recommendations the Mayor is to “give great weight to any
recommendation of the Washington Teachers Union.” Id. at § (b)(2). The Mayor must provide

“the resumes and other pertinent information pertaining to the individuals under consideration, if

any, to the panel,” and convene a meeting to hear the review panel’s “opinions and

recommendations.” D.C. Code §§ 38-174(b)(1)(B), (C).

On June 28, 2018, Mayor Muriel Bowser began the process of choosing a new DCPS

Chancellor by constituting a panel of individuals in accordance with the provisions of D.C. Code

§ 38-174. Although the panel membership has now been expanded, the panel’s fourteen

original members were: Sylvia Mathews Burwell, President of American University; Dr.

Charlene Drew Jarvis, University of the District of Columbia Board of Trustees; Anita Berger,

Principal, Banneker High School; Rosa Carrillo, a DCPS parent and Language Services Program

Director of Multicultural Community Services; Tumeka Coleman, a teacher at Walker Jones

Educational Campus; Elizabeth Davis, President of the Washington Teachers’ Union; Antwayne

Ford, Chair of the Work Force Investment Council; Nicky Goren, a Ward 3 parent and

President/CEO of the Meyer Foundation; Sean Gough, Coolidge High School alumnus; Danielle

Hamberger, Director of Education Initiatives at the A. James & Alice B. Clark Foundation;

Arneyba Herndon, a Ward 7 parent; Jeanie Lee, President and Executive Director of the DC

Public Education Fund; Zion Matthews, a student at Ron Brown College Preparatory High

School; and Victor Reinoso, a Ward 4 parent and CEO/Co-Founder of Decision Science.

On August 14, 2018, Plaintiffs Valerie Jablow, Tom Guglielmo, Dakin Yeats, Mary

Neznek, and minors C.H. and L.J. filed suit against the District of Columbia seeking declaratory

and injunctive relief. See Compl., passim. Specifically, Plaintiffs seek a declaratory judgment

stating that the Our Schools Leadership Committee “is not a valid review panel as defined under

D.C. Code § 38-174(b),” Id. at ¶ 26, and that any appointment of a DCPS Chancellor made with

2.
the current panel will violate D.C. Code § 38-174(a), and will therefore be void. Id. at ¶¶ 29.

Finally, Plaintiffs seek to enjoin the Our Schools Leadership Committee “from taking any

official actions or acting as the § 38-174(b) review panel, until the Mayor instead appoints a new,

compliant panel.” Id. at ¶ 28.

Plaintiffs simultaneously moved for a Temporary Restraining Order and Preliminary

Injunction seeking to prevent the Our Schools Leadership Committee “from representing itself as

a D.C. Code § 38-174(b) review panel, or taking any official actions in that capacity, since its

membership does not comport with § 38-174(b)’s requirements[.]” See Proposed Order.

Plaintiffs also seek a Court Order preventing the Mayor “from selecting any nominee for DCPS

Chancellor until the requirements of D.C. Code § 38-174(b) . . . have been satisfied.” Id.

Plaintiffs’ Motion for a Temporary Restraining Order (“TRO”) was heard by Judge

Jeanette J. Clark at a hearing held on September 4, 2018. Judge Clark denied Plaintiffs’ Motion

for a TRO, and held the following:

The plaintiff[s] did not state sufficient facts or merit the criteria for
granting a Temporary Restraining Order. Furthermore, there was
not sufficient showing that the plaintiffs would prevail on the
merits and there was no sufficient showing that there was
irreparable harm during the pendency of the action. Lastly, the
Court found that the plaintiffs had standing to bring the action
inasmuch as they had an interest in the outcome of the litigation
and they were among the class of individuals identified in the
statute as participants on the panel.

Order dated 9/4/2018 by Judge Clark.

Since the entry of Judge Clark’s Order denying Plaintiffs’ Motion for a TRO, the

following events have taken place: the Mayor has invited two additional students, T.R. and D.K.,

two additional Washington Teacher’s Union representatives, Terence Ngwa and Christopher

Bergfalk, and an additional DCPS parent, Ivan Frishberg to be on the panel, and those

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individuals have accepted the Mayor’s invitation. Mr. Ngawa and Mr. Bergfalk are also current

DCPS teachers. The Panel’s nineteen members will therefore include three representatives from

the Washington Teacher’s Union (Ms. Davis, Mr. Ngawa, and Mr. Bergfalk), three teachers (Ms.

Coleman, Mr. Ngawa, and Mr. Bergfalk), three students (Mr. Matthews, T.R., and D.K.), and

four parents (Ms. Carillo, Ms. Goren, Ms. Herndon, and Mr. Frishberg). On September 11,

2018, the panel held the third of a series of public engagement meetings at which members of the

public were encouraged to share their thoughts on the selection of a new Chancellor. See Taylor

Mulcahey, DCPS Chancellor search continues with last of three community forums tonight, The

DC Line (Sept. 11, 2018), https://thedcline.org/2018/09/11/dcps-chancellor-search-continues-

with-last-of-three-community-forums-tonight/, attached hereto as Exhibit A. These public

meetings were done as part of the Mayor’s ongoing efforts to inform the public and receive

public comment on the future of DCPS. See id. The panel also plans to host a Facebook Live

discussion to further engage members of the public. See Panel Schedule, available at

https://ourschools.dc.gov/page/engage, attached hereto as Exhibit B. This is to be followed by

another meeting of the panel on October 8 at which the panel will review community feedback

and guide the development of the Chancellor Search report and recommendations, and a

subsequent meeting on October 22 at which time the panel will finalize their recommendations to

the Mayor. Id.

