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Issa v. School District of Lancaster

United States Court of Appeals, Third Circuit

January 30, 2017


          Argued December 5, 2016

         On 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

          Sharon M. O'Donnell Marshall Dennehey Warner Coleman & Goggin Thomas A. Specht [ARGUED] Marshall Dennehey Warner Coleman & Goggin Counsel for Appellant.

          Hedya 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

          Tovah R. Calderon Erin H. Flynn United States Department of Justice Civil Rights Division, Appellate Section Counsel for Amicus Appellee

          Before: FISHER, KRAUSE and MELLOY, [*] Circuit Judges.


          FISHER, Circuit Judge.

         School-age 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.



         The 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.

         Born in 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.[1]

         Qasin 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 21.

         Sisters 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.

         War 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.[2]

         The International School and Phoenix Academy

         The 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 School District.

         McCaskey 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.[3] 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.

         Phoenix 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.

         Teaching 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.

         Phoenix's 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 International School.

         How 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.

         The School District's Enrollment Policies and Practices

         Enrollment 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.

         Actual 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.

         How Attending Phoenix Affected the Plaintiffs

         For 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 grade levels.

         Through 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.

         Hassan 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.

         Through 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.

         Anyemu 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.


         In July 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.

         Following 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.

         On 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.[4] 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 district shall:
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 education decisions;
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 of $1.00.

         Order, 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 ...

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