Case 2:16-cv-00379-SPC-MRM Document 1 Filed 05/18/16 Page 1 of 37 PageID 1
FILED

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FT. MYERS DIVISION

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LESLY METHELUS, on behalf ofY.M., a minor; ROSALBA ORTIZ, on behalf ofG.O., a minor; ZOILA LORENZO, on behalf of M .D. , a minor; on behalf of themselves and all others similarly situated,
Plaintiffs,
V.
THE SCHOOL BOARD OF COLLIER COUNTY, FLORIDA and KAMELA PATTON, Superintendent of Collier County Public Schools, in her official capacity,
Defendants.

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1. Plaintiffs are parents or guardians of Y.M., G.O., and M.D.,

children who recently arrived to the United States and have been denied

equal access to educational oppm1unities as a result of Defendants' policy

and practice of excluding the m from enrollment in public high school. Rather than allow these Engl ish Language Learner (';ELL") stud ents to enroll in Collier County public high schools, Defendants funnel them to

non-cred it, English language-on ly, adult programs that charge a fee.

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2. Florida law reqmres that public schools offer students instruction in core content and ski lls, including mathematics, science, and social studies ("Fimida Standards"). Defendants deny Y.M. G.O., M.D., and similarly situated students, the opportunity to Jearn the skills and subj ect matte r set forth in the Florida Standards, credits toward a high school diploma, access to other activities and programs avai lable to students enro lled in hi gh school, and their fu ll learning and eventual earning potential.
3. Defendants violate Florida and federa l law by denying recently-arrived, foreign-born, ELL students ages sixteen and o lder emollment in public schools that teach to the Florida Standards.
4. Plaintiffs ask the Court to grant declaratory and inj unctive relief, including compensatory educati on, to Y.M., G.O., M.D., and a class of similarl y situated students.
JURISDICTION 5. This case arises under the United States Constitution and the laws of the United States, including the Equal Protection and Due Process clauses of the Fourteenth Amendment to the Constitution; the Equal Educational Opportunities Act of 1974 (' EEOA"), 20 U.S.C. § 1703; T itle VI of the C ivil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq . ("T itle VI");
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and 42 U.S.C. § 1983. The Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 (a), 1343, 2201, and 2202 and 20 U.S.C. §§ 1706, 1708. The CoUit may exercise supplemental jurisdiction over Plaintiffs' state Jaw claims under the F lorida Educational Equity Act, Fla. Stat. §§ 1000.05 et seq. , and F la. Admin. CodeR. 6A-19.001 et seq. See 28 U.S .C. § 1367(a).
VENUE
6. Venue is proper pursuant to 28 U.S.C. § 139 l(b)(2) because "a substantial part of the events or omissions giving rise to the claim[s] occurred' in this district.
PARTIES Named Plaintiffs
7. Plaintiff Lesly Methelus and his seventeen year-old son, Y.M., reside within Immokalee High School ' s attendance zone in Collier County. Y.M. is a student with limited English proficiency 1 who is of Haitian national origin.
8. Plaintiff Rosalba Ortiz and her seventeen year-old nephew (over whom she has custody), G.O., reside w ithin Immokalee High School's attendance zone in Collier County. G.O. is a student with limited English profi ciency who is of Guatemalan national origin. 1 The term "Limited English proficiency" ("LEP") is interchangeable w ith "English Language Leam er" ("ELL").
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9. Plaintiff Zoila Lorenzo and her seventeen year-old son, M.D. , reside within Immokalee High School's attendance zone in Collier County. M.D. is a student with limited English proficiency who is of Guatemalan national origin. Defendants
10. Defendant School Board of Collier County, F lorida (" School Board"), is responsible for directing, operating, controlling, and supervising all free public schools in Collier County. See Fla. Stat. §§ 1001.32-33 and 1001.40-42. Defendant School Board is responsible for the establishment, organization and operation of schools within Collier County school district. ld. § 1001.42(4). The School Board is the contracting agent on behalfofthe Collier County school district and is subject to suit. Id. 1001.41(4); Fla. Stat. § 1001.30. The School Board has acted under color of state law at all times referenced in this complaint within the meaning of 42 U.S.C. § 1983.
11. Defendant Kamela Patton, as the Superintendent of the Colli er County Public Schools, is the secretary and executive officer of the Collier County School Board. See Fla. Stat. §§ 100 1.32(3), 1001.33. Superintendent Patton is responsible for the administration and management of the schools and for the supervision of inst1·uction in the district. Id. See also Fla. Stat. §§ 100.1.49, 1001.51. She is charged with
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recommending the establishment, organization, and operation of schools, classes, and services as are needed to provide adequate educational opportunities for all children in the district. ld . § 100 1.51(6). She is also charged with ensuring that all laws and rules of the State Board of Education are properly observed. ld. § 1001.51 (1 4). Superintendent Patton has acted under color of state law at all times referenced in this comp laint within the meaning of 42 U.S.C. § 1983 .
LEGAL BACKGROUND
Plaintiffs' Right to Equal Access to Educational Opportunity 12. The education of children is a fund amental value of the
people of the State of Florida. Fla. Const. art. IX, § 1(a). The sta te constitution mandates "a high quality system of fi·ee publ ic schools that all ows students to obtain a high quality education." Id. Such education shall be provided to "all children residing within its borders." ld.
13. Florida has developed core skills and subj ects that publlc schools must teach to all students. See Fla. Stat. § 1003 .4 1 ("F lorida Standards") (requiring skills instruction in critical-think ing, problemsolving, mathematics, contextual and applied-learning, technology-literacy, information and medi a-literacy, civic-engagement, and subj ect matter
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instruction in science, mathematics, social studies, visual and performing arts, physical education and health). See also id. § I 003.42.
14. Florida law also prioritizes enrollment of students in school through graduation. In Florida, education is compulsory for all children
bet\;veen the ages of six and sixteen without exception. Fla. Stat. §
1003.2l(l)(a)(l). 15. Public school students ages sixteen and older who have not
graduated are also subject to compulsory school attendance until a student " files a formal declaration of intent to terminate school enrollment with the school board." Id . § 1003.2 l(l)(c). The declaration "must acknowledge that terminating school enrollment is likely to reduce the student's earning potential" and be signed by the student and parent. ld.
16. Even on receipt of s uch a declaration, state law requires school personnel to "determine the reasons for the student's decision to terminate school enrollment" and to detennine any "actions that could be taken to keep th e student in school." Id.
17. State law establishes no maximum age for public education. 18. In 1970, the Office of Civil Rights of the federal education agency issued a memorandum ("Memo") clarifying the responsibility of school districts to provide equal educational opportunity to national origin
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minority group children deficient in English language skills. J. Stanley Pottinger, Office of Civil Rights, U.S. Department of Health, Education and Welfare, DHEW Memo Regarding Language Minority Children (May 25, 1970), http://www2.ed.gov/about/offices/ list/ocr/docs/lau1970.html (last visited May 4, 2016). The Memo stated that ·where the " inability to speak and understand the English language excludes national origin-minori ty group children from effective participation in the educational program offered by a school distTict, the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students." Id. Under the Memo, grouping of ELL students must not operate as an "educational dead-end or permanent track." Id.
19. In 1974, Congress passed the Equa l Educational Opportunities Act ("EEOA"). In advocating for its passage, President Richard Nixon issued a statement to Congress explaining that under the Act, "School authorities must take appropriate action to overcome whatever language baniers might exist, in order to enable all students to participate equally in educational programs." Richard M. N ixon, Special Messag:e to the Congress on Equal Educational Opportunities and School Busing, Public Papers of the Presidents of the United States (March 17, 1972), http://W\iVW.presidency.ucsb.edu/ws/?pid=3776 (last visited May 10, 20 16).
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20. The United States Department of Justice ("DOJ") and the Office of Civil Rights of the United States Department of Education ("OCR") (collectively " th e Departments"), in guidance to school districts, have stated that ELL students should not only have access to the core curriculum, but equal opportunities to meaningfully patticipate in all school programs and activities whether curricular, co-curricular, or extracurri cular. See U.S. Dept. of Justice and U.S. Dept. of Educ., Dear Colleague Letter: English Learner Students and Limited English Proficient Parents 17- 18 (Jan. 7, 20 15), http://www2.ed.gov/about/offices/list/ocr/letters/colleagueel-20150 l.pdf.
21. The Departments further state that school districts should place ELL students in age-appropri ate grade levels so that these students can have meaningful access to their grade-appropriate cmricula and an equal opportunity to graduate. Id. at 18. While recognizing that some students may have an interruption m their formal ed ucation, the Departments state that these students should still be placed in a setting that is age appropriate. See id. at n.50.
22. Florida Jaw and administrative regulations also require that ELL students have equal access to programs as other students. See Fla. Admin. CodeR. 6A-6.0908 (ELL students "shall be entitled to equal access
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to programs and services other than ESOL,2 such as, but not limited to compensatory, exceptional, early childhood, pre-first grade, vocational, adult education, drop out prevention, extended day, and supportive services regardless of the funding source"); Fla. Stat. § 1000.05 (proh ibi ting di scrimination in education programs and activities) and F la. Admin. Code R. 6A-1 9.001 (defining discrimination to include " taking of any admission . . . action, that adversely affects a[n] ... applicant for admission... based on ... linguistic characteristics of a national origin group," or the "taking of an admi ssion action, that adversely affects a[n] . .. applicant for admi ssion, belonging to a national origin minority group, unnecessarily based on limited-English-language ski lls"); see generally Fla. Stat. § 1003.56(3)(d); Fla. Admin. CodeR. 6A-6.0901 et seq.
23 . Florida law requires that Defendants provide ELL students not only with English instruction, but also with instructi on in the subj ect areas of mathematics, science, social studies, and computer literacy either with language support or in students' home language. Fla. Stat. § 1003.56(3)(d); Fla. Admin. Code R. 6A-6.090 1 et seq.
24. Under 20 U.S.C. §§ 680 1 et seq. , federal funds are allocated to help ELL students learn English and meet state academic content and achievement standards. Defendant School Board, as the contracting agent 2 "ESOL" stands for "E nglish for Speakers of Other Languages."
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of the Collier County School District, receives federal funding, including but not limited to English Language Acquisition funding, to provide instructional programs and services to students.
25. In light of these legal requirements, on February 26, 2013, Defendant Patton signed and submitted to the Florida Department of Education a "District ELL Plan." (See Ex. 1.) The plan certifies that Collier County public schools were in compliance with section 1003.56, Florida Statutes, applicable administrative regulations, the M.ay 25, 1970 Office of Civil Rights Memo, the Florida Educational Equity Act, and the Equal Educational Opportunities Act of 1974, all of which require equal access to educational opportunities for ELL students. ld.
26. In addition, the ELL plan sets forth the Dish·ict's policies and procedures for providing instruction to ELL students, including identification, evaluation, and placement of ELL students in Collier County schools. The plan requires schools to identify ELL students at the time of registration using a home language survey. (Ex. l at 3-4.) Once identified, students' English language skills and academic level are to be assessed using testing and other criteria. (Id. at 4-7.) The school's ELL committee then makes a placement with regard to English language instruction based on results of the assessments, among other factors . (ld. at 6-7.)
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27. Under Defendants' ELL plan, ELL students' academic level is to be assessed using testing previous school records, and in the absence of such records, using interviews of the student and parents along w ith other assessment tools. (ld. at 7-8.) After such assessment, the ELL contact or guidance counselor is to place the student in an appropriate grade and develop an ELL student plan for the student. (Id. at 7-1 0.) The ELL Plan requires that placements be " age appropriate." (Id. at 8.)
28. Under the plan, ELL students are taught to the F lorida Standards, and "ELL students receive equal access to the regular cun·icu lum." (Id. at 11 .)
29. Further, the ELL plan specifies that " instruction provided to ELLs is equal in amount, sequence and scope to that provided to non-ELL students.'· (Id. at 12.)
Defendants' Policy and Practice of Denying Equal Access to Educational Opportunity 30. From about 20 12 through the spring of 20 13, there was a sharp in crease in the number of unaccompani ed minors arriving to the United States from abroad. See Pew Charitable Trusts, N umber of Undocumented Children Who Cross U.S. Border Alone has Tripled (May 9, 20 13) http://WW\v.pewtrusts.org/en/research-and-analys is/blogs/stateline /20 13/05/09/number-of-undocumented-chi Idren-who-cross-us-border-a)one
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-has-tripled (last visited May 2, 20 16). Most of these youth were 16 or 17 years old when they came to the United States. Congressional Research Service, Unaccompanied Alien Children: Demographics in Brief 4-5 (Sept. 24, 2014) https://www.fas.org/sgp/crs/homesec/R43734 .pdf.
31. On A ugust 1, 20 13, Defendant Collier County School Board enacted School Board Policy 511 2.0 1 ("th e Po licy"), which states:
Persons who are seventeen (17) years old or older and vvho by earning eig ht (8) credits per academic year, can not meet graduation requirements including grade point average (GPA), prior to the end of the schoo l year in which they attain the age of nineteen (19) shall not be permitted to attend the regular high school program beyond the end of the academic year in w hich they atta in the age of seventeen (17). Such persons shall be afforded an opportunity to pursue a high school diploma through the Ad ult High School or General Educational Development (GED) programs of the District. (Ex. 2.) 32. On informat ion and belief, Collier County school emp loyees routinely deny high school enro llment to recently-atTived, foreign-born, ELL students age sixteen or older relying on the Policy, and then funnel them to off-site, adult, English-only instruction. 33. By denying enrollment to recently-arrived ELL students ages sixteen and older, Defendants procedurally and substantively depart from the norms followed w ith regard to Defendants' ELL plan and students in g e n e r a l.
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34. Defendants' denial of emollment to this group of students violates state and federal law. See Fla. Stat. § 1000.05 (prohibiting discrimination) and Fla. Admin. Code R. 6A-19.001 (defining discrimination as taking an admission action, that adversely affects an applicant for admission based on " Lingu istic characteristics of a national origin group," or " belonging to a national origin minority group, unnecessarily based on limited-English-language skills"); 20 U.S.C. § 1703(f) (requ iring educational agencies "to take appropriate steps to overcome language barriers that impede equal participation by its students in its instructional programs").
35. By denying enrollment, Defendants also deny these ELL students the benefit of Defendants' ELL plan. As these students are not permitted to register, they are not identified as ELL upon registration; they do not receive English and academic assessments; they are not provided placement decisions by the school ELL committee, ELL Contact or guidance counselor, or development of an ELL student plan; they are not offered classes taught to the Florida Standards, equal access to the regul ar curriculum, or instruction equal in amount, sequence and scope to that provided to non-ELL students; and they are not provided assessments of academic and language progress.
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36. After denying enrollment, Defendants funnel these students to off-site, non-credit, adult, English language-only programs at Immokalee Technical College, also known as Immokalee Technical Center ("!Tech"), or other locations.
37. By funne ling these students to a non-credit English program, Defendants procedurally and substantively depart from the norms set out in the ELL plan.
38. The program offered to these students at !Tech, Adult English for Speakers of Other Languages ('Adult ESOL"), does not teach the skills and subject matters required under the Florida Standards and the ELL plan. Instead, it only provides for "learning English through reading, listeni.ng, speaking and writing skills required to get a job, get promoted and communicate within the community." See Immokalee Technical College, Portfolio of Programs Offered (last visited Apri l 1, 2016), http: //w w w.itech .edu/pmifolio/ engli sh.
39. The Adult ESOL program does not provide instruction in basic subject areas of math, science or social studi es, required by section 1003.56(3)(d), Florida Statutes, the accompanying regulations and the ELL plan. The Adult ESOL program does not provide any credit toward a
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regular high school diploma. See Fla. Stat. § 1004.02(2) (defining Adu lt ESOL as " noncredit English literacy courses").
40. Adult ESOL costs thirty dollars per semester to participate in the progra m, in violation of the Florida Constitution, which mandates "free public schools." F la. Const. art. IX, § l (a).
41. Students in the Adu lt ESOL program are segregated from their peers and denied the opportunity to participate in any of the high school's academic enrichment, spmts, or extra-curr icular activities. This violates Florida administrative regulations that entitle ELL Students to " equal access to programs and services other than ESOL." See Fla. Admin. Code R. 6A-6.0908. It is also contrary to federal guidance stating that under federa l law, ELL students should have equal opportunities to meaningfully participate in all school programs and activities whether curricul ar, co-curricular, or extracuiTicular. See Dear Colleague Letter supra at 17-18.
42. Contrary to the federal guidance letter and Defendants' ELL plan that state that placement of ELL students should be age appropriate, Defendants funnel ELL students ages sixteen and older to an Adult ESOL program instead of educating them with their peers at the local high school. See Dear Colleague Letter, supra at 18, n. 50; (Ex. 1 at 8.)
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43. By denying Y.M., G.O., M.D., and similarly situated students enrollment in the high school, and failing to identify, evaluate, and provide services under Defendants' ELL plan, Defendants deny these students equal access to educational opportunities offered in high school, the opportunity to earn credits toward a high school diploma, and the opportunity to learn skills and core subject matter that they wil l need in the future, thereby limiting their educational opportunities, career opportunities, and earning potential.
NAMED PLAINTIFFS' ALLEGATIONS 44. Y.M., G.O., and M.D. are minor, high school-aged ELL students who left their countries of origin and now reside in Collier County. When they sought to enroll at the local high school, however, Defendants refused to enroll them. 45. Y.M. arrived m Collier County from Haiti on March 27, 2015, at the age of fifteen. Prior to coming to the United States, Y.M. was enrolled in what is considered the 8th grade at the Ecole Mixte Freres-Unis de Mapou Lagon in Haiti.3 46. During the week of March 30, 2015, Y.M. and his father, Mr. Methelus, went to Immokalee High School to enroll Y.M. in school. A 3 Grade levels in other countries may not correspond with grade levels in the United States. That is why individual assessment of foreign-born students is essential to placement.
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school staff person immediately asked Y.M. 's age. When Mr. M ethelus told her that Y.M. would be turning sixteen on April 4, 2015, the e mployee
responded that Y.M. could not enroll at Immokal ee H igh because it was "too close to hi s s ixteenth birthday." Defendants' employee did not give Y.M. and his father an enrollment packet for school. Instead, she directed them to the adult program at JTech. Per her instructions, Mr. Methelus emolled Y.M. at ITech.
47. At !Tech, Y.M. did not rece ive instructi on in the co re subj ect areas and skills required by the Florida Standards, nor was he able to earn credits toward a hig h schoo l diploma. Mr. M ethe lus was not afforded any opportunity to appea l the decis ion to deny Y.M. enrollment in high school. The refusal to enroll Y.M. in an academic program and decision to isolate him from his non-immigrant peers has denied this child equal, nonsegregated access to educational opportunity and caused him to feel frustrated and atLx.ious about his future.
48. G.O. arrived in Collier County fro m Guatemala in summer of 20 14. G.O. wants to become a police officer so that he can serve and protect his community. In August 2014, G.O. , who was sixteen at the time, and his aunt and guardian Rosa l.ba Ortiz, went to Immoka lee High School to enroll 0 .0. in school.
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49. Upon arrival at the school's front office, they completed school registration paperwork and provided a copy of a repori card showing G.O. had most recently completed what is considered the sixth grade in Guatemala. Defendants' employee told them they wou ld have to send G.O. 's paperwork to district headquarters in Nap les to find out if G.O. could enroll at Immokalee High School. When Ms. Ortiz contacted Immokalee High School a few days later, she was told G.O. could not attend Immokalee High School. His only option was to attend the Adult ESOL program at !Tech. M s. Ortiz was not afforded any mechanism for appealing Defendants' decision.
50. Having been offered no other option, she enrolled G.O at !Tech in the Adult ESOL program, where he received only basic English language instruction. G.O. did not receive instruction in any of the core subject areas and skills required by the Florida Standards. He feels frustrated and hopeless.
51. M.D., who 1s from Guatemala, arrived in Immokalee in December of 2014 at the age of sixteen. Shortly after his ani val, M.D. and his mother, Zoila Lorenzo, went to Immokalee High School to enroll M.D. in school. They were met in the front office by a school employee who immediately asked about M.D. 's age and educational hi story. M.D.
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advised that he was sixteen years old and had finished what is considered the sixth grade in Guatemala. Defendants' employee then told them that M.D. could not attend high school, but could enroll at !Tech. They were not given an enrollment packet or provided an opportunity to appea l the school's decision. Ms. Lorenzo then took M.D. to !Tech where she paid thirty dollars to enroll him in the Adult ESOL class.
52. M.D. is a soccer enthusiast and skilled player. Shortly after his anival in Immokalee he joined a recreational soccer league. A local coach recognized his abi lity and encouraged him to try out for Immokalee High School's soccer team. As M.D. has not been able to enroll in high school, however, he also has not been able to try out for the high school soccer team.
53. M.D. attended Adult ESOL class at ITech. At !Tech, he did not receive instruction in any of the basic subject areas required by the Florida Standards nor was he allowed to participate in Immokalee High School's programs and activities. He feels frustrated and isolated due to the Defendants' refusal to allow him to access a high school education.
54. On September 17, 2015, Plaintiffs' counsel wrote a letter to Defendant Kamela Patton, identifying the high school' s refusal to enroll ELL students aged sixteen and older; stating that enrollment of students in
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Adult ESOL rather than in school violated state and federal laws; requesting rescission of the Policy; requesting that immediate steps be taken to enroll G.O. and M.D. in school; and requesting that similarly situated students be ensured equal access to educational opportunities.
55. Defendants' general counsel responded to the Jetter, but did not agree either to enroll the students in high school or to revise its policy or practice.
56. Despite Plaintiffs ' requests, and federal and state laws, Defendants have not enrolled Y.M., G.O., and M.D. in high school. As a result, Y.M., G.O., and M.D. are not earning credit toward a high school diploma, are not receiving free education in all of the subjects and skills required by the Florida Standards, are not afforded the services provided in Defendants' own ELL plan, are deni ed the opportunity to participate Ill other school program and activities, and are segregated from their peers.
57. Named Plaintiffs, on behalf of Y.M., G.O., M.D., and those similarly situated, seek a declaration that Defendants' discriminatory policy and practices are unlawful and an injunction to end those practices. They also seek compensatory education to receive the education that they were denied due to Defendants' policy and practice.
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CLASS ACTION ALLEGATIONS 58. Plaintiffs bring this action on behalf ofY.M., G.O., M.D. and a class of similarly situated students pursuant to Rul e 23(a) and (b)(2) of the Federal Rules of Civil Procedure. 59. The class is defin ed as: All recently-arrived, foreign-bam, English Language Learner (ELL) students ages sixteen and older who after August 1, 20 13, resided or will reside in Collier County, sought or will seek to enroll in a Collier County public high school, and were or will be denied enrollment by the Defendants.
Rule 23(a)(l ) - Numerosity
60. According to federal government data, more than 200 unaccompanied minors have been released to family or sponsors in Collier County each fiscal year since 2013.4 From October 2013 to September 2014, that number was 24 1. From October 20 14 to September 2015, the number was 219. And from October 20 15 to March 20 16 (the most recent data available), the number is already 20 1.
6 1. A report by the Congress ional Research Service shows that nationally, children 16-17 years old made up 55% of the unaccompanied
4 See Office of Refugee Resettlement, Unaccompanied Children Released to Sponsors by County FY 15, http://www.acf.hhs.gov/programs/orrl
resource/unaccompanied-children-released-to-sponsors-by-county-fY 15
(last v isited Apr. 25, 20 16).
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minors population in fiscal year 20 13 and 46% of the population in fiscal year 2014. On average then, children 16-1 7 years old have accounted for about half of the unaccompanied minors entering the United States. Congressional Research Service, Unaccompanied Alien Children:
Demographics m Brief 4-5, (Sept. 24, 2014),
https://\;vvvw.fas .org/sgp/crs/homesec/R43734.pdf. 62. Assuming the age breakdown nat ionally is comparable to the
age breakdown of the children w ho have resettled to Collier County, this would mean that approximately 50% of the unaccompan ied minors who have come to Collier County are 16-1 7 years old.
63. Taken together, this data shows that the proposed class consists of approximately ~00 to 120 children a year (50% of 24 1, 2 19, 201). These reasonable estimations are sufficient to find numerosity.
64. Joinder of the members of the class would be impracticable. The proposed class members are foreign-born students who are not literate in Engli sh or familiar with the U.S. legal system.
65 . Many parents or guardians of children in this situation wi ll themselves have limited English proficiency, lack familiarity with the U.S. legal system, and lack the resources necessary to advocate on behalf of these children.
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66. In addition, the proposed class includes future members whose identities cannot yet be known.
Rule 23(a)(2)- Commonality 67. Members of the proposed class have been or w ill be adversely affected by Defendants ' ref-usal to enroll recently-arri ved ELL students aged 16 and older into high school with their peers. 68. Common questions for all class members include: (1) whether Defendants' refusa l to enroll class members in high school violates the U.S. Constituti on and the Equa l Educational Opp01tunities Act; and (2) whether Defendants' actions unlawfully segregate class members from their peers and deny th em access to programs and activities in vio lation of the EEOA, Title VI of the Civil Rights Act of 1964 and the Florida Educational Equity Act. 69. D eterminati on of these common questions w ill turn on an evaluation of the sam e legal standards, requirements, and policy and practice by Defendants. Rule 23(a)(3)- Typicality 70. The named Plaintiffs ' claims are typical of those of the prop osed class. They arise from D efendants ' enrollment policy and practice that deny class members the opportunity to enroll in the public
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high school, deny them equal access to educational opportunities and segregate them from their peers. These claims are based on the same injuries and application of the same legal theories to aU class members' claims.
71. All class members wi ll benefit from an end to Defendants' discriminatory policy and practice.
Rule 23(a)(4)- Adequacy of Representation 72. The named Plaintiffs wi ll fairly and adequately represent the class. They have no interests antagonistic to those of the class. They are seeking declaratory and injunctive relief that will provide relief to all class members. 73 . Plaintiffs ' counsel is also fully qualified and prepared to pursue this litigation on behalf of the class. P laintiffs are represented by the Southern Poverty Law Center, a non-profit organization with significant experience litigating class actions and with sufficient financi al and human resources to litigate this matter. 74. Plaintiffs and their counsel will vigorous ly and competently prosecute this action on behalf of the class.
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Rule 23(b)(2) - Defendants' Refusal to Act on Grounds Applicable Generally to the Class 75. The named Plaintitis challenge a policy and practice by the Defendants that is generally applicable to the class as a whole. That policy and practice operates to exc1ude class members from enrollment in their local high school and instead funnels them to an adult, off-site, non-credit, English-on ly program. 76. Defendants have acted or refused to act on grounds that apply generally to the class, making final injunctive and cmTesponding declaratory relief appropriate with regard to the class as a whole.
CLAIMS FOR RELIEF First Cause of Action
Declaratory and Injunctive ReUef for Violation of the Equal Educational Opportunities Act of 1974 C'EEOA")
77. The named Plaintiffs, on behalf of Y.M., G.O., M .D., and all others similarly situated, re-allege and incorporate by reference the allegations set forth in the foregoing paragraphs of this complaint as if fully restated herein.
78. Defendants Collier County School Board and Superintendent Patton are bound by the provisions of the EEOA, 20 U.S.C. § 1703.
79. Section 1703 of the EEOA states in part:
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No State shall deny equal educational opportunity to an individual on account of his or her race, color, sex or national origin by: (a) the deliberate segregation by an educational agency of students on the bas is of race, color, sex or national origin among or within schools; [or]
(f) the failure of an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs. 20 U.S.C. § 1703(a), (f). 80. Through their actions and inactions, including denying these students enrollment in high school and funneling them instead to Adult ESOL, Defendants have denied Y.M., G.O., M.D. and similarly situated students equal educational opportunity on account of their national origin by deliberately segregating them from their peers. 81. Through their actions and inactions, including denying these students enrollment, Defendants have denied Y.M., G.O., M.D., and similarly situated students equal educational opportunity on acco unt of their national origin by fai ling to take appropriate action to overcome language barriers that impede these students' equal participation in Defendants' high school program .
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82 . As a result, Defendants deny Y.M., G.O., M.D., and similarly situated students a public school education, the opportunity to learn the skills and subject matter set forth in the Florida Standards, credits toward a high school diploma, access to other activities and programs available to students enrolled in high school, and their ful l learning and earning potential.
83. Defendants' conduct violates the rights of the Y.M., G.O., M .D., and all others similarly situated under the EEOA.
84. The named Plaintiffs, on behalf of Y.M., G.O., M.D., and all others similarly situated students, request declaratory and injunctive relief to remedy Defendants' ongoing violation of these rights.
Second Cause of Action Declaratory and Injunctive Relief for Vio lation of Title VI
of the Civil Rights Act of 1964 85. The named Plaintiffs, on behalf of Y.M. , G.O., M.D. , and all others similarly situated, re-allege and incorporate by reference the allegations set forth in the foregoing paragraphs of this complaint as if fully restated herein. 86. Title VI provides that no person in the United States shall, on the ground of race, color or national origin, be excluded from participation
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m be den ied the benefi ts of, or be subj ect to discrimination under, a ny
program receiving federa l funding. 42 U.S.C. § 2000d.
87. As recipients of federa l funding, Defendants are prohibited from discriminating against Plaintiffs by excluding them from instructi onal services, fa ili ng to provide them w ith instructional services, or providing them w ith inferior services on the basis of their national orig in.
88. Defendants acted under color of state law to deprive Y.M., G.O., M .D., and all others similarly situated of a federa l right under Titl e VI.
89. Defendants acted pursuant to a policy and practice m
depriving Y.M. G .O .. M.D., and all others similarly s ituated of a federal right under T itle V I.
90. Through their actions and inactions on the basis of national origin Defendants have excluded Y.M., G.O., M .D., and simil arly s ituated students from participation in a publi c school education and Defendants' ELL program, denied them the benefits of these programs, and subj ected them to di scrimination as set forth above.
9 1. As a result, Defendants deny Y.M., G .O., M .D., and similarly s ituated students a public school education, the opportunity to learn the skills an d subj ect matter set forth in the F lorida Standards, c redits toward a
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high school diploma, access to other activities and programs avai lable to students enrolled m high school, and their full learning and earning potential.
92. The named Plaintiffs, on behalf of Y.M., G.O., M.D., and all others similarly situated, seek declaratory and injuncti ve relief to remedy these ongoing violations.
Third Cause of Action Declaratory and Injunctive Relief for Violations of the
Fourteenth Amendment Equal Protection Clause 93. The named Plaintiffs, on behalf of Y.M., 0.0. M.D., and all others similarly situated, re-allege and incorporate by reference the allegations set forth in the foregoing paragraphs of this complaint as if fully restated herein. 94. The Fourteenth Amendment' s Equal Protection Clause provides that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Canst. amend. XIV. 95. Defendants acted under color of state law to deprive Y.M., 0.0., M.D., and all others similarly situated of a federal right under the Equal Protection Clause of the Fourteenth Amendment.
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96. Defendants acted pursuant to a policy and practice to deprive Y.M., G.O., M.D., and all others similarly situated of a federal right under the E qual Protection Clause of the Fourteenth Amendment.
97. Defendants have fa iled to enroll Y .M., G.O., M.D., and all others similarly situated and have instead funneled them to off-site, noncredit Adult ESOL, denying them equal protection of the laws.
98. As a result, Defendants deny Y.M., G.O., M.D., and similarly situated students a public school education, the opportunity to learn the skills and subj ect matter set forth in the Florida Standards, credits toward a high school diploma, access to other activities and programs avai lable to students enrolled in high school, and their full learning and earning potential.
99. The named Plaintiffs, on behalf of Y.M., G.O., M .D., and all others similarly situated, seek declaratory and injunctive relief to remedy these ongoing, constitutional violations.
Fourth Cause of Action Declaratory and Injunctive Relief for Vi olation of the
Fourteenth Amendment Due Process Clause I00. The named Plaintiffs, on behalf of Y.M., G.O., M .D., and all others similarly situated, re-allege and incorporate by reference the
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allegations set forth in the foregoing paragraphs of this compla int as if fully restated herein.
101 . Through their actions and inact ions, Defendants have deprived Y.M. G.O. and M .D., and all others similarly situated of their constitutionally protected property interest to an education by denying them the right to attend high school.
102. Defendants' lack of any procedures foll owing denial of emollment is constitutionally inadequate. Defendants denied Y.M., G.O. and M.D. and all others similarly situated the right to attend high school without any proced ures, including notice, an opportunity to be heard, or an avenue to challenge an adverse determination.
103. As a result, Defendants deny Y.M., G.O., M.D., and similarly situated students notice and an opportunity to be heard regarding their denial of hi.gh school enrollment and related educational oppmtunities.
104. Defendants acted pursuant to a policy and practice m depriving Y.M., G.O., M.D., and all others similarl y situated of an education without notice or opportunity to be heard.
105. The named Plaintiffs, on behalf of Y.M., G.O., M.D ., and others similarly situated, seek declaratory and injunctive relief to remedy these ongoing, constitutional violations.
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Fifth Cause of Action Declaratory and Injunctive Relief for Violation of the F lorida Educational Equity Act, Fla. Stat. §§ 1000.05 et seq. and
Fla. Admin. CodeR. 6A-19.001 et seq . 106. The named Plaintiffs, on behalf of Y.M., G.O., M.D., and ali others similarly situated, re-allege and incorporate by reference the allegations set forth in the foregoing paragraphs of this complaint as if fu lly restated herei n. 107. The Florida Educational Equity Act prohibits the exclusion of or discrimination against students on the basis of national origin. See Fla. Stat. § 1000.05(2)(a). 108. Under the Act, 'discrimination" includes taking admission actions that adversely affects an applicant for admission based on " linguistic characteristics of a national origin group," or " belonging to a national origin minority group, unnecessarily based on limited-Englishlanguage skills." Fla. Admin. CodeR. 6A-19.001. 109. The F lorida Educational Equity Act also bans admissions criteria that result in a disparate impact. Fla. Stat. § 1000.05(2)(b) (" [T]he criteri a for admission to a program or course shall not have the effect of restricting access by persons of a particular race, ethnicity, national origin, gender, disability or marital status").
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II 0. Defendants' actions and inactions to exclude Y.M., G.O., M.D., and all others similarly situated from enrollment in public high school and to f-unnel them to non-credit, off-site, Adult ESOL violate the Florida Educational Equity Act.
Ill . Defendants' policy and practice vio late the rights of Y.M., G.O., M.D., and all similarly situated students under the Florida Educationa l Equity Act.
11 2. Defendants deny Y.M., G.O., M.D., and similarly situated students a public school education, the oppo11unity to learn the skills and subj ect matter set forth in the Florida Standards, credits toward a high school diploma, access to other activities and programs available to students enrolled in high school, and their full learning and earning potential.
113. The named Plaintiffs, on behalf of Y.M., G.O., M.D., and others similarly situated, seek declaratory and injunctive relief to remedy these ongoing v iolations of the F lorida Educational Equity Act.
REQUESTS FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this CoUI1:
a. Assume jurisdiction over this matter;
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b. CertifY Plaintiffs' claims as class claims pursuant to Rule 23(b)(2) ofthe Federal Rules of Civil Procedure;
c. Designate named Plaintiffs as class representatives for the class and designate the named Plaintiffs' counsel as counsel for the class pursuant to Federal Rule of Civil Procedure 23 ;
d. Declare that Defendants' acts and omissions violate the rights of Y.M., G.O., M.D., and class members under the Equal Educati onal Opportunities Act;
e. Declare that Defendants ' acts and omissions violate the rights ofY.M. , G.O. , M.D., and class members under Title V1 of the Civil Rights Act of 1964;
f. Declare that Defendants' actions and omissions violate the rights of Y.M., G.O., M.D., and class members under th e Fourteenth Amendment Equal Protection Clause;
g. Declare that Defendants' acts and omissions violate the ri ghts ofY.M., G.O., M.D., and class members under the Fourteenth Amendment Due Process Clause;
h. Declare that Defendants ' acts and omissions violate the rights of Y.M., G.O., M.D., and class members to be free from discrimination under Florida Educational Equity Act;
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1. Declare Defendants to be liable for the days of school class members missed due to Defendants' unlawful policy and practice of denying them enrollment.
J. Enter injunctive relief in the fonn of: 1. Requiring Defendants to take affi rmative steps to enroll Y.M., G.O., M.D., and similarly situated students in high school. 2. Requiring Defendants to adopt policies, procedures, and training to end Defendants' ongoing violations of the EEOA, T itle VI, the U.S. Constitution and state law, and to publicize to the community at large and to class members: in a language and form of communication that they understand, those new policies and procedures. 3. Requiring Defendants to communicate to all class members, m a language and form of communication that they understand, that they can enroll in school and can make up any days of school that they missed as a result of Defendants'
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unlawfu l policy and practice of denying them enrollment. 4. Requiring Defendants to adopt policies and procedures to provide prospective students with notice · and opportunities to be heard regarding decisions about eligibility for enrollment in Defendants' public schools. 5. Requiring Defendants to provide compensatory education to Y.M., G.O., M.D. to remedy the harms caused by Defendants' unlawful policy and practice of deny ing them emollment. k. Award Plaintiffs reasonable attorneys ' fees and costs pursuant to 42 U.S.C. § 1988 and Fla. Stat. § 1000.05(7); and 1. Grant any other relief the Court deems just and reasonable.
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Respectfully submitted this 17th day of May, 2016, SOUTHERN POVERTY LAW CENTER By: Tania Galloni (Le d counsel) Fla. Bar No. 619221 Jessica Zagier Wallace Fla. BarNo. 956171 SOUTHERN POVERTY LAW CENTER 4770 Biscayne Blvd. Miami, F lorida 33137 T: 786.347.2056 F: 786.237.2949 Tania.Ga ll oni @ s plcenter.org Jessica.Wal lace(a),splcenter.org Attorneysfor Plaintiffs
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 Case 2:16-cv-00379-SPC-MRM Document 30 Filed 08/08/16 Page 1 of 48 PageID 227

