United States District Court, D. New Mexico
R. Jordan, The Law Offices of David R. Jordan, P.C., Gallup,
New Mexico, for Plaintiffs.
M. Sanchez and Carlos J. Padilla, Cuddy & McCarthy, LLP,
Albuquerque, New Mexico, for Defendant.
ORDER DENYING MOTION FOR PRELIMINARY
Kelly, Jr. United States Circuit Judge
MATTER is before the court on Plaintiffs-Movants Sharlene
Begay-Platero and John Platero, Jr.'s motion for
preliminary injunction as requested in their Application for
Preliminary Injunction Hearing filed September 19, 2018. ECF
No. 5. The court held an evidentiary hearing on April 25,
2019, and heard argument. Upon consideration thereof, the
motion is not well taken and should be denied.
movants bring this action on behalf of their children, who
are juniors at Middle College High School (MCHS), a charter
school in Gallup, New Mexico, against the Gallup McKinley
County School District (“School District”).
Pl.'s Resp. to Mot. to Dismiss 3 (ECF No. 12); see
generally Compl. (ECF No. 1-1). According to the School
District, after a school shooting in Aztec, New Mexico, it
consulted with local law enforcement about strengthening
security. An overriding concern was the risk of unidentified
persons on school campuses during school hours and at
non-public School District events. On April 20, 2018, School
District superintendent Michael Hyatt circulated new security
policies to principals. E-mail from Michael Hyatt,
Superintendent, Gallup McKinley Sch. Dist., to
ALLPrincipalsDistLis@gmcs.k12.nm.us (Apr. 20, 2018) (ECF No.
10-1). Included was a directive that “all dances or
like events” be restricted to students from the nine
high schools of the School District's “regular
school system.” Id.; see also Compl.
¶¶ 6-7. MCHS was not included, notwithstanding the
movants' assertion that MCHS is a part of the School
District “and [is] therefore similarly situated”
to the other School District schools. Compl. 7-8, 10.
movants filed their complaint in state court on August 30,
2018, alleging that the School District's restriction
violated the Equal Protection Clauses of both the United
States and New Mexico Constitutions and requesting a
preliminary and permanent injunction. Begay-Platero v.
Gallup McKinley Cty. Sch. Dist., No. D-1113-CV-201800482
(N.M. Dist. Ct., 11th Judicial Dist. 2018); see
generally Compl. The School District removed this action
to federal court on September 13, 2018. ECF No. 1. The
movants applied for a preliminary injunction hearing,
contending that the “specific and
intentional” exclusion of MCHS students from the
School District's dances and like events was arbitrary
and irrational. Pls.' Appl. for Prelim. Inj. Hr'g
¶ 9 (ECF No. 5). Jurisdiction arises under 28 U.S.C.
§§ 1331 & 1367. This memorandum opinion and
order constitutes the court's findings and conclusions.
may issue a preliminary injunction prior to a trial on the
merits. See Fed.R.Civ.P. 65. However, a preliminary
injunction is an “extraordinary remedy, ” not a
matter of right. Benisek v. Lamone, 138 S.Ct. 1942,
1943 (2018). A movant must show that he (1) is likely to
prevail on the merits, (2) is likely to suffer irreparable
harm absent preliminary relief, (3) that the balance of
equities is in his favor, and (4) a preliminary injunction is
in the public interest. Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008). The court must weigh all
four factors equally, and a movant fails to meet his burden
if his showing does not satisfy any one of the four factors.
Diné Citizens Against Ruining Our Env't v.
Jewell, 839 F.3d 1276, 1282 (10th Cir. 2016). Because
the movants have not satisfied any of the four factors, their
motion for preliminary injunction should be
The Movants Have Not Shown a Likelihood of Success on the
a showing of “likelihood” is not as demanding a
burden as “certainty” of success, the movants
must show more than a mere possibility of success.
Diné, 839 F.3d at 1282. Plaintiffs as movants
must provide facts and theories sufficiently detailed to
present a prima facie case. Planned Parenthood Ass'n
of Utah v. Herbert, 828 F.3d 1245, 1252 (10th Cir.
2016); see also Fed.R.Civ.P. 7(b)(1)(B) (a request
for a court order must “state with particularity the
grounds for seeking the order”); D.N.M.LR-Civ. 7.1(a)
(a motion must “state with particularity the grounds
and the relief sought”). The movants do not argue that
MCHS students belong to a suspect classification, nor do they
allege their exclusion violated a fundamental constitutional
right. Therefore, and by their own admission, see
Compl. ¶ 5, the court undertakes a rational-basis
review, inquiring whether no “reasonably conceivable
state of facts that could provide a rational basis for the
classification.” F.C.C. v. Beach Commc'ns,
Inc., 508 U.S. 307, 313 (1993).
New Mexico state law, charter schools are classified
differently from other public schools, notwithstanding public
funding. For example, local school districts must allow
charter students in grades seven through twelve to
participate in school-district extracurricular activities.
However, the requirement extends to only activities
sanctioned by the New Mexico Activities Association (NMAA),
such as academic and athletic competitions. N.M. Stat. Ann.
§§ 22-8-23.6, 22-8C-8(A) & 22-13-25. In
addition, although state law classifies charter schools as
public schools, charter schools operate pursuant to a
contract with a “chartering authority, ” which
may be either the New Mexico Public Education Commission, or,
as in this case, a local school board. N.M. Stat. Ann.
§§ 22-8B-2(A)-(C), 22-8B-9; N.M. Code R.
§§ 184.108.40.206(X), 220.127.116.11(D) (defining a chartering
authority) & 18.104.22.168 (contents of a proposed agreement
between charting authority and charter school for charter
application). New Mexico law delineates the powers and duties
of chartering authorities, such as to “monitor . . .
the performance and legal compliance of charter schools under
their authority, ” to “determine whether a
charter school merits suspension, revocation or nonrenewal,
” and to “develop and maintain chartering
policies and practices consistent with nationally recognized
principles and standards for quality charter
authorizing.” N.M. Stat. Ann. § 22-8B-5.3(F)-(H).
Even with some oversight, and despite their classification as
“public, ” charter schools are responsible for
their own operations and budget, and they are governed not by
the local school district, but by a governing body as set
forth in their charter contracts. N.M. Stat. Ann. §
22-8B-4(B)-(C). They also retain autonomy to hire their own
employees. N.M. Stat. Ann. § 22-8B-10.
hearing, the movants sought to downplay New Mexico law's
clear distinction between charter and non-charter public
schools by offering anecdotal evidence of the School
District's oversight capacity. Plaintiff-Movant Sharlene
Begay-Platero testified that the Public Education Department
website lists MCHS as part of the School District, and that
she once heard Superintendent Hyatt comment to an MCHS
financial administrator that MCHS was not following the
financial procedures of the School District. She also
testified that she has attended two MCHS “advisory
board” meetings, and she noted that the board is merely
advisory because governing authority rests with the School
District. Yet she candidly admitted the basis of her
testimony was her experience as a parent of MCHS students,
and that she had little knowledge of MCHS's funding, the
statutory framework within which it operates, or the
specifics of the School District's supervisory role as
chartering authority. She also admitted she was unaware of
any NMAA-sanctioned school dances.
movants also relied on the testimony by Ben Chavez, the
safety coordinator for the School District, who conceded
during cross-examination that the School District could
demand MCHS produce disciplinary records. The movants contend
that, because the School District could not demand
disciplinary records from other school districts, MCHS is
different. But their contention really has no bearing on