Finally, on September 13, 2018, the Washington Teachers Union filed a statement as

amicus curiae on the now outdated premise that the panel does not include multiple teachers

(including multiple representatives of the Washington Teachers Union), multiple parents, and

multiple students. As noted above, the panel will now include at least three teachers, three

representatives from the WTU, four parents, and three students.

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 As set forth below, Plaintiffs should be denied a Preliminary Injunction. This

extraordinary remedy is permitted only upon a clear demonstration that they are likely to succeed

on the merits, that they will suffer irreparable harm in the absence of injunctive relief, that more

harm will result to Plaintiffs from the denial of the injunction than will result to the Mayor from

its grant, and that the public interest will not be disserved by the issuance of the injunctive relief.

Plaintiffs fall short of making this showing, and their motion should, accordingly, be denied.

LEGAL STANDARD

Emergency injunctive relief may be awarded only when a plaintiff “clearly

demonstrate[s]: (1) that there is a substantial likelihood he will prevail on the merits; (2) that he

is in danger of suffering irreparable harm during the pendency of the action; (3) that more harm

will result to him from the denial of the injunction than will result to the defendant from its grant;

and, in appropriate cases, (4) that the public interest will not be disserved by the issuance of the

requested order.” Wieck v. Sterenbuch, 350 A.3d 384, 387 (D.C. 1976). The moving party

seeking emergency injunctive relief must also show that success on the merits and irreparable

harm are likely, not merely “possible.” Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7,

21-22 (2008).

The “most important inquiry” in evaluating these four factors “is that concerning

irreparable injury . . . because the primary justification for the issuance of a preliminary

injunction is always to prevent irreparable injury so as to preserve the court’s ability to render a

meaningful decision on the merits.” Wieck v. Sterenbuch, 350 A.2d 384, 387-88 (D.C. 1976).

Irreparable harm truly means harm that cannot later be remedied. See Zirkle v. D.C., 830 A.2d

1250, 1257 (D.C. 2003) (“The key word in this consideration is irreparable.”) (emphasis

original) (citation omitted). “Mere injuries, however substantial, in terms of money, time, and

5.
energy necessarily expended in the absence of a stay, are not enough.” Id.; see Zirkle, 830 A.2d

at 1257 (“The possibility that adequate compensatory or other corrective relief will be available

at a later date, in the ordinary course of litigation, weighs heavily against a claim or irreparable

harm.”) (citation omitted).

In limited circumstances irreparable harm “is less decisive where the likelihood of

success on the merits is very strong.” D.C. v. Greene, 806 A.2d 216, 223 (D.C. 2002). Thus, on

occasion, courts focus the injunction analysis on the likelihood of success on the merits. See id.

The remaining factors are straightforward and less determinative. D.C. v. E. Trans-Waste of

Maryland, Inc., 758 A.2d 1, 17 (D.C. 2000) (analyzing the balance of harms element and the

public interest element together).

ARGUMENT

I. Plaintiffs lack standing to bring this lawsuit.

Judge Clark denied Plaintiff’s Motion for a Temporary Restraining Order, but held that

Plaintiffs “had standing to bring the action inasmuch as they had an interest in the outcome of the

litigation and they were among the class of individuals identified in the statute as participants on

the panel[.]” Order dated 9/4/2018 by Judge Clark. The pending Motion for A Preliminary

Injunction is decided de novo, and the District respectfully continues to maintain its position that

Plaintiffs lack standing to bring their claims under the theories of justiciability that arise from the

facts they have alleged. They have therefore failed to overcome their burden to “clearly

demonstrate” that they are likely to succeed on the merits of the Complaint. Their Motion for a

Preliminary Injunction must therefore be denied.

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 A. Standing is a fundamental prerequisite for the exercise of jurisdiction.

There are three basic requirements to establish a case or controversy sufficient to confer

standing upon a Plaintiff. “First, the plaintiff must have suffered ‘injury in fact’ – an invasion of

a legally protected interest which is (a) concrete and particularized . . . and (b) actual or

imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992) (internal quotations and citations omitted). “Second, there must be a causal connection

between the injury and the conduct complained of – the injury has to be ‘fairly . . . trace[able] to

the challenged action of the defendant, and not . . . th[e] result of independent action of some

third party not before the Court.’” Id. (quoting Simon v. Eastern Ky. Welfare Rights Org., 426

U.S. 26, 41-42 (1976)). “Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the

injury will be ‘redressed by a favorable decision.’” Id. at 561 (quoting Simon, 426 U.S. at 38,

43).

With regards to the first element, establishing injury in fact is not “‘an ingenious

academic exercise in the conceivable.’” Id. at 566 (quoting United States v. Students Challenging

Regulatory Agency Procedures, 412 U.S. 669, 688 (1973)). Instead, injury in fact requires

allegations of “perceptible harm.” Id. This means that a Plaintiff must demonstrate something

“more than an injury to a cognizable interest. It requires that the party seeking review be himself

among the injured.” Id. at 563. As to the second element, Plaintiffs must be able to allege facts

from which it can reasonably be inferred that there was a substantial probability of the desired

outcome taking place in the absence of the complained of conduct. See Warth v. Seldin, 422 U.S.