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FT. MYERS DIVISION

LESLY METHELUS, on behalf of Y.M.,

)

a minor; ROSALBA ORTIZ, on behalf of G.O., )

a minor; ZOILA LORENZO, on behalf of M.D. , )

a minor; MARIE ANGE JOSEPH, on behalf of )

K.V., a minor; EMILE ANTOINE, on behalf

)

of N.A., a minor; LUCENIE HILAIRE

)

DUROSIER, on behalf of T.J.H., a minor; on )

behalf of themselves and all others similarly

)

situated,

) Civil Case No.

) 2:16-cv-00379-SPC-MRM

Plaintiffs,

)

)

v.

)

)

THE SCHOOL BOARD OF COLLIER

)

COUNTY, FLORIDA, and KAMELA PATTON, )

Superintendent of Collier County Public Schools, )

in her official capacity,

)

)

Defendants.

)

_______________________________________ )

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
1. Plaintiffs are parents or guardians of Y.M., G.O., M.D., K.V., N.A., and T.J.H., English Language Learner (“ELL”) immigrant children who recently arrived in the United States and reside in Collier County, Florida. Y.M., G.O., M.D., K.V., N.A., and T.J.H. (“Plaintiff Children”) seek relief from this Court because they have been denied equal access to educational

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opportunities as a result of Defendants’ custom, policy, and practice of excluding them and those similarly situated from enrollment in public schools.
2. These immigrant children seek to enroll in Collier County Public Schools to further their education, but are excluded from a free public education due to the actions of Defendants, the School Board of Collier County, Florida, and Superintendent Kamela Patton, in her official capacity (“Defendants”).
3. When Plaintiff Children and their guardians sought enrollment in public school, Defendants in some cases directed them to noncredit, adult English for Speakers of Other Languages (“Adult ESOL”) classes that charge a fee. In other cases, Defendants simply turned them away. In both cases, Defendants did not even keep a record of the interaction that took place at the school.
4. Defendants maintain a custom, policy, and practice of excluding recently-arrived, foreign-born, ELL students ages fifteen (15) and older from enrollment in Collier County public schools. Defendants’ actions deny Plaintiffs and class members a free public education alongside their peers, the chance to learn core educational content and skills (“Florida Standards”), and access to other activities and programs available to students enrolled in public school. Defendants deprive Plaintiff Children and class members of the
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opportunity to earn credits toward a standard high school diploma and to realize their full learning and eventual earning potential.
5. Defendants’ refusal to enroll Plaintiff Children and other recently-arrived ELL immigrant children denies them meaningful and equal educational opportunity and violates the Equal Educational Opportunities Act (“EEOA”), 20 U.S.C. § 1703(f); Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, (“Title VI”); the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U.S. Constitution, U.S. Const., amend XIV, § 1; the Florida Educational Equity Act, Fla. Stat. § 1000.05; and Fla. Admin. Code Ann. r. 6A-19.001.
6. Plaintiffs ask the Court to grant declaratory and injunctive relief to Plaintiff Children and similarly situated students, including an injunction requiring Defendants to enroll these students in free public school. Named Plaintiffs also seek compensatory damages for their claims under Title VI and the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
JURISDICTION 7. This case arises under the United States Constitution and the laws of the United States, including the EEOA, 20 U.S.C. § 1703; Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d; and 42 U.S.C. § 1983. The Court has subject matter jurisdiction under 28 U.S.C. §§ 1331(a), 1343, 2201,
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and 2202, and 20 U.S.C. §§ 1706, 1708. The Court may exercise supplemental jurisdiction over Plaintiffs’ state law claims under the Florida Educational Equity Act, Fla. Stat. §§ 1000.05 and Fla. Admin. Code Ann. r. 6A-19.001. See 28 U.S.C. § 1367(a).
VENUE 8. Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because “a substantial part of the events or omissions giving rise to the claim[s] occurred” in this district.
PARTIES Named Plaintiffs
9. Lesly Methelus and his son, Y.M., reside within Immokalee High School’s attendance zone in Collier County. Y.M. is a child with limited English proficiency1 who is of Haitian national origin.
10. Rosalba Ortiz and her nephew (over whom she has custody), G.O., reside within Immokalee High School’s attendance zone in Collier County. G.O. is a child with limited English proficiency who is of Guatemalan national origin.
1 The term “limited English proficiency” (“LEP”) is interchangeable with “English Language Learner” (“ELL”).
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11. Zoila Lorenzo and her son, M.D., reside within Immokalee High School’s attendance zone in Collier County. M.D. is a child with limited English proficiency who is of Guatemalan national origin.
12. Marie Ange Joseph and her daughter, K.V., reside within Golden Gate High School’s attendance zone in Collier County. K.V. is a child with limited English proficiency who is of Haitian national origin.
13. Emile Antoine and his son, N.A., reside within Golden Gate High School’s attendance zone in Collier County. N.A. is a child with limited English proficiency who is of Haitian national origin.
14. Lucenie Hilaire Durosier and her son, T.J.H., reside within Immokalee High School’s attendance zone in Collier County. T.J.H. is a child with limited English proficiency who is of Haitian national origin.
Defendants 15. Defendant School Board of Collier County, Florida (“School Board”), is responsible for directing, operating, controlling, and supervising all free public schools in Collier County. See Fla. Stat. §§ 1001.32-33 and 1001.40-42. The School Board is responsible for the operation of schools within the Collier County School District. Id. § 1001.42(4). The School Board is the contracting agent on behalf of the School District and is subject to suit. Id. §§ 1001.41(4), 1001.30. The School Board has acted under color of state
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law at all times referenced in this complaint within the meaning of 42 U.S.C. § 1983.
16. Defendant Kamela Patton, as Superintendent of the Collier County Public Schools, is the secretary and executive officer of the Collier County School Board. See Fla. Stat. §§ 1001.32(3), 1001.33. Superintendent Patton is responsible for the administration and management of the schools. Id.; see also id. §§ 1001.49, 1001.51. She is charged with recommending the operation of schools, classes, and services as are needed to provide adequate educational opportunities for all children in the district. Id. § 1001.51(6).
17. Defendant Patton is also charged with ensuring that all laws and rules of the State Board of Education are properly observed. Id. § 1001.51(14). She is responsible for enforcing school attendance of all students subject to compulsory school age in the school district. Id. § 1003.26. Superintendent Patton has acted under color of state law at all times referenced in this complaint within the meaning of 42 U.S.C. § 1983. She is sued in her official capacity.
LEGAL BACKGROUND Plaintiffs Children’s Right to Equal Access to Educational Opportunity
18. The education of children is a fundamental value of the people of the State of Florida. Fla. Const. art. IX, § 1(a). The state constitution mandates
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“a high quality system of free public schools that allows students to obtain a high quality education.” Id. Such education shall be provided to “all children residing within its borders.” Id.
19. Florida has developed core skills and subjects that public schools must teach to all students. See Fla. Stat. § 1003.41 (“Florida Standards”) (requiring skills instruction in critical-thinking, problem-solving, mathematics, contextual and applied-learning, technology-literacy, information and medialiteracy, civic-engagement, and subject matter instruction in science, mathematics, social studies, visual and performing arts, physical education and health). See also id. § 1003.42.
20. Education in Florida is compulsory for all children between the ages of six (6) and sixteen (16) without exception. Fla. Stat. § 1003.21(1)(a)(1).
21. Compulsory education continues for a student aged sixteen (16) or older who has not graduated unless and until the student “files a formal declaration of intent to terminate school enrollment with the school board.” Id. § 1003.21(1)(c). The declaration “must acknowledge that terminating school enrollment is likely to reduce the student’s earning potential.” Id. The declaration must be signed both by the student and the student’s parent. Id.
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22. Even on receipt of such a declaration, state law requires school personnel to “determine the reasons for the student’s decision to terminate school enrollment” and any “actions that could be taken to keep the student in school.” Id.
23. Under both federal and state law, the right to a free public education applies equally to immigrant children who are not fluent in the English language as it does to other children.
24. Title VI of the Civil Rights Act of 1964 prohibits recipients of federal financial assistance from engaging in national origin discrimination. 42 U.S.C. § 2000d (“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”).
25. Title VI requires that students be provided equal access to public education regardless of their national origin. It also requires school districts to take affirmative steps to ensure that ELL students can meaningfully participate in educational programs and services. See Lau v. Nichols, 414 U.S. 563, 566 (1974); 34 C.F.R. §100.3(b)(1), (2); Dep’t of Health, Education, and Welfare, Identification of Discrimination and Denial of Services on the Basis of National Origin, 35 Fed. Reg. 11,595 (July 18, 1970) available at
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http://www2.ed.gov/about/offices/list/ocr/docs/nationaloriginmemo.html (last visited Aug. 3, 2016). Grouping of ELL students must not operate as an “educational dead-end or permanent track.” Id.
26. The Equal Educational Opportunities Act (“EEOA”) prohibits school districts from denying equal educational opportunity to individuals based on their national origin, including by deliberate segregation of students based on national origin or by failing to take appropriate action to overcome language barriers that impede equal participation by students in instructional programs. 20 U.S.C. § 1703 (a); (f).
27. In 2015, the Civil Rights Division of the United States Department of Justice (“DOJ”) and the Office for Civil Rights of the United States Department of Education (“OCR”) issued guidance to school districts reemphasizing that ELL students should not only have access to the core curriculum, but also equal opportunities to meaningfully participate in all school programs and activities whether curricular, co-curricular, or extracurricular. See U.S. Dep’t of Justice and U.S. Dep’t of Educ., Dear Colleague Letter: English Learner Students and Limited English Proficient Parents 17-18 (Jan. 7, 2015), available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-el-201501.pdf (last visited Aug. 3, 2016) (“Dear Colleague Letter”).
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28. The Dear Colleague Letter further stated that school districts should place ELL students in age-appropriate grade levels so that these students can have meaningful access to their grade-appropriate curricula and an equal opportunity to graduate. Id. at 18. While recognizing that some of these students may have had an interruption in their formal education, the Dear Colleague Letter states that these students should still be placed in a setting that is age appropriate and that allows them to access the core curriculum and earn credits toward graduation or promotion. See id. n.50.
29. Florida law and administrative regulations also require equal access and prohibit discrimination against ELL students. See Fla. Stat. § 1000.05 and Fla. Admin. Code Ann. r. 6A-19.001; see generally Fla. Stat. § 1003.56(3)(d); Fla. Admin. Code Ann. rr. 6A-6.0901, 6A-6.0908.
30. Florida law further requires Defendants to not only provide ELL students with English instruction, but also with instruction in the subject areas of mathematics, science, social studies, and computer literacy, either with language support or in the students’ home language. Fla. Stat. § 1003.56(3)(d); Fla. Admin. Code Ann. r. 6A-6.0901-09091.
31. Under 20 U.S.C. §§ 6801-6871, federal funds are allocated to help ELL students learn English and meet state academic content and achievement standards. Defendant School Board, as the contracting agent of
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the School District, receives federal funding, including but not limited to English Language Acquisition funding, to provide instructional programs and services to ELL students.
32. As required by state law, on February 26, 2013, Defendant Patton signed and submitted to the Florida Department of Education a “District ELL Plan.” See Ex. 1; § 1003.56(3)(a), Fla. Stat. The plan certifies Collier County public schools’ compliance with, inter alia, the EEOA, Title VI and the requirements of the Office for Civil Rights Standards for Title VI compliance; Fla. Stat. § 1003.56; applicable administrative regulations; and the Florida Educational Equity Act—all of which require equal access to educational opportunities for ELL students. Ex. 1.
33. The District ELL Plan sets forth the policies and procedures for providing instruction to ELL students, including identification, evaluation, and placement. The ELL Plan requires schools to identify ELL students at the time of registration using a home language survey. Ex. 1 at 3-4.; Fla. Admin. Code Ann. r. 6A-6.0902(1).
34. Under Defendants’ ELL Plan, schools must individually assess both 1) the student’s English language skills and 2) the student’s academic skills. Ex. 1 at 4-7; Fla. Admin. Code Ann. r. 6A-6.0902(2). As part of these assessments, schools are to administer the Comprehensive English Language
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Learning Assessment (CELLA), specifically the “On-line Form 3 CELLA.” Ex. 1 at 6.
35. Based on results of the assessment, the school’s ELL committee is then to place the student in an English language class. Id. at 6-7.
36. The school is also required to assess ELL students’ academic level using testing and previous school records, and, in the absence of such records, using interviews of the student and parents and other assessment tools. Id. at 7-8.
37. To “address the placement of ELLs with limited or no prior school experience(s), or whose prior school records are incomplete,” the ELL plan provides that “school personnel will request records” from the previous school. Id. at 8; see Fla. Admin. Code Ann. r. 6A-6.0902(3)(b).
38. After such assessment, the ELL contact or guidance counselor is to place the student in an appropriate school grade and develop an ELL student plan for the student. Ex. 1 at 7-10. The ELL plan requires that placements be “age appropriate.” Id. at 8.
39. Under both Florida administrative code and Defendants’ ELL plan, ELL students are to be taught to the Florida Standards, and to “receive equal access to the regular curriculum.” Id. at 11; Fla. Admin. Code Ann. r. 6A-6.0904(1)(a).
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40. Further, both the administrative code and the ELL plan require

that “instruction provided to ELLs is equal in amount, sequence and scope to

that provided to non-ELL students.” Ex. 1 at 12; Fla. Admin. Code Ann. r. 6A-

6.0904(1)(a).

Defendants’ Policy and Practice of Denying Equal Access to Educational Opportunity

41.

Beginning around 2011, there was a sharp increase in the number

of unaccompanied minors arriving in the United States from abroad. See Pew

Charitable Trusts, Number of Undocumented Children Who Cross U.S. Border

Alone has Tripled (May 9, 2013) http://www.pewtrusts.org/en/research-and-

analysis/blogs/stateline/2013/05/09/number-of-undocumented-children-who-

cross-us-border-alone-has-tripled (last visited Aug. 3, 2016). Most of these

youth were 16 or 17 years old when they came to the United States.

Congressional Research Service, Unaccompanied Alien Children:

Demographics in Brief 4-5 (Sept. 24, 2014)

https://www.fas.org/sgp/crs/homesec/R43734.pdf (last visited Aug. 3, 2016).

42. In 2011, an advocate from Catholic Charities met personally with

Collier County school officials and Defendant Patton after a teenaged Cuban

student was denied enrollment at Palmetto Ridge High School. Defendant

Patton refused to permit the student to enroll.

