Motion for Leave to File, State of Michigan et al. v. DeVos, No. 3:20-cv-04478 (N.D. Cal.), Doc. 47 (July 24, 2020)
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Motion of the Council of the Great City Schools for Leave to File Amicus Curiae Brief in Support of Plaintiffs' Motion for Preliminary Injunction and in Excess of Applicable Page Limitations, filed July 24, 2020 in State of Michigan et al. v. DeVos, No. 3:20-cv-04478-JD. The Council states that the applicable Local Rule and Standing Order would limit the brief to 15 pages and asks for an additional 10 pages, or 25 pages total. It describes itself as a coalition of 76 of the nation's largest urban public school systems. The case caption lists Judge James Donato and an Action Filed date of July 7, 2020. Donald J. Mizerk signs the certificate of service.
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“Motion for Leave to File, State of Michigan et al. v. DeVos, No. 3:20-cv-04478 (N.D. Cal.), Doc. 47 (July 24, 2020).”
Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/motion-for-leave-to-file-state-of-michigan-et-al-v-devos-no-3-20-cv-04-bb37734ebf/
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Case 3:20-cv-04478-JD Document 47 Filed 07/24/20 Page 1 of 6
HUSCH BLACKWELL LLP
1 Donald J. Mizerk Esq., (CA Bar No. 208477)
2 John W. Borkowski (IL Bar No. 6320147) (pro hac pending)
120 South Riverside Plaza, Suite 2200
3 Chicago, Illinois 60606
Phone: (312) 526-1538
4 Fax: (312) 655-1501
don.mizerk@huschblackwell.com
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6 Attorneys for Amicus Curiae
COUNCIL OF THE GREAT CITY SCHOOLS
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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11 STATE OF MICHIGAN, STATE OF Civil Case No.3:20-cv-04478-JD
CALIFORNIA, DISTRICT OF COLUMBIA,
12 STATE OF MAINE, STATE OF
13 MARYLAND, STATE OF NEW MEXICO,
HUSCH BLACKWELL LLP
STATE OF WISCONSIN, THE BOARD OF
120 South Riverside Plaza, Suite 2200 14 EDUCATION FOR THE CITY SCHOOL MOTION OF THE COUNCIL OF THE
DISTRICT OF THE CITY OF NEW YORK, GREAT CITY SCHOOLS FOR LEAVE TO
Chicago, Illinois 60606
15 BOARD OF EDUCATION FOR THE CITY FILE AMICUS CURIAE BRIEF IN
OF CHICAGO, CLEVELAND MUNICIPAL SUPPORT OF PLAINTIFFS’ MOTION FOR
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Phone: (312) 526-1538
SCHOOL DISTRICT, AND SAN PRELIMINARY INJUNCTION AND IN
17 FRANCISCO UNIFIED SCHOOL EXCESS APPLICABLE PAGE
DISTRICT, LIMITATIONS
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Plaintiffs,
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20 v. Judge: Hon. James Donato
Trial Date: None set
21 ELISABETH D. DEVOS, in her official Action Filed: July 7, 2020
capacity as the United States Secretary of
22 Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
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24 Defendants.
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Case 3:20-cv-04478-JD Document 47 Filed 07/24/20 Page 2 of 6
The Council of the Great City Schools (hereinafter the “Council”), through undersigned
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2 counsel, hereby respectfully moves, pursuant to Civil Local Rule 7-11, for administrative relief from
3 the page limits applicable under Civil Local Rule 7-4(b) and this Court’s Standing Order. The
4 applicable Local Rule and Standing Order would limit the brief to 15 pages. The Council
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respectfully requests an additional 10 pages—or 25 pages total—for its brief as amicus curiae in
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support of Plaintiffs’ motion for preliminary injunction in this case.
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The Council of the Great City Schools is a coalition of 76 of the nation’s largest urban public
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9 school systems, and is the only national organization exclusively representing the needs of urban
10 public schools. Founded in 1956 and incorporated in 1961, the Council serves as the national voice
11 for urban educators and provides a forum to share best practices. The Council is composed of school
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districts with enrollments greater than 35,000 students located in cities with a population exceeding
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HUSCH BLACKWELL LLP
120 South Riverside Plaza, Suite 2200
250,000. Districts located in the largest city of any state are also eligible for membership, based on
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Chicago, Illinois 60606
urban characteristics. The Council’s member districts have a combined enrollment of over 8.2
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million students. Headquartered in Washington, D.C., the Council promotes urban education through
Phone: (312) 526-1538
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17 research, instruction, management, technology, legislation, communications, and other special
18 projects.
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The Council has prepared the attached brief because its members and the students that they
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serve will be harmed by the implementation of the interim final rule adopted by the U.S. Department
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of Education (the “Department”) on July 1, 2020. See CARES Act Program; Equitable Services to
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Students and Teachers in Non-Public Schools, 85 Federal Register, 39,479 (July 1, 2020) (the
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24 “Rule”). If this Rule stands, the Department would illegally divert millions of dollars allocated under
25 the CARES Act, H.R. 748 116th Cong., 20 U.S.C. § 3401 note (2020), from public schools serving
26 millions of low-income children to private schools, regardless of the affluence or financial need of
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their students. This unlawful diversion would have devastating consequences for public school
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Case 3:20-cv-04478-JD Document 47 Filed 07/24/20 Page 3 of 6
districts struggling to re-open safely and for the students they are trying to protect. The attached brief
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2 explains the nature and scope of the harm inflicted by the Department on public school districts and
3 students by its arbitrary and capricious actions.