490, 504 (1975) (“Petitioners must allege facts from which it reasonably could be inferred that,

absent the respondents’ restrictive zoning practices, there is a substantial probability that they

would have been able to purchase or lease in Penfield . . . .”). And finally, as to the third

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element, Plaintiffs must allege facts from which it can reasonably be inferred that Court

intervention will alleviate the specific harm they allege. Id. (“Petitioners must allege facts from

which it reasonably could be inferred that . . . if the court affords the relief requested, the asserted

inability of petitioners [to purchase a lease] will be removed.”).

B. Plaintiffs’ theories of standing are not valid.

Plaintiffs allege that they have standing due to their status as members of the classes of

individuals specifically mentioned in D.C. Code § 38-174. See Pl. Compl. ¶¶ 2-7; Plaintiffs’

8/14/2018 Memorandum Support of their Motion for a TRO and Preliminary Injunction (“Pl.

Memorandum”)1 at 5. Plaintiffs articulate their theory of standing at paragraph 20 of the

Complaint, which provides:

One or more of these Plaintiffs was entitled to be considered for

each and every one of the positions on this review panel. By
naming persons to this review panel who are neither teachers,
parents nor students, the Mayor has adversely affected Plaintiffs,
by depriving them of their rights to be considered for all such
positions, by decreasing the influence of their statutorily-imbued
representative capacities on the review panel, and by restricting
their participation in a decision that will directly affect their
educational goals. Hiring a new DCPS Chancellor without
sufficient input from these constituencies will also adversely affect
their educational and employment opportunities.

Pl. Compl. ¶ 20. Plaintiffs are apparently pursuing two theories of standing: first, that Plaintiffs

have standing because the Mayor failed to consider them for the panel, and second, that the

alleged underrepresentation on the review panel of the classes of individuals to which Plaintiffs

belong will have an adverse impact on them in the future. Neither of these theories withstand

closer scrutiny.

1
Plaintiffs have incorporated the arguments previously asserted in support of their TRO.

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 i. Plaintiff’s first theory of standing, based on the Mayor’s alleged failure
to consider them for the panel, is inadequate to confer them with standing.

The Mayor’s alleged failure to consider Plaintiffs for positions on the panel does not

confer upon them standing to sue. Importantly, Plaintiffs do not claim that they had a right to be

selected for the panel. They claim only that, as members of the class of individuals specified in

the statute, they had some “entitlement” to be considered. Plaintiff’s Motion for a Temporary

Restraining Order, page 3 (Plaintiffs “properly should have been considered for all of the seats

on the review panel...”). D.C. Code § 38-174 imparts no such right, and it is impossible that the

statute requires the Mayor to specifically “consider” the tens of thousands of teachers, students,

and parents for the panel. This has direct bearing on whether Plaintiffs can be said to have

suffered injury in fact. See, e.g., Raines v. Byrd, 521 U.S. 811, 821 (1997).2 Further, the

Mayor’s alleged failure to “consider” Plaintiffs for the panel has not resulted in actual injury

sufficient to confer standing. Lack of consideration to participate on a panel does not give rise to

the type of “concrete,” “particularized,” and “perceptible” harm necessary to establish injury in

fact. Without such a harm, Plaintiffs lack standing.

Further, the redressability element of standing requires it to be “likely, as opposed to

merely speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at

561 (internal quotations omitted). Plaintiffs therefore must allege facts from which it can

reasonably be inferred that Court intervention will alleviate the specific harm they allege. See

Warth, 422 U.S. at 504. In this case, the alleged harm is either that Plaintiffs were not

considered for the panel or that some other harm occurred because of the Mayor’s failure to

consider them. Neither is a harm that is “likely” to be redressed by a favorable decision. Even if

2
Noting that appellee Congressmen had not been singled out for specifically unfavorable
treatment as opposed to other Members of their respective bodies and that the deprivation of
legislative voting power was not something to which they were personally entitled.

9.
Plaintiffs prevailed and the Mayor were to be enjoined from appointing a new Chancellor in the

absence of a panel comprised of only parents, teachers, and students, it is pure speculation to

suggest that these particular Plaintiffs would necessarily be considered for a position on the

panel, or that any harms that might arguably flow from the lack of personal consideration would

thereby be alleviated.

Accordingly, Plaintiffs cannot establish standing based on the Mayor’s alleged failure to

consider them for the panel.

ii. Plaintiff’s second theory of standing, that the alleged underrepresentation on

the review panel of the classes of individuals to whom Plaintiffs belong will
have an adverse impact on them in the future, is also inadequate to confer
them with standing.

Plaintiff’s second theory of standing is that the Mayor has decreased “the influence of

their statutorily-imbued representative capacities on the review panel” by nominating people

who are neither teachers, parents, nor students to the panel. Pl. Compl. ¶ 20. Even assuming this

contention has merit under the applicable provision (and defendant does not concede that

plaintiff has a valid claim of underrepresentation in violation of the statute in question), the

Mayor’s new appointments completely gut this argument.

Under this theory, the harm that Plaintiffs have suffered is the supposed

disenfranchisement of the constituencies to whom they belong because of the alleged

underrepresentation of these constituencies on the review panel. Plaintiffs claim that this

disenfranchisement will negatively affect their “educational goals” and “educational and

employment opportunities” at some point in the future, Pl. Compl. ¶ 20, presumably because any

Chancellor appointed with the current panel will be less favorable to them. This wholly

speculative theory is also inadequate to impart Plaintiffs with standing.