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43. On or about February 12, 2013, Defendant School Board adopted School Board Policy 5112.01 (“the Policy”), which states:
Persons who are seventeen (17) years old or older and who by earning eight (8) credits per academic year, cannot meet graduation requirements including grade point average (GPA), prior to the end of the school year in which they attain the age of nineteen (19), shall not be permitted to attend the regular high school program beyond the end of the academic year in which they attain the age of seventeen (17). Such persons shall be afforded an opportunity to pursue a high school diploma through the Adult High School or General Educational Development (GED) programs of the District. Ex. 2 (emphasis added). 44. By its plain language, the Policy applies only to children “who are seventeen (17) years old or older.” Id. It allows those children to attend school through the end of the academic year in which they “attain the age of seventeen (17).” However, Defendants purport to rely on the Policy to deny enrollment to ELL students as young as fifteen (15) years old. 45. Defendants have a custom, policy, and practice of denying high school enrollment to recently-arrived, foreign-born, ELL students aged fifteen (15) and older. 46. Upon information and belief, children aged fifteen (15) and older who are not recently-arrived, foreign-born, ELL students are permitted to either enroll in or continue to attend Collier County public schools and receive a free public education in which they earn credits toward a standard high school diploma. This includes
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students who have been retained, who are not on grade level, and who are not on track to graduate.
47. During a January 2013 School Board Workshop meeting discussing the proposed policy, Board members raised a concern about the Policy’s impact on currently enrolled students. District employee Christy Kutz emphasized that the Policy was targeted at “new kids enrolling at our schools.”
48. The District maintains no records of attempts of recently-arrived, foreign-born ELL students aged 15 and older who seek to enroll in schools but are turned away.
49. School officials make the discriminatory assumption that such children are likely to fail academically when they deny them enrollment. This assumption is not based on any testing or assessment of the individual student; rather, the denial of enrollment occurs without any individualized assessment.
50. By denying enrollment to recently-arrived, foreign-born ELL students ages fifteen (15) and older, Defendants procedurally and substantively depart from the norms as embodied in their ELL Plan and enrollment of students in general.
51. Not only are these students not assessed as required by the ELL Plan; they are also deprived of the other benefits of the ELL Plan required by law. They are not offered an individualized ELL student plan; classes required
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under state law for ELL students, including mathematics, science, and social studies; classes taught to the Florida Standards; equal access to the regular curriculum; instruction equal in amount, sequence and scope to that provided to non-ELL students; or assessments of their academic and language progress.
52. After denying enrollment, school officials refer some of these students to off-site, noncredit, Adult ESOL programs at Immokalee Technical College, also known as Immokalee Technical Center (“iTech”), Lorenzo Walker Technical College, or other locations, which charge a fee. Defendants provide other students with no additional information and leave them to fend for themselves.
53. Since 2013, several hundred foreign-born children between the ages of fifteen (15) and eighteen (18) have found their way to these Adult ESOL programs after being excluded from Collier County public schools.
54. Defendants are aware of the large numbers of foreign-born ELL students turned away from Collier County public high schools.
55. To the extent Defendants divert these students to a noncredit, feebased Adult ESOL program, Defendants procedurally and substantively depart from the norms set out in the ELL Plan in a number of ways, as described below.
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56. Adult ESOL is an English language program. It does not teach the skills and subject matters required under Florida law and the ELL Plan. The program was designed only “to improve the employability of the state’s workforce through acquisition of communication skills and cultural competencies that enhance ability to read, write, speak, and listen in English.” Fla. Stat. § 1004.02(2).
57. The Adult ESOL program does not provide instruction in basic subject areas of math, science or social studies, as required by Fla. Stat. § 1003.56(3)(d), accompanying regulations, and the ELL Plan. Students enrolled at Collier County public high schools, by contrast, do receive such instruction.
58. The Adult ESOL program does not provide any credit toward a standard high school diploma. See Fla. Stat. § 1004.02(2) (defining Adult ESOL as “noncredit English literacy courses”). By contrast, basic ESOL classes for ELL students in free public schools must provide credits toward a high school diploma. Fla. Admin. Code Ann. r. 6A-6.0904(1)(d).
59. Defendants do not evaluate ELL children excluded from public school to determine whether and when they should transition into high school. For these children, Adult ESOL classes are an educational dead-end.
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60. Adult ESOL costs Plaintiffs and class members thirty dollars ($30.00) per semester plus other costs, in violation of the Florida Constitution, which mandates “free public schools.” Fla. Const. art. IX, § 1(a).
61. ELL students who are diverted from high school and who enroll in the Adult ESOL program are segregated from their peers and denied the opportunity to participate in any of the high school’s academic enrichment, sports, or extracurricular activities. This violates Florida administrative regulations that entitle ELL students to “equal access to programs and services other than ESOL.” See Fla. Admin. Code Ann. r. 6A-6.0908. It is also contrary to federal guidance stating that ELL students should have equal opportunities to meaningfully participate in all school programs and activities. See Dear Colleague Letter, supra, at 17-18.
62. At the Adult ESOL programs, students as young as fifteen (15) are enrolled in classes with adults, some of whom are older than the students’ parents or grandparents. This contravenes the Dear Colleague Letter and Defendants’ ELL Plan, which require age appropriate placement. See Dear Colleague Letter, supra at 18, n. 50; Ex. 1 at 8.
63. By signing the District ELL Plan, Defendant Patton certified the District’s compliance with civil rights statutes, including Title VI and the EEOA, and with federal administrative guidance on the District’s obligations
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under these laws. Defendants were on notice that these laws require them to provide meaningful access to a public education for ELL students.
64. Through their custom, policy, and practice, Defendants segregate Plaintiff Children and class members from their peers and deprive them of equal access to educational opportunities offered in high school and the opportunity to earn credits toward a high school diploma and to learn skills and core subject matter that they will need in the future—limiting these children’s educational and career opportunities, and their future earning potential.
65. Upon information and belief, Defendants’ custom, policy, and practice of denying enrollment to recently-arrived, foreign-born ELL students have had a chilling effect on student enrollment. Some immigrant students have not sought to enroll in school because they have heard that they cannot enroll if they are fifteen (15) or older.
NAMED PLAINTIFFS’ ALLEGATIONS 66. Y.M. arrived in Collier County from Haiti on March 27, 2015, at the age of fifteen (15). Before coming to the United States, Y.M. was enrolled in what is considered the eighth grade in Haiti.2 67. During the week of March 30, 2015, Y.M., at the age of fifteen (15), and his father, Mr. Methelus, went to Immokalee High School to enroll in 2 Grade levels in other countries may not correspond with grade levels in the United States. That is why individual assessment of foreign-born students’ language and academic skills is essential to placement.
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school. A school staff person immediately asked Y.M.’s age. When Mr. Methelus told her that Y.M. would be turning sixteen (16) on April 4, 2015, the employee responded that Y.M. could not enroll at Immokalee High because it was “too close to his sixteenth birthday.” Defendants’ employee did not give Y.M. and his father an enrollment packet for school. Instead, she directed them to iTech.
68. Mr. Methelus enrolled Y.M. in the Adult ESOL program at iTech. At iTech, Y.M. did not receive instruction in the core subject areas and skills required by the Florida Standards, nor was he able to earn credits toward a high school diploma. The refusal to enroll Y.M. in an academic program and decision to isolate him from his non-immigrant peers has caused him to feel frustrated and anxious about his future.
69. G.O. arrived in Collier County from Guatemala in the summer of 2014. G.O. wants to become a police officer so that he can serve and protect his community.
70. In August 2014, when G.O. was sixteen (16), he went with his aunt, Rosalba Ortiz, to Immokalee High School to enroll.
71. At the school’s front office, they completed school registration paperwork and provided a copy of G.O.’s report card showing he had completed what is considered the sixth grade in Guatemala. Defendants’
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employee said that she had to send G.O.’s paperwork to district headquarters in Naples to find out if G.O. could enroll. When Ms. Ortiz contacted the school days later, she was told G.O. could not enroll.
72. Ms. Ortiz learned about the Adult ESOL program at iTech from a friend. Having been offered no other option, Ms. Ortiz paid thirty dollars ($30.00) per semester to enroll G.O. at iTech in the Adult ESOL program, where he received only English language instruction. G.O. did not receive instruction in the core subject areas and skills required by the Florida Standards. He feels frustrated and hopeless.
73. M.D., who is from Guatemala, arrived in Immokalee in December 2014 at the age of sixteen (16).
74. Shortly after his arrival, M.D. and his mother, Zoila Lorenzo, went to Immokalee High School to enroll M.D. in school. They were met in the front office by a school employee who immediately asked about M.D.’s age and educational history. M.D. advised that he was sixteen (16) years old and had finished what is considered the sixth grade in Guatemala. Defendants’ employee told them that M.D. could not attend high school, but could enroll at iTech. Ms. Lorenzo and M.D. were not given an enrollment packet. Ms. Lorenzo took M.D. to iTech where she paid thirty dollars ($30.00) to enroll him in the Adult ESOL class.
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75. M.D. is a soccer enthusiast and skilled player. Shortly after his arrival in Immokalee, he joined a recreational soccer league. A local coach recognized his ability and encouraged him to try out for Immokalee High School’s soccer team. As M.D. has not been able to enroll in high school, he has not been able to try out for the high school soccer team.
76. M.D. attended the Adult ESOL program at iTech. At iTech, he did not receive instruction in the basic subject areas required by the Florida Standards nor was he allowed to participate in Immokalee High School’s programs and activities. He feels frustrated and isolated due to the Defendants’ refusal to allow him to access a high school education.
77. K.V., who is from Haiti, arrived in Naples in January 2015 at the age of sixteen (16). K.V. was in what was considered to be her third year of high school in Haiti and aspires to become a pediatrician.
78. Shortly after her arrival, K.V. went with her uncle to Golden Gate High School in Naples to enroll in school.
79. A school staff person at Golden Gate High School told K.V. that she had to bring in her records from her previous school in Haiti.
80. K.V.’s mother, Marie Ange Joseph, requested the records. When the records arrived in February 2015, K.V. again went to Golden Gate High School, this time with her mother and uncle. After K.V. and her family
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provided the records, the staff person told K.V. that she could not enroll because she did not speak English well and because she did not have enough credits. The staff person never gave K.V. an enrollment packet.
81. K.V.’s cousin suggested that she might be able to enroll in an Adult ESOL program at night at Barron Collier High School. K.V. paid thirty dollars ($30.00) to enroll, and attended the program from 6:00 p.m. to 8:30 p.m. each night. The other students in the class were much older than K.V.
82. K.V. applied for a job, but was told that she was not permitted by law to work during the day because she was supposed to be in school. See Fla. Stat. § 450.081(2) (“On any school day, minors 16 and 17 years of age who are not enrolled in a career education program shall not be gainfully employed during school hours.”).
83. K.V. asked administrative staff at Barron Collier High School if she could go to school during the day. She hoped they would allow her to go to high school. Instead, they sent her to Lorenzo Walker Technical College. K.V. began the Adult ESOL program there in April 2015.
84. At these Adult ESOL programs, K.V. has not received instruction in the core subject areas and skills required by the Florida Standards such as math, science, or social studies, nor was she able to earn credits toward
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a high school diploma. Being excluded from an academic program and segregated in an Adult ESOL class has made K.V. feel sad and frustrated.
85. N.A., who is from Haiti, arrived in Naples in February 2016 at the age of seventeen (17). He lives with his father, Emile Antoine. N.A.’s favorite subjects are math, physics, and French. He likes to tinker with electronics in his spare time. He aspires go to college, study computer science, and work with computers and electronics when he grows up. When N.A. left his school in Haiti in January 2016 to move to the United States, he was in what was considered there to be the ninth grade.
86. On February 29, 2016, N.A. and his father, Emile Antoine, went to Lely High School in Naples to enroll N.A. in school. They brought their cousin along to interpret. School staff told them that N.A. needed immunizations to enroll.
87. N.A. obtained the required immunizations and returned to Lely High School on March 4, 2016, with proof of immunizations, along with his passport, social security card, and his report cards from Haiti. The school staff person then told N.A. and his father that N.A. was too old to attend Lely High School.
88. N.A. and his father later learned that the assigned high school for their home was actually Golden Gate High School, not Lely.
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89. Soon after, in March 2016, N.A. went with his father to Golden Gate High School to request enrollment. They did not have anyone available to interpret, and the school did not provide an interpreter. N.A. and his father presented the same paperwork that they had presented at Lely to the Golden Gate staff person. A staff person at the school gave N.A. and Mr. Antoine a piece of paper written only in English that stated that N.A. was, “no longer eligible to pursue a traditional High School Diploma in Collier County Public Schools, including those programs offered through Alternative Programs.” Mr. Antoine understood that a staff person at Golden Gate High School would communicate with him by phone about N.A.’s enrollment in school, but no one ever called him. Mr. Antoine followed up by telephone, but N.A. was not permitted to enroll at Golden Gate High School.
90. Soon after, a friend told Mr. Antoine about a program at Lorenzo Walker Technical College. Mr. Antoine took N.A. to Lorenzo Walker where he paid thirty dollars ($30.00) to enroll N.A. in Adult ESOL.
91. At Lorenzo Walker, N.A. attends a program with people much older than he is, including one man N.A. estimates is in his 40s. N.A. does not receive instruction in the basic subject areas required by the Florida Standards such as math, science or social studies, and does not receive credits toward a high school diploma. High school programs and activities are not available to
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him. He feels frustrated and desperate due to the Defendants’ refusal to allow him to access a high school education.
92. T.J.H. moved from Haiti to Georgia in December 2015. T.J.H. loves art, and aspires to work in foreign affairs when he grows up. T.J.H. enrolled in Lovejoy High School in Hampton, Georgia, where he was placed in the tenth grade. T.J.H. attended high school in Georgia until April 2016, when he moved to Immokalee, Florida.
93. At age seventeen (17), T.J.H. went with his mother, Lucenie Hilaire, to Immokalee High School to enroll.
94. Upon arrival at the school’s front office, the school staff person asked for identification and his report card from his last school. Ms. Hilaire provided T.J.H.’s identification along with his report cards from both Haiti and from his school in Georgia. The staff person told Ms. Hilaire that T.J.H. was too old and did not have enough credits to attend school. The school gave Ms. Hilaire a card with information about iTech.
95. Having been offered no other option, Ms. Hilaire paid thirty dollars ($30.00) per semester to enroll T.J.H. at iTech in the Adult ESOL program. There he received only basic English language instruction and did not receive credits toward a high school diploma. T.J.H. did not receive instruction
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in the core subject areas and skills required by the Florida Standards, such as math, science or social studies.
96. At iTech, T.J.H. attends a program with people old enough to be his parents and grandparents. He feels frustrated because he believes that he would have learned English much faster if he were in high school, and he would be earning credits toward a high school diploma so that he can go to college.
97. All of the Plaintiff Children want to continue their education. None of these children has ever filed a declaration of intent to terminate school enrollment with any school board or otherwise relinquished their right to attend school. No one at Immokalee, Lely, or Golden Gate High School ever assessed these students to determine their academic level or English proficiency before denying them enrollment in Collier County public schools. None of these children or their parents or guardians were given the opportunity to appeal the decision to deny them enrollment.
98. On September 17, 2015, Plaintiffs’ attorney wrote a letter to Defendant Patton, identifying the Defendants’ refusal to enroll ELL students aged sixteen (16) and older in Collier County public schools; stating that enrollment of students in Adult ESOL rather than in school violated state and federal laws; requesting rescission of the Policy; requesting that immediate
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steps be taken to enroll G.O. and M.D. in school; and requesting that similarly situated students be ensured equal access to educational opportunities.
99. Defendants’ general counsel responded to the letter, but refused to enroll the students in high school or to revise the School Board’s policy or practice relating to enrollment.
CLASS ACTION ALLEGATIONS 100. Plaintiffs bring this action on behalf of Plaintiff Children and a class of similarly-situated individuals, pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure. 101. The class is defined as: All recently-arrived, foreign-born, English Language Learner (ELL) students ages fifteen (15) and older who, after May 18, 2012, resided or will reside in Collier County, sought or will seek to enroll in a Collier County public school, and were or will be denied enrollment by the Defendants. Rule 23(a)(1) – Numerosity 102. According to federal government data, more than 200 unaccompanied minors have been released to family or sponsors in Collier County each fiscal year since 2013, including 241 from October 2013 to
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September 2014, 219 from October 2014 to September 2015, and 266 from October 2015 to June 2016 (the most recent data available).3
103. A report by the Congressional Research Service shows that nationally, children 16-17 years old made up 55% of the unaccompanied minors population in fiscal year 2013 and 46% of the population in fiscal year 2014. On average , children 16-17 years old have accounted for about half of the unaccompanied minors entering the United States. Congressional Research Service, Unaccompanied Alien Children: Demographics in Brief 4-5, (Sept. 24, 2014), https://www.fas.org/sgp/crs/homesec/R43734.pdf (last visited Aug. 8, 2016).
104. Assuming the age breakdown nationally is comparable to the age breakdown of the children who have resettled to Collier County, this would mean that approximately 50% of the unaccompanied minors who have come to Collier County are 16-17 years old.
105. This data shows that the proposed class consists of at least 110 to 130 children a year (50% of 241, 219, 266), or at least 330-390 total.
106. In the 2015-2016 school year alone, at least three hundred and sixty-nine (369) foreign-born students under the age of eighteen (18) years old
3 See Office of Refugee Resettlement, Unaccompanied Children Released to Sponsors by County FY 15, http://www.acf.hhs.gov/orr/unaccompaniedchildren-released-to-sponsors-by-county (last visited Aug. 4, 2016).
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were attending a Collier County Adult ESOL program instead of regular public school.
107. This is sufficient to show numerosity. 108. Joinder of the members of the class would be impracticable. The proposed class members are foreign-born students who are not proficient in English or familiar with the U.S. legal system. 109. Many parents or guardians of children in this situation will themselves have limited English proficiency, lack familiarity with the U.S. legal system, and lack resources necessary to advocate for these children. 110. In addition, the proposed class includes future members whose identities cannot yet be known. Rule 23(a)(2) – Commonality 111. Members of the proposed class have been or will be adversely affected by Defendants’ refusal to enroll recently-arrived ELL students aged 15 and older into public school with their peers. 112. Common questions for all class members include: (1) whether Defendants’ refusal to enroll children in school violates the U.S. Constitution, the EEOA, and Title VI; and (2) whether Defendants’ actions unlawfully segregate children from their peers and deny them access to programs and
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activities in violation of the EEOA, Title VI of the Civil Rights Act of 1964 and the Florida Educational Equity Act.
113. Determination of these common questions will turn on an evaluation of the same legal standards, requirements, and policy and practice of the Defendants. Rule 23(a)(3) – Typicality
114. The named Plaintiffs’ claims are typical of those of the proposed class. They arise from Defendants’ enrollment policy and practice that deny class members the opportunity to enroll in the public school, deny them equal access to educational opportunities, and segregate them from their peers. These claims are based on the same injuries and application of the same legal theories to all class members’ claims.
115. All class members will benefit from an end to Defendants’ discriminatory policy and practice. Rule 23(a)(4) – Adequacy of Representation
116. The named Plaintiffs will fairly and adequately represent the class. They have no interests antagonistic to those of the class. They seek declaratory and injunctive relief to provide relief to all class members.
117. Plaintiffs’ counsel is also fully qualified and prepared to pursue this litigation on behalf of the class. Plaintiffs are represented by the Southern
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Poverty Law Center, a nonprofit organization with significant experience litigating class actions and with sufficient financial and human resources to litigate this matter.
118. Plaintiffs and their counsel will vigorously and competently prosecute this action on behalf of the class. Rule 23(b)(2) – Defendants’ Refusal to Act on Grounds Applicable Generally to the Class
119. The named Plaintiffs challenge a policy and practice by the Defendants that is generally applicable to the class as a whole. That policy and practice operates to exclude class members from enrollment in their local public school alongside their peers.
120. Defendants have acted or refused to act on grounds that apply generally to the class, making final injunctive and corresponding declaratory relief appropriate with regard to the class as a whole.
CLAIMS FOR RELIEF COUNT I
Equal Educational Opportunities Act of 1974 (“EEOA”) 121. The named Plaintiffs, on behalf of Plaintiff Children, and all others similarly situated, re-allege and incorporate by reference the allegations set forth in the foregoing paragraphs of this complaint as if fully restated herein.
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122. Defendants Collier County School Board and Superintendent Patton are bound by the provisions of the EEOA, 20 U.S.C. § 1703.
123. Section 1703 of the EEOA states in part: No State shall deny equal educational opportunity to an individual on account of his or her race, color, sex or national origin by: (a) the deliberate segregation by an educational agency of students on the basis of race, color, sex or national origin among or within schools;
[or] . . . (f) the failure of an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs. 20 U.S.C. § 1703(a), (f). 124. Through their actions and inactions, including excluding these students from public school, Defendants have denied Plaintiff Children and similarly situated students equal educational opportunity on account of their national origin by deliberately segregating them from their peers because of their national origin. 125. Through their actions and inactions, including denying these students enrollment, Defendants have denied Plaintiff Children and class members equal educational opportunities on account of their national origin by
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failing to take appropriate action to overcome language barriers that impede these students’ equal participation in Defendants’ public school programs.
126. Defendants’ failure to take appropriate action includes but is not limited to: a) refusal to enroll Plaintiff Children and class members in public school; b) referral of some recently-arrived, foreign-born ELL children in noncredit Adult ESOL classes that do not teach to the Florida standards or provide any opportunity to reintegrate into public school or earn credits toward a standard high school diploma; and c) failure to properly assess the English proficiency and academic levels of recently-arrived, foreign-born ELL children, place them according to English and academic skills, and develop an ELL student plan for each student in accordance with Defendants’ ELL Plan.
127. As a result, Defendants deny Plaintiff Children and similarly situated students a free public education, the opportunity to learn the skills and subject matter set forth in the Florida Standards, credits toward a standard high school diploma, access to the other activities and programs available to students enrolled in public schools, and their full learning and earning potential.
128. Defendants’ conduct violates the rights of Plaintiff Children, and others similarly situated, under the EEOA.
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129. As a result of Defendants’ actions and inactions, Plaintiff Children have suffered and will continue to suffer irreparable harm, which includes, but is not limited to, the loss of education, an inability to overcome language barriers, and diminished educational and future employment opportunities.
130. Named Plaintiffs, on behalf of Plaintiff Children, and all other similarly-situated students, request declaratory and injunctive relief to remedy Defendants’ ongoing violation of these rights.
COUNT II Title VI of the Civil Rights Act of 1964 131. The named Plaintiffs, on behalf of Plaintiff Children, and all other similarly-situated students, re-allege and incorporate by reference the allegations set forth in the foregoing paragraphs of this complaint as if fully restated herein. 132. Title VI provides that no person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subject to discrimination under, any program receiving federal funding. 42 U.S.C. § 2000d. 133. As recipients of federal funding, Defendants are prohibited from discriminating against Plaintiffs by excluding them from instructional services,
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failing to provide them with instructional services, or providing them with inferior services on the basis of their national origin. Defendants are aware of their Title VI obligations, as certified in their ELL Plan.
134. Defendants, under color of law, deprived Plaintiff Children and all others similarly situated of their right to a free public education on the basis of their national origin. Defendants acted intentionally or with deliberate indifference to the likelihood that the federally-protected rights of Plaintiff Children and class members would be violated.
135. By excluding Plaintiff Children and class members from their schools, referring some to noncredit Adult ESOL classes that segregate them from their peers, failing to teach math, science, social studies and other skills and subject matter set forth in the Florida Standards, failing to provide credits toward a high school diploma, and denying access to other activities and programs available to students enrolled in public schools, Defendants have discriminated against Plaintiff Children and similarly-situated students on the basis of their national origin.
136. Defendants deny enrollment to Plaintiff Children and similarlysituated students based on a discriminatory blanket assumption that these children are likely to fail academically in a regular high school program, rather
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than performing individualized language and academic assessments of Plaintiff Children and class members.
137. Defendants know that recently-arrived, foreign-born ELL students have been and are being denied enrollment from public high schools in Collier County. They are also aware of the large numbers of these students enrolled in noncredit adult ESOL classes that fail to provide instruction in any other curricular areas or offer an opportunity to progress toward a standard high school diploma. Yet Defendants continue to deny these students enrollment in their public schools.
138. Defendants fail to maintain records of putative class members who have attempted to enroll in Collier County high schools, which facilitates the evasion of their own ELL Plan, state and federal law.
139. Through their actions and inactions on the basis of national origin, Defendants have excluded Plaintiff Children, and similarly-situated students, from participation in a public school education and Defendants’ ELL program, denied them the benefits of these programs, and subjected them to discrimination as set forth above.
140. As a result of Defendants’ actions and inactions, Plaintiffs have suffered and will continue to suffer irreparable harm, which includes, but is not limited to, the loss of educational time, an inability to overcome language
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barriers, and diminished educational and future employment opportunities. Defendants’ actions have caused and will continue to cause the named Plaintiffs to suffer compensable injuries, entitling the named Plaintiffs to compensatory damages.
141. The named Plaintiffs, on behalf of Plaintiff Children, and all others similarly situated, seek declaratory and injunctive relief to remedy these ongoing violations. The named Plaintiffs, individually, also seek compensatory damages.
COUNT III Fourteenth Amendment Equal Protection Clause
(42 U.S.C. § 1983) 142. The named Plaintiffs, on behalf of Plaintiff Children, and all other similarly-situated students, re-allege and incorporate by reference the allegations set forth in the foregoing paragraphs of this complaint as if fully restated herein. 143. The Fourteenth Amendment’s Equal Protection Clause provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV. 144. Defendants, under color of state law, have acted and continue to act pursuant to a policy and practice to deprive Plaintiff Children, and all
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others similarly situated, of the right to equal protection of the laws under the Fourteenth Amendment.
145. Defendants maintain a custom, policy, and practice of excluding recently-arrived, foreign-born ELL students from enrollment in public school.
146. School officials deny enrollment, acting purportedly pursuant to a District Policy that excludes children from public school in the academic year after they turn seventeen (17) years old, under the assumption that these children will not meet certain academic requirements by the time they turn nineteen (19). Defendants discriminate against Plaintiff Children and similarlysituated students by enforcing that policy against recently-arrived, foreign-born ELL children as young as fifteen (15) seeking enrollment in school.
147. The Policy was adopted and is enforced with the intent to discriminate against Plaintiff Children and other similarly-situated students on the basis of their national origin.
148. As the result of Defendants’ actions, hundreds of recentlyarrived, foreign-born ELL students—including those as young as 15—have been prevented from enrolling in public schools. Some have enrolled in the Adult ESOL program for a fee, alongside individuals decades their senior. Defendants are aware of the large numbers of students excluded from public school, but maintain their unconstitutional policy and practice.
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149. As a result, Defendants deny Plaintiff Children, and similarlysituated students, a public school education, the opportunity to learn the skills and subject matter set forth in the Florida Standards, credits toward a standard high school diploma, access to the other activities and programs available to public school students, and their full learning and earning potential.
150. Defendants’ actions in denying Plaintiffs and class members access to a public school education depart procedurally and substantively from the norms set forth in, inter alia, their own ELL Plan.
151. As a result of Defendants’ actions and inactions, Plaintiffs and class members have suffered and will continue to suffer irreparable harm, which includes but is not limited to the loss of educational time, an inability to overcome language barriers, and diminished educational and future employment opportunities. Defendants’ actions have caused and will continue to cause the named Plaintiffs to suffer compensable injuries, entitling the named Plaintiffs to compensatory damages.
152. The named Plaintiffs, on behalf of Plaintiff Children, and all other similarly-situated students, seek declaratory and injunctive relief to remedy these ongoing, constitutional violations. The named Plaintiffs, individually, also seek compensatory damages.
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COUNT IV Fourteenth Amendment Due Process Clause
(42 U.S.C. § 1983) 153. The named Plaintiffs, on behalf of Plaintiff Children, and all other similarly-situated students, re-allege and incorporate by reference the allegations set forth in the foregoing paragraphs of this complaint as if fully restated herein. 154. Through their actions and inactions, Defendants have deprived Plaintiff Children, and all others similarly situated, of their constitutionallyprotected property interest to a public education by denying them the right to enroll in public school. 155. Defendants’ lack of any procedures following denial of enrollment is constitutionally inadequate. Defendants denied Plaintiff Children, and all others similarly situated, the right to attend public school without any procedures, including notice, an opportunity to be heard, or an avenue to challenge an adverse determination. 156. As a result, Defendants deny Plaintiff Children, and similarly situated students, notice and an opportunity to be heard regarding their denial of public school enrollment and related educational opportunities.
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157. Defendants acted pursuant to a custom, policy, and practice in depriving Plaintiff Children, and all others similarly situated, of a public education without notice or opportunity to be heard.
158. As a result of Defendants’ actions and inactions, Plaintiff Children and class members have suffered and will continue to suffer irreparable harm, which includes, but is not limited to, the loss of educational time, an inability to overcome language barriers, and diminished educational and future employment opportunities. Defendants’ actions have caused and will continue to cause the named Plaintiffs to suffer compensable injuries, entitling the named Plaintiffs to compensatory damages.
159. The named Plaintiffs, on behalf of Plaintiff Children, and others similarly situated, seek declaratory and injunctive relief to remedy these ongoing, constitutional violations. The named Plaintiffs, individually, also seek compensatory damages.
COUNT V Florida Educational Equity Act, Fla. Stat. §§ 1000.05 et seq. and
Fla. Admin. Code Ann. r. 6A-19.001 et seq. 160. The named Plaintiffs, on behalf of Plaintiff Children, and all others similarly situated, re-allege and incorporate by reference the allegations set forth in the foregoing paragraphs of this complaint as if fully restated herein.
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161. The Florida Educational Equity Act prohibits the exclusion of or discrimination against students on the basis of national origin. See Fla. Stat. § 1000.05(2)(a).
162. Under the Act, “discrimination” includes taking admission actions that adversely affect an applicant for admission based on “linguistic characteristics of a national origin group,” or “belonging to a national origin minority group, unnecessarily based on limited-English-language skills.” Fla. Admin. Code Ann. r. 6A-19.001.
163. The Act also bans admissions criteria that result in a disparate impact. Fla. Stat. § 1000.05(2)(b) (“[T]he criteria for admission to a program or course shall not have the effect of restricting access by persons of a particular race, ethnicity, national origin, gender, disability or marital status”).
164. Defendants’ actions and inactions to exclude Plaintiff Children, and all others similarly situated, from enrollment in public school violate the Florida Educational Equity Act.
165. Defendants’ policy and practice violate the rights of Plaintiff Children, and similarly-situated students, under the Florida Educational Equity Act.
166. Defendants deny Plaintiff Children, and similarly-situated students, a public school education, the opportunity to learn the skills and
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subject matter set forth in the Florida Standards, credits toward a standard high school diploma, access to other activities and programs available to students enrolled in public school, and their full learning and earning potential.
167. The named Plaintiffs, on behalf of Plaintiff Children, and others similarly situated, seek declaratory and injunctive relief to remedy these ongoing violations of the Florida Educational Equity Act.
REQUESTS FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court:
a. Assume jurisdiction over this matter; b. Certify Plaintiffs’ claims as class claims pursuant to Rule
23(b)(2) of the Federal Rules of Civil Procedure; c. Designate named Plaintiffs as representatives for the class and
designate the named Plaintiffs’ counsel as counsel for the class pursuant to Federal Rule of Civil Procedure 23; d. Declare that Defendants’ acts and omissions violate the rights of Plaintiff Children, and class members, under the Equal Educational Opportunities Act; e. Declare that Defendants’ acts and omissions violate the rights of Plaintiff Children, and class members, under Title VI of the Civil Rights Act of 1964;
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f. Declare that Defendants’ actions and omissions violate the rights of Plaintiff Children, and class members, under the Fourteenth Amendment Equal Protection Clause;
g. Declare that Defendants’ acts and omissions violate the rights of Plaintiff Children, and class members, under the Fourteenth Amendment Due Process Clause;
h. Declare that Defendants’ acts and omissions violate the rights of Plaintiff Children, and class members, to be free from discrimination under the Florida Educational Equity Act;
i. Declare Defendants to be liable for the days of school Plaintiff Children, and similarly-situated students, missed due to Defendants’ unlawful policy and practice of denying them enrollment;
j. Enter injunctive relief in the form of: 1. Requiring Defendants to take affirmative steps to enroll Plaintiff Children, and similarly situated students, in an age-appropriate, public school setting. 2. Requiring Defendants to adopt policies, procedures, and training to end Defendants’ ongoing violations of the EEOA, Title VI, the U.S. Constitution and state
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law, and to publicize to the community at large and to class members, in a language and form of communication that they understand, those new policies and procedures. 3. Requiring Defendants to communicate to all class members, in a language and form of communication that they understand, that they can enroll in school and can make up any days of school that they missed as a result of Defendants’ unlawful policy and practice of denying them enrollment. 4. Requiring Defendants to adopt policies and procedures to provide prospective students with notice and an opportunity to be heard regarding decisions about eligibility for enrollment in Defendants’ public schools. 5. Requiring Defendants to provide compensatory education to Plaintiff Children to remedy the harms caused by Defendants’ unlawful policy and practice of denying them enrollment.
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k. Award compensatory damages to named Plaintiffs for their
Claims Under Title VI and the Equal Protection and Due Process
Clauses of the Fourteenth Amendment.
l. Award Plaintiffs reasonable attorneys’ fees and costs pursuant to
42 U.S.C. § 1988 and Fla. Stat. § 1000.05(7); and
m. Grant any other relief the Court deems just and reasonable.
Respectfully submitted this 8th day of August, 2016,
SOUTHERN POVERTY LAW CENTER
By: /s/ Michelle Lapointe Michelle R. Lapointe* GA Bar No. 007080 1989 College Avenue NE Atlanta, GA 30317 T: 404.521.6700 F: 404.221.5857 Michelle.Lapointe@splcenter.org * Admitted Pro Hac Vice
Jessica Zagier Wallace Fla. Bar. No. 956171 Tania Galloni Fla. Bar No. 619221 4770 Biscayne Blvd., Ste. 760 Miami, Florida 33137 T: 786.347.2056 F: 786.237.2949 Jessica.Wallace@splcenter.org Tania.Galloni@splcenter.org
Counsel for Plaintiffs
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CERTIFICATE OF SERVICE I certify that on August 8, 2016, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will provide service to the following: James D. Fox ROETZEL & ANDRESS, LPA 850 Park Shore Drive Trianon Centre – Third Floor Naples, Florida 34103 T: 239.649.2705 F: 239.261.3659 jfox@ralaw.com Jon Fishbane District General Counsel Collier County School District 5775 Osceola Trail Naples, Florida 34109 T: 239.377.0499 F: 239.377.0501 fishbj@collierschools.com
/s/ Michelle Lapointe
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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION
LESLY METHELUS, on behalf of Y.M., a minor; ROSALBA ORTIZ, on behalf of G.O., a minor; ZOILA LORENZO, on behalf of M.D., a minor; on behalf of themselves and all other similarly situated, Plaintiff

vs.

