KHADIDJA ISSA; Q. M. H., A MINOR, INDIVIDUALLY BY AND THROUGH HIS PARENT, FAISA AHMED ABDALLA; ALEMBE DUNIA; ANYEMU DUNIA; V. N. L.; SUI HNEM SUNG, AND ALL OTHERS SIMILARLY SITUATED
THE SCHOOL DISTRICT OF LANCASTER, Appellant
December 5, 2016
Appeal from the United States District Court for the Eastern
District of Pennsylvania (E.D. Pa. No. 5-16-cv-03881)
District Judge: Honorable Edward G. Smith
M. O'Donnell Marshall Dennehey Warner Coleman &
Goggin Thomas A. Specht [ARGUED] Marshall Dennehey Warner
Coleman & Goggin Counsel for Appellant.
Aryani Seth Kreimer University of Pennsylvania School of Law
Maura I. McInerney Kristina Moon Education Law Center
Kathleen A. Mullen Thomas B. Schmidt, III Pepper Hamilton
Eric J. Rothschild Molly M. Tack-Hooper American Civil
Liberties Union of Pennsylvania Witold J. Walczak [ARGUED]
American Civil Liberties Union of Pennsylvania
R. Calderon Erin H. Flynn United States Department of Justice
Civil Rights Division, Appellate Section Counsel for Amicus
Before: FISHER, KRAUSE and MELLOY, [*] Circuit Judges.
FISHER, Circuit Judge.
refugees facing language barriers asked the District Court
for a preliminary injunction compelling the School District
of Lancaster to allow them to transfer from Phoenix Academy,
an accelerated credit-recovery high school, to McCaskey High
School's International School, a program designed
principally to teach language skills to English language
learners, or ELLs. The District Court granted that request,
finding likely violations of Pennsylvania law and a provision
of a federal statute we've never addressed-the Equal
Educational Opportunities Act of 1974 (EEOA), 20 U.S.C.
§ 1703(f). The School District appeals, asking us to
vacate that order. We will affirm based on the EEOA
violations but not on the state law violations.
named plaintiffs, now the appellees, are immigrants, ages 18
to 21. They fled war, violence, and persecution in their
native countries to come to the United States, arriving here
since 2014. International refugee agencies resettled them in
Lancaster, Pennsylvania. None are native English speakers. As
students, all fall within a subgroup of ELLs called
SLIFE-students with limited or interrupted formal education.
SLIFE are English language learners who are two or more years
behind their appropriate grade level, possess limited or no
literacy in any language, have limited or interrupted formal
educational backgrounds, and have endured stressful
experiences causing acculturation challenges. The named
plaintiffs embody these traits.
January 1998, Khadidja Issa, 19, fled Sudan when she was 5 to
escape "insecurity" under President Omar al-Bashir.
J.A. 568-69, 980. Until age 17, she lived in refugee camps in
Chad where she received her only prior schooling. Her native
language is Fur. She also speaks Arabic. After immigrating
here in October 2015, she was resettled with her family in
Lancaster. When she first arrived, she couldn't speak,
read, write, or understand any English. She's eligible to
attend public school in Pennsylvania through 2019, the year
she turns 21.
Hassan (or Q. M. H.), 18, was born in Somalia in September
1998. When he was 12, al-Shabaab militants killed his father.
He fled to Egypt. A native Somali speaker, he took private
lessons at home and learned "a little bit" of
Arabic, but he wasn't accepted into Egyptian schools.
J.A. 575. He arrived in Lancaster with his family in
September 2015 speaking only "a few words" of
English. Id. Like Issa, he's eligible to attend
public school in Pennsylvania through 2019, the year he turns
Sui Hnem Sung and Van Ni Iang (or V. N. I.), born in October
1996 and October 1998, fled Burma when their father was
forced into labor there. Sung, 20, and Iang, 18, arrived with
their family in Lancaster in November 2015. By then, Sung had
completed ninth grade and Iang eighth, but neither spoke or
understood any English. Their native language is Hakha Chin.
Sung is eligible to attend public school in Pennsylvania
through 2017, the year she turns 21, and Iang is eligible
through 2019, when she turns 21.
forced brothers Alembe and Anyemu Dunia, ages 21 and 19, to
flee "very bad" circumstances in Tanzania to
Mozambique, where life in refugee camps remained "very
bad" and "very difficult." J.A. 615-16, 618.
Native Swahili speakers, they were taught in Portuguese until
the eighth or ninth grade when they could no longer afford
schooling. With their family, they arrived in Lancaster in
November 2014 speaking "just basic" English, like
"hello" and "hi." J.A. 618.
International School and Phoenix Academy
School District of Lancaster, the appellant in this case,
administers numerous schools. Two are relevant here: McCaskey
High School, which the School District operates directly, and
Phoenix Academy, operated by Camelot Schools of Pennsylvania,
LLC, a private, for-profit company under contract with the
High School consists of two smaller schools. One is J.P.