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 Plaintiffs do not have standing to sue merely because they belong to a particular group of

individuals who have allegedly been “disenfranchised” by not being included on the current

panel. Pl. Memorandum at 5. As Lujan held, an injury in fact “requires more than an injury to a

cognizable interest. It requires that the party seeking review be himself among the injured.”

Lujan, 504 U.S. at 563 (emphasis added). Further:

. . . the fact that [plaintiffs] share attributes common to persons

who may [have been harmed] is an insufficient predicate for the
conclusion that petitioners themselves [have been harmed], or that
the respondents’ assertedly illegal actions have violated their
rights. [Plaintiffs] must allege and show that they personally
have been injured, not that injury has been suffered by other,
unidentified members of the class to which they belong and
which they purport to represent. Unless these petitioners can
thus demonstrate the requisite case or controversy between
themselves personally and respondents, ‘none may seek relief on
behalf of himself or any other member of the class.’

Warth, 422 U.S. at 502 (emphasis added).

Plaintiffs claim that they are amongst the injured by arguing that that D.C. Code § 38-174

vests within them rights, the invasion of which creates standing. See Pls.’ Reply Br. in Supp. of

their Mot. for a TRO at 2-3. To support their argument that D.C. Code § 38-174 vests within

them rights, Plaintiffs rely on Grayson v. AT&T Corp., 15 A.3d 219 (D.C. 2011) (en banc).

Grayson, however, deals with legal rights. Plaintiffs, by contrast, are asserting procedural

rights. This is “a case where plaintiffs are seeking to enforce a procedural requirement the

disregard of which could impair a separate concrete interest of theirs.” Florida Audubon Soc’y v.

Bentsen, 94 F.3d 658, 674 (D.C. Cir. 1996) (quoting Lujan, 504 U.S. at 572). To suggest

otherwise requires a gross misreading of D.C. Code § 38-174.

Plaintiffs’ conflation of legal with procedural rights is crucial to understanding their lack

of standing under a “disenfranchisement” theory. D.C. Code § 38-174 was not written to

11.
“elevate to the status of legally cognizable injuries concrete, de facto injuries that were

previously inadequate in law . . . .” Lujan, 504 U.S. at 578 (internal citations omitted). See also

Ctr. for Law and Educ. v. Dep’t of Educ., 396 F.3d 1152, 1157-58 (D.C. Cir. 2005). 3 Therefore,

Plaintiffs’ “disenfranchisement” theory of standing asserts a procedural right, not a legal right.

This distinction is critical because a violation of a procedural right (as here), unlike a

violation of a legal right, does not by itself confer standing: there must also be a harm to a

concrete interest. See R.J. Reynolds Tobacco Co. v. United States Food and Drug Admin., 810

F.3d 827, 829 (D.C. Cir. 2016) (plaintiff still had to demonstrate “a distinct risk to a

particularized interest” when challenging composition of FDA’s Tobacco Products Scientific

Advisory Committee). In other words, “a prospective plaintiff must demonstrate that the

defendant caused the particularized injury, and not just the alleged procedural violation.”

Florida Audubon Soc’y, 94 F.3d at 664; see also Ctr. for Law and Educ. v. Dep’t of Educ., 396

F.3d 1152, 1159 (D.C. Cir. 2005) (“Appellants must show both (1) that their procedural right has

been violated, and (2) that the violation of that right has resulted in an invasion of their concrete

and particularized interest.”). Plaintiffs’ theory that the alleged disenfranchisement is itself

sufficient to confer standing is therefore misguided.

Ctr. for Law and Educ. v. Dep’t of Educ., 396 F.3d 1152 (D.C. Cir. 2005) is particularly

probative of this issue, and makes clear that the alleged procedural violation at issue in this case

is insufficient to confer upon them standing. It also makes clear that Plaintiffs’ allegations that

the new Chancellor will adversely impact their “educational goals” and “educational and

employment opportunities[,]” Compl. ¶ 20, is entirely too speculative of an allegation to confer

3
Noting that statute mandating “an equitable balance between representatives of parents and
students and representatives of educators and education officials” did not necessarily mean that
the statute “designed to protect” parents and students, given the structure of the statute as a
whole.

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standing. See Ctr. for Law and Educ., 396 F.3d at 1160-61.4 Because Plaintiffs’ theory of harm

essentially boils down to the possibility of “increased risk” to certain of their interests,5 they have

not suffered any injury in fact. Id. at 1161 (“Outside of increased exposure to environmental

harms, hypothesized ‘increased risk’ has never been deemed sufficient injury.”). As the court

noted, “were all purely speculative ‘increased risks’ deemed injurious, the entire requirement of

‘actual or imminent injury’ would be rendered moot, because all hypothesized, non-imminent

‘injuries’ could be dressed up as ‘increased risk of future injury.’” Id.

Plaintiffs have accordingly failed to demonstrate that the Mayor’s alleged violation of the

procedural requirements of D.C. Code § 38-174(b) has resulted in any injury sufficient to confer

upon them standing.