No. 2:16-cv-00379-SPC-MRM

THE SCHOOL BOARD OF COLLIER COUNTY, FLORIDA and KAMELA PATTON, Superintendent of Collier County Public Schools, in her official capacity, Defendants ____________________________________/

INTEREST OF THE UNITED STATES

The United States has authority to file this Statement of Interest pursuant to 28 U.S.C.

§ 517, which permits the Attorney General to attend to the interests of the United States in any

case pending in a federal court. This litigation implicates a matter of critical national importance

– the right of English Learner (EL) students to equal access to a high-quality education.

The United States submits this Statement of Interest to assist the Court in evaluating

Plaintiffs’ claims under the Equal Educational Opportunities Act (EEOA), 20 U.S.C. § 1701 et

seq., and Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d–2000d-7, and its

implementing regulations, see e.g. 28 C.F.R. Part 42, 34 C.F.R. Part 100 (Title VI). The U.S.

Department of Justice (DOJ) is responsible for enforcing the EEOA, see 20 U.S.C. §§ 1706,

1709 (authorizing DOJ to bring suit and to intervene in private cases), and ensuring that courts

correctly interpret the statute, including its requirement that schools take “appropriate action” to

serve EL students, 20 U.S.C. § 1703(f). DOJ also is responsible for ensuring consistent

enforcement of Title VI across the federal government under Exec. Order No. 12250, Leadership

and Coordination of Nondiscrimination Laws, 45 Fed. Reg. 72,995 (Nov. 2 1980), and enforces

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Title VI in federal court. The United States is uniquely situated to aid the Court in analyzing the legal standards applicable to both statutes, having enforced both the EEOA and Title VI on behalf of EL students for decades, and having promulgated guidance explaining school districts’ statutory obligations under both laws.1
BACKGROUND Plaintiffs – the parents and guardians of EL students named Y.M., G.O., M.D., T.J.H., K.V., and N.A. who are either Haitian or Guatemalan (Plaintiff ELs) – allege that the School Board of Collier County, Florida (Board) and the Superintendent deny their immigrant EL children equal educational opportunities based on national origin, including their foreign birth and limited English proficiency. Am. Compl. (Doc. 30) ¶¶ 1, 9–14, 124–25. Among other claims, Plaintiffs bring individual and class claims under the EEOA and Title VI. Id. ¶¶ 5, 100, 121–130 (EEOA/Count I), 131–141 (Title VI/Count II). According to Plaintiffs’ Amended Complaint, Board practices deny “recently-arrived, foreign-born, ELL2 students” ages 15 and older enrollment in regular high schools. Id. ¶ 45. Plaintiffs allege that the Board “purports to rely on” a February 2013 policy barring enrollment of students ages 17 or older in the regular high school program if they cannot meet graduation requirements prior to the end of the school year in which they turn 19 (Policy). Id. ¶¶ 43–44. Under that Policy, such students cannot attend the regular high school program but must be afforded the opportunity to pursue a high school diploma through the Board’s Adult High School or General Educational Development (GED) programs. Id. ¶ 43. Plaintiffs also assert that the Board adopted the Policy, which revised an earlier policy regarding the enrollment of students
1 The United States is addressing only the legal standards applicable to Plaintiffs’ claims under § 1703(f) of the EEOA and an intentional discrimination claim based on national origin under Title VI. 2 While Plaintiffs use the term “ELL” in their Amended Complaint, federal guidance uses this term along with “EL” and “LEP.” All are interchangeable.
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ages 18-21, after a “sharp increase in the number of unaccompanied minors arriving to the United States from abroad,” most of whom were 16 or 17. Id. ¶ 41, 102–106 & Ex. 2. Although the Policy does not delineate between currently enrolled and prospective students, Plaintiffs allege that a district employee represented to the Board that the Policy targets “new kids enrolling at our schools.” Id. ¶ 47.
Plaintiffs further allege that the Board relies on the Policy as part of a larger “practice of denying high school enrollment to recently-arrived, foreign-born ELL students” age 15 and older, in contravention of the Policy’s express terms and federal EL requirements, including those in the District’s EL Plan. Id. ¶¶ 45, 50–64. According to the Amended Complaint, the Board refers some of these students to “noncredit, adult English for Speakers of Other Languages (Adult ESOL) classes that charge a fee” and that offer no opportunity to obtain a standard diploma, learn core subjects, or participate in high school activities. Id. ¶¶ 3–4, 51–52, 56-61. Plaintiffs allege that, since 2013, several hundred foreign-born children between the ages of 15 and 18 have been denied enrollment in regular high schools and found their way to these Adult ESOL programs. Id. ¶ 53. In contrast, Plaintiffs allege that the Board permits students 15 and older who are not recently arrived, foreign-born ELs to enroll in or continue to attend a regular high school even though they are far behind and not on track to graduate. Id. ¶¶ 46–47.
Plaintiffs recount that when they tried to enroll Y.M. (age 15), G.O. (age 16), M.D. (age 16), and T.J.H. (age 17) at Immokalee High School, all four were denied admission, and three were told to enroll in Immokalee Technical Center, which offers an Adult ESOL program for $30 per semester. Id. ¶¶ 67–68, 71–72, 74, 94. Plaintiffs further allege that when K.V. (age 16 in her third year of high school in Haiti) tried to enroll at Golden Gate High School, a Board employee “told K.V. that she could not enroll because she did not speak English well … and did
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not have enough credits.” Id. ¶ 80. Board employees did not advise K.V. of any alternate enrollment options. Id. They similarly failed to advise N.A. (age 17) of other enrollment options when denying his enrollment at Lely High School for being “too old” and at Golden Gate High School for being “no longer eligible” for a regular diploma or alternative program. Id. ¶¶ 87, 89. K.V. and N.A. found Adult ESOL Programs on their own and paid $30 to attend. Id. ¶¶ 81, 90.
Plaintiffs allege that the Adult ESOL programs that Plaintiff ELs and hundreds like them were referred to (or located on their own) do not teach math, science, social studies, or the standard curriculum that ELs are entitled to under federal law and the District EL Plan. Id. ¶¶ 32, 39, 57, 68, 72, 76, 95. Further, unlike non-ELs and ELs receiving EL services in regular high school, and in contravention of state law and the District EL Plan, ELs in Adult ESOL programs must pay $30 and cannot earn credit toward a standard diploma. Id. ¶¶ 40, 58.
The Board moved to dismiss, Defs.’ Mot. to Dismiss (MTD) (Doc. 37), erroneously arguing that it satisfies its federal obligations. MTD at 2, 3, 9, 11. The Board repeatedly invokes the February 2013 Policy, but ignores Plaintiffs’ allegations that: the Board’s actions are not consistent with the Policy; the Policy is intentionally discriminatory and is discriminatorily applied; and the Adult ESOL programs provide no opportunity to participate in the standard instructional program. Id. 7, 12, 14. Instead, the Board asserts that Plaintiff ELs were ineligible for regular high school because two were not already enrolled in school, none had the “demonstrated proficiency in English, Mathematics, Social Studies, and Science” required to enter high school, and none, in the Board’s view, could complete high school by 19. Id. 7–8.
ARGUMENT Both the EEOA and Title VI prohibit States and school districts from denying equal educational opportunity to individuals based on their national origin. See 20 U.S.C. § 1703; 42
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U.S.C. § 2000d. Decades of federal case law and guidance interpreting the EEOA and Title VI and its implementing regulations establish both that school districts must make their standard instructional programs accessible to ELs through language assistance programs and that discrimination against limited English proficient (LEP) persons can give rise to a claim of unlawful national origin discrimination. In arguing that this Court should dismiss Plaintiffs’ EEOA and Title VI claims, the Board misconstrues governing legal standards, cites cases out of context, and invokes a Policy that Plaintiffs have alleged provides Plaintiff ELs no access to the standard instructional program and is intentionally discriminatory.
Rather, taking Plaintiffs’ alleged facts as true, as this Court must at the motion to dismiss stage, Plaintiffs have adequately pled violations of § 1703(f) of the EEOA and Title VI based on the Board’s denial of Plaintiff ELs’ enrollment in its regular high school program3 and its referral, if any, of Plaintiff ELs to inadequate educational programs. I. The EEOA Requires “Appropriate Action” To Overcome Language Barriers That
Impede ELs’ Equal Participation In Its Standard Instructional Program A. The Board’s Obligations Under The EEOA The EEOA prohibits States from denying equal educational opportunity to any person “on account of his or her race, color, sex, or national origin.” 20 U.S.C. § 1703. Such a denial occurs when, inter alia, a state or local education agency fails “to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.” Id. District courts have held that in order to state a plausible claim for national origin discrimination under § 1703(f), ELs need only allege facts showing “(1) language barriers; (2)
3 The Board’s practice of denying enrollment to recently-arrived, foreign-born EL students in its regular high schools and referring them to Adult ESOL programs that charge a fee bears some similarity to the policies and practices struck down by the Supreme Court as unlawful in Plyler v. Doe, 457 U.S. 202, 222 (1982) (striking down a state law denying free public education to undocumented immigrant students as well as a school district’s attempt to charge such students an annual tuition fee as unlawful intentional discrimination).
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defendant’s failure to take appropriate action to overcome these barriers; and (3) a resulting impediment to students’ equal participation in instructional programs.” C.G. v. Pa. Dep’t of Educ., 888 F.Supp. 2d 534, 575 (M.D. Pa. 2012) (internal citation omitted); see also Leslie v. Bd. of Educ. for Ill. Sch. Dist. U-46, 379 F.Supp. 2d 952 (N.D. Ill. 2005); Khadidja v. Sch. Dist. of Lancaster, 5:16-CV-03881-EGS, 2016 WL 4493202, at *2–8 (E.D. Pa. Aug. 26, 2016) (applying C.G. and Castañeda v. Pickard, 648 F.2d 989 (5th Cir. 1981) in decision granting preliminary injunction under the EEOA to EL refugee plaintiffs ages 17-20 who were denied enrollment in regular high school program and placed in an alternative, credit recovery program where they could earn “a diploma and all of the attendant benefits.”), expedited appeal filed, No. 16-3528 (3d Cir. Sept. 2, 2016).
Neither the text nor legislative history of the EEOA defines “appropriate action” for purposes of § 1703(f). In Castañeda, a case that controls here,4 the Fifth Circuit interpreted § 1703(f) by establishing a three-part framework for assessing state and local education agencies’ compliance with §1703(f). Under that framework, this Court must consider whether: (1) the Board’s EL program is based upon a sound educational theory; (2) the program, in practice, is reasonably calculated to implement effectively that theory, including the provision of sufficient resources and personnel; and (3) the program has been successful after a legitimate trial period. Id. at 1009–10. Plaintiffs need not prove discriminatory intent to establish a violation of § 1703(f). See id. at 1007–08. In interpreting § 1703(f) and establishing the three-part test, Castañeda relied on Lau v. Nichols, 414 U.S. 563, 568 (1974), a decision that Congress codified in § 1703(f) and that required schools to provide English language instruction to ELs to ensure their meaningful participation in regular education programs. Castañeda, 648 F.2d at 1008.
4 Decisions of the former Fifth Circuit rendered before October 1, 1981 – such as Castañeda – serve as binding precedent of the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
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Castañeda enables education officials to adopt the types of EL programs that will be most responsive to student needs. See Castañeda, 648 F.2d at 1008–09; Horne v. Flores, 557 U.S. 433, 454 (2009). Yet Castañeda recognized that Congress intended to ensure that states and school districts “made a genuine and good faith effort” to implement sound EL programs “to remedy the language deficiencies of their students and deliberately placed on federal courts the difficult responsibility of determining whether that obligation had been met.” 648 F.2d at 1009. Castañeda then proceeded to establish the three-part test to assist courts in evaluating whether a district’s EL program satisfies its obligations under § 1703(f). Id. at 1009–10.
Castañeda makes clear that a district’s EL program may not permanently sacrifice or even unreasonably delay academic instruction in favor of English language development (ELD). Id. at 1011. Rather, “§ 1703(f) leaves schools free to determine the sequence and manner in which [EL] students tackle this dual challenge [of learning English and academic content] so long as the schools design [EL] programs which are reasonably calculated to enable [ELs] to attain parity of participation in the standard instructional program within a reasonable length of time.” Id. at 1011 (emphasis added). Under Castañeda, schools may implement EL programs that emphasize ELD “during the early part of [students’] school career[s] . . . even if the result of such a program is an interim sacrifice of learning in other areas during this period.” Id. at 1011. Yet, Castañeda cautioned such schools that “to be able ultimately to participate equally with the students who entered school with an English language background, [ELs] will have to . . . recoup any deficits which they may incur in other areas of the curriculum as a result of th[eir] extra expenditure of time” acquiring English. Id. Mindful of the “equal participation in instructional programs” language in § 1703(f), the Court thus concluded that § 1703(f) imposes “a duty to provide [ELs] with assistance in other areas of the curriculum where their equal participation
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may be impaired because of deficits incurred [while] participat[ing] in” the EL program. Id. If no such opportunity to recoup academic deficits is provided, the Court explained, “the language barrier, although itself remedied, might, nevertheless, pose a lingering and indirect impediment to [ELs’] equal participation in the regular instructional program.” Id.
The Departments of Education and Justice summarized these requirements in their joint 2015 Dear Colleague Letter on EL Students and LEP Parents (EL DCL): “To ensure that EL students can catch up in those core areas within a reasonable period of time, such districts must provide compensatory and supplemental services to remedy academic deficits that the student may have developed while focusing on English language acquisition.” MTD at 13 (quoting EL DCL at 19).This summary is entirely consistent with § 1703(f) and the binding Castañeda standards just described.5 Ignoring these standards, the Board asks this Court to reject this guidance on the basis of a case that is not binding and completely at odds with these standards. See infra discussion of Flores v. Huppenthal, 789 F.3d 994 (9th Cir. 2015) at 11-12.
B. The Board Cannot Show Plaintiffs’ EEOA Claim Fails As A Matter Of Law Here, Plaintiffs allege facts sufficient to survive a motion to dismiss under the Castañeda standards. In particular, Plaintiffs allege that, contrary to the Board’s EEOA duty to offer a sound EL program that enables ELs to attain parity of participation in the standard instructional program, the Board denied Plaintiff ELs access to its free EL program and standard instructional program altogether by refusing to enroll them in regular high schools. Am. Compl. ¶¶ 67–89. More specifically, as to ELs ages 15 and 16, Plaintiffs allege that the Board denied them
5 Castañeda’s interpretation of § 1703(f) controls here, but even if it did not, this guidance regarding the EEOA,
Title VI, and its implementing regulations is entitled to substantial deference because DOJ and ED are the agencies tasked with enforcing the EEOA, Title VI, and their implementing regulations. See Chevron U.S.A. v. NRDC, 467
U.S. 837, 843–44 (1984) (where a statute that an agency administers is silent with respect to a specific issue, the
question is whether the agency’s interpretation is “based on a permissible construction of the statute”); Auer v. Robbins, 519 U.S. 452, 461 (1997) (deference is warranted provided agency interpretation is not “plainly erroneous or inconsistent with the regulation[s]”).
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enrollment in the regular high school program in contravention of the Board’s own Policy. As to K.V. (16), Plaintiffs allege that the Board assumed her inability to timely graduate based on her limited English and did not offer her any enrollment option. Id. ¶ 80. Even when the Board referred some Plaintiff ELs to Adult ESOL programs, these referrals did not satisfy the Board’s own Policy mandate to offer a high school diploma or GED. See Id. ¶ 43 & Ex. 2. Nor did those Adult ESOL programs meet Castañeda’s standards because they cost $30 per semester and offer no math, science, or social studies, and no credit toward a standard diploma.
In a recent case involving similar claims, the court denied the school district’s motion to dismiss EEOA and Title VI claims. See New York by Schneiderman v. Utica City Sch. Dist., 2016 WL 1555399 (N.D.N.Y 2016). In Utica, the plaintiff alleged that the district intentionally denied immigrant ELs aged 17-20 enrollment in the regular high school program and diverted them to alternative programs that offered “little more than basic instruction in the English language” and “a high school equivalency program,” but not a regular diploma. Id. at *1–2. In refusing to dismiss the EEOA claim, the court relied upon allegations that the ELs had been “denied equal educational opportunities on the basis of their national origin as part of a diversionary policy enacted and enforced by senior policymakers in the District.” Id. at *10. Like the plaintiffs in Utica, Plaintiffs here plead a plausible claim under § 1703(f) of the EEOA.
The Board does not refute Plaintiffs’ allegations. Nor could it on a motion to dismiss. Instead, the Board incorrectly argues that the EEOA: (1) gives it “latitude” to offer Adult ESOL programs with no core content instruction or way to earn a regular diploma; (2) allows it to deny ELs enrollment in regular schools because they lack “demonstrated proficiency in English, Mathematics, Social Studies, and Science” and are thus “unqualified” for high school; and (3)
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allows it to “legally send [ELs] to English Language and adult education programs” based on a misreading of the EEOA and the federal guidance in the EL DCL. MTD at 8, 11–12 & n.22.
To be sure, step one of the three-part test in Castañeda (which the Board ignores) gives officials “substantial latitude” to choose among educationally sound EL programs. See 648 F.2d at 1008–10. However, such “latitude” does not include the wholesale exclusion of ELs from the Board’s regular schools. Indeed, such an interpretation flatly contradicts Congress’s intent to codify Lau in § 1703(f) and leads to absurd results. In Lau, California’s graduation and compulsory education standards, which closely resemble those of Florida,6 informed the Court’s holding that districts must help ELs learn English so that they have a meaningful opportunity to earn a regular diploma. Id. In reaching this holding, the Court rejected the “unqualified” argument that the Board now urges, concluding that to mandate English skills as a prerequisite to participation in the standard educational program would be “to make a mockery of public education.” Id. Indeed, if a district can deny ELs enrollment in regular high schools based on “academic qualifications,” MTD at 8, then new EL immigrants of any age could be denied enrollment in regular schools since their language barriers and schooling abroad often will mean that they lack the academic prerequisites for a given age/grade in U.S. schools. In codifying Lau, Congress rejected this senseless outcome.
The Board also quotes selectively from Horne to argue for unfettered “latitude in choosing the programs and techniques … to meet [its] obligations under the EEOA,” MTD at 12, but omits that Horne itself relied on Castañeda. The language the Board quotes, when read in
6 California required “proficiency in ‘English,’ as well as other prescribed subjects” to obtain a high school diploma, and made education compulsory for “children between the ages of six and 16 years.” Lau, 414 U.S. at 566. The Board suggests that its EEOA and Title VI duties to ELs end at age 16 based on Florida law. MTD at 4-5. While the EEOA and Title VI afford districts and states some latitude over how they will provide ELs access to their regular education programs, a state or school district cannot deny this access entirely. See Hillman v. Maretta, 133 S. Ct
1943, 1949–50 (2013); 42 U.S.C. § 2000h-4 (invalidating any provision of State law when “such provision is
inconsistent with any of the purposes of [Title VI]”).
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context, makes clear that the “latitude” afforded to schools applies only to the type of EL program and techniques offered – for example, bilingual education – and must be exercised in “good faith” to ensure ELs’ meaningful participation in the standard instructional program. Castañeda, 648 F.2d at 1009;7 see also id. at 1011. Indeed, in both Horne and U.S. v. Tex., 601 F.3d 354 (5th Cir. 2010), another case the Board cites for its purported “latitude” to exclude ELs from regular schools, the courts applied Castañeda to examine the EEOA claims. Horne, 557 U.S. at 440–41, 454; Texas, 601 F.3d at 367–73. Far from supporting an argument that this Court should dismiss Plaintiffs’ EEOA claim, the cases demonstrate the fact-intensive inquiry courts must undertake to determine if districts are meeting their obligations under § 1703(f).
The Board’s reliance on Flores v. Huppenthal, 789 F.3d 994 (9th Cir. 2015), is similarly misplaced. See MTD at13. Although Huppenthal invoked Castañeda’s “latitude” quote in stating that the EEOA does not impose an obligation on schools to assist ELs in recovering academic content they have missed while in intensive ELD programs, this statement flatly conflicts with Castañeda’s interpretation of § 1703(f), which is binding on this Court. Huppenthal, 789 F.3d at 1007 (quoting Castañeda, 648 F.2d at 1009). The rest of the Castañeda opinion explains that the “latitude” to choose among EL programs is limited by “a duty to provide [EL] students with assistance in other areas of the curriculum where their equal participation may be impaired
7 By lifting the following “latitude” quote out of context, the Board misinterprets Castañeda and § 1703(f):
Congress, in describing the remedial obligation it sought to impose on the states in the EEOA, did not specify that a state must provide a program of ‘bilingual education’ to all limited English speaking students. We think Congress’ use of the less specific term, ‘appropriate action,’ rather than ‘bilingual education,’ indicates that Congress intended to leave state and local educational authorities a substantial amount of latitude in choosing the programs and techniques they would use to meet their obligations under the EEOA. However, by including an obligation to address the problem of language barriers in the EEOA and granting [EL] students a private right of action to enforce that obligation in s 1706, Congress also must have intended to insure that schools made a genuine and good faith effort, consistent with local circumstances and resources, to remedy the language deficiencies of their students. Id.
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because of deficits incurred during participation in an agency’s [EL] program.” Id. at 1011. Here, Plaintiffs allege that Adult ESOL programs do not even teach other areas and provide no access to the standard program. Further, Huppenthal addressed only whether the district court abused its discretion under Federal Rule 60(b)(5) in granting Arizona’s request for relief from a decadesold judgment for alleged violations of the EEOA based on changed circumstances. See id. at 997–998, 1001–1008. The post-trial, fact-intensive analysis in Huppenthal under Rule 60(b)(5) does not support dismissal under Rule 12(b)(6) of Plaintiffs’ EEOA claim here, especially where Plaintiffs allege that the Board has denied them any semblance of a high school education.8
Lastly, the Board’s argument that the EEOA allows it to “legally send” Plaintiff ELs to Adult ESOL programs misreads this same “latitude” quote as well as federal guidance. MTD at 11-12 & n.22. Consistent with § 1703(f) and Castañeda’s standards, federal guidance advises districts to “place EL students in age-appropriate grade levels so that they can have meaningful access to their grade-appropriate curricula and an equal opportunity to graduate” and cautions districts against placing older ELs who are below grade level in age-inappropriate programs that do not teach core content courses that earn credit toward graduation. EL DCL at 18 & n.50. Neither this guidance nor § 1703(f) allows the Board to exclude ELs from regular high schools and offer only fee-based Adult ESOL programs with no core content instruction. Further, placing 15- to 17-year old ELs in regular high schools is more age-appropriate than placing them with “adults, some of whom are older than the students’ parents or grandparents.” Am Compl. ¶ 62.
8 The Board faults Plaintiffs for not alleging different treatment of similarly situated comparators, MTD at 12, but § 1703(f) does not require proof of intentional discrimination, Castañeda, 648 F.2d at 1008. And offering immigrant ELs an equal opportunity to participate in the standard instructional program and earn a regular high school diploma is the very type of equal treatment that lies at the heart of the EEOA’s “appropriate action” requirement – and not “preferential treatment,” as the Board contends. 20 U.S.C. § 1703(f); MTD at 12.
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II. Title VI Prohibits The Board From Engaging in National Origin Discrimination A. Intentional Discrimination Under Title VI Plaintiffs allege that the Board’s Policy, as applied, excludes recently-arrived foreign-
born students who are 17 or older who, in the view of the Board, cannot meet graduation requirements by the age of 19, and is intentionally discriminatory on the basis of national origin in violation of Title VI. Title VI states that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. To establish a Title VI violation, private litigants must prove a defendant acted with discriminatory intent. See Alexander v. Sandoval, 532 U.S. 275 (2001); Sirpal v. Univ. of Miami, 684 F.Supp.2d 1349, 1357 (S.D. Fl. 2010) (“to state a claim under Title VI, a plaintiff must allege facts establishing discriminatory intent.”).
To assess whether a facially neutral policy, such as the Board’s Policy here, was enacted, at least in part, with discriminatory intent, courts must undertake a “sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977). In doing so, courts rely on factors set forth in Arlington Heights, including: a challenged policy’s discriminatory impact, which “may provide an important starting point” in discerning a decisionmaker’s intent; the historical background; the sequence of events preceding the policy’s enactment; substantive and procedural departures from normal decision-making processes; and contemporaneous statements by decisionmakers. See id. at 265–268. These factors are neither all required nor exhaustive and include the foreseeability and knowledge of a discriminatory impact, as well as the availability of less discriminatory alternatives. See Jean v. Nelson, 711 F.2d 1455, 1486 (11th Cir. 1983). When
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establishing intent under Arlington Heights, “the plaintiff need provide very little such evidence ... to raise a genuine issue of fact ...; any indication of discriminatory motive ... may suffice to raise a question that can only be resolved by a fact-finder.” Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1159 (9th Cir. 2013) (citations omitted).
In arguing that Plaintiffs fail to state a Title VI claim of national origin discrimination, the Board urges application of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which provides a test for employment discrimination claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e–2000e-17. See MTD at 14-16. While the McDonnell Douglas framework is one way of demonstrating intentional discrimination based on national origin, it is not the appropriate framework to prove intentional discrimination under Title VI in this case. The totality of the relevant facts can show that national origin discrimination was the motivation behind a facially neutral law. See Washington v. Davis, 426 U.S. 229, 242 (1976); Arlington Heights, 429 U.S. at 264-68; cf. Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir. 2012) (McDonnell Douglas framework is generally more appropriate for individual claims). Given the neutral policy and facts alleged here, the Arlington Heights framework is more appropriate. See Elston v. Talladega Cty. Bd. of Educ., 997 F.2d 1394 (11th Cir. 1993) (applying Arlington Heights in Title VI intent case); Burton v. City of Belle Glade, 178 F.3d 1175 (11th Cir. 1999).
In determining whether a neutral policy is intentionally discriminatory, a court must also evaluate whether it is applied in a discriminatory way, as Plaintiff ELs have alleged. See Yick Wo v. Hopkins, 118 U.S. 356 (1886).
B. The Board Cannot Establish That Plaintiffs’ Title VI Claim Of Intentional National Origin Discrimination Fails As A Matter Of Law
Under the Arlington Heights framework, Plaintiffs adequately allege facts sufficient to state a plausible Title VI claim, and the inapposite cases the Board cites do not defeat this claim.
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1. Plaintiffs State a Title VI Claim of Intentional Discrimination Plaintiffs’ allegations include precisely the types of facts that courts regularly examine under Arlington Heights when evaluating intentional discrimination claims. Plaintiffs, for example, point to the discriminatory impact of the Board’s policy, which provides an “important starting point” in the intent analysis. Arlington Heights, 429 U.S. at 266 (citing Davis, 426 U.S. at 229). They allege that several hundred foreign-born children between the ages of 15 and 18 have found their way to Adult ESOL programs after being denied access to the Board’s regular high school program, including a free education, core content, credits toward a school diploma, academic enrichment, sports, and extracurricular activities; and that the Board is aware of this fact. Am. Compl. ¶¶ 4, 53–54, 61, 135. More specifically, Plaintiffs allege that in the 2015-2016 school year alone, at least 369 foreign-born students under the age of 18 were attending the Adult ESOL programs instead of Collier’s regular high school. Id. ¶ 106. Based on the timing, a fact-finder could determine that the Board’s decision to amend its policy to constrict access to a regular high school program was motivated, at least in part, by intent to exclude newly arrived foreign-born ELs based on national origin. Until August 1, 2013, the Board’s policy permitted persons to attend the regular high school program until they were 21. Id. Ex. 2. This earlier policy excluded people at age 18 only if they could not meet graduation requirements by the end of the school year during which they became 21 (i.e., up to three years later). Id. Only after the recent influx of unaccompanied EL minors arriving from abroad did the Board alter its policy to lower the age from 21 to 19 and exclude youth at age 17 if they could not, by the end of the school year during which they became 19 (i.e., up to 2 years later), meet the graduation requirements. Id. ¶¶ 41–43, 47, 147. For both policies, the Board asserted the purpose of keeping consistent maturity levels among high school students, even as it allegedly
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applied the policy to students as young as 15. Id. Ex. 2. In addition to the timing, Plaintiffs allege that despite the Policy’s express terms, which apply to both currently enrolled and prospective students, District employees explained to the Board that the Policy targeted “new kids enrolling at our schools.” Id. ¶ 47. Again, a fact-finder could determine that the “new kids” referred to the influx of “recently-arrived, foreign-born, ELL students.”
Plaintiffs also allege that the Board was aware of the harm to ELs created by its Policy, and nonetheless refused to remove those barriers. See id. ¶¶ 27-28, 32, 42, 54-56, 59, 98-99, 134; Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 272 (3d Cir. 2014) (applying deliberate indifference standard to Title VI intentional claim); Utica City Sch. Dist., 2016 WL 1555399 at *9–10.9
Plaintiffs further allege that the Board applies its Policy in a discriminatory manner. Upon Plaintiffs’ information and belief, in contrast to its treatment of recently-arrived, foreign born ELs ages 15 and older, the Board permits students 15 and older “who are not recently arrived, foreign born, ELL students . . . to either enroll in or continue to attend Collier County public schools . . . and earn credits toward a standard high school diploma,” including those “who are not on track to graduate.” Id. ¶¶ 45–46. Plaintiffs allege that because officials conduct no individualized assessments of ELs’ English or academic skills, enrollment decisions are based on discriminatory assumptions that these ELs will fail academically. Id. ¶ 49. In further support of an inference that the Board’s “neutral” Policy is a pretext for national origin discrimination, Plaintiffs claim that the Board imposes a $30/semester cost on ELs sent to Adult ESOL classes
9 See also Faith Action for Cmty. Equity v. Haw., 2015 WL 751134, at *7 (D. Haw. 2015); Almendares v. Palmer, 284 F. Supp. 2d 799, 806 (N.D. Ohio 2003) (“disparate impact, history of the state action, and foreseeability and knowledge of the discriminatory onus placed upon the complainants” is the type of circumstantial evidence upon which a case of intentional discrimination is often based.) (citations omitted); Cabrera v. Alvarez, 977 F.Supp. 2d 969, 973 (N.D. Cal. 2013) (a year before the lawsuit the plaintiff filed a complaint with the recipient “citing the failure to provide language translation services and the uninhabitable and unremedied living conditions”).
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and fails to keep records of attempts to enroll these EL children in regular high schools. Id. ¶¶ 47–48; see Utica, 2016 WL 1555399 at *10 (that district employees did not keep records, among other factual allegations, states a plausible claim of intentional discrimination under Title VI).
Plaintiffs also allege the Board’s actions depart substantively and procedurally from its Policy and state law. Id. ¶¶ 50–64. The Policy expressly applies to students over the age of 17, but the Board allegedly departs from the criteria set out in its own Policy by applying it to 15and 16-year-old ELs. Id. ¶ 44. The Board also allegedly turned away two Plaintiff ELs without offering them an adult program at all, even though the Policy is phrased in mandatory terms (person excluded “shall be afforded an opportunity to pursue a high school diploma” through other “programs of the District”). Id. ¶¶ 80, 89. Plaintiffs further allege deviations from state law: that students 16 and older are only “adults” under Florida law if they file a formal declaration of intent to terminate school enrollment with a school board. Id. ¶ 21. None of the named ELs filed such a declaration or was given the opportunity to appeal Collier’s denial of their enrollment; all want to continue their education. Id. ¶ 97. Charging EL students a fee for English instruction is also inconsistent with state and federal requirements.10 Id. ¶¶ 4–6. Plaintiffs’ factual allegations easily lend themselves to the sensitive, fact-intensive inquiry required under Arlington Heights and are sufficient to state a claim of intentional discrimination under Title VI.
2. Plaintiffs Allege National Origin Discrimination A policy that denies or limits ELs’ opportunity to participate in a federally funded program based on language barriers has long been recognized as implicating Title VI’s protections against national origin discrimination because there is an obvious nexus between limited English proficiency and national origin. See Lau, 414 U.S. at 568 (“[i]t seems obvious
10 See Dep’t of Justice, Guidance to Fed. Fin. Assistance Recipients Re. Title VI Prohibition Against National Origin Discrimination Affecting [LEP] Persons, 67 Fed. Reg. 41,455 (Jun. 18, 2002); see also Fla. Const. art. IX, § 1(a) (requiring a free public education).
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that the Chinese-speaking minority receive fewer benefits than the English-speaking majority from respondents’ school system which denies them a meaningful opportunity to participate in the educational program”). The non-binding cases the Board cites, such as Mumid v. Abraham Lincoln High Sch., 618 F.3d 789 (8th Cir. 2010), MTD at 16, overlook this longstanding Title VI precedent and ignore the sensitive inquiry that Arlington Heights demands. Indeed, a court recently declined to follow Mumid, noting “the absence of any discussion [in Mumid] of the Supreme Court’s decision in Lau.” U.S. v. Maricopa Cty., 915 F.Supp. 2d 1073, 1081 (8th Cir. 2012).
The Board asserts that Plaintiffs have not adequately pled a claim of intentional national origin discrimination under Title VI because “language and national origin are not interchangeable.” MTD at 16 (citing Mumid).11 As we understand Plaintiffs’ Amended Complaint, however, they do not claim that language and national origin are always interchangeable, such that a language barrier always results in intentional national origin discrimination. Rather, they allege that denying recently-arrived foreign-born ELs the opportunity to participate in the standard educational program, when examined in light of the totality of facts, can give rise to a claim of intentional national origin discrimination.
Indeed, Mumid did not dismiss the plaintiffs’ Title VI intent claim out of hand; rather, the claim was resolved on the basis of the record evidence at summary judgment. See 618 F.3d at 795. Moreover, regardless of the ultimate merits of the plaintiffs’ Title VI claim in Mumid, the school district in that case, unlike the Board here, actually provided the plaintiffs an education. As relevant here, Mumid erred in limiting its Title VI analysis to whether the plaintiffs could establish intentional discrimination through a facially discriminatory policy, direct evidence of
11 The Board’s focus on language also overlooks that Plaintiffs allege that the Board engages in national origin discrimination against the foreign born.
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discriminatory animus, or the McDonnell Douglas framework. Id. at 794–95. These approaches are not required to prove intentional discrimination under Title VI. Indeed, the court in Mumid did not even consider the settled Arlington Heights framework applicable here. 12
3. The Board’s Reliance on Holton Is Misplaced Lastly, the Board argues that “the State’s academic prerequisites for high school matriculation and adult education provide the kind of ability grouping that has been repeatedly upheld.” MTD at 3 (citing Holton v. City of Thomasville Sch. Dist., 490 F.3d 1257 (11th Cir. 2007)); see also MTD at 8–9 n.20, 11, 14, 16, 19. This line of Title VI cases, which rely on McNeal v. Tate Cty. Sch. Dist., 508 F.2d 1017 (5th Cir. 1975), has no place here.13 McNeal and its progeny, including Holton, address the narrow question of whether ability grouping is constitutionally permissible when it results in racially segregated classrooms within a school in a district that has a history of de jure segregation. McNeal affirms the “basic rule” prohibiting intentional segregation of students within schools and provides a standard for reviewing ability grouping across classes that has a disparate racial impact in districts with a history of de jure or de facto segregation that have or have not achieved unitary status. McNeal, 508 F.2d at 1019–20. By contrast, the Plaintiffs here allege the Board has a policy of intentionally excluding recent immigrant ELs from its regular high schools altogether and funneling them to non-credit, Adult ESOL programs in violation of Title VI and the EEOA. Holton is not an EEOA or EL case, and in the few desegregation cases where EEOA or Title VI claims by ELs have arisen,
12 The other cases the Board cites can be similarly distinguished. See Soberal-Perez v. Heckler, 717 F.2d 36, 38-41 (2d Cir. 1983) (Title VI claim against federal agency dismissed because Title VI does not apply to federally conducted programs and intent not alleged under Equal Protection claim); Olagues v. Russioniello. 770 F.2d 791 (9th Cir. 1985) (alleged facial classification under Voting Rights Act and U.S. Constitution); Santiago-Lebron v. Florida Parole Com'm, 767 F. Supp. 2d 1340, 1349 (S.D. Fla. 2011) (language and national origin not interchangeable in federal inmate’s habeas corpus case against the state bureau of prisons). 13 The Board cites Ga. State Conf. of Branches of NAACP v. Ga., 775 F.2d 1403 (11th Cir. 1985). MTD at 16. Like Holton, Georgia looks at ability grouping in the school desegregation context and is inapposite.
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courts carefully isolated the claims, citing McNeal solely with respect to classroom segregation,

