Eisenberg v. Montgomery County Public Schools, CIV.A. AW 98-2797.

• Decision Date: 04 September 1998
• Docket Number: No. CIV.A. AW 98-2797.,CIV.A. AW 98-2797.
• Parties: Jeffrey EISENBERG, et al., Plaintiffs, v. MONTGOMERY COUNTY PUBLIC SCHOOLS, et al., Defendants.
• Court: U.S. District Court — District of Maryland

19 F.Supp.2d 449

Jeffrey EISENBERG, et al., Plaintiffs, v. MONTGOMERY COUNTY PUBLIC SCHOOLS, et al., Defendants.

No. CIV.A. AW 98-2797.

United States District Court, D. Maryland, Southern Division.

September 4, 1998.

COPYRIGHT MATERIAL OMITTED

Jeffrey Eisenberg, Elinor Merberg, Silver Spring, MD, pro se.

Patricia A. Brannan, Maree Sneed, Rose Marie L. Audette, Hogan & Hartson, L.L.P., Washington DC, Judith S. Bresler, Reese & Carney, Columbia, MD, for Defendants.

MEMORANDUM OPINION

WILLIAMS, District Judge.

Presently before the Court is Plaintiff's Motion for Preliminary Injunction. The Court, having considered the motion, the opposition thereto, the arguments of counsel at a hearing in open court, and the entire record, finds that the motion must be denied.

Facts

Plaintiffs Jeffrey Eisenberg and Elinor Merberg bring the present action on behalf of their minor son, Jacob Eisenberg. Jacob is presently in the first grade. Based upon the residence of the family, Jacob is scheduled to attend Glen Haven Elementary School in Montgomery County, Maryland.

The Montgomery County Public Schools ("the District") administers a number of magnet programs in various schools, for among other purposes, to achieve racial diversity in the public schools of the county. The magnet programs offer enriched curricula. The District has established a math and science magnet program at Rosemary Hills elementary school. The District serves over 125,000 children enrolled at over 183 schools.

The District permits voluntary transfers among its schools. It publishes a transfer booklet which sets forth its policies with regard to transfer approval. Five factors are considered: school stability, utilization/enrollment, diversity profile, and the reason for the request. For the 1998-99 academic year, the District received 3,500 applications for transfer. The majority were granted. Approximately 570 appeals were filed of denials.

On March 30, 1998, the Eisenbergs submitted a request for transfer within the school district to Rosemary Hills Elementary School. The stated reason for the transfer request was that at Rosemary Hills, "we believe the school environment and curriculum offer [Jacob] the best opportunity for realizing his personal and academic potential." On the form, Jacob was identified as a white student.

On May 15, 1998, the transfer was denied. The only reason provided for the denial was "impact on diversity." A timely appeal was filed on May 28, 1998. Jacob's kindergarten teacher wrote a letter in support of the transfer appeal. A letter of denial was issued on August 6, 1998. Eisenberg next appealed to the Board of Education. This subsequent appeal was also denied.

According to the District, Glen Haven is overutilized and/or enrolled. Based upon the "diversity profile," white students are listed under the category: "No transfers out, transfers in permitted (unless overutilized)." The racial makeup for Glen Haven is 24.1% white, 40.5% African-American, 25% Hispanic and 10.1% Asian, compared to a countywide enrollment of 53.4% white, 20.3% African-American, 13.2% Hispanic and 12.7% Asian. The white enrollment at Glen Haven dropped from 38.9% in 1994-95 to 24.1 in 1997-98. In anticipation of the 1998-99 school year, 19 white students applied for transfer from Glen Haven. Of these students, 5 transfers were approved on personal hardship grounds, and 4 because siblings were already attending the requested school.

Montgomery County has never been under court order to desegregate its schools.

Mr. Eisenberg, acting pro se, now brings the instant action on behalf of his son seeking declaratory and injunctive relief, as well as damages, under 42 U.S.C. § 1983, for claimed violations of his constitutional rights, and under 42 U.S.C. § 2000d. Now before the Court is Eisenberg's motion for preliminary injunction, seeking to order the District to admit Jacob to Rosemary Hills.