II. Even If Plaintiffs Had Standing, They Still Cannot Establish They Are Likely
To Succeed On The Merits.

A. The Current Panel Satisfies the Statutory Language.

Likewise, Plaintiffs fail to demonstrate a likelihood of success on the merits on the

underlying substantive issue of whether the panel as presently constituted violates D.C. Code §

38-174. In reviewing an agency interpretation of a statute, District of Columbia courts “follow[]

the two-part test set out by the Supreme Court” in Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, 467 U.S. 837 (1984). Pannell-Pringle v. District of Columbia Dep’t of Emp’t Servs.,

806 A.2d 209, 211. “First, the reviewing court must determine whether the meaning of the

statute is clear. If it is, that is the end of the matter. If the statute is ambiguous, however, [the

4
For example, the Mayor’s nomination for Chancellor would still have to be approved by the
city Council. See D.C. Code §§ 38-174(a); 1-523.01(a).
5
“Plaintiffs’ current disenfranchisement and improperly diluted voice in this process, and the
tangible risk that their school employment and/or family experiences within the DCPS system
also will diminish if more preferable un-selected Chancellor candidates again walk away after a
precipitous Mayoral selection . . . .” Pls.’ Reply Br. in Supp. of Their Mot. for a TRO at 7
(emphasis supplied).

13.
reviewing court] must defer to the agency’s interpretation of the statutory language so long as it

is reasonable.” Id. (internal quotations and citations omitted).

“The primary and general rule of statutory construction is that the intent of the lawmaker

is to be found in the language that he has used.” United States v. Goldenberg, 168 U.S. 95, 102-

103 (1897). Thus, “[t]he words of the statute should be construed accordingly to their ordinary

sense and with meaning commonly attributed to them.” Davis v. United States, 397 A.2d 951,

956 (D.C. 1979). However, “[t]he literal words of a statute . . . are not the sole index to

legislative intent, but rather are ‘to be read in the light of the purpose of the statute taken as a

whole, and are to be given a sensible construction and one that would not work an obvious

injustice.” District of Columbia v. Gallagher, 734 A.2d 1087, 1091 (D.C. 1999) (internal

quotation marks and citations omitted). While “the words of a statute may appear, on

‘superficial examination,’ to be clear and unambiguous, ‘[w]ords are inexact tools at best, and

for that reason there is wisely no rule of law forbidding resort to explanatory legislative history .

. . ” Id. (quoting Harrison v. Northern Trust Co., 317 U.S. 476, 479 (1943)). “[T]he plain-

meaning rule is ‘rather an axiom of experience than a rule of law, and does not preclude

consideration of persuasive evidence if it exists.’” Public Citizen v. United States Dep’t of

Justice, 491 U.S. 440, 455 (1989) (quoting Boston Sand & Gravel Co. v. United States, 278 U.S.

41, 48 (1928)).

D.C. Code § 38-174 provides:

(1) Prior to the selection of a nominee for Chancellor, the Mayor

shall: (A) Establish a review panel of teachers, including
representatives of the Washington Teachers Union, parents, and
students (“panel”) to aid the Mayor in his or her selection of
Chancellor; (B) Provide the resumes and other pertinent
information pertaining to the individuals under consideration, if
any, to the panel; and (C) Convene a meeting of the panel to hear
the opinions and recommendations of the panel.

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 (2) The Mayor shall consider the opinions and recommendations
of the panel in making his or her nomination and shall give great
weight to any recommendation of the Washington Teachers Union.

D.C. Code § 38-174(b). According to Plaintiffs, this statute means only one thing: that the panel

must be made up of only teachers, parents, and students. See Pl. Memorandum at 4. However,

the language of statute does not use the term “only,” “exclusively,” or other similarly limiting

language. If the Council intended to limit the Mayor in this way, it could have done so in

writing. Instead of pointing to any evidence that the Council intended to limit the Mayor in this

fashion, however, Plaintiffs rely only on their self-serving assumptions about its intentions.

Further, Plaintiffs’ reading of the statute leads to the absurd result that the Mayor would be

forced to consult only a narrow subset of the people who should, logically, be consulted before

the selection of Chancellor. See Sanker v. United States, 374 A.2d 304, 307 (1977) (quoting

Lynch v. Overholser, 369 U.S. 705, 710 (1962) (“The decisions of this Court have repeatedly

warned against the dangers of an approach to statutory construction which confines itself to the

bare words of a statute, ... for ‘literalness may strangle meaning.’”) (citations omitted)). Given

the ambiguity in the statute as drafted, the Mayor’s interpretation of the statutory language is

entitled to deference so long as the interpretation is reasonable. The statute requires at least one

teacher, one parent, and one student, but there is no indication that they were to get the only

voice. And, as discussed above, even if the Court were to read the statute as requiring multiple

teachers, parents, and students, the current panel now comports with that interpretation; of the

panel’s current nineteen members, three are teachers, four are parents, three are students, and

three are representatives of the Washington Teachers Union (two of whom are also teachers).

Because the Mayor’s composition of the panel reflects a reasonable interpretation of the

statute, Plaintiffs have failed to demonstrate a likelihood of success on the merits of their core

15.
substantive allegation – that the panel as presently constituted violates the statute. However,

even if, arguendo, this Court were to agree with Plaintiffs on this point, the complete absence of

harm to them by the Mayor’s interpretation of the statute means that their Motion for a

Preliminary Injunction must fail.