and applying Castañeda’s three-part test to assess the adequacy of the EL program. See, e.g., Castañeda, 648 F.2d at 995–99; Morales v. Shannon, 516 F.2d 411, 413 (5th Cir. 1975).14 None

of the cases contemplated complete exclusion of ELs from regular high school programs.

Further, even if Holton were apposite, it would not foreclose Plaintiffs’ Title VI claim,

which alleges that the Board is intentionally segregating recently-arrived ELs out of a desire to

exclude them from the district’s regular high school programs. Am. Compl. ¶¶ 4, 46–50, 67, 70–

71, 74, 80, 86–87, 94. As the Eleventh Circuit made clear in its first Holton opinion: “‘[S]chool

systems are free to employ ability grouping, even when such a policy has a segregative effect, so

long, of course, as such a practice is genuinely motivated by educational concerns and not

discriminatory motives.’” 425 F.3d 1325, 1347 (11th Cir. 2005) (quoting Castañeda, 648 F.2d at

996–97) (emphasis in original). The Holton court went on to say that the proper resolution of

such a case turns on a careful assessment of the facts. Id. at 1348.

CONCLUSION The Board’s motion to dismiss Plaintiffs’ EEOA and Title VI claims should be denied.

Respectfully submitted,

A. LEE BENTLEY, III United States Attorney Middle District of Florida
s/ Yohance A. Pettis____________ YOHANCE A. PETTIS Assistant United States Attorney United States Attorney's Office

VANITA GUPTA Principal Deputy Assistant Attorney General EVE L. HILL Deputy Assistant Attorney General
SHAHEENA SIMONS (CA 225520) EMILY MCCARTHY (DC 463447) Educational Opportunities Section

14 Morales relies on McNeal when analyzing plaintiffs’ claims concerning the segregation of Mexican-American students and cites the EEOA and Lau when examining plaintiffs’ claims involving the lack of bilingual-bicultural instruction. 516 F.2d at 413, 415. Similarly, in Castañeda, Mexican-American students alleged, inter alia, that the school district used ability grouping that resulted in impermissible classroom segregation, and that court, citing McNeal, explained “[t]he rationale supporting judicial proscription of ability grouping” in the context of historically segregated schools. Id. at 996. Notably, the court applied the three-part test under § 1703(f) of the EEOA, not McNeal standards, to analyze the claim that the EL instruction was inadequate with respect to access to content.
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Middle District of Florida 400 North Tampa Street, Suite 3200 Tampa, FL 33602 Fla. Bar No.: 021216 Fax: 813-274-6198 Phone: 813-274-6000 Email: yohance.pettis@usdoj.gov
Dated: September 26, 2016

CHRISTINE STONEMAN (DC 462557) ANNA M. MEDINA (DC 483183) Federal Coordination and Compliance Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - NWB Washington, DC 20530 Telephone: (202) 353-3936 Email: anna.medina@usdoj.gov

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Statement of Interest of the United States of America has been filed electronically using the Court’s Electronic Case Filing (“ECF”) System, which sent a notice of filing activity to all attorneys of record. This document is available for viewing and downloading from the Court’s ECF System.

Dated: September 23, 2016

s/ Yohance A. Pettis YOHANCE A. PETTIS Assistant United States Attorney United States Attorney's Office Middle District of Florida 400 North Tampa Street, Suite 3200 Tampa, FL 33602 Fla. Bar No.: 021216 Fax: 813-274-6198 Phone: 813-274-6000 Email: yohance.pettis@usdoj.gov

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 Case 2:16-cv-00379-SPC-MRM Document 26 Filed 07/21/16 Page 1 of 5 PageID 208

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

LESLY METHELUS, ROSALBA ORTIZ and ZOILA LORENZO, on behalf of Y.M., a minor, on behalf of themselves and all others similarly situated

Plaintiffs,

v.

Case No: 2:16-cv-379-FtM-38MRM

THE SCHOOL BOARD OF COLLIER COUNTY, FLORIDA and KAMELA PATTON,

Defendants. /

REPORT AND RECOMMENDATION

TO THE UNITED STATES DISTRICT COURT On July 19, 2016, the Court held a Preliminary Pretrial Conference in this case. At the
hearing, the Court addressed the best method of establishing an effective case-management schedule in this case given its current procedural posture.
By way of relevant background, Plaintiffs filed a Complaint for Declaratory and Injunctive Relief (Doc. 1) on May 18, 2016. Plaintiffs allege that they are parents or guardians of three children, Y.M., G.O., and M.D. (Doc. 1 at ¶ 1). Plaintiffs claim, among other things, that these children have been denied equal access to educational opportunities by Defendants, The School Board of Collier County, Florida, and Kamela Patton, in her official capacity as Superintendent of Collier County Public Schools. (Doc. 1 at ¶ 1). Plaintiffs allege that these children are not permitted to attend public high schools and, instead, are “funnel[ed]” to “non-

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credit, English language-only, adult programs that charge a fee.” (Doc. 1 at ¶ 1). The Complaint includes class action allegations pursuant to Fed. R. Civ. P. 23. (Doc. 1 at ¶¶ 58-76).
In the Complaint, Plaintiffs assert five counts or claims stated as causes of action. In the First Cause of Action, Plaintiffs allege a violation of the Equal Educational Opportunities Act of 1974. In the Second Cause of Action, Plaintiffs allege a violation of Title VI of the Civil Rights Act of 1964. In the Third Cause of Action, Plaintiffs allege a violation of the Fourteenth Amendment Equal Protection Clause. In the Fourth Cause of Action, Plaintiffs allege a violation of the Fourteenth Amendment Due Process Clause. In the Fifth Cause of Action, Plaintiffs allege a violation of the Florida Education Equity Act, Fla. Stat. §§ 1000.05 et seq. (Doc. 1 at ¶¶ 77-113).
Approximately eight (8) days after the Complaint was filed, on May 26, 2016, Plaintiffs filed a Motion for Class Certification (Doc. 7). The deadline to respond to the Motion for Class Certification was extended to August 5, 2016. (See Doc. 20). In addition, Defendants filed a Motion to Dismiss (Doc. 24) on July 18, 2016, the day before the Preliminary Pretrial Conference.
At the Preliminary Pretrial Conference, the Court addressed the practicality of setting case-management deadlines given the current procedural posture of the case. The Court raised concerns that a determination of the Motion for Class Certification may be premature in light of (1) a statement in the Motion for Class Certification concerning the possibility that additional class discovery may be needed and (2) the filing of the Motion to Dismiss, which raises issues concerning, inter alia, the named Plaintiffs’ standing. Specifically, at the end of the Motion for Class Certification (Doc. 7), Plaintiffs stated, “[s]hould the Court determine that the record has not yet been sufficiently developed to support Plaintiffs’ motion, Plaintiffs respectfully request
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that the Court defer resolution of the motion pending class discovery in accordance with Local Rule 4.04(c) and set a hearing on the matter.” (Doc. 7 at 23). Even though counsel for Plaintiffs stated at the hearing that they wanted to proceed on the pending Motion for Class Certification, this statement in the Motion indicates facially that it is possible the class certification issues may be impacted by class-related discovery not yet taken.1 Although Plaintiffs argued at the Preliminary Pretrial Conference that they believe their Motion for Class Certification is sufficiently supported, Plaintiffs nevertheless plan to proceed with additional class and merits discovery simultaneously and the proposed deadlines in the Case Management Report took that into account.
Because the Motion to Dismiss (Doc. 24) was filed the day before the Preliminary Pretrial Conference, the Court also raised concerns that the nature and scope of the claims in the case and the challenge to standing must be determined before any ruling on class certification would be appropriate. Moreover, Plaintiffs indicated in response to the Court’s questioning that they may amend the Complaint.
After consideration of the parties’ arguments and a review of the docket, the Court finds and recommends that this case should be managed differently by the Court than the parties have proposed in the Case Management Report for the reasons stated above. Specifically, the Undersigned recommends that the pending Motion for Class Certification (Doc. 7) be denied without prejudice to Plaintiffs’ ability to re-file the Motion after (1) resolution of the pending
1 A skeletal, perfunctory motion for class certification will not satisfy the requirements of Rule 23. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011); see also Lakeland Reg’l Med. Ctr., Inc. v. Astellas U.S. LLC, No. 8:10-CV-2008-T-33TGW, 2012 WL 2402825, at *2 (M.D. Fla. June 26, 2012). “A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Dukes, 564 U.S. at 350.
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Motion to Dismiss and (2) completion of class-related discovery. The Undersigned further recommends that class and merits discovery be bifurcated to allow the parties to focus on classrelated discovery first. The Undersigned also recommends setting a schedule for filing a renewed motion for class certification, response in opposition thereto, and a possible class certification hearing. If these recommendations are approved and entered by the Court, the Undersigned will then enter a separate Case Management and Scheduling Order addressing all other case management deadlines, including trial, consistent with the recommendations herein.
Notably, in open Court and on the record, Defendants waived the 14-day objection period to this Report and Recommendation. Plaintiffs, however, reserved their right to object until after they have had an opportunity to review the Report and Recommendation. Plaintiffs’ counsel stated that if, after reviewing the Report and Recommendation, Plaintiffs had no objection, Plaintiffs would file a notice of non-objection.
Accordingly, IT IS RESPECTFULLY RECOMMENDED: 1) The Motion for Class Certification (Doc. 7) be DENIED without prejudice as
premature. 2) Upon approval and adoption of this Report and Recommendation, the Undersigned
recommends that this matter be referred to the Undersigned for the entry of a Case Management and Scheduling Order as set forth above. Respectfully recommended in Chambers in Ft. Myers, Florida on July 21, 2016.
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Case 2:16-cv-00379-SPC-MRM Document 26 Filed 07/21/16 Page 5 of 5 PageID 212 NOTICE TO PARTIES
A party has fourteen days from this date to file written objections to the Report and Recommendation’s factual findings and legal conclusions. A party’s failure to file written objections waives that party’s right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R. 3-1. Copies furnished to: Counsel of Record Unrepresented Parties
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

LESLY METHELUS, ROSALBA ORTIZ, ZOILA LORENZO, ANGE MARIE JOSEPH, EMILE ANTOINE and LUCENIE HILAIRE DUROSIER, on behalf of Y.M., a minor, on behalf of themselves and all others similarly situated

Plaintiffs,

v.

Case No: 2:16-cv-379-FtM-38MRM

THE SCHOOL BOARD OF COLLIER COUNTY, FLORIDA and KAMELA PATTON,

Defendants.

/ OPINION AND ORDER1

This matter comes before the Court on Defendants School Board of Collier County,

Florida and Kamela Patton’s Motion to Dismiss. (Doc. 37). Plaintiffs filed a timely

response in opposition. (Doc. 39). In addition, the United States filed a Statement of

Interest (Doc. 38), to which Defendants responded (Doc. 58), and Plaintiffs replied (Doc.

59). For the following reasons, Defendants’ motion is granted in part and denied in part.

1 Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or websites. These hyperlinks are provided only for users’ convenience. Users are cautioned that hyperlinked documents in CM/ECF are subject to PACER fees. By allowing hyperlinks to other websites, this Court does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their websites. Likewise, the Court has no agreements with any of these third parties or their websites. The Court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the Court.

BACKGROUND2 Plaintiffs are the parents and guardians of foreign-born, English Language Learner (“ELL”) children (“Plaintiff Children”) who were allegedly denied access to a free public education in Collier County, Florida. (Doc. 30). According to Plaintiffs, the School Board and Superintendent Patton violated Plaintiff Children’s rights, and those of hundreds of similarly situated ELL children, through a policy and practice of excluding such foreignborn children from public high school. (I at ¶ 148; Doc. 39 at 1). The story of each Plaintiff Child is similar. At ages 15, 16, or 17, they came to the United States from Haiti or Guatemala and attempted to enroll in Collier County high schools for the 2015-2016 academic year.3 (Doc. 30 at ¶¶ 66-67, 70, 73-74, 77-78, 8589, 93-94). Each went with a parent or guardian to Immokalee High School, Golden Gate High School, and/or Lely High School to enroll, but none were accepted. (Id. at ¶¶ 6667, 70-71, 73-74, 77-78, 80, 85-89, 93-94). School officials gave like reasons for denying enrollment – age, lack of English proficiency, insufficient academic credits, and/or ineligible to attend high school. (Id. at ¶¶ 67, 71, 74, 80, 87, 89, 94). Regardless of the reason, none of Plaintiff Children were assessed for English language proficiency or academic achievement before being denied enrollment. (Id. at ¶ 97). Pertinent here, none filed declarations of their intent to terminate school enrollment. (Id.). Defendants also maintained no records of unsuccessful enrollment attempts by recently-arrived, foreign-born ELL students ages fifteen and older. (Id. at ¶ 48).
2 The facts are taken from the Amended Complaint and attachments thereto, and are assumed to be true for purposes of deciding Defendants’ motion to dismiss. 3 At the time of their attempted enrollments, Y.M. was 15, G.O., M.D., and K.V. were 16, and N.A. and T.J.H. were 17.
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The School Board’s Policy 5112.01, which governs the maximum age for which a person can participate in regular high school, played a central role in Plaintiff Children’s enrollment denial. (Doc. 30-2). That policy states,
[i]n order to provide reasonable consistency of maturity levels among students in the regular high school program, no person shall be permitted to attend the regular high school program after attaining the age of nineteen (19). Those who attain the age of nineteen (19) during a school year may complete that school year. Persons who are seventeen (17) years old or older and who, by earning eight (8) credits per academic year, cannot meet graduation requirements, including grade point average (GPA), prior to the end of the school year during which they attain the age of nineteen (19), shall not be permitted to attend the regular high school program beyond the end of the academic year in which they attain the age of seventeen (17). Such persons shall be afforded an opportunity to pursue a high school diploma through the Adult High School or General Educational Development (GED) programs of the District. (Id.). This policy went into effect in August 2013. (Id.). Three Plaintiff Children – G.O., K.V. and N.A. – were denied enrollment outright and not directed to any other educational program. (Doc. 30 at ¶¶ 52, 71-72, 80-81, 8790). Family or friends told them about Adult English for Speakers of Other Languages (“Adult ESOL”) programs at Immokalee Technical Center (“iTech”), Barron Collier High School, and Lorenzo Walker Technical College, which had a $30.00 per semester enrollment fee. (Id. at ¶¶ 60, 72, 81, 83, 90). For the other three Plaintiff Children – Y.M., M.D., and T.J.H. – school officials directed them to iTech. (Id. at ¶¶ 52, 67, 74, 94). Neither iTech nor Lorenzo Walker allegedly provided credits toward a high school diploma, taught Florida’s core curriculum, and provided access to math, science, social studies, or computer literacy. (Id. at ¶¶ 19, 51, 56-58). The programs also did not conform to the requirements of Defendants’ District Plan for Services to English Language
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Learners (“District ELL Plan”) (Doc. 30-1), which sets forth policies and procedures for providing instruction to ELL students (Doc. 30 at ¶¶ 32-40, 51, 56).
Because of being denied access to public school, Plaintiffs bring this class action under the Equal Educational Opportunities Act of 1974 (“EEOA”), Title VI of the Civil Rights Act of 1964 (“Title VI”), 42 U.S.C. § 1983 for violations of the Fourteenth Amendment’s Equal Protection and Due Process Clauses, and Florida Educational Equity Act (“FEEA”). The Amended Complaint (Doc. 30) is the operative pleading, which Defendants now move to dismiss.
LEGAL STANDARD A Rule 12(b)(6) motion tests the sufficiency of a complaint under the federal pleading rules. A claim fails this inspection if it asserts a legal theory that is not cognizable as a matter of law, or because its factual account is implausible. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 & 570 (2007). When deciding a Rule 12(b)(6) motion, the court presumes all well-pled factual allegations to be true, resolves all reasonable doubts and inferences in the plaintiff’s favor, and views the complaint in the light most favorable to the non-moving party. See id. at 555. The federal pleading requirements are far from trivial. Although “detailed factual allegations” are not required, the rules “demand . . . more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). A plaintiff must allege enough facts to raise his claims beyond the level of speculation, “nudging the[m] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. A plaintiff must do more than offer labels, conclusions, and “a formulaic recitation of the elements of a cause of action.”
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Iqbal, 556 U.S. at 678. The court will not accept as true bald assertions, conclusions, or legal conclusions “couched” as facts. Id. at 678-79; Twombly, 550 U.S. at 555.
For claims to survive a Rule 12(b)(6) motion, therefore, the plaintiff’s allegations “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). A claim is facially plausibly where the facts alleged permit the court to reasonably infer that defendant’s alleged misconduct was unlawful. See Id.
DISCUSSION Before addressing the merits of Defendants’ Motion to Dismiss, a review of Florida’s education system is helpful to frame the arguments before the Court. A. Florida’s free public education system The Florida Constitution guarantees a free public school education to all children residing within its borders.4 Fla. Const. art. IX, § 1(a). It states that “[t]he education of children is a fundamental value of the people of the State. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children in the State.” Id.; see also Scavella v. Sch. Bd. of Dade Cty., 363 So. 2d 1095, 1098 (Fla. 1978) (“The clear implication is that all Florida residents have the right to attend this public school system for free.”). This constitutional guarantee is reflected in Florida’s education statute, which requires public schools to provide thirteen (13) consecutive years of free education: [a]s required by s. 1 Art. IX of the State Constitution, the Florida K-20 education system shall include the uniform system of free public K-12
4 The Florida Constitution does not define “children.” Nor does Florida law establish the maximum age for which a child is entitled to a free public education. But the age of majority in Florida is eighteen years old. See Fla. Stat. § 743.07(1). Florida education law is consistent with this general provision in that it guarantees thirteen consecutive years of free public education starting at age five or six. See id. § 1000.01(4).
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schools. These public K-12 schools shall provide 13 consecutive years of instruction, beginning with kindergarten, and shall also provide such instruction for students with . . . limited English proficienc[y]. Fla. Stat. § 1000.01(4); see also id. § 1002.20(1) (“[A]ll K-12 public school students are entitled to a uniform, safe, secure, efficient, and high quality education.”). School attendance is compulsory for children between the ages of six and fifteen. See id. § 1003.21(1)(a)(1).5 A student may dropout at age sixteen, but only if he “files a formal declaration of intent to terminate school enrollment with the district school board.” id. § 1003.21(1)(a)(2)(c). Although Florida carves out an exception to allow students to withdraw from school, it still compels those students who have reached age sixteen and not graduated to attend school until the formal declaration is filed. See id.. Florida also guarantees free public education to all students regardless of their national origin. See Fla. Stat. § 1000.05(2)(c). No person may be “excluded from participating in, denied the benefits of, or be subjected to discrimination under any public K-20 education program” by a public school receiving federal or state financial assistance. Id. § 1000.05(2)(a). School officials must identify and assess suspected ELL students to determine whether, and to what extent, they require language support. Id. § 1003.56(1) (“Instruction in the English language shall be provided to limited English proficient students. Such instruction shall be designed to develop the student’s mastery of the four language skills, including listening, speaking, reading, and writing, as rapidly as
5 The full text of § 1003.21(1(a)(1) reads, “[a]ll children who have attained the age of 6 years or who will have attained the age of 6 years by February 1 of any school year or who are older than 6 years of age but who have not attained the age of 16 years, except as otherwise provided, are required to attend school regularly during the entire school term.”
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possible.”). Each school board must implement procedures regarding limited English proficient students that include, among other things,
 identifying limited English proficient students through assessment;  providing limited English proficient students ESOL instruction in English and
ESOL instruction or home language instruction in the basic subject areas of reading, math, science, social studies, and computer literacy; and  providing equal access to other programs for eligible limited English proficient students based on need. Fla. Stat. § 1003.56(3). Here, Superintendent Patton signed the District ELL Plan in 2013, before Plaintiff Children attempted to enroll in public high school. The District ELL Plan sets forth policies and procedures regarding ELL students including their identification, evaluation, and placements. (Doc. 30 at ¶ 32; Doc. 30-1). The ELL Plan also requires schools to identify ELL students at the time of registration using a home language survey. (Doc. 30 at ¶ 33). Superintendent Patton signed the ELL in February 2013. (Doc. 30-1). In doing so, she certified that the procedures, processes, and services described in the ELL Plan complied with, among other things, the EEOA, Title VI, and the FEEA. (Id.). B. School Board’s Policy 5112.01 The crux of Defendants’ argument is that Plaintiff Children were ineligible to attend regular high school because they could not have graduated by age nineteen and were academically ineligible to participate in high school at the time of their enrollment. (Doc. 37 at 2, 4). They stand on the School Board’s Policy 5112.01 in making that argument. As stated, Policy 5112.01 excludes from high school any “persons” seventeen years or older and cannot graduate by the end of the school year during which they reach age nineteen. (Doc. 30-2). That person cannot go beyond the end of the academic year in
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which they reach age seventeen. (Id.). For those students, Policy 5112.01 requires that they be “afforded an opportunity to pursue a high school diploma through the Adult High School or General Educational Development (GED) programs of the District.” (Id.). Defendants claim they undisputedly followed that policy here, which precludes Plaintiffs’ claims as a matter of law.
Defendants devote much of their motion defending Policy 5112.01 under the School Board’s home-rule power. (Doc. 37 at 2, 4-10). A school board’s home-rule power springs from Florida’s Constitution and education law – “school boards shall operate, control, and supervise all free public schools within their school districts and may exercise any power except as expressly prohibited by the State Constitution or general law.” Fla. Stat. § 1001.32(2); see also Fla. Const., art. IX, § 4(b). Florida also charges local school boards with decisions regarding “admitting, classifying, promoting, and graduation of students to or from various schools of the district.” Fla. Stat. § 1003.02(1)(a). Here, Defendants argue that they were within their authority to implement Policy 5112.01 because no federal or State law governs age and academic prerequisites for free public education. (Doc. 37 at 2).
Defendants’ reliance on home-rule misses the mark for several reasons. Plaintiffs do not challenge the School Board’s authority to implement Policy 5112.01’s age-out policy. Instead, they claim that Policy 5112.01 contravenes the EEOA, Title VI, Fourteenth Amendment, and FEEA.6 This is not a case in which Plaintiffs’ claims infringe on Defendants’ home-rule power. All heed the School Board’s authority to make that
6 Defendants raise an argument based on express preemption. (Doc. 37 at 6). But, as Plaintiffs point out, the cases that Defendants rely on are inapposite because they address municipal ordinances and Plaintiffs are not raising a state law preemption claim.
8