Discussion

A preliminary injunction is an extraordinary remedy that only should be issued when the Plaintiff clearly establishes its entitlement to such relief. See Manning v. Hunt, 119 F.3d 254, 263 (4th Cir.1997). The standards for injunctive relief in the Fourth Circuit are well known. In Blackwelder Furniture Co. of Statesville, Inc. v. Seilig Manuf. Co., Inc., 550 F.2d 189 (4th Cir.1977), the Fourth Circuit explained that the most important factors a district court must consider in deciding whether to grant injunctive relief are the threat of irreparable harm to the plaintiff should the Court not issue an injunction, and the likely harm to the defendant if an injunction is ordered. See id. at 196. The district court's first task is to balance these two factors. See Manning, 119 F.3d at 263. After doing this balancing, the court may then consider the third factor, which is the plaintiff's likelihood of success. See id. As the balance of harm moves in favor the defendant, the plaintiff has a greater burden in showing its likelihood of success. See id. Finally, the Court considers the fourth factor, the public interest. See id.

A. BALANCING OF HARDSHIPS

Eisenberg claims a violation of his son's constitutional rights. He maintains that, if proven, his injuries constitute per-se irreparable harm. Eisenberg is correct. See Johnson v. Bergland, 586 F.2d 993, 995 (4th Cir.1978); Henry v. Greenville Airport Comm'n, 284 F.2d 631, 632-633 (4th Cir. 1960). The irreparable harm must nonetheless be balanced against the harm to the District. See Johnson, 586 F.2d at 995. In this case, the irreparable harm to Eisenberg is slight. He is not being denied access to education — the evidence is that he can receive a very comparable education at Glen View. Moreover, there is substantial potential harm to the District. Given the similarity between Eisenberg's transfer request and the requests of many other students that were denied, the District would likely be unable to deny transfers to any other student should Eisenberg obtain the relief he seeks. As explained later in this Opinion, the possibility that the transfer policy will lead to racial isolation among certain schools in the District is appropriately of paramount concern to the District, and the inability to prevent this occurrence obviously imposes a hardship. On balance, it appears to the Court that the balance of hardships slightly favors the District. Accordingly, Eisenberg must make a strong showing of a likelihood of success to prevail.

B. LIKELIHOOD OF SUCCESS ON THE MERITS

The Court cannot conclude, however, that the instant action has a strong likelihood of success on the merits. The question presented is as follows: can the District can take race into account in deciding whether to approve voluntary transfer requests within Montgomery County?

Because "[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination," Palmore v. Sidoti, 466 U.S. 429, 432, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984), when government actors take race into account in their decision-making, such racially conscious decisions are subject to exacting scrutiny by the courts. A challenged policy or decision can survive such "strict scrutiny" review only if it is justified by a "compelling governmental interest" and is "narrowly tailored" to accomplish that goal. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (plurality opinion).

The District has advanced two interests which it maintains are sufficiently compelling to justify their policy: avoiding the creation, through District action, of segregative enrollment patterns that might themselves constitute violations of the law, and the promotion of a diverse student population.

The Court will first address the second stated interest. Eisenberg maintains that the diversity interest, standing alone, is not a "compelling governmental interest"—he argues that the only interest sufficient to justify efforts to maintain racial diversity is a history of prior discrimination, which has not been alleged by the District. Citing to Croson, Eisenberg contends that "defendants must demonstrate that its own `prior discrimination' justifies implementation of the diversity plan." But in Croson, the defendants did not rely upon an interest in diversity to justify the affirmative action plan there considered. See Croson, 488 U.S. at 477, 109 S.Ct. 706 ("The plan declared that it was `remedial' in nature, and enacted `for the purpose of promoting wider participation by minority business enterprises in the construction of public projects'"). Likewise, the decision of the Fourth Circuit in Podberesky v. Kirwan, 38 F.3d 147 (4th Cir.1994), which Eisenberg also cites for the proposition that a remedial purpose is the only legitimate purpose which may justify the District's actions, never decided the question of whether diversity is a sufficiently compelling interest. See Podberesky v. Kirwan, 956 F.2d 52, 56, fn. 4 (4th Cir.1992) (opinion before remand) ("[t]he district court did not cite the need for diversity for this program, and it does not appear that UMCP established that the Banneker Program was established with this goal in mind"); see also, Alexander v. Estepp, 95 F.3d 312, 316 (4th Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1425, 137 L.Ed.2d 535 (1997) (striking down affirmative action program relying upon diversity as well as remedial interests, concluding that "even assuming, arguendo, that the asserted interests are compelling, the program is not narrowly tailored"); Maryland Troopers Ass'n v. Evans, 993 F.2d 1072, 1075 (4th Cir.1993) (reviewing district court finding that "[statistical] evidence of racial discrimination offered by the [defendants] was sufficient to warrant a race-conscious remedy"); Hayes v. North State Law Enforcement Officers Association, 10 F.3d 207, 213 (4th Cir.1993)(declining to decide whether diversity remains a sufficiently "compelling" rationale).

The Court believes...