McCaskey, a traditional public high school. The other is
McCaskey East, known as the International School. The
International School is a program designed primarily to teach
language skills to students who speak little, if any,
English. Those students generally attend the
International School for one year, after which they join J.P.
McCaskey's general population. During that year, they
receive "intensive ESL" (English as a second
language) support through two 48-minute ESL courses per day.
J.A. 901, 1071. For "content" classes-science,
math, social studies, and other "enrichment
subjects"-ELLs at the International School receive
"content-based ESL" teaching through a method
called "sheltered instruction." J.A. 901. Under
that method, ELLs, including SLIFE, are grouped together in
content courses with other ELLs at comparable
English-proficiency levels. ELLs are hence
"sheltered" in those classes from other ELLs at
higher proficiency levels and from native English speakers.
To foster English-language proficiency, the International
School also introduces ELLs to new American "cultural
values and beliefs" while respecting their
"cultural diversity" and embraces "close
communication with families" and "access to
appropriate translation services." Id.
Academy is, as the District Court said, "a little
different." Issa v. Sch. Dist. of Lancaster,
No. 16-3881, 2016 WL 4493202, at *2 (E.D. Pa. Aug. 26, 2016).
It's an "alternative education program"
intended to serve "at-risk Students" over-age for
their grade, under-credited, and in danger of not graduating
high school before they age out of public-school eligibility
at 21. J.A. 904, 910. Phoenix's principal missions are to
ensure that students accumulate enough credits to graduate
and to change students' negative behaviors-not to further
their academic proficiencies. A significant portion of
grading is therefore based on students' behavior and
attendance, known as "seat time." J.A. 544, 639. In
step with its mission to change students'
"anti-social" behaviors, J.A. 1039, Phoenix
enforces stringent security measures not in effect at
McCaskey, including daily pat-down searches. Phoenix bars its
students from bringing in or out any personal belongings,
like backpacks, food, books, and even homework. And a strict
dress code is in place. Based on a hierarchical system,
students are rewarded with different colored shirts as they
demonstrate improved behavior.
is also different at Phoenix. All Phoenix students, including
ELLs, take an accelerated curriculum allowing them to earn a
high school diploma in roughly half (but sometimes less than
half) the time of a traditional four-year high school, like
McCaskey. Phoenix students take five 80-minute classes per
day, generally completing each class in half an academic year
(90 days). McCaskey students, in contrast, take seven
48-minute classes per day, generally completing each class in
a full academic year (180 days). Under these different
schedules, McCaskey students receive about 1, 440 more
minutes, or twenty-four more hours, of instruction per class
than do students at Phoenix, the equivalent of about thirty
more 48-minute class periods per class. The upshot is, as one
former Phoenix teacher put it, that Phoenix's curriculum
must be taught "double time." J.A. 632.
program for teaching English to ELLs also differs from the
International School's. Phoenix offers ELLs of all
levels, with no special accommodations for SLIFE, one
80-minute ESL course per day. Otherwise, ELLs, including
SLIFE, take all their content courses-science, math, social
studies-with Phoenix's general population under the
accelerated model. In those content classes, ELLs aren't
sheltered from each other by their English proficiency or
from native English speakers like they are at the
does the School District empirically evaluate the efficacy of
Phoenix's ESL program? It doesn't. The School
District does not assess in any measurable way whether
Phoenix's program helps ELLs overcome their language
barriers. It hasn't attempted to weigh concretely the
impact Phoenix's accelerated, non-sheltered program has
on ELLs, including SLIFE. Raw data about Phoenix's ESL
program apparently exists. But the School District
doesn't disaggregate it from data about the International
School's ESL program. Because the two programs rely on
different ESL teaching methods, commingling the data means
the School District cannot quantify whether Phoenix's ESL
program is successful.
School District's Enrollment Policies and Practices
in Phoenix rather than McCaskey is usually a choice offered
to students and their families. But one group of prospective
students isn't offered that choice: new-to-the-District
students over age 17 and under-credited. For students in that
category (which included the plaintiffs), the choice is made
for them: The School District unilaterally assigns them to
Phoenix and doesn't allow them to transfer to McCaskey.
This mandatory enrollment rule applies regardless of a
student's English proficiency or educational background
and even if the student has several years of public school
eligibility left under Pennsylvania law. The School District
does this, it says, because these students represent a higher
risk of dropping out or aging out at age 21 before earning a
high school diploma, which is a prerequisite for future
advancement. But the School District's funding and
evaluations also turn, in part, on its graduation rates,
which decline when students drop out or age out at 21.
enrollment at Phoenix hasn't been a smooth process for
these plaintiffs. While the School District unilaterally
assigned them to Phoenix under the mandatory enrollment rule,
their actual placement there proved far more difficult. They
experienced significant delays between when they applied for
enrollment and when they were either allowed to attend
Phoenix or denied enrollment outright. The District Court
said it well: In "no case" did the School District
"accomplish the enrollment of the plaintiffs within the
five-day period mandated by state law." Issa,
2016 WL 4493202, at *2. Iang and Sung were not permitted to
start at Phoenix until December 2015 and February 2016,
though they enrolled in November 2015. Issa enrolled in
November 2015 but wasn't allowed to start at Phoenix
until February 2016. Hassan was initially denied enrollment
outright. He was later enrolled when the School District
learned he was 17, not 19, a factor with "no legal
significance" under Pennsylvania law. Id. And
by when the injunction issued in late-August 2016, the School
District had yet to enroll Alembe Dunia, despite his
"repeated attempts to enroll dating back to at least
January 2015." Id.