policy. But the home-rule power does not per se mean that Policy 5112.01 can escape aligning with applicable federal and state laws.
Defendants’ reliance on Florida’s compulsory school attendance to defend Policy 5112.01 fares no better. They argue that neither general law nor Florida’s Constitution require free public education to persons over the age of sixteen. (Doc. 37 at 4-5). That is incorrect. Children between six and fifteen years old must attend school. See Fla. Stat. § 1003.21(1)(a). When a student reaches sixteen years old, he may dropout by filing a formal declaration of intent, signed by his parents, with the school district. Id. at § 1003.21(1)(b). Unless a student affirmatively quits, Florida still compels him to attend school. Id. § 1003.21(1)(a)(2)(c) (“Public school students who have attained the age of 16 years and who have not graduated are subject to compulsory school attendance until the formal declaration of intent is filed with the district school board.” (emphasis added)); cf. id. § 1000.01(4) (requiring public schools to provide thirteen consecutive years of instruction, beginning with kindergarten). Contrary to Defendants’ position, Florida guarantees free public education beyond age sixteen.7
Here, Defendants may not rely on Policy 5112.01 alone as grounds for turning away Y.M., G.O., M.D., and K.V. All four were sixteen years or younger when they attempted to enroll in high school, and thus they had not aged out of free public education.8 (Doc. 30 at ¶¶ 67, 70, 74, 77). N.A. and T.J.H. were seventeen at the time
7 To decide Defendants’ Motion to Dismiss, the Court need not fix the maximum age limit for which Florida provides free public education, especially since all Plaintiff Children were seventeen years or younger when they attempted to enroll in public high school. 8 In fact, Y.M. was fifteen years old when he attempted to enroll and was subject to compulsory attendance when he was turned away from the high school. (Doc. 30 at ¶ 67).
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of their enrollment, thus triggering Policy 5112.01. (Id. at ¶¶ 85, 93). The problem is that Defendants did not follow that policy in turning them away. According to the Amended Complaint, a friend – not the school – told N.A. about the program at Lorenzo Walker, in which he enrolled at $30.00 per semester. (Id. at ¶ 90). Indeed, the Amended Complaint alleges that a staff person at Golden Gate High School gave N.A. and his father a piece of paper that stated N.A. “was no longer eligible to pursue a traditional High School Diploma in Collier County Public Schools, including those programs offered through Alternative Programs.” (Id. at ¶ 89). As for T.J.H., the Amended Complaint alleges that the school informed him about iTech, but their efforts to afford T.J.H. an opportunity to pursue a high school diploma ended there. (Id. at ¶¶ 94-95). Taking Plaintiffs’ allegations as true in the Amended Complaint, Defendants’ reliance on Policy 5112.01 and homerule power to dismiss this case falls short.
Moreover, Defendants make several general arguments to defend Policy 5112.01 that are nonstarters under Rule 12(b)(6). For example, Defendants highlight that Policy 5112.01, a facially neutral policy, is intended to control maturity levels among students in the regular high school program:
[c]ommon sense would at least question the wisdom of placing every 16-21 year old who has been out of school for a number of years into high school. Plaintiffs’ insistence on individualistic self-determination both assumes too much about their knowledge and wisdom and assumes too little about the impact of such decisions on teachers, students, and parents, which perhaps is why that determination is left to States and local school boards. (Doc. 37 at 8-9 n.20). The purpose of a motion to dismiss is to examine the plausibility and sufficiency of the Amended Complaint – not to assess affirmative defenses or assess the validity of the purpose for a school’s policy. Likewise, Defendants argue that, “[w]hen persons such as Plaintiffs have been out of school or are years behind linguistically and
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educationally, placing them in high school would only cause them to fall further behind and set them up for failure. Therefore, the School Board may legally refer them to English language and adult education programs where instead of falling behind they can succeed.” (Doc. 37 at 12). Again this policy-type argument is not relevant for the Court’s determination whether the Amended Complaint states plausible causes of action.
Defendants also mischaracterize many of Plaintiffs’ allegations. For example, Defendants assert that “[t]he Amended Complaint alleges that the School Board as a matter of practice, pursuant to [Policy 5112.01], offers prospective enrollees who are unable to complete high school by age 19 entrance in English language and adult education programs.” (Id. at 7). But Plaintiffs allege that between ages fifteen and seventeen, Plaintiff Children were denied enrollment in public schools without any evaluation of their English-language proficiency and academic ability. (Doc. 30 at ¶ 97). Defendants also assert that Plaintiffs have failed to identify a comparator group that was treated differently. (Doc. 37 at 12). This is incorrect. The Amended Complaint alleges that children aged fifteen and older who are not recently arrived, foreign-born ELLS students are permitted to enroll in or continue receiving a free public education in Collier County schools. (Doc. 30 at ¶ 46).
In short, although school boards possess a variant of home rule powers that provide them a broad grant of authority to act for educational purposes, that power is not limitless. The Florida Constitution and general laws like the FEEA, EEOA, and Title VI limit it. See Fla. Stat. § 1001.32(2) (permitting school boards to “exercise any power except as expressly prohibited by the State Constitution or general law”); id. § 1001.32(1) (“[A]ctions of district school officials shall be consistent and in harmony with state laws
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and with rules and minimum standards of the state board”). Thus, home rule does not permit Defendants to promulgate policies inconsistent with federal and state law.
Having determined that the doctrine of home rule does not entitle Defendants to stand behind Policy 5112.01 to defeat this suit at the motion to dismiss stage, the Court will address each individual count in turn. C. Count I: EEOA
Plaintiffs contend that Defendants denied Plaintiff Children, and similarly situated students, equal education opportunities because of their national origin by not taking action to overcome their language barriers and facilitate their equal participation in public school. (Doc. 30 at ¶ 125). That failure, according to Plaintiffs, violates the EEOA. Defendants disagree and move to dismiss the EEOA claim.9 (Doc. 37 at 10-14).
The EEOA prohibits a State from denying equal educational opportunities to individuals based on their national origin. 20 U.S.C. § 1703 (emphasis added). Such a denial occurs when “the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.” 20 U.S.C. § 1703(f) (emphasis added). An individual alleging a § 1703(f) violation must satisfy four elements: (1) defendant is an educational agency; (2) plaintiff faces language barriers that impede his equal participation in defendant’s instructional programs; (3) defendant failed to take appropriate action to overcome those
9 In response to the motion to dismiss, Plaintiffs assert that Defendants only seek a partial dismissal of the EEOA claim. (Doc. 39 at 2). Plaintiffs claim that they have made two separate claims under the EEOA. The first is that Defendants failed to take appropriate steps to overcome Plaintiff Children’s language barriers under § 1703(f). (Doc. 30 at ¶ 125). The second is under § 1703(a), which forbids deliberate segregation by a school based on a student’s national origin. (Id. at ¶ 124). Plaintiff is correct that Defendants’ motion only addresses their § 1703(f) claims.
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barriers; and (4) plaintiff was denied equal educational opportunity on account of his national origin. See Issa v. Sch. Dist. of Lancaster, 847 F.3d 121, 132 (3d Cir. 2017) (citations and footnote omitted). Here, there is no dispute that Plaintiffs pled the first and second elements. This leaves the third and fourth elements at issue.
To satisfy § 1703(f)’s third element, a plaintiff must plausibly allege that the defendant failed to take appropriate action to overcome his language barriers. See id. The EEOA does not define “appropriate action,” and thus courts have turned to case law for guidance. Because § 1703(f) is a provision that the Supreme Court and Court of Appeals have “infrequently applied,” this Court finds illustrative the Third Circuit’s recent decision in Issa v. Sch. Dist. of Lancaster, 847 F.3d 121 (3d Cir. 2017), whereby it affirmed a preliminary injunction against a school district in an analogous EEOA and Title VI suit.
The starting point for an EEOA analysis is Lau v. Nicholas, 414 U.S. 563 (1974), a pre-EEOA case. In Lau, a school district did not offer English-language instruction to its Chinese students. Id. at 564. Those students sued under Title VI, which prohibits federal-funding recipients from discriminating based on national origin, race, or color. Id. at 565. Finding a Title VI violation, the Court stressed the importance of language instruction in American education:
[t]here is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education. Basic English skills are at the very core of what . . . public schools teach. Imposition of a requirement that, before a child can effectively participate in the educational program, he must already have acquired those basic skills is to make a mockery of public education. We know that those who do not understand English are certain to find their classroom experiences wholly incomprehensible and in no way meaningful. Id. at 566.
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The Supreme Court later abrogated Lau’s interpretation on Title VI. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978); see also Alexander v. Sandoval, 532 U.S. 275, 283 (2001). “In enacting § 1703(f), however, Congress embraced Lau’s ‘essential holding’ that ‘schools are not free to ignore the need of limited English speaking children for language assistance.’” Issa, 847 F.3d at 133 (citing Castaneda v. Pickard, 648 F.2d 989, 1008 (5th Cir. 1981)).
Following Lau and § 1703(f)’s enactment, the Fifth Circuit decided Castaneda v. Pickard, which is the seminal case on the EEOA.10 In Castaneda, Hispanic students sued the school district under the EEOA, alleging its failure to implement a bilingual-education program impeded their ability to overcome language barriers. Id. at 992. The Fifth Circuit found, on summary judgment, that Congress afforded state and local authorities a “substantial amount of latitude” to choose the “programs and techniques they would use” to satisfy § 1703(f). Id. at 1008; see also Horne v. Flores, 557 U.S. 433, 440-41 (2009). “But too much latitude, the court cautioned, would render § 1703(f) a nullity.” Issa, 847 F.3d at 133. The Fifth Circuit, therefore, held that state educational agencies must make a “genuine and good faith effort, consistent with local circumstances and resources, to remedy the language deficiencies of their students” under § 1703(f). Castaneda, 648 F.2d at 1009. It also noted that Congress “deliberately placed on federal courts the difficult responsibility of determining whether the obligation [is] met.” Id.
From there, the Fifth Circuit created a three-part test to decide what appropriate action looks like. Id. First, courts must “examine carefully the evidence the record
10 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as precedent the decisions of the former Fifth Circuit rendered prior to October 1, 1981.
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contains concerning the soundness of the educational theory or principles upon which the challenged program is based.” Id. Second, courts must decide whether the programs and practices “actually used” by the school system are “reasonably calculated to implement effectively the educational theory adopted by the school.” Id. at 1010. Third, if an otherwise sound and effectively implemented program fails to “produce results” indicating that language barriers are “actually being overcome,” it may “no longer constitute appropriate action.” Id. Applying this test, the Fifth Circuit found “serious doubts” about the language competency of teachers in bilingual classrooms and remanded for an evidentiary hearing. Id. at 1012-13, 1015.
Here, Plaintiffs allege that Defendants took no action – let alone appropriate action – to overcome language barriers that impeded their equal participation in public schools. See, e.g., Gomez v. Ill. State Bd. of Educ., 811 F.2d 1030, 1043 (7th Cir. 1987) (“Although the meaning of ‘appropriate action’ may not be immediately apparent without reference to the facts of the individual case, it must mean something more than ‘no action.’”). According to the Amended Complaint, Defendants turned Plaintiff Children away at the schoolhouse steps without any English language or general academic assessment. This refusal forced Plaintiff Children to enroll at an adult education center, which not only cost thirty dollars per semester, but also did not offer credit towards a high school diploma. Such allegations suffice at this early stage of litigation. See New York by Schneiderman v. Utica City Sch. Dist., 177 F. Supp. 3d 739, 753 (N.D.N.Y. 2016) (finding a sufficiently pled EEOA claim where the complaint alleged that LEP immigrants “were denied equal educational opportunities on the basis of their national origin as part of a diversionary policy enacted and enforced by senior policymakers in the District”). And based on these
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well-pleaded factual allegations, the Court need not delve into the specifics of Castaneda’s three-part test. This is not a case in which Plaintiffs ask the Court to substitute its judgment for that of the School District’s in terms of how to design, implement, or fund its ELL Plan. Rather, this case attacks a frontline inquiry – whether Plaintiff Children were denied access to free public education available to other non-ELL children.
In short, Defendants’ refusal to enroll Plaintiff Children in public school, referral to noncredit Adult ESOL programs, failure to assess their English and academic proficiency, and otherwise failure to follow the District ELL Plan, states a plausible cause of action under the EEOA. The Court denies Defendants’ Motion to Dismiss as to Count I. D. Count II – Title VI
Title VI of the Civil Rights Act provides : “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. To state a claim for discrimination under this statute, a plaintiff must plausibly allege that the (1) defendant discriminated based on national origin; (2) discrimination was intentional; and (3) discrimination was a substantial or motivating factor for the defendant’s actions. See Schneidermann, 177 F. Supp. 2d at 752 (citations omitted).
Here, Plaintiffs allege that Defendants discriminated against Plaintiff Children based on their national origin because of Defendants’ custom, policy, and practice of denying enrollment to recently arrived, foreign-born ELL students aged fifteen or older.
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(Doc. 30 at ¶¶ 45, 134). Defendants move to dismiss the Title VI claim for failure to state a claim. For the following reasons, the Court denies the motion.
To start, Defendants argue that Plaintiffs’ Title VI claim is based on their language deficiencies, not their national origin, which is not cognizable under Title VI. (Doc. 37 at 16). They cite Mumid v. Abraham Lincoln High Sch., 618 F.3d 789 (8th Cir. 2010) for the proposition that language deficiencies and national origin are not interchangeable for Title VI’s purposes. (Doc. 37 at 16-17). In Mumid, the Eighth Circuit held, “[w]hile Title VI prohibits discrimination on the basis of national origin, language and national origin are not interchangeable . . . . A policy that treats students with limited English proficiency differently than other students in the district does not facially discriminate based on national origin.” 618 F.3d at 795. But Mumid is unpersuasive. To adopt that reasoning would mean to disregard the common-sense interrelationship between limited English proficiency and national origin. See, e.g., T.R. v. Sch. Dist. of Philadelphia, -- F. Supp. 3d. -- 2016 WL 6994973, at *10 (E.D. Pa. Nov. 30, 2016) (rejecting the school district’s reliance on Mumid and finding that plaintiffs’ allegations of national origin discrimination to be sufficient to state a claim under the Title VI); United States v. Maricopa, 915 F. Supp. 2d 1073, 1079 (D. Ariz. 2012) (stating “longstanding case law, federal regulations and agency interpretation on those regulations hold language-based discrimination constitutes a form of national origin discrimination under Title VI”). As mentioned, the Supreme Court in Lau v. Nichols held that a school district’s failure to provide adequate ELL services to Chinese students violated Title VI’s prohibition against national origin discrimination. 414 U.S. at 568. In reaching this holding, the Court reasoned that the school district’s failure caused “students who do not understand English” to be “effectively
17

foreclosed from any meaningful education.” Id. at 566. Taking this body of case law together, Plaintiffs’ claim under Title VI is not foreclosed. See T.R. v. Sch. Dist. of Philadelphia, 2016 WL 6994973, at *11 (“Nothing in the Supreme Court’s reasoning in Lau supports [Defendants’] narrow reading of Title VI.”).
Next, Defendants argue that the Amended Complaint pleads nothing more than a disparate impact theory of national origin discrimination based on the effects of Policy 5112.01, which Title VI does not recognize. (Doc. 37 at 14). They make this argument despite the Amended Complaint alleging that Defendants’ policy “was adopted and is enforced with the intent to discriminate against Plaintiff Children and other similarlysituated students on the basis of their national origin,” and Defendants “acted intentionally or with deliberate indifference” to their rights. (Doc. 30 at ¶¶ 134, 147). The Amended Complaint further alleges that Defendants failed to maintain records of recently arrived, foreign-born ELL students age fifteen and older who seek to enroll in public school but are turned away. (Id. at ¶¶ 48, 138). Taken together, these allegations more than suffice to state a claim for intentional discrimination. See Schneidermann, 177 F. Supp. 3d at 752 (denying school district’s motion to dismiss Title VI claim where the complaint alleged ELL immigrant students were diverted into “alternative, unequal educational settings” and normal recordkeeping practices were ignored “resulting in these student’s enrollment attempts not being captured”).
Even if Plaintiffs allege intentional discrimination, Defendants argue that the Title VI claim fails under the burden-shifting standard set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973). (Doc. 37 at 14). That argument falls short. “The prima facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading requirement.”
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Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002). “This Court has never indicated that the requirements for establishing a prima facie case under McDonnell Douglas also apply to the pleading standard that plaintiffs must satisfy in order to survive a motion to dismiss.” Id. at 511; see McCone v. Pitney Bowes, Inc., 582 F. App’x 798, 801, n.4 (11th Cir. 2014) (noting that Twombly “had no impact on Swierkiewicz’s statement that a plaintiff is not required to plead a prima facie case of discrimination in order to survive dismissal”). Not to mention, the McDonnell Douglas burden-shifting standard applies to Title VII employment discrimination cases. The Court declines to apply McDonnell Douglas’ burden-shifting framework to the Title VI claim at this stage.
Reviewing the well-pleaded facts in a light most favorable to Plaintiffs, the Court finds they state an actionable Title VI claim. In Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-67 (1977) the Court stated that deciding whether discriminatory intent was a motivating factor in decision-making requires analysis of direct and circumstantial evidence. Courts may, among other things, examine any outsized impact on a protected class, the historical background of the decision, the specific sequence of events leading up to the decision, procedural and substantive departures from the norm, and legislative or administrative history to determine if sufficient evidence of discriminatory intent exists. Id. at 266-68. Here, Plaintiffs allege that at least 369 foreignborn students under the age of eighteen were attending a Collier County Adult ESOL program instead of regular public school. (Doc. 30 at ¶ 106). They also assert that “[d]uring a January 2013 School Board Workshop meeting discussing the proposed [Policy 5112.01], Board members raised a concern about the Policy’s impact on currently enrolled students. District employee Christy Kutz emphasized that the Policy was
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targeted at ‘new kids enrolling at our schools.’” (Id. at ¶ 47). And Defendants allegedly departed from Policy 5112.01 in that they did not offer Plaintiff Children an opportunity to pursue a high school diploma or GED.
Finally, Defendants argue that Policy 5112.01 results in permissible ability grouping based on educational achievement. (Doc. 37 at 14). This argument is equally untenable. Ability grouping involves “group[ing] students into different academic tracks based on their abilities, [as] determined by testing and other measures of academic ability.” Holton v. City of Thomasville Sch. Dist., 490 F.3d 1257, 1259 (11th Cir. 2007). Holton, which Defendants rely on heavily, is a school desegregation case in which the Supreme Court examined the lawfulness of a school district’s ability-grouping policy. Id. at 1259. The Court stated ability-grouping practices are not per se unconstitutional despite the effect they may have on creating racial imbalances in classrooms. That said, the Court noted that ability-grouping programs are permissible “if the assignment method ‘is not based on the present results of past segregation or will remedy such results through better educational opportunities.” Id. at 1262 (internal quotations and footnote omitted).
Unlike the ability-grouping practice upheld in Holton, the Amended Complaint alleges that Defendants outright denied public school enrollment to recently arrived, foreign-born ELL students without any language or academic assessments. The students in Holton, however, attended school with their peers but were assigned to different classes based on their assessed ability. Plaintiff Children never crossed the schoolhouse doors. Defendants’ ability grouping argument is not persuasive.
For these reasons, Defendant’s Motion to Dismiss on Count II is denied.
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E. Counts III and IV – 42 U.S.C. § 1983 The Fourteenth Amendment prohibits any state from “depriv[ing] any person of life,
liberty, or property, without due process of law” or denying “any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. To give the Fourteenth Amendment teeth, Congress enacted 42 U.S.C. § 1983. That section authorizes individuals to sue states or officials who act under color of state law for violating certain federal laws and federal constitutional rights. To prove a claim under § 1983, a person must show that state action caused that person to be deprived of his or her constitutional rights. When suing a local governmental entity such as a school board, a plaintiff must also show that an official government policy, government custom or practice, or the act of an official with final policy-making authority caused the constitutional violation. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); Denno v. Sch. Bd. of Volusia Cty., 219 F.3d 1267, 1276 (11th Cir. 2000). Here, Plaintiffs assert equal protection and due process claims under the Fourteenth Amendment. The Court will address each claim in turn.
1. Count III – Equal Protection As mentioned, the Equal Protection Clause provides that no State may “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Because Title VI and equal protection claims are considered under the same analytical framework, the Court denies Defendants’ Motion to Dismiss the equal protection claim for the same reasons above. That aside, the Amended Complaint alleges, among other things, that Defendants enacted Policy 5112.01, which was an ongoing policy of intentionally denying recently-
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arrived, foreign-born students aged sixteen and older enrollment in free public high school. That policy forced them to seek out and pay for unequal education programs because of their national origin and status as foreign-born ELL students. These allegations plead a viable claim. See Schneiderman, 177 F. Supp. 3d at 751 (finding a plausible equal protection claim where the complaint alleged that “senior District officials enacted and directed the enforcement of an ongoing policy of deliberately diverting students aged 17-20 seeking to enroll at Proctor High School into alternative, unequal education programs based on the actual or perceived states of those students as LEP and/or immigrants”).
Notwithstanding the foregoing, Defendants argue that, even if Plaintiffs pled sufficient facts of unequal treatment, they only alleged that some unnamed school official did the discriminating. (Doc. 37 at 18). Plaintiffs respond this is inaccurate because the Amended Complaint alleges that the constitutional deprivation resulted from Defendants’ policy or custom. See Monnell, 436 U.S. at 694. The Court agrees. Plaintiffs have alleged that Defendants excluded them from free public education pursuant to Policy 5112.01. (Doc. 30 at ¶¶ 1, 4, 45, 64, 144, 145, 148, 157, 166). The Court, therefore, finds that Plaintiffs state a plausible equal protection claim. The Court denies Defendants’ Motion to Dismiss on Count III.
2. Count IV – Due Process To state a procedural due process violation, as Plaintiffs allege here, the plaintiff must show a deprivation of a constitutionally protected property or liberty interest. “Because Florida gives students a statutory and state constitutional right to a public school education, courts treat the right to an education as a property interest protected
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by the Fourteenth Amendment.” Anderson v. Hillsborough Cty. Sch. Bd., No. 808-cv772-T-24TBM, 2009 WL 3669634, at *4 (M.D. Fla. Oct. 30, 2009), aff’d, 390 F. App’x 902 (11th Cir. 2010). This means, “a state may not arbitrarily deprive a student of their education without a minimum amount of due process that includes notice and an opportunity to be heard, appropriate to the nature of the case.” Id.
Here, Plaintiff Children allege that Defendants violated their right to procedural due process when Defendants excluded them from public school without notice or an opportunity to be heard. (Doc. 30 at ¶¶ 155-56). Plaintiffs were neither provided notice, nor given any opportunity to challenge their exclusion from public school. (Id. at ¶¶ 67, 71, 74, 80, 87, 89, 94, 97). On the other hand, Defendants argue that Plaintiff Children enjoy no property right to a free public education because they had no right to attend regular high school under Florida law.
The Court finds that the Amended Complaint provides sufficient factual allegations that Defendants turned Plaintiff Children away without any English proficiency or academic assessment. Nor did they give them an opportunity to challenge their enrollment denial. Not to mention, Defendants denied their enrollment in a manner inconsistent with the District ELL Plan. (Doc. 30-1). Because Plaintiffs sufficiently allege that Defendants denied their property interest in a free and appropriate education, Plaintiffs have stated a viable due process claim. The Court denies Defendants’ Motion to Dismiss on Count IV. F. Count V – Florida Educational Equity Act
The Florida Educational Equity Act (“FEEA”) prohibits discrimination based on national origin against a student in the state system of public K-20 education. Fla. Stat.
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§ 1000.05(2)(a). “No person in this state shall, on the basis of . . . national origin . . . be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any public K-20 educational program or activity, . . . conduct by a public educational institution that receives or benefits from federal or state financial assistance.” Id. The statute also provides that “[t]he criteria for admission to a program or course shall not have the effect of restricting access by persons of a particular . . . national origin[.]” Id. § 1000.05(2)(b). Also, “[a]ll public K-20 education classes shall be available to all students without regard to . . . national origin . . .; however, this is not intended to eliminate the provision of programs designed to meet the needs of students with limited proficiency in English[.]” Id. § 1000.05(2)(d).
Defendants move to dismiss Plaintiffs’ FEEA claim on the ground that Plaintiffs fail to allege the pre-suit notice requirements of Florida Statute § 768.28(6)(a), which sets forth the state’s waiver of sovereign immunity. It provides, in relevant part, “[a]n action may not be instituted against [a state agency or subdivision] unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality . . . presents such claim in writing to the Department of Financial Services, within 3 years after such claim accrues and the Department of Financial Services or the appropriate agency denies the claim in writing[.]” Fla. Stat. § 768.28(6)(a). Because this requirement is a condition precedent, Defendants argue that the FEEA claim should be dismissed.
This argument is incorrect. Plaintiffs’ claim under the FEEA is not subject to § 768.28(6)(a)’s pre-suit notice requirement. The Florida Supreme Court has held that pre-suit notice is not required where the governing statute authorizes a lawsuit against
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the state and does not refer to § 768.28(6). See Bifulco v. Patient Bus. & Fin. Servs., Inc., 39 So. 3d 1255, 1257-58 (Fla. 2010) (“When the Legislature has intended particular statutory causes of action to be subject to the requirements of section 768.28(6), it has made its intent clear by enacting provisions explicating stating that 768.28(6) applies.”). And pre-suit notice is not required here because the FEEA authorizes discrimination suits against “public educational institution[s].” Fla. Stat. § 1000.05(2)(a).
In addition, Florida courts have rejected application of § 768.28(6) to remedial civil rights statutes that, like the FEEA, that confer a private right of action and specify available forms of relief. See Maggio v. Fla. Dep’t of Labor & Emp’t Sec., 899 So. 2d 1074, 1080 (Fla. 2005) (state Civil Rights Act); Fla. Dep’t of Educ. v. Garrison, 954 So. 2d 84, 86 (Fla. 1st DCA 2007) (Public Whistleblower’s Act). The FEEA confers a private right of action for injunctive relief. See Fla. Stat. 1000.05(7). In contrast, “[t]he sole purpose of the enactment of section 768.28 was to waive sovereign immunity for breaches of common law torts.” Schaeffer v. Sch. Bd. of Broward Cty., Fla., 69 F. Supp. 3d 1327, 1330 (S.D. Fla. 2014) (internal quotations and citation omitted). Count V survives. G. Superintendent Patton as a Named Defendant
Next, Defendants argue that to the extent Plaintiffs sue Superintendent Patton in her individual capacity, those claims should be dismissed. Plaintiffs clarify, however, that they bring all counts against Superintendent Patton in her official capacity only.11 (Doc. 39 at 23).
11 Although Plaintiffs state that they bring “Counts I, III, IV, and V” against Superintendent Patton in her official capacity, it appears to be a scrivener’s error that they omitted Count II. (Doc. 39 at 23).
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Regarding suing Superintendent Patton in her official capacity, Defendants argue that the Title VI and § 1983 claims still must be dismissed. First, Defendants claim that Plaintiffs cannot sue Superintendent Patton under Title VI because she is not a recipient of federal funds. (Doc. 37 at 21). Plaintiffs offer no response. (Doc. 39 at 23-24). That is likely because “[t]he text of Title VI also precludes liability against those who do not receive federal funding, including individuals.” Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1170 (11th Cir. 2003); see also Pouyeh v. UAB Dep’t of Ophthalmology, 625 F. App’x 495, 498 (11th Cir. 2015) (finding “no individual liability under Title VI”); see also Barnett v. Baldwin Cty. Bd. of Educ., 60 F. Supp. 3d 1216, 1234 (S.D. Ala. 2014) (explaining that “liability was limited to recipients of federal funding” and “those who are in a position to accept or reject” the federally imposed conditions attendant to receipt of the funds, “as part of the decision whether or not to ‘receive’ federal funds”); Godby v. Montgomery Cty. Bd. of Educ., 996 F. Supp. 1390, 1413 (M.D. Ala. 1998) (“Because Title VI liability is based on a contractual-type relationship between the federal government and the receiver of a federal grant, only the local school district which actually receives the federal money may be held liable-not an employee of the entity.”). Against this case law, the Court agrees with Defendant.
Second, Defendants argue that the § 1983 claims are duplicative against Superintendent Patton and the School Board. (Doc. 37 at 22 n.27). The Court also agrees. See DeSisto Coll., Inc. v. Line, 888 F.2d 755, 764 (11th Cir. 1989) (stating “a plaintiff need no longer bring official-capacity actions against local government officials since the local government could now be sued directly”).
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Plaintiff relies on C.P. by & through Perez v. Collier Cty., 145 F. Supp. 3d 1085, 1089 (M.D. Fla. 2015) in arguing that dismissal of an agency head is not mandatory absent a concern of jury confusion. But that case is distinguishable because the court declined to dismiss the official capacity claims against a sheriff because of the inconsistency in Florida’ official-capacity jurisprudence for officers. Here, there is no such inconsistency because Florida law is clear that Superintendent Patton operates as the secretary and executive officer of the School Board. Fla. Stat. § 1001.32 (“Responsibility and management of the schools and for the supervision of instruction in the district shall be vested in the district school superintendent as the secretary and executive officer of the district school board, as provided by law.”). Consequently, the § 1983 claims are duplicative as against the School Board and Superintendent Patton. See Cunningham v. Sch. Bd. of Lake Cty., No. 5:15-CV-480-OC-30PRL, 2016 WL 1755612, at *2 (M.D. Fla. May 3, 2016).
Finally, Defendants argue that Florida Statute § 768.28(9)(a) prevents any suit against the superintendent because of sovereign immunity. (Doc. 37 at 23). But Plaintiff argues, and the Court agrees, that § 768.28 does not apply to the FEEA claim. (Doc. 39 at 24).
Based on the foregoing, the Court will dismiss the Title VI (Count II) and § 1983 claims (Count III and IV) as to Superintendent Patton. But the remaining claims (Count I and V) survive. H. Standing
In their final effort to dismiss the Amended Complaint, Defendants argue that Plaintiffs lack standing because they have aged out of the regular public school system.
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(Doc. 37 at 23). Consequently, they maintain any order directing them to conform to the EEOA, Title VI, and the Fourteenth Amendment will not redress Plaintiffs’ alleged injuries. (Id.). Defendants again rely on the Eighth Circuit decision in Mumid to support this argument. Doc. 37 at 23-24). Plaintiffs respond, however, that Florida law provides Plaintiff Children a right to attend public school, and thus Defendants’ argument they have not suffered a concrete injury because they “aged out” or were “academically unqualified for” school is incorrect. (Doc. 39 at 24). The Court agrees with Plaintiffs.
Defendants’ reliance on Mumid is misplaced. There, plaintiffs sought injunctive relief in the form of closing the high school or barring it from certain practices. (Doc. 39 at 24-25). The Eighth Circuit held that the plaintiffs lacked standing to seek that relief because they had graduated or aged out of the public school system, which the state law capped at age twenty-one. Mumid, 618 F.3d at 789. Here, all but one Plaintiff Child remains seventeen years or younger. And that sole outlier is eighteen. Moreover, their claims for equitable relief have not been trumped by an intervening circumstance. See Issa, 847 F.3d at 126 n.2 (directing the district court to dismiss two of the plaintiffs who had earned a high school diploma and wished to attend community college because their claims for equitable relief became moot). The Court denies Defendants’ Motion to Dismiss for lack of standing.
In conclusion, the Court denies Defendants’ Motion to Dismiss on all grounds excep two. It dismisses the Title VI (Count II) and § 1983 claims (Count III and IV) as to Superintendent Patton only, but allows those claims to move forward as against the School Board.
Accordingly, it is now
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ORDERED: (1) Defendants School Board of Collier County, Florida and Kamela Patton’s
Motion to Dismiss (Doc. 37) is GRANTED in part and DENIED in part. It is granted only to the extent that Counts II, III, and IV as against Defendant Kamela Patton are dismissed – those counts survive as against the School Board. The motion is denied in all other respects. (2) Defendants shall file an answer to the Amended Complaint in accordance on or before April 3, 2017. DONE and ORDERED in Fort Myers, Florida this 17th day of March 2017.
Copies: All Parties of Record
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 Case 2:16-cv-00379-SPC-MRM Document 183 Filed 08/08/18 Page 1 of 49 PageID 5679