III. Plaintiffs Cannot Show Irreparable Harm.

The “most important inquiry” in evaluating whether to grant a Preliminary Injunction “is

that concerning irreparable injury . . . because the primary justification for the issuance of a

preliminary injunction is always to prevent irreparable injury so as to preserve the court’s ability

to render a meaningful decision on the merits.” Wieck, 350 A.3d at 387-88. Irreparable harm

truly means harm that cannot later be remedied. See Zirkle v. District of Columbia, 830 A.3d

1250, 1257 (D.C. 2003) (“The key word in this consideration is irreparable.”) (emphasis in

original) (citation omitted). “Mere injuries, however substantial, in terms of money, time, and

energy expended in the absence of a stay, are not enough.” Id. Nor are “reputational injuries”

enough to justify an injunction. Id. at 1256. “The possibility that adequate compensatory or

other corrective relief will be available at a later date, in the ordinary course of litigation, weighs

heavily against a claim of irreparable harm.” Id. at 1257 (citation omitted).

Injunctive relief should not issue “unless the threat of injury is imminent and well-

founded[.]” Zirkle, 830 A.2d at 1256 (quoting Wieck, 350 A.2d at 387). Mere speculation

regarding the potential impact of the to-be-restrained action does not suffice. Id. at 1258

(Plaintiffs’ arguments regarding the potential chilling effect on other employees of allowing his

employer to proceed with termination was “highly speculative” and “completely inadequate to

establish irreparable harm” where plaintiff failed to put on any evidence whatsoever that such

chilling was likely to occur). Thus, “[t]o exercise its equitable discretion appropriately, the

16.
Court must rely on more than just the Plaintiff’s conclusory beliefs.” Nicholas v. Agency for

Int’l Dev., 18 F. Supp. 2d 1, 5 (D.D.C. 1998).

Here, Plaintiffs offer nothing more than a series of “conclusory beliefs” regarding what

may or may not happen if the Mayor were to confer with the panel as presently constituted, and

what may or may not happen if the Mayor appoints a new Chancellor while this Court

deliberates on the merits of their Complaint. See Pls.’ Pl. Memorandum at 5. According to

Plaintiffs, the risk of allowing the Mayor to confer with the current panel is that:

[o]nce views develop among the current Committee members, any

new panel (or even any new panel members) will surely be seen as
“outsiders,” with their later input and views relegated to second-
class status, and potentially criticized as lacking the benefit of
work already conducted before their appointment.

Id. at 5-6.

Not only are these purely speculative allegations, they allege reputational injuries which, as a

general proposition, are not irreparable. See Zirkle, 830 A.2d at 1256-57. Plaintiffs further allege

that if the Mayor were to appoint a new Chancellor:

[u]nselected candidates – even if preferable – will move on to

other opportunities. Contractual expectations from a selected
Chancellor-nominee may also arise, giving rise to fears of
litigation if a Mayor’s offer is revoked. Nor is it likely that the
Mayor would adequately consider review panel input later, after
her selection has already been made. And even if a Mayor’s
selected Chancellor could successfully be denied the seat, the
selection process would then need to begin again, causing harm to
these Plaintiffs who deserve to have a properly-vetted Chancellor
put in place to oversee DCPS schools without undue delay.

Id. at 5.

These “highly speculative” arguments regarding the potential impact of the Mayor appointing a

new Chancellor are entirely devoid of any factual support and are therefore nothing more than a

series of “conclusory beliefs” that fall well short of the type of “well-founded” harm required to

17.
establish irreparable injury. Id. at 1258 (citing Nichols v. Agency for Int’l Dev., 18 F. Supp. 2d 1,

5 (D.D.C. 1998)).

Furthermore, there is no reason to believe that such harm is imminent. Plaintiffs’ claim

of imminent harm rests solely on their claim that the Mayor at one point expressed her “hope” to

have a new Chancellor by early 2019 and noted the possibility that one “could” be appointed

before then. See Compl. ¶ 23. Though Plaintiffs implore the Court to find that harm is imminent

because of their belief that the announcement of a new Chancellor “could occur at any time[,]”

the publicly available online schedule makes clear that no selection of Chancellor will occur

before October 22. The lack of any imminent harm also requires that Plaintiffs’ motion for a

preliminary injunction be denied.

IV. The Balance of Harms and the Public Interest Favor Denial of Emergency
Injunctive Relief.

Before granting injunctive relief, “the trial court ‘must determine that more harm will

result to the movant from the denial of the injunction than will result to the nonmoving party

from its grant.’” In re Estate of Reilly, 933 A.2d 830, 840 (D.C. 2007) (quoting District of

Columbia v. Greene, 806 A.2d 216, 223 (D.C. 2002) (per curiam)) (emphasis in original).

Similarly, “[t]he public interest is a uniquely important consideration in evaluating a request for

[interim relief].” Shays v. FEC, 340 F. Supp. 2d 39, 53 (D.D.C. 2004) (quoting Nat’l Ass’n of

Farmworkers Orgs. v. Marshall, 628 F.2d 604, 616 (D.C. Cir. 1980)) (internal quotation marks

omitted). Here, the balance of harms and public interest both strongly favor denial of Plaintiffs’

request for emergency injunctive relief. Granting a Preliminary Injunction would impede the

Mayor from engaging with the public, carrying out her statutory duty to confer with the panel

and, therefore, her power to appoint a Chancellor of the District of Columbia Public Schools.

The delay that this would cause, which Plaintiffs themselves acknowledge is harmful, see Pls.’

18.
Pl. Memorandum at 5, outweighs any of the speculative harm that would befall Plaintiffs from

allowing the Mayor to proceed. Finally, the public interest favors denial of Plaintiffs’ Motion.