Attending Phoenix Affected the Plaintiffs
those plaintiffs ultimately admitted to Phoenix, a
"common complaint" was that they didn't
understand the "vast majority" of content taught in
their non-ESL classes. Issa, 2016 WL 4493202, at *3.
The plaintiffs all testified- through interpreters-that
Phoenix's accelerated curriculum moved too quickly for
them to grasp. Apart from their Phoenix ESL courses, the
plaintiffs explained, they couldn't understand most of
what their teachers and classmates were saying. Despite these
difficulties, they accrued credits and advanced to higher
her interpreter, Issa testified that Phoenix's classes
went "very fast" and she didn't
"understand anything." J.A. 572-73. She felt she
wasn't "benefiting" there and wanted to attend
a school "slower in pace." J.A. 573. When asked,
she couldn't explain what two of her classes were about.
In those classes, she said, her teachers and classmates spoke
and wrote only in English, which she couldn't understand.
Nevertheless, she was promoted to the next grade. Of
eighty-four students in her class, she was ranked first.
testified through his interpreter that learning at Phoenix
was "impossible" and he only understood his ESL
teacher. J.A. 580. He couldn't understand his
content-class teachers or classmates.
their interpreter, Iang and Sung explained they too had great
difficulty understanding their content classes at Phoenix
because they were all taught in English. They couldn't
understand their teachers or classmates, and there were
"never" interpreters there to help. J.A. 558.
Dunia graduated from Phoenix during the evidentiary hearing,
earning a diploma in just sixteen months. He did so although
he arrived in the United States without any academic credits
or English-language proficiency, all while amassing
forty-seven total absences. Despite his "readily
apparent difficulties conversing in English" and his
testimony that Phoenix's classes moved too
"fast" for him, he graduated sixth in his class of
107. Issa, 2016 WL 4493202, at *3 & n.2;
see J.A. 620, 1357.
2016, the plaintiffs sued the School District in the District
Court for the Eastern District of Pennsylvania requesting a
preliminary injunction allowing them and similarly situated
ELLs to enroll in and attend McCaskey. On behalf of a
putative class, they allege violations of the EEOA, 20 U.S.C.
§ 1703(f); Title VI of the Civil Rights Act of 1964, 42
U.S.C. § 2000d et seq.; the Fourteenth
Amendment's Due Process and Equal Protection Clauses; and
24 Pa. Stat. § 13-1301 of the Pennsylvania Public School
Code of 1949 and various Pennsylvania regulations.
expedited discovery on the plaintiffs'
preliminary-injunction motion, the District Court held a
five-day evidentiary hearing. Eighteen witnesses testified
and dozens of exhibits were entered into evidence. The
plaintiffs' expert, Dr. Helaine Marshall, a specialist in
teaching English to speakers of other languages (TESOL) and
teaching ESL to SLIFE, testified at length.
August 26, 2016, the District Court granted the
plaintiffs' preliminary-injunction motion, finding likely
violations of the EEOA and state law. Issa, 2016 WL
4493202; see Order, 2016 WL 4493201. On the
plaintiffs' EEOA claims, the District Court held that the
School District failed on prongs one and three of the
three-part test penned in Castaneda v. Pickard, 648
F.2d 989, 1009-10 (5th Cir. 1981), a case we discuss in
detail below. On their state law claims, the District Court
found likely violations of the Public School Code and
regulations in light of the School District's enrollment
delays. It entered the following order:
[P]ending final resolution of this matter, the school
1. Enroll and permit the school-age
plaintiffs, who so wish, to attend the main high school,
McCaskey, beginning on August 29, 2016;
2. Ensure that all plaintiffs are properly
assessed for language proficiency and receive an appropriate
and adequate program of language instruction, including
assignment to the International School if appropriate, ESL
instruction, modifications in the delivery of instruction and
testing to facilitate their achievement of English
proficiency and state academic standards, and interpretation
and translation services, as required by law, to enable the
plaintiffs and their parents to meaningfully participate in
3. Ensure that the plaintiffs have equal
access to the full range of educational opportunities
provided to their peers, including curricular and
non-curricular programs and activities; and
4. The plaintiffs shall post a nominal bond
2016 WL 4493201, at *1. The District Court deferred deciding
the plaintiffs' motion for class certification but urged
the School District to "fairly apply" its
preliminary-injunction order to "school-age refugees
similarly situated" to the ...