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

MARTA ALONSO, as next friend on behalf of I.A., and NEHEMY ANTOINE, on behalf of themselves and all others similarly situated,

Plaintiffs,

v.

Case No: 2:16-cv-379-FtM-38MRM

THE SCHOOL BOARD OF COLLIER COUNTY, FLORIDA and KAMELA PATTON,

Defendants.

/ REPORT AND RECOMMENDATION1

Pending before the Court is the Motion for Class Certification, filed on January 12, 2018.

(Doc. 152). Plaintiffs Nehemy Antoine and Marta Alonzo, on behalf of I.A., a minor, brought

suit against Defendants School Board of Collier County, Florida and Kamela Patton,

Superintendent of Collier County Public Schools, in her official capacity. (Doc. 76). Plaintiffs

move the Court for entry of an Order certifying a class. On February 22, 2018 and February 26,

2018 respectively, Defendants filed a redacted and an unredacted Response. (Doc. 162

(redacted)); (Doc. 164 (unredacted and sealed)). Thereafter, Plaintiffs filed a Reply on March 8,

2018. (Doc. 165). The Motion for Class Certification was referred to the Undersigned for a

1 Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or websites. These hyperlinks are provided only for users’ convenience. Users are cautioned that hyperlinked documents in CM/ECF are subject to PACER fees. By allowing hyperlinks to other websites, this Court does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their websites. Likewise, the Court has no agreements with any of these third parties or their websites. The Court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the Court.

Case 2:16-cv-00379-SPC-MRM Document 183 Filed 08/08/18 Page 2 of 49 PageID 5680
Report and Recommendation. For the reasons set forth herein, the Undersigned respectfully recommends that the Motion for Class Certification (Doc. 165) be GRANTED in part and DENIED in part as set forth below. I. Facts and Procedural Background
A. Overview of Plaintiffs’ Claims Plaintiffs allege generally that they are immigrant children who seek to enroll in Collier County Public Schools to further their education, but are excluded from a free public education due to Defendants’ actions. (Doc. 76 at 2 ¶ 2). When they attempted to enroll in public school, Plaintiffs claim that in some instances Defendants directed them to noncredit, Adult English for Speakers of Other Languages (“Adult ESOL”) classes and, in other instances, Defendants simply turned them away. (Id. at 2 ¶ 3). Plaintiffs further claim that Defendants maintain a custom, policy, and practice of excluding recently arrived, foreign-born, English Language Learner (“ELL”) students aged fifteen (15) years and older from enrolling in Collier County public schools. (Id. at 2-3 ¶ 4). In addition, Plaintiffs contend that through this custom, policy, and practice, Defendants deny Plaintiffs and putative class members a free public education alongside their peers, the chance to learn core educational content and skills, and access to other activities and programs available to students enrolled in public education. (Id.). Plaintiffs allege that these practices violate: the Equal Educational Opportunities Act (“EEOA”), 20 U.S.C. §§ 1703(a), (f) (Count I); Section 601 of Title VI of the Civil Rights Act of 1964 (“Title VI”) and 42 U.S.C. § 2000d (Count II); the Equal Protection and Due Process clauses of the Fourteenth Amendment to the U.S. Constitution, amend XIV, § 1 (Counts III-IV);
2

Case 2:16-cv-00379-SPC-MRM Document 183 Filed 08/08/18 Page 3 of 49 PageID 5681
and the Florida Educational Equity Act (“FEEA”), Fla. Stat. § 1000.05, and implementing regulations, Fla. Admin. Code R. 6A-19.001 (Count V). (Doc. 152 at 3; Doc. 76).2
B. Overview of Florida’s Education System
The Florida Constitution guarantees a free public-school education to all children
residing within its borders. Fla. Const. art. IX § 1(a). This section provides, “[t]he education of
children is a fundamental value of the people of the State of Florida. It is, therefore, a paramount
duty of the state to make adequate provision for the education of all children residing within its
borders.” Id. The State of Florida codified this constitutional guarantee:
As required by s. 1, Art. IX of the State Constitution, the Florida K-20 education system shall include the uniform system of free public K-12 schools. These public K-12 schools shall provide 13 consecutive years of instruction, beginning with kindergarten, and shall also provide such instruction for students with disabilities, gifted students, limited English proficient students, and students in Department of Juvenile Justice programs as may be required by law.
Fla. Stat. § 1000.01(4). School attendance is compulsory for children between the ages of six (6)
and fifteen (15). Fla. Stat. § 1003.21(1)(a)(1). The statute further provides:
A student who attains the age of 16 years during the school year is not subject to compulsory school attendance beyond the date upon which he or she attains that age if the student files a formal declaration of intent to terminate school enrollment with the district school board. Public school students who have attained the age of 16 years and who have not graduated are subject to compulsory school attendance until the formal declaration of intent is filed with the district school board.
Fla. Stat. § 1003.21(1)(c). Thus, unless a student who is sixteen (16) years of age or older
completes a formal declaration of intent to withdraw, school attendance is compulsory. Id.
2 In Counts II (Title VI), III (Equal Protection), and IV (Due Process), Plaintiffs allege claims against the School Board of Collier County, Florida only. (Doc. 76 at 38-47). Defendants, the School Board of Collier County and Kamela Patton, jointly responded to the Motion for Class Certification as to all claims. (Doc. 164 at 1). Thus, the Court refers to both Defendants throughout this Report and Recommendation, even though some of the claims relate to the School Board of Collier County, Florida only.
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C. School Board Policy 5112.01
The crux of this case involves Defendants’ implementation of an amendment to its Policy
5112.01 on August 1, 2013. (Doc. 76 at 81). Plaintiffs challenge the application of this Policy to
deny them enrollment in regular high school. (Doc. 152 at 16). Policy 5112.01 provides in
relevant part:
In order to provide reasonable consistency of maturity levels among students in the regular high school program, no person shall be permitted to attend the regular high school program after attaining the age of nineteen (19). Those who attain the age of nineteen (19) during a school year may complete that school year. Persons who are seventeen (17) years old or older and who, by earning eight (8) credits per academic year, cannot meet graduation requirements, including grade point average (GPA), prior to the end of the school year during which they attain the age of nineteen (19), shall not be permitted to attend the regular high school program beyond the end of the academic year in which they attain the age of seventeen (17). Such persons shall be afforded an opportunity to pursue a high school diploma through the Adult High School or General Educational Development (GED) programs of the District. (Id.).3 School administrators are required to notify their employees of the School Board’s policies and to operate in accordance with these policies. (Doc. 153-2 at 9).4
From August 2013 until May 2016, to register for high school, children went directly to
their local schools. (Doc. 155-5 at 3). At the local schools, if someone at the front desk had a
question about the application of Policy 5112.01, they would ask the principal of the school.
(Doc. 154-3 at 22). Local school principals applied Policy 5112.01, and if they had questions,
they would ask someone at the School District’s office for help. (Doc. 154-3 at 15, 22). The
3 Prior to August 1, 2013, Policy 5112.01 provided that “no person shall be permitted to attend the regular high school program after attaining the age of twenty-one (21).” (Doc. 76 at 81). Thus, the August 1, 2013 Policy lowered the applicable age from twenty-one (21) to nineteen (19). (Id.). 4 For ease of reference, the Court refers to the CM/ECF page numbers when referencing all of the exhibits.
4

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principals normally made the final decision as to whether a student was eligible to enroll. (Id. at 16). If a student wanted to challenge the decision, she or he could raise it at the School District level. (Id.).
In May 2016, the School Board shifted enrollment of high school to a centralized location, the Student Relations Department. (Doc. 155-5 at 4). The primary reason for this change was “a one-stop shop for parents” so that an entire family with children of varying ages could enroll in one place rather than go from school to school. (Id.). When a student is seventeen (17) years of age or older, an enrollment specialist gathers the academic records and other pertinent records and then these records are given to Dr. Leslie Ricciardelli. (Id. at 7). Dr. Ricciardelli is the Executive Director Secondary Programs, Curriculum, and Instruction. (Doc. 155-1 at 3). Dr. Ricciardelli makes the final recommendation as to enrollment and then relays this recommendation to the enrollment specialist who communicates it to the parents. (Doc. 1555 at 7, 10). The enrollment specialist cannot disregard Dr. Ricciardelli’s recommendation. (Id.). If the parent or family has questions beyond what the enrollment staff can answer, then the staff gives the parent or family contact information for Dr. Ricciardelli. (Id. at 12-13). When a family contacts Dr. Ricciardelli, she talks to them and explains her recommendation. (Doc. 1551 at 10).
Defendants consider certain factors when determining if a student is able to graduate by the end of the school year in which he or she turns nineteen (19) years of age. (Doc. 154-3 at 6). One such factor is the student’s English proficiency. (Id.; Doc. 155-1 at 21). A second factor is whether a student has an interruption or gap in his or her prior education based upon the transcripts the School District receives for that student. (Doc. 154-3 at 6; Doc. 155-1 at 21). Dr.
5

