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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)

Summary

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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Cite this document

“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/, SHA-256 ceefb98550aa0f29a14b523c9d75292af7e131a1e1922f7c1f5c9cf53773c49b.

Full text

                                                                             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
                                                               5
                                                               6   Attorneys for Amicus Curiae
                                                                   COUNCIL OF THE GREAT CITY SCHOOLS
                                                               7
                                                                                          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
                                                              16
                            Phone: (312) 526-1538
                                                                   SCHOOL DISTRICT, AND SAN                         PRELIMINARY INJUNCTION AND IN
                                                              17   FRANCISCO UNIFIED SCHOOL                         EXCESS APPLICABLE PAGE
                                                                   DISTRICT,                                        LIMITATIONS
                                                              18
                                                                                               Plaintiffs,
                                                              19
                                                              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,
                                                              23
                                                              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
                                                               5
                                                                   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.
                                                               7
                                                                          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
                                                              12
                                                                   districts with enrollments greater than 35,000 students located in cities with a population exceeding
                                                              13




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
                                                              14

                            Chicago, Illinois 60606
                                                                   urban characteristics. The Council’s member districts have a combined enrollment of over 8.2
                                                              15
                                                                   million students. Headquartered in Washington, D.C., the Council promotes urban education through
                            Phone: (312) 526-1538
                                                              16
                                                              17   research, instruction, management, technology, legislation, communications, and other special

                                                              18   projects.
                                                              19
                                                                          The Council has prepared the attached brief because its members and the students that they
                                                              20
                                                                   serve will be harmed by the implementation of the interim final rule adopted by the U.S. Department
                                                              21
                                                                   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
                                                              23
                                                              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
                                                              27
                                                                   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
                                                               1
                                                               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
                                                               6
                                                                   concerning legal issues that have potential ramifications beyond the parties directly involved or if the
                                                               7
                                                                   amicus has ‘unique information or perspective that can help the court beyond the help that the lawyers
                                                               8
                                                                   for the parties are able to provide.’” NGV Gaming, Ltd. V. Upstream Point Molate, LLC, 355 F. Supp. 2d
                                                               9
                                                                   1061, 1067 (N.D. Cal. 2005) (quoting Cobell v. Norton, 246 F. Supp. 2d 59, 62 (D.D.C. 2003)). If
                                                              10
                                                              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

                                                              13




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
                                                              16
                                                                   arguments presented by the parties and will not unduly repeat those arguments. Rather, the Council will
                                                              17
                                                                   draw upon its knowledge of the legislative process and the educational system as well as its members’
                                                              18
                                                                   experience in school communities nationwide to underscore the Rule’s unlawfulness and demonstrate the
                                                              19
                                                                   on-going and irreparable harm the Department’s actions, including the Rule, have caused and will
                                                              20
                                                              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
                                                              24
                                                                   the attached amicus brief to 25 pages. Because of the urgent need for the parties and other
                                                              25
                                                                   stakeholders, like the Council, to address the matters raised in the Plaintiffs’ motion, the Council has
                                                              26
                                                                   prepared this attached brief in advance of the deadline for the Defendants’ response. As a result of
                                                              27
                                                              28   this effort to provide Defendants with timely notice of the Council’s arguments, the brief was largely
                                                                                                                       3
                                                                              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
                                                               1
                                                               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
                                                               5
                                                                   behalf of Defendants, and, as a result, it has been unable to seek their consent.
                                                               6
                                                                          Furthermore, no party or counsel for a party authored the brief in whole or in part, and no
                                                               7
                                                                   party, counsel for a party, or person other than amicus curiae, its members, or its counsel made any
                                                               8
                                                               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.
                                                              12
                                                              13




HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200
                                                              14

                            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,
                                                               1
                                                               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
                                                               8
                                                                                                            don.mizerk@huschblackwell.com
                                                               9                                            john.borkowski@huschblackwell.com
                                                                                                            mary.deweese@huschblackwell.com
                                                              10
                                                                                                            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
                                                              13




HUSCH BLACKWELL LLP
                                                                                                            Fax: (512) 479-1101
                      120 South Riverside Plaza, Suite 2200                                                 paige.duggins-clay@huschblackwell.com
                                                              14

                            Chicago, Illinois 60606           15
                                                                                                            Aleksandra O. Rushing (MO Bar No. 68304)
                                                                                                            Shmuel Shulman (MO Bar No. 71175)
                            Phone: (312) 526-1538
                                                              16
                                                                                                            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




                                                               1
                                                               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.
                                                               7
                                                               8                                                 /s/       Donald J. Mizerk

                                                               9
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HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200
                                                              14

                            Chicago, Illinois 60606           15

                            Phone: (312) 526-1538
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