The public interest is better served by allowing the Mayor to continue to elicit broad views on

who should be chosen Chancellor.

CONCLUSION

WHEREFORE, for the foregoing reasons, the Court should deny Plaintiffs’ Motion for a

Preliminary Injunction.

DATED: September 13, 2018 Respectfully submitted,

KARL A. RACINE
Attorney General for the District of Columbia

GEORGE C. VALENTINE
Deputy Attorney General
Civil Litigation Division

/s/ Michael K. Addo

MICHAEL K. ADDO [1008971]
Assistant Attorney General
Chief, Civil Litigation Division, Section IV

/s/ Benjamin E. Bryant

BENJAMIN E. BRYANT [1047632]
Assistant Attorney General
441 4th Street, NW, Suite 630 South
202-724-6652
202-730-0624 (fax)
benjamin.bryant@dc.gov

/s/ David I. Schifrin

DAVID I. SCHIFRIN [242430]
Assistant Attorney General
441 4th Street, NW, Suite 630 South
Washington, DC 20001
202-442-9845
202-741-8923 (fax)
david.schifrin@dc.gov

19.
 CERTIFICATE OF SERVICE

I hereby certify that on September 13, 2018, a true and correct copy of the foregoing

Opposition was served with the Clerk of the Court via CaseFileXpress, which will send notice

to:

Gregory S. Smith
LAW OFFICES OF GREGORY S. SMITH
913 East Capitol Street, S.E.
Washington, D.C. 20003
Attorney for Plaintiffs

/s/ David I. Schifrin

David I. Schifrin
Assistant Attorney General

20.
 SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
Civil Division

VALERIE JABLOW, et al., Case No. 2018 CA 005755

Judge: Hon. Elizabeth Wingo
Plaintiffs,

v.

DISTRICT OF COLUMBIA,

Defendant.

ORDER

Upon consideration of the Plaintiffs’ Motion, the District’s Opposition, and any reply

thereto, it is this _____ day of ______________, 2018 hereby

ORDERED that the Plaintiffs’ Motion for a Preliminary Injunction is hereby DENIED.

SO ORDERED.

_______________________________
Hon. Elizabeth Wingo
Superior Court of the District of Columbia
EXHIBIT A
9/13/2018 DCPS chancellor search continues with last of three community forums tonight - TheDCLine.org

Home  News  Schools 

As part of the city's search for a new schools chancellor, a total of about 300 community members
attended the rst two public engagement forums, including this one on Aug. 28 at Ward 8's Savoy
Elementary School. (Photo by Taylor Mulcahey)

SCHOOLS NEWS

DCPS chancellor search continues with last of three community

forums tonight
By Taylor Mulcahey On Sep 11, 2018

DC residents will have a chance tonight to weigh in on their priorities for the next schools
chancellor as part of the search for a permanent leader for the DC Public Schools. The Sept.
11 community forum — the last in a series of three such events — will take place from 6:30 to
8 p.m. at Ward 5’s Brookland Middle School, 1150 Michigan Ave. NE.

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9/13/2018 DCPS chancellor search continues with last of three community forums tonight - TheDCLine.org

The earlier sessions — held Aug. 14 at Ward 1’s Cardozo Education Campus and Aug. 28 at
Ward 8’s Savoy Elementary School — drew a combined total of about 300 community
members.

In June, Mayor Muriel Bowser announced the beginning of a nationwide search to ll the
position, four months after former Chancellor Antwan Wilson announced his resignation in
the midst of scandal. In February, Wilson resigned after admitting he circumvented the DCPS
lottery system so that his daughter could attend Wilson High School in Tenleytown. Amanda
Alexander is lling in as interim chancellor, and she recently con rmed on WAMU’s Kojo
Nnamdi Show that she is applying for the permanent job.

Wilson headed the school system for about 13 months, having taken over as chancellor in
January 2017. To ll the position that time, the mayor’s of ce sought community feedback
through many of the same methods they are using again two years later. Critics are repeating
their objections as well — that the role of community engagement in the actual selection of
the next chancellor is ill-de ned, with a need for greater transparency and inclusion.

But of cials say the input from

the public forums so far and from
focus groups with teachers,
principals and students ia
providing important insights
about what is needed in the city’s
next schools chancellor.

“We’re hearing a lot of

af rmation about the same
things we looked for last time,”
interim Deputy Mayor of
Education Ahnna Smith said in a
recent interview. “But we’re also Interim Deputy Mayor of Education Ahnna Smith says the engagement
hearing that some additional process is helpful in guiding the search for a new chancellor. (Photo by
Taylor Mulcahey)
areas — like integrity and
accountability and transparency
— are really important to families and community members as well.”

At the Savoy Elementary School forum on Aug. 28, community members sat in groups of ve
to six people around tables in the gymnasium. At each table a staff member from the mayor’s
of ce facilitated the discussion.

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9/13/2018 DCPS chancellor search continues with last of three community forums tonight - TheDCLine.org

Following short remarks by Smith and Steve Walker, director of the Mayor’s Of ce of Talent
and Appointments, organizers posed two questions, asking what the next chancellor’s
priorities should be and what qualities the mayor should look for in the next chancellor.
Community members were encouraged to look at the DCPS Strategic Plan, 2017-2022, and
the 2016 Chancellor Search Community Engagement Report to assist with their answers.