4 District courts have “broad discretion” to appoint amicus curiae. Hoptowit v. Ray, 682 F. 2d
5 1237, 1260 (9th Cir. 1982). “District courts frequently welcome amicus briefs from non-parties
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concerning legal issues that have potential ramifications beyond the parties directly involved or if the
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amicus has ‘unique information or perspective that can help the court beyond the help that the lawyers
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for the parties are able to provide.’” NGV Gaming, Ltd. V. Upstream Point Molate, LLC, 355 F. Supp. 2d
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1061, 1067 (N.D. Cal. 2005) (quoting Cobell v. Norton, 246 F. Supp. 2d 59, 62 (D.D.C. 2003)). If
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11 permitted to file, the Council will fulfill “the classic role of amicus curiae by assisting in a case of
12 general public interest[] [and] supplementing the efforts of counsel[.]” Miller-Wohl Co. v. Comm'r of
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HUSCH BLACKWELL LLP
Labor & Indus. State of Mont., 694 F.2d 203, 204 (9th Cir. 1982).
120 South Riverside Plaza, Suite 2200
14 There is good reason exercise for the Court to exercise its discretion here to permit the Council to
Chicago, Illinois 60606 15
file the attached amicus brief. Counsel for the proposed amicus curiae is familiar with the scope of the
Phone: (312) 526-1538
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arguments presented by the parties and will not unduly repeat those arguments. Rather, the Council will
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draw upon its knowledge of the legislative process and the educational system as well as its members’
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experience in school communities nationwide to underscore the Rule’s unlawfulness and demonstrate the
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on-going and irreparable harm the Department’s actions, including the Rule, have caused and will
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21 continue to cause unless enjoined by the Court.
22 In light of the range and complexity of issues to be addressed and the high stakes for the
23 Council and its members, in addition to the parties, good cause exists to extend the page limits for
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the attached amicus brief to 25 pages. Because of the urgent need for the parties and other
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stakeholders, like the Council, to address the matters raised in the Plaintiffs’ motion, the Council has
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prepared this attached brief in advance of the deadline for the Defendants’ response. As a result of
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28 this effort to provide Defendants with timely notice of the Council’s arguments, the brief was largely
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Case 3:20-cv-04478-JD Document 47 Filed 07/24/20 Page 4 of 6
completed before the case was reassigned from the presiding magistrate, and counsel only just
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2 became aware of the page limitations of the Court’s Standing Order.
3 The Council, through its undersigned counsel, has consulted with the Plaintiffs, who consent
4 to the filing of this brief. To the Council’s knowledge, however, no appearance has been entered on
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behalf of Defendants, and, as a result, it has been unable to seek their consent.
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Furthermore, no party or counsel for a party authored the brief in whole or in part, and no
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party, counsel for a party, or person other than amicus curiae, its members, or its counsel made any
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9 monetary contribution intended to fund the preparation or submission of this brief.
10 For these reasons, the motion for leave to file the attached amicus curiae brief should be
11 granted.
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HUSCH BLACKWELL LLP
120 South Riverside Plaza, Suite 2200
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Chicago, Illinois 60606 15
Phone: (312) 526-1538
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Case 3:20-cv-04478-JD Document 47 Filed 07/24/20 Page 5 of 6
Dated: July 24, 2020 Respectfully submitted,
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2 HUSCH BLACKWELL LLP
3 /s/ Donald J. Mizerk
Donald J. Mizerk (CA Bar No. 208477)
4 John W. Borkowski (IL Bar No. 6320147)
5 Mary Deweese (IL Bar No. 6326512)
Pro hac vice motions pending
6 120 South Riverside Plaza, Suite 2200
Chicago, Illinois 60606
7 Phone: (312) 526-1538
Fax: (312) 655-1501
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don.mizerk@huschblackwell.com
9 john.borkowski@huschblackwell.com
mary.deweese@huschblackwell.com
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Paige Duggins-Clay (TX Bar No. 24105825)
11 Pro hac vice motion pending
111 Congress Avenue, Suite 1400
12 Austin, Texas 78701
Phone: (512) 472-5456
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HUSCH BLACKWELL LLP
Fax: (512) 479-1101
120 South Riverside Plaza, Suite 2200 paige.duggins-clay@huschblackwell.com
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Chicago, Illinois 60606 15
Aleksandra O. Rushing (MO Bar No. 68304)
Shmuel Shulman (MO Bar No. 71175)
Phone: (312) 526-1538
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Pro hac vice motions pending
17 190 Carondelet Plaza, Suite 600
St. Louis, Missouri 63141
18 Phone: 314-345-6275
Fax: 314-480-1505
19 aleks.rushing@huschblackwell.com
shmuli.shulman@huschblackwell.com
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Case 3:20-cv-04478-JD Document 47 Filed 07/24/20 Page 6 of 6
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2 CERTIFICATE OF SERVICE
3 The undersigned certifies that on the 24th day of July, 2020, a copy of the above and
4 foregoing document was filed with the Clerk of Court using the CM/ECF system which sent
5 electronic notification of such filing to all those individuals currently electronically registered with
6 the Court.
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8 /s/ Donald J. Mizerk
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HUSCH BLACKWELL LLP
120 South Riverside Plaza, Suite 2200
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Chicago, Illinois 60606 15
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