Sherri Watkins, a DCPS parent in Ward 7 and manager of Community of Hope at The
Commons at Stanton Square, had priorities beyond those listed in the documents offered by
the District. She hopes the next chancellor will direct DCPS of cials to re-examine regulations
governing suspensions and introduce trauma-informed teaching into schools. She is also
concerned about the inequitable distribution of opportunities such as dual language
immersion programs, which are clustered primarily in Northwest schools.

Watkins would also like to see a chancellor who was born and raised in DC. This preference
was echoed by the others at her table, who agreed that having a chancellor with familiarity
and experience with the community — whether from their upbringing or spending time in the
city in adulthood — is a top priority.

“[It] will send a message that not only do we trust and believe in our native Washingtonians to
work for our school system, but we also trust them to run it,” Watkins wrote in an email to The
DC Line.

Members of Watkins’ table were not as concerned about criteria such as educational
background or age, reiterating that experience and familiarity with the community remain
critical.

After the small-group discussions, representatives of each table shared a summary with the
rest of the attendees.

Although each group had a slightly different vision for the search, many people prioritized a
commitment to ensuring equitable schools across every ward and to educating the “whole
child,” with an emphasis not just on academic achievement but also on social emotional
learning. Speakers also urged the mayor to seek out candidates who are trustworthy, have
strong leadership skills, are from a diverse background and are committed to staying long
term, among many more qualities.

After this week’s forum, members of the Our Schools Leadership Committee will collect and
organize community feedback into a report that they will present to the mayor. They plan to
complete the report by late October.

In conjunction with the community forums, the Of ce of the Deputy Mayor for Education also
has been holding separate focus groups for teachers and school administrators. It will host a
focus group for students — with two from each high school — in the coming month, with
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9/13/2018 DCPS chancellor search continues with last of three community forums tonight - TheDCLine.org

details still being worked out.

The of ce is also planning a Facebook Live event, during which Our Schools Leadership
Committee co-chairs will host a discussion; the date has not yet been set.

Additionally, the of ce has posted an online survey to get the public’s input, with questions
that echo much of the framework used at the community engagement forums. One section of
the survey asks whether the schools seem to be “on a strong path to success” or in need of a
change in direction; later, a multiple-choice question asks what the school system should set
as its top priority, with choices that include engaging families, promoting equity, ensuring
“excellent schools” across the city, and educating the whole child. In a third section, those
responding to the survey are asked to rank the qualities they would like to see in the next
chancellor, such as a “deep understanding of DC culture and climate,” a “visionary who thinks
strategically” and a “professional educator with an instructional background and experience in
urban education.”

As of a week ago, the survey had only received 160 responses — a number that received a
great deal of criticism from State Board of Education members when they were updated at
their monthly working session on Sept. 5.

Joe Weedon, Ward 6 representative on the State Board of Education, described 160 people in
a self-selected survey as far too few to ascertain views in a school system with 47,000
students. Smith responded with assurances that a push for wider participation would be a
priority in the upcoming months.

 Chancellor Search DC Public Schools O ce of the Deputy Mayor for Education

Taylor Mulcahey

theDCline© - . All Rights Reserved.

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EXHIBIT B
9/13/2018 Engage | OurSchoolsDC

#OurSchoolsDC
Engage
We Want to Hear From the Community

Please take our survey.

Schedule

Date Meeting Details Materials

July 9 Commitee Swear-in members; discuss purpose and goals of Draft

Meeting #1 the advisory group; begin outlining community Agenda -
engagement plan July 9,
2018[DOC]

Meeting
Notes
[PDF]

July 30 Commitee Finalize community engagement and outreach Draft

Meeting #2 plan Agenda -
July 30,
2018[PDF]

Meeting
Notes
[PDF]

August 14 Community 6:30 – 8 pm, Cardozo Education Campus, 1200 Video

Forum Clifton Street, NW Recording
dcchancellorsearchatcardozo.eventbrite.com
Forum
Notes
[PDF]

https://ourschools.dc.gov/page/engage 1/3
9/13/2018 Engage | OurSchoolsDC

Date Meeting Details Materials

August 28 Community 6:30 – 8 pm, Savoy Elementary School, 2400 Video

Forum Shannon Place, SE Recording
dcchancellorsearchatsavoy.eventbrite.com
Forum
Notes
[PDF]

September 11 Community 6:30 – 8 pm, Brookland Middle School, 1150  

Forum Michigan Avenue, NE
dcchancellorsearchatbrooklandms.eventbrite.com

August/September Focus Committee holds focus groups with teachers,  

Groups principals and students
with
Teachers,
Principals,
Students

TBD Facebook Committee Co-Chairs will host a Facebook Live  

Live discussion
Discussion

October 8 Commitee Review community feedback and guide the  

Meeting #3 development of the Chancellor Search report and
recommendations

October 22 Commitee Finalize recommendations to the Mayor  

Meeting #4

Documents

2018-08-21 DCPS Chancellor search letter [PDF]

2016 Chancellor Search Community Engagement Report [PDF]
DCPS Strategic Plan - A Capital Commitment 2017-2022
Letter from Ward 4 and Councilmember Todd on Selection [PDF]
Letter from Councilmember Grosso on Selection [PDF]
Letter from C4DC to Mayor and DC Council on Selection [PDF]
Letter from Councilmember Cheh on Selection [PDF]

https://ourschools.dc.gov/page/engage 2/3
9/13/2018 Engage | OurSchoolsDC

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