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Ricciardelli defines “gap in education” to mean when a student has not been enrolled in school for a significant amount of time. (Doc. 155-1 at 22).
D. The ELCATE Academy In spring of 2016, the School District began the English Literacy for Career and Technical (“ELCATE”) Academy. (Doc. 155-8 at 5, 6, 8; Doc. 118-6 at 2 ¶ 7). According to the ELCATE Academy brochure, “[t]he ELCATE Academy was established to meet the needs of individuals, ages 16-21, in need of learning to speak, read and write English with the eventual goal of attaining a high school diploma by passing the GED.” (Doc. 152-5 at 2). The ELCATE Academy’s curriculum focuses on English literacy, social studies, math, and science to prepare students to obtain a high school diploma by passing the GED exam. (Id. at 3). In addition, students have the opportunity to explore different career paths. (Id.). Defendants assess the students’ English literacy skills through certain standardized tests and then Defendants use the data from these tests to place students in the appropriate courses. (Id.). The School District created the ELCATE Academy for students with gaps in their education. (Doc. 153-2 at 20). The purpose of this program is to allow an alternate pathway for students to obtain a high school diploma that they would not be able to obtain in Collier County’s traditional schools. (Id. at 22). As one option, Dr. Ricciardelli recommends certain students attend the ELCATE Academy. (Doc. 155-5 at 7-8). Students enrolled in the ELCATE Academy attend English language emersion classes. (Doc. 118-1 at 2 ¶ 8). There are six (6) levels of competency and a student must reach level five (5) before he or she is ready to sit for further testing to obtain a GED, other career-based programs, or employment. (Id. at 2-3 ¶¶ 10, 12, 13).
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E. Plaintiff I.A. I.A. arrived in Naples, Florida in “approximately January of 2017, shortly after [she] turned 17 years old.”. (Doc. 155-10 at 3 ¶ 7).5 She lives with her aunt, Marta Alonso. (Id. at 2 ¶ 8). I.A. is presently a citizen of Guatemala and her first language is Spanish. (Id. at 2 ¶ 4). When she arrived in the United States, she had finished the “tercero básico” grade in Guatemala, which I.A. believes is the equivalent of the ninth (9th) grade in the United States. (Id. at 3 ¶ 7). Upon arriving in Collier County, Marta Alonso attempted to enroll I.A. in a Collier County public high school. (Id. at 2 ¶ 10). She brought her birth certificate and transcript from Guatemala. (Id. at 2 ¶ 11). Dr. Ricciardelli was aware of I.A.’s transcript review and noted a concern by the Student Relations Department that I.A. was over 17 years of age with a transcript showing completion of the ninth (9th) grade in Guatemala. (Doc. 155-1 at 16). After a review of I.A.’s transcript, Dr. Ricciardelli considered whether to enroll I.A. in the tenth (10th) grade or place her in the eleventh (11th) grade and find ways to assist her to catch up. (Id.). Dr. Ricciardelli found that I.A. had missed three full quarters of coursework for the year and she would have been far behind in English II, biology, geometry, social studies, and the like. (Id.at 17). Further, Dr. Ricciardelli was concerned: (1) that I.A. would have to take the standardized exams in English II, biology, and geometry in April; (2) that she would not have been ready for these standardized tests; and (3) that this path would set I.A. up for failure. (Id.). Dr. Ricciardelli did not find a way to enable I.A. to succeed in her courses so that she could graduate by the age of nineteen (19). (Id.). Dr. Ricciardelli decided that the best course was to
5 The parties dispute I.A.’s age, but that factual dispute does not directly affect the issues relating to class certification. (See Doc. 152 at 13 n.6; Doc. 164 at 3).
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enroll I.A. in intensive English language emersion program of the kind that Adult ESOL offered and then I.A. would be able to enter the GED program to prepare her for college. (Id.).
At some point, the School District contacted Ms. Alonso to tell her that I.A. did not qualify to enroll in regular public high school. (Doc. 155-10 at 4 ¶¶ 16, 17). I.A. stated that “no one gave me or my aunt the chance to challenge or appeal the decision not to enroll me in public school. I was never told that I could challenge this decision, or how to challenge it.” (Id. at 6 ¶ 20).
Ms. Alonzo took I.A. to Lorenzo Walker Technical College to enroll. (Id. at 4 ¶ 21). I.A. took an English placement text and was assigned to a Level 2 English class with other students who appeared to be around the ages of 16 to 19 years old. (Id. at 5 ¶¶ 23, 24).
F. Plaintiff Nehemy Antoine Nehemy Antoine arrived in Naples, Florida around February 2016 when he was 17 years old and, as of June 1, 2017, Nehemy Antoine was eighteen (18) years old. (Doc. 155-9 at 2-3 ¶¶ 2, 9). He was born in Haiti with his first language being Haitian Creole, his second language being French, and he is learning Spanish and English. (Id. at 2 ¶ 4). Before coming to the United States, Nehemy was enrolled in the “9em” in Haiti. (Id. at 3 ¶ 9). Nehemy and his father, Emile Antoine attempted to enroll Nehemy in Collier County public high school, but learned he was not eligible to pursue a regular high school diploma. (Id. at 3 ¶¶ 10, 14). No one at the School District gave Nehemy the chance to challenge or appeal the decision not to enroll him in public school or told him the procedure to follow to challenge or appeal the decision. (Id. at 4 ¶ 17). Nehemy went to Lorenzo Walker Technical College and his father enrolled him in classes. (Id. at 5 ¶ 20). All of the students in his class were from countries other than the United
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States. (Id.). Over the past year, Nehemy progressed in English proficiency. (Id. at 6 ¶ 25). Defendants indicated that they are taking action to enable him to undertake the GED program. (See id. at 6-7). Nehemy states that he began in an English class and progressed to taking GED practice tests. (Id. at 6 ¶ 26, 27). Nehemy does not earn credits towards a high school diploma. (Id. at 7 ¶ 32). In addition to his classes at Lorenzo Walker, Nehemy was also enrolled in the Florida Virtual School and takes an Algebra II class, a language class, and geometry class online. (Id. at 8 ¶ 38). II. Discussion
The United States Supreme Court has noted that class actions are “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348, (2011) (quotation and citation omitted). To justify a departure from that rule, a class representative must be a part of the class and possess the same interests and suffer the same injuries as the class members. Id.
Federal Rule of Civil Procedure 23 sets forth the requirements for class actions. Under the Rule, all putative classes “must meet each of the requirements specified in Federal Rule of Civil Procedure 23(a), as well as at least one of the requirements set forth in Rule 23(b).” Calderone v. Scott, 838 F.3d 1101, 1104 (11th Cir. 2016) (citation omitted). “Rule 23(a) requires every putative class to satisfy the prerequisites of numerosity, commonality, typicality, and adequacy of representation.” Id.
Additionally, Rule 23(b) specifies the types of class actions that may be maintained if Rule 23(a) is satisfied. Id. Here, Plaintiffs move pursuant to Rule 23(b)(2), which additionally requires that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is
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appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). The Undersigned addresses the requirements of Rule 23(a) and Rule 23(b)(2) separately below.
A. Rule 23(a) The requirements of Rule 23(a) ensure that named plaintiffs are appropriate representatives of the class they wish to litigate. Dukes, 564 U.S. at 349. “The Rule’s four requirements – numerosity, commonality, typicality, and adequate representation – ‘effectively limit the class claims to those fairly encompassed by the named plaintiff’s claims.’” Id. (citing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156 (1982)). The question of whether to certify a class rests in the sound discretion of the district court. Rosario-Guerrro v. Orange Blossom Harvesting, 265 F.R.D. 619, 624 (M.D. Fla. 2010) (citing Babineau v. Fed. Exp. Corp., 576 F.3d 1183, 1189 (11th Cir. 2009)). Nevertheless, the party moving for class certification has the burden to establish all implicit and explicit requirements of Rule 23. Bussey v. Macon Cty. Greyhound Park, Inc., 562 F. App’x 782, 787 (11th Cir. 2014); Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1187 (11th Cir. 2003). Indeed, Rule 23 does not establish a mere pleading standard. Dukes, 564 U.S. at 350. Instead, “[a] party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Id. at 351. Furthermore, the Supreme Court has recognized that “sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.” Id. at 350-51 (citing Falcon, 457 U.S. at 156)). “The class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.” Id. at 351 (citing Falcon, 457 U.S. at 157). Accordingly, the Court must conduct a
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“rigorous” analysis of the Rule 23(a) prerequisites that may overlap with the merits of a plaintiff’s underlying claim. Id.
The specific requirements of Rule 23(a) include: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims
or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of
the class. Fed. R. Civ. P. 23(a). These four prerequisites are “‘designed to limit class claims to those fairly encompassed by the named plaintiffs’ individual claims.’” Valley Drug Co., 350 F.3d at 1188 (quoting Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1278 (11th Cir. 2000)). If the moving party fails to establish any one of these four factors, then a party is precluded from class certification. Id. Once all of the requirements of Rule 23(a) are met, then the party must satisfy one of the requirements of Rule 23(b). Id.
The Undersigned addresses each of the requirements of Rule 23(a) in turn below in addition to the threshold questions of standing, the class definition, and ascertainability.
1. Standing As a threshold matter, a court must determine that at least one named class representative has Article III standing to raise each class claim. Veal v. Crown Auto Dealerships, Inc., 236 F.R.D. 572, 577 (M.D. Fla. 2006) (citing Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000)). For an individual plaintiff to establish standing under Article III, a plaintiff must demonstrate three elements. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). First, a plaintiff must have suffered an injury in fact that is actual or imminent and not conjectural or hypothetical. Id. (quotations and citations). Second, there must be a causal connection between the injury and the conduct complained of to the extent that it must be fairly
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traceable to a defendant. Id. Third, the injury must be likely to be redressed by a favorable decision. Id. Further, “[t]o have standing to represent a class, a party must not only satisfy the individual standing prerequisites, but must also be part of the class and possess the same interest and suffer the same injury as the class members.” Mills v. Foremost Ins. Co., 511 F.3d 1300, 1307 (11th Cir. 2008) (quotations and citations omitted). Moreover, a named plaintiff must establish that he or she has standing and suffered and injury as to each claim and each claim must be analyzed separately. Id. (citation omitted).
Plaintiffs contend that they have suffered a concrete injury – i.e., the denial of enrollment in high school – that was the direct result of Defendants’ practice of excluding recently arrived, foreign-born ELLs under Policy 5112.01. (Doc. 152 at 18). Plaintiffs also assert that this injury can be redressed by an injunction against this practice. (Id.). Furthermore, Plaintiffs add that this Court already determined that Plaintiffs have standing to bring their claims and cite to this Court’s prior Order that Plaintiffs’ “claims for equitable relief have not been trumped by an intervening circumstance” such as obtaining a high school diploma. (Id. at 19 (quoting Methelus v. Sch. Bd. of Collier Cty., Fla., 243 F. Supp. 3d 1266, 1283 (M.D. Fla. 2017)).
Defendants argue that Plaintiffs are ineligible to enroll in “regular high school” and, therefore, lack standing. (Doc. 164 at 6). Defendants assert three reasons why Plaintiffs’ lack standing: (1) Plaintiffs have aged out of the regular high school programs as evinced by I.A. being 18 years old and Nehemy being 19 years old; (2) Plaintiffs’ “academic records do not demonstrate that they have at least an eighth-grade education or the equivalent to be eligible for “regular high school;” and (3) Plaintiffs will suffer no harm or injury by not being enrolled in “regular high school.” (Id. at 7).
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The presiding District Judge, the Honorable Sheri Polster Chappell addressed Defendants’ arguments as to standing in the Order on the Motion to Dismiss. Methelus, 243 F. Supp. 3d at 1283. Judge Chappell held that Plaintiffs had standing because “their claims for equitable relief have not been trumped by an intervening circumstance” such as Plaintiffs having earned a high school diploma. Id. Here, Defendants fail to argue that material facts surrounding the issue of standing have changed significantly since March 17, 2017, the date the above Order was entered. Moreover, Plaintiffs allege that they suffered a concrete injury by being denied enrollment in regular high school and, thus, have standing as to each claim here.
Defendants also argue that the December 6, 2017 Report and Recommendation finds that Plaintiffs have not suffered harm. (Doc. 139; Doc. 164 at 16). The Report and Recommendation addressed the pending Motion for Preliminary Injunction. (Doc. 87; Doc. 139). In the context of requesting a preliminary injunction, the Court found that Plaintiffs had not met their burden as to the four prerequisites for a preliminary injunction, including a showing of irreparable injury. (Doc. 139 at 12-20). That finding related to the issues raised in the Motion for Preliminary Injunction only and does not apply here.
Accordingly, the Undersigned finds that Plaintiffs have standing to proceed with the Motion for Class Certification.
2. Class Definition and Ascertainability Another threshold consideration is that Plaintiffs must demonstrate that the proposed class is adequately defined and clearly ascertainable. Bussey, 562 F. App’x at 787.6 “An
6 Plaintiffs assert that the ascertainability requirement does not apply in a Rule 23(b)(2) context or, alternatively, if it does apply Plaintiffs have satisfied this requirement. (Doc. 152 at 33-35). Plaintiffs claim that the ascertainability requirement applies in Rule 23(b)(3) class actions that seek damages as a remedy and not in cases, such as the instant case, where Plaintiffs seek injunctive relief. (Id.). Courts in the Eleventh Circuit have not squarely addressed the issue of
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identifiable class exists if its members can be ascertained by reference to objective criteria” and
the objective criteria is administratively feasible. Id. (quotation omitted). “Administrative
feasibility means that identifying class members is a manageable process that does not require
much, if any, individual inquiry.” Id. (quotations omitted). A court should deny class
certification when the class definition is “overly broad, amorphous, and vague, or where the
number of individualized determinations required to determine class membership becomes too
administratively difficult.” Kirts v. Green Bullion Fin. Servs., LLC, No. 10-20312-CIV, 2010
WL 3184382, at *6 (S.D. Fla. Aug. 3, 2010). After a plaintiff satisfies this threshold issue, then
the district court must conduct a rigorous analysis of the Rule 23 prerequisites. Bussey, 562 F.
App’x at 787 (citations omitted).
Here, Plaintiffs seek to certify a class defined as follows:
All foreign-born, English Language Learner (ELL) children ages fifteen to twentyone whose last completed schooling (not including adult education courses) was at a non-U.S. school, and who, after August 1, 2013, while residing in Collier County, sought or will seek to enroll in the Collier County public school system serving grades K-12, and were or will be denied enrollment by the Defendants. (Doc. 152 at 2).7 Plaintiffs assert that the putative class is defined using the following objective
criteria: (1) birth in a foreign country; (2) resident of Collier County; (3) age of the student; (4)
ascertainability in Rule 23(b)(2) cases, but other circuits that have addressed this issue find that the ascertainability requirement does not apply. See, e.g., Braggs v. Dunn, 317 F.R.D. 634, 671 (M.D. Ala. 2016). The Court need not reach this issue here because the Court finds that Plaintiffs have sufficiently demonstrated that the class is adequately defined and clearly ascertainable. 7 Plaintiffs state that the definition of the proposed class in the Motion for Class Certification is slightly different than the definition proposed in the Second Amended Complaint. (Doc. 152 at 13). Plaintiffs explain that the class definition differs in the following four ways: (1) Plaintiffs replaced the descriptor “recently-arrived” with the descriptor “whose last completed schooling (not including adult education courses) was at a non-U.S. school;” (2) Plaintiffs clarified that the public school system from which class members are being excluded is the “public school system serving grades K-12;” (3) Plaintiffs amended the starting date to August 1, 2013, the date the amendment to Policy 5112.01 went into effect; and (4) Plaintiffs added an upper age limit to
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last completed schooling was outside of the United States; (5) sought or will seek to enroll in a regular high school program; and (6) was or will be denied enrollment into a regular high school program. (Id. at 35). Plaintiffs also assert that the determination of whether a student is an ELL is also an objective criteria and can be determined by whether the student is enrolled in Adult ESOL or the ELCATE Academy because these programs are designed for ELLs. (Id.).
Defendants argue that the class is impermissibly overbroad for several reasons. (Doc. 164 at 14). To begin, Defendants contend that the class, if so defined, would include persons who already graduated from an equivalent high school, have little or no education at all, or have disciplinary or even criminal impediments to being enrolled in a regular high school. (Id. at 1415). Defendants argue that any such individuals would not be suitable for regular high school and should not be included within any class. (Id.). The Undersigned finds these arguments unpersuasive. Based upon the Court’s prior rulings in this case, an individual who has obtained a high school diploma arguably constitutes an intervening circumstance such that the individual would not have standing to pursue a claim. Methelus, 243 F. Supp. 3d at 1283. Thus, such an individual would not be a class member. Id. Moreover, Defendants do not adequately explain why individuals falling into this category could not be ascertained by administratively feasible means.
Next, Defendants argue that there is not a common basis for refusal to enroll the Named Plaintiffs and putative class members in regular high school and, thus, there is “no single ground common to them all.” (Doc. 164 at 14-15). The Undersigned finds this argument is more
include twenty-one (21) years of age. (Id. at 15-17). The Court adopts the class definition as set forth in the Motion for Class Certification. (Id. at 2).
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appropriately addressed in the context of Fed. R. Civ. P. 23(a)’s commonality and typicality
requirements. See Parts II.A.4 - 5 infra.8
Defendants also argue that the proposed class is not adequately defined or clearly
ascertainable as to the terms “sought to enroll” and “denied enrollment.” (Doc. 164 at 8-9).
8 Defendants generally cite to cases outside the Eleventh Circuit for the proposition that a class definition that includes all past, present, and future individuals is too broad. (Doc. 164 at 15). The Court finds these cases to be distinguishable and unpersuasive.
In Barcelo v. Brown, for example, the plaintiffs sought class certification for a class consisting of “past, present and future residents of the Island of Vieques, Puerto Rico, who have suffered, are suffering and will continue to suffer economic, physical, environmental and other injuries to their lives, liberty, property, health and wellbeing, due to the policies, practices, acts and omissions of the Defendants.” 78 F.R.D. 531, 533 (D.P.R. 1978). The district court held that this class definition “is an entirely too broad and ill-defined class within the framework of this litigation.” Id. at 534. The Barcelo case is distinguishable from the instant case because the proposed class in Barcelo broadly encompassed various type of injuries based upon various policies, practices, acts, and omissions. Id. Here, the Court finds that the proposed class definition is sufficiently defined and tailored and does not suffer from the same overbreadth as in Barcelo.
In Edwards v. Schlesinger, moreover, the plaintiffs sought relief from the Air Force and Naval Academies, alleging unconstitutional failure to consider women for appointment to the academies. 377 F. Supp. 1091, 1092 (D.D.C.), rev’d sub nom. Waldie v. Schlesinger, 509 F.2d 508 (D.C. Cir. 1974). The district court denied the plaintiffs’ motion to certify class and motion for partial summary judgment, but granted summary judgment in favor of the defendants. Id. at 1091. The Court of Appeals reversed the district court’s grant of summary judgment to the defendants and remanded the case for a full trial on the merits. Waldie v. Schlesinger, 509 F.2d 508, 511 (D.C. Cir. 1974). Defendants cite to the district court’s opinion that found that the class was ill-defined “particularly with respect to those ‘future’ members of the class.” Edwards, 377 F. Supp. at 1093. Edwards is inapposite because the primary issues addressed in that case related to summary judgment, not class certification. Id. at 1094-96. In addition, the Court finds that because the trial court’s decision in Edwards was reversed and remanded, it has little or no persuasive value.
Similarly, the class definitions at issue in the other cases Defendants rely upon suffered from deficiencies that do not exist here because the proposed class definition in this case is more narrow and better defined. See Vietnam Veterans Against the War v. Benecke, 63 F.R.D. 675, 680 (W.D. Mo. 1974) (holding that a class definition of “all persons of political or social persuasion different than government officials and officers of the Kansas City, Missouri Police Department” is so vague and imprecise that it is incapable of adequate definition under Rule 23); Hagen v. City of Winnemucca, 108 F.R.D. 61, 63 (D. Nev. 1985) (holding that a class definition insufficient that includes a class that “would then consist of all persons whose constitutional rights have been violated by the City policies regarding prostitution in the period four years before the complaint was filed”).
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According to Defendants, the terms “sought to enroll” in “regular high school” calls into question whether the class includes students who never took any steps to enroll, took some steps but did not complete enrollment, or those who decided that “regular high school” was not best for them. (Id.). Defendants argue that individualized inquiry is necessary to determine whether each student “sought” to be enrolled in regular high school. (Id. at 9).
The Undersigned is not persuaded by these arguments either. Using a common-sense reading of the terms “sought enrollment” and “denied enrollment,” it is clear that Plaintiffs seek to define the class as students who attempted or will attempt to enroll in Collier County’s K-12 public school program, were not or will not be permitted to enroll, and who fit the other criteria set forth in the proposed class definition. The Undersigned finds that these criteria for identifying putative class members should be a manageable process that does not require much, if any, individual inquiry. Further, the Undersigned finds no basis on which to conclude that the class definition is overly broad, amorphous, or vague, or that the number of individualized determinations required to determine class membership is too administratively difficult. See Kirts, 2010 WL 3184382, at *6.
Defendants also argue that with respect to the EEOA claim, “the question of whether appropriate measures were taken in each case would require trying the case on the merits.” (Doc. 164 at 9). The Undersigned finds that the issue of whether appropriate measures were taken within the context of the EEOA claim does not impact the sufficiency or feasibility of the proposed class definition.
Lastly, Defendants argue that the proposed class definition is a “fail-safe” class definition. (Id. at 10). Defendants claim that “[i]f federal law is only violated when someone affirmatively seeking enrollment in regular high school is denied that enrollment, then the class
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definition is circular. In other words, denial of those seeking enrollment is really the class of those ‘whose rights were violated.’” (Id. at 9-10).
“A fail-safe class is one whose definition incorporates the elements of a successful legal claim, such that determining whether an individual or entity is a member of the class ‘front-ends a merits determination on [the defendant’s] liability.’” JWD Auto., Inc. v. DJM Advisory Grp. LLC, 218 F. Supp. 3d 1335, 1342 (M.D. Fla. 2016) (citations omitted). The Undersigned finds that the class definition here is not circular and the proposed definition does not on its face include the elements of a successful legal claim. Thus, the Undersigned finds that the proposed class is not an impermissible “fail-safe” class.
Accordingly, the Undersigned finds that the class definition is adequately defined and clearly ascertainable. See Bussey, 562 F. App’x at 787. The Undersigned now turns to a rigorous analysis of the Rule 23 prerequisites. See id.
3. Rule 23(a)(1) Numerosity To certify a class, Rule 23(a) requires that the class be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). The plaintiff bears the burden of making some showing, albeit a “generally low hurdle,” of “affording the district court the means to make a supported factual finding that the class actually certified meets the numerosity requirement.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1267 (11th Cir. 2009); Schojan v. Papa Johns Int’l, Inc., 303 F.R.D. 659, 664 (M.D. Fla. 2014). Although the mere allegation of numerosity is insufficient, the plaintiff need not show a precise number of members for the putative class and, further, the rule imposes a “generally low hurdle.” Vega, 564 F.3d at 1267. In dicta, the Eleventh Circuit has held, “while there is no fixed numerosity rule, ‘generally less than twentyone is inadequate, more than forty adequate, with numbers between varying according to other
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factors.’” Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986) (citation omitted).
Plaintiffs assert that the “proposed class is sufficiently numerous that joinder is impracticable.” (Doc. 152 at 19). According to Plaintiffs – who cite to the compilations of Leah Whitlow, a Big Data Fellow for the Southern Poverty Law Center – the proposed class will contain a minimum of 200 individuals. (Id. at 20 (citing Doc. 153-3 at 16)).9 Plaintiffs assert that even “[m]aking the conservative assumption that one quarter of the 15-21 year olds enrolled in Adult ESOL previously sought and were denied enrollment in K-12 public school, the class still consists of at least 140 people.” (Doc. 152 at 20). Plaintiffs further assert that a total of 1,614 foreign-born students ages 15-21, who last completed schooling outside of the United States, were enrolled in Adult ESOL program in Collier County from 2013-14 through 2016-17. (Id. (citing Doc. 153- 3 at 9-16)). Plaintiffs contend that a significant fraction of these students are likely class members, even discounting those who are now over twenty-one (21) years of age, did not first seek enrollment in public school, or are counted more than once for having enrolled in Adult ESOL for more than one year. (Doc. 152 at 20). Plaintiffs further point to the fact that Defendants found a sufficient need to establish the ELCATE Academy – within the Adult ESOL
9 Although not specifically directed to a numerosity argument, Defendants argue that Plaintiffs’ statistician was not previously disclosed to Defendants as an expert in this case. (Doc. 164 at 6). Defendants “move[] to strike the alleged statistical compilations along with the conclusions and arguments Plaintiffs make therefrom. In any event, Plaintiffs’ statistical analysis is speculative and should be ignored in light of the actual record kept by the Defendant provided above.” (Id.). Here, Ms. Whitlow sorted and summarized Defendants’ data in a more readable format, including tables and graphs. (See generally Doc. 153-3). Ms. Whitlow does not offer any opinion concerning the data. (Id.). The Court finds that for the purposes of the Motion for Class Certification, Ms. Whitlow is not an expert that was required to be disclosed pursuant Fed. R. Civ. P. 26. See Sanchez-Knutson v. Ford Motor Co., No. 14-61344-CIV, 2016 WL 3944061, at *3 (S.D. Fla. July 11, 2016). Thus, the Court will not strike Ms. Whitlow’s declaration or attachments thereto.
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program – to address the educational needs of students aged 16-21 who are in need of learning English and cannot finish regular high school within an established time frame due to gaps in their education. (Id.; Doc. 152-5 at 2; Doc. 153-2 at 20).
For its part, Defendants do not specifically address or challenge numerosity. (See generally Doc. 164). Even though Defendants do not challenge numerosity, a court has the responsibility “of conducting its own inquiry as to whether the requirements of Rule 23 have been satisfied in a particular case.” Valley Drug Co., 350 F.3d at 1188. The data presented by Plaintiffs through Ms. Whitlow demonstrates that, at a minimum, a class of 140 class members is more than sufficient under Eleventh Circuit precedent to make a finding of numerosity. See Cox, 784 F.2d at 1553. Based upon this record evidence, the Undersigned finds that the numerosity requirement is amply satisfied.
4. Rule 23(a)(2) Commonality Next, Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Commonality refers to the characteristics of the class as a whole, unlike typicality, which refers to the individual characteristics of plaintiffs in relation to the class. Piazza v. Ebsco Indus., Inc., 273 F.3d 1341, 1346 (11th Cir. 2001) (citing Prado-Steiman, 221 F.3d at 1279). Commonality requires that there be some factual or legal theory that is susceptible to classwide proof. Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1355 (11th Cir. 2009). It also requires that “there be at least one issue whose resolution will affect all or a significant number of the putative class members.” Williams, 568 F.3d at 1355 (citation and quotation omitted). Commonality may be satisfied “even with some factual variations among class members.” Schojan, 303 F.R.D. at 665.
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Nevertheless, in the watershed case of Wal-Mart Stores, Inc. v. Dukes, the United States Supreme Court clarified the commonality requirement under Fed. R. Civ. P. 23 by specifically rejecting the use of generalized questions to establish commonality. 564 U.S. at 349. In Dukes, female employees of a retail store chain brought a class action under Title VII against their employer alleging sex discrimination. Id. at 343. The district court certified the class, and the Ninth Circuit Court of Appeals substantially affirmed. Id. at 338. The Supreme Court, however, reversed, holding that certification of the class was not consistent with Fed. R. Civ. P. 23(a). Id. at 367.
The Supreme Court stated that “a class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” Dukes, 564 U.S. at 348-49. Noting that any “competently crafted class action complaint literally raises common questions,” the Supreme Court focused its inquiry as follows:
This does not mean merely that they have all suffered a violation of the same provision of law. Title VII, for example, can be violated in many ways—by intentional discrimination, or by hiring and promotion criteria that result in disparate impact, and by the use of these practices on the part of many different superiors in a single company. Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparateimpact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Id. at 350 (emphasis added). Importantly, the Supreme Court held that: “[w]hat matters to class certification . . . is not the raising of common questions—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the
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litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.” Id. at 351 (citation and internal quotation marks omitted).
Against this backdrop, the Undersigned considers whether a class may be certified as to each claim raised by Plaintiffs. As explained more fully below, the Undersigned logically groups the claims based upon the showing needed to prove each claim, and whether the Court must delve into why Defendants denied a particular student enrollment in regular high school. Thus, the Undersigned first addresses the EEOA claim under 20 U.S.C. § 1703(f) (Count I) and the Due Process claim (Count IV). Thereafter, the Undersigned turns to the remaining claims.
a. Count I, EEOA Claim, 20 U.S.C. § 1703(f)10 Plaintiffs assert that for the EEOA § 1703(f) claim, “a central question capable of classwide resolution is whether the District’s exclusion of class members from K-12 public school is unlawful because it denied ELLs access to the standard instructional program.” (Doc. 152 at 22-23). This common question, as framed, is insufficient to establish commonality under Fed. R. Civ. P. 23(a)(2). As set forth in the Court’s prior Order on the Motion to Dismiss, the elements under a § 1703(f) claim are as follows: An individual alleging a § 1703(f) violation must satisfy four elements: (1) defendant is an educational agency; (2) plaintiff faces language barriers that impede his equal participation in defendant’s instructional programs; (3) defendant failed to take appropriate action to overcome those barriers; and (4) plaintiff was denied equal educational opportunity on account of his national origin.
10 Plaintiffs bring claims under 20 U.S.C. §§ 1703(a) and 1703(f). The Court discusses each of these sections separately infra.
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Methelus v. Sch. Bd. of Collier Cty., Fla., 243 F. Supp. 3d 1266, 1275 (M.D. Fla. 2017) (citing Issa v. Sch. Dist. of Lancaster, 847 F.3d 121, 132 (3d Cir. 2017) (citations and footnote omitted)).
First and Second Elements of § 1703(f) Claim Here, there is little dispute that the School District is an educational agency. Moreover, there can be little dispute that the Named Plaintiffs and putative class members face language barriers that impede their equal participation in the School District’s educational program. Further, the Undersigned finds that both of these elements are capable of classwide resolution. Elements three and four are more problematic, however. Third Element of § 1703(f) Claim and the Castaneda Test To satisfy the third element, the Fifth Circuit articulated the following three-part test in Castaneda v. Pickard, 648 F.2d 989 (5th Cir. 1981): First, courts must “examine carefully the evidence the record contains concerning the soundness of the educational theory or principles upon which the challenged program is based.” Second, courts must decide whether the programs and practices “actually used” by the school system are “reasonably calculated to implement effectively the educational theory adopted by the school.” Third, if an otherwise sound and effectively implemented program fails to “produce results” indicating that language barriers are “actually being overcome,” it may “no longer constitute appropriate action.” Methelus, 243 F. Supp. 3d at 1276 (internal citations omitted) (quoting Castaneda, 648 F.2d at 1010, 1012-12, 1015). Further, schools are free to determine the “sequence and manner in which limited English speaking students tackle this dual challenge so long as the schools design programs which are reasonably calculated to enable these students to attain parity of participation in the standard instructional program within a reasonable length of time after they enter the school system.” Castaneda, 648 F.2d at 1011.
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Here, the Undersigned finds that the legal and factual issues raised by the first two parts of the Castaneda test are capable of classwide resolution. As to the first part, the soundness of the educational theory or principles upon which Defendant’s Policy 5112.01 as applied to ELLs and the Adult ESOL and ELCATE programs is based is a determination that will apply equally to all members of the class. Either the educational theory and principles on which Defendants base their policy and practice are sufficiently sound, or they are not. The answer to that common question will be the same for each member of the class who was denied enrollment in public school pursuant to Defendant’s policy and practice.
As to the second part of the Castaneda test, the question of whether the programs and practices actually used by Defendants here are reasonably calculated to implement the educational theory adopted by the school will likewise be answered the same way for the entire class. Importantly, this analysis focuses on the components of the programs and practices at issue and how those programs and practices serve to implement the Defendants’ educational theory. There is no obvious need to resort to any individualized inquiry or to resolve individualized questions specific to each class member in order to evaluate Defendant’s implementation of its educational theory. Thus, the Undersigned finds that the first two parts of the Castaneda test are amenable to class treatment under a commonality analysis.
However, the third and final part of the Castaneda test does not fare as well under a rigorous analysis for commonality. To satisfy the third part of the Castaneda test, Plaintiffs and the class must show that the Defendants’ programs fail to produce results indicating that language barriers are actually being overcome and, thus, the programs do not constitute appropriate action. 648 F.2d at 1010. As the court in Castaneda explained, “we do not believe Congress intended that under [§] 1703(f) a school would be free to persist in a policy which,
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although it may have been ‘appropriate’ when adopted, in the sense that there were sound expectations for success and bona fide efforts to make the program work, has, in practice, proved a failure.” Id.
Plaintiffs have not addressed how they intend to satisfy their burden of proof on this issue. The Undersigned finds that the third part of the Castaneda test is likely to necessitate highly individualized inquiries into each and every Adult ESOL and ELCATE participant’s progress in those programs and their relative success or failure in overcoming language barriers. Even if Plaintiffs attempt to prove by some valid statistical methodology that the Adult ESOL and ELCATE programs are failing to produce results for the ELL participants as a group, Defendants would likely (and logically) seek to refute that proof with evidence concerning the individual facts and circumstances of each and every class member’s individual experience to explain why that particular class member failed to overcome his or her language barrier. In other words, it seems impossible to answer the question of whether the Adult ESOL and ELCATE programs are producing results indicating that language barriers are actually being overcome without delving into the highly individualized facts of each and every class member’s performance in the programs and the individualized reasons for his or her relative success or failure in overcoming language barriers.
Even in a typical high school setting where language barriers are not factor, students succeed or fail academically for reasons specific to them and their unique circumstances – i.e., their individual learning ability, interest level, effort, ambition, family support, economic demands, personal distractions, outside interests, behavioral issues, social influences, personal priorities, attendance record, motivation, etc. – that have nothing to do with the soundness or effective implementation of their educational program. There is no reason to believe that the
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children and young adults in the putative class here would be any different. Because an assessment of the contested programs’ ability to produce results indicating that language barriers are actually being overcome is likely to devolve into highly individualized inquiries concerning whether individual class members are obtaining results and, if not, the reasons why, the Undersigned finds that Plaintiffs cannot satisfy the commonality requirement of Fed. R. Civ. P. 23(a)(2).
Fourth Element of § 1703(f) Claim To satisfy the fourth element, Plaintiffs must prove that Defendants denied them equal educational opportunity on account of their national origin. Issa, 847 F.3d at 138. Conspicuously missing from this element of § 1703(f) is the word “discrimination” or the requirement to demonstrate discrimination of any kind whether intentional or not. Id. at 139. Therefore, § 1703(f) “prohibits the mere failure by an educational agency to take appropriate action to overcome students’ language barriers, ‘regardless of whether such a failure is motivated by an intent to discriminate against those students.’” Id. (citing Castaneda, 648 F.2d at 1011). Thus, the language “on account of” requires a nexus between the alleged lost educational opportunity and an EEOA protected characteristic such as race, color, sex, or national origin. Id. at 140. Stated differently, “the denial of the equal educational opportunity—in § 1703(f)’s case, the language barrier that is not being overcome—must stem from race, color, sex, or national origin, rather than from, for example, a cognitive disability covered by a different remedial scheme.” Id. The Undersigned finds that the legal and factual issues to be determined as to the fourth element of the EEOA claim are capable of classwide resolution. The answer to the question of whether Defendants’ Policy 5112.01 denied equal educational opportunity to the putative class
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members on account of their national origin will apply to the entire class. Importantly, the class definition includes only foreign-born ELLs who claim that their placement in the Adult ESOL or ELCATE programs do not support an effective educational theory. Any dissimilarities within the proposed class, such as an individual class member’s native language or specific national origin, will not impede the common answer to the common question.
Conclusion Accordingly, the Undersigned finds that Plaintiffs have not satisfied the Fed. R. Civ. P. 23(a)(2) prerequisites as to Plaintiffs’ EEOA claim, 20 U.S.C. § 1703(f). Plaintiffs did not establish that a common question of law or fact is common to the class as a whole regarding the third part of the Castaneda test under the third element of the § 1703(f) claim – i.e., whether an otherwise sound and effectively implemented program fails to produce results indicating that language barriers are actually being overcome. Thus, the Undersigned finds that Plaintiffs have not satisfied the commonality requirement of Fed. R. Civ. P. 23(a)(2).
b. Count IV, Due Process Claim Plaintiffs assert that for the Due Process claim, the common question is “whether the class members are denied adequate notice and an opportunity to be heard following a denial of enrollment under Policy 5112.01.” (Doc. 152 at 23). For their part, Defendants do not appear to address the propriety of class certification as to this claim. The Fourteenth Amendment in part prohibits states from “depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “To state a procedural due process claim, Plaintiffs must show a deprivation of a constitutionally protected liberty or property interest.” Methelus, 243 F. Supp. 3d at 1280. Florida gives students a statutory and state constitutional right to a public education and,
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thus, treats the right to education as a property interest protected by the Fourteenth Amendment. Id. Arguably, therefore, Defendants may not arbitrarily deprive Plaintiffs and putative class members of their education without a minimum amount of due process, which includes notice and an opportunity to be heard, appropriate to the nature of the case. Id.
In the Second Amended Complaint, Plaintiffs allege that Defendants’ “lack of any procedures following denial of enrollment is constitutionally inadequate. Defendant denied Plaintiff Children, and all others similarly situated, the right to attend public school without any procedures, including notice, an opportunity to be heard, or an avenue to challenge an adverse determination.” (Doc. 76 at 46-47 ¶ 174). Plaintiffs further allege that Defendants deny “Plaintiff Children, and similarly situated students, notice and an opportunity to be heard regarding their denial of public school enrollment and related educational opportunities.” (Id. at 47 ¶ 175). Plaintiffs also contend that Defendants “acted pursuant to a custom, policy, and practice in depriving Plaintiff Children, and all others similarly situated, of a public education without notice or opportunity to be heard.” (Id. at 47 ¶ 176).
Defendants have not explained whether they have any such procedure. According to Defendants, Dr. Ricciardelli makes the final recommendation as to enrollment and then relays this recommendation to the enrollment specialist who communicates it to the parents. (Doc. 1555 at 7, 10). The enrollment specialist cannot disregard Dr. Ricciardelli’s recommendation. (Id.). If the parent or family has questions beyond what the enrollment staff can answer, then the staff gives the parent or family contact information for Dr. Ricciardelli. (Id. at 12-13). When a family contacts Dr. Ricciardelli, she talks to them and explains her recommendation. (Doc. 155-
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1 at 10). This evidence suggests that no appeal procedure existed because although Ricciardelli would explain her recommendation if a parent or family had questions, her recommendation was deemed “final” with no further opportunity for dissatisfied parents or family to appeal.
The Undersigned finds that the Due Process claim, as it is framed in Count IV of the operative Complaint, is capable of classwide resolution under the commonality element of Fed. R. Civ. P. 23(a)(2). Plaintiffs claim that the School District lacked any procedures to contest the denial of enrollment in public high school. Further, I.A. and Nehemy claim that they were not given an opportunity to challenge or appeal the decision not to enroll in regular public high school. (Doc. 155-10 at 6 ¶ 20; Doc. 155-9 at 4 ¶ 17). In other words, Plaintiffs’ theory of liability under Count IV of the operative Complaint rests on the alleged total absence of any procedure to contest the denial of enrollment in public high school. The question of whether Defendants have any such procedure is one that applies equally to all putative class members. Moreover, the answer to that question also applies equally to all putative class members. Additionally, the question of whether the putative class members have a property right to enrollment in public school also applies equally to every putative class member and will be answered the same way for every putative class member. Further, if Plaintiffs succeed in proving that the Defendants lacked any procedure to appeal a denial of enrollment, then the question of whether class members were denied adequate notice and an opportunity to be heard following a denial of enrollment will likewise apply equally to the entire class and will be answered the same for all putative class members.11
11 If Plaintiffs later attempt to change their theory of liability in Count IV to attempt to challenge the sufficiency of any existing procedure(s) or the sufficiency of the notice they received and their opportunity to be heard, then any class certified under Count IV would likely need to be de-
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Accordingly, the Undersigned finds that Plaintiffs have satisfied the Fed. R. Civ. P. 23(a)(2) prerequisite of commonality as to Plaintiffs’ procedural Due Process claim under the Fourteenth Amendment to the U.S. Constitution.
c. Remaining Claims The Undersigned groups the remaining claims together because all of these claims involve the issue of why Defendants denied enrollment to Plaintiffs and putative class members in regular high school. The Undersigned addresses the elements of each of the remaining claims in turn and then addresses whether common questions and answers apply to the putative class members. Count I, EEOA, 20 U.S.C. § 1703(a) Plaintiffs allege that Defendants’ practices violate two (2) sections of the EEOA, 20 U.S.C. §§ 1703(a) and (f). (Doc. 152 at 3). The Court addressed § 1703(f) above at length and now turns to § 1703(a). Pursuant to 20 U.S.C. § 1703(a), “[n]o State shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, by – (a) the deliberate segregation by an educational agency of students on the basis of race, color, or national origin among or within schools.” Thus, this section requires intentional and deliberate acts of discrimination. See Castaneda, 648 F.2d at 1001.12
certified because individualized issues as to, inter alia, what each class member was or was not told about the availability of Defendants’ procedures, whether each class member availed himself or herself of those procedures, and the result of those procedures in each individual case would require highly individualized inquiries and defeat commonality. 12 As to the EEOA claims in general, Plaintiffs posit only one central common question, “whether the District’s exclusion of class members from K-12 public school is unlawful because it denies ELLs access to the standard instructional program,” citing Casteneda, 648 F.2d at 1011. (Doc. 152 at 22-23). This question arguably applies to 20 U.S.C. § 1703(f) and does not appear directed to § 1703(a). However, Plaintiffs also state that “[i]f the exclusion of one class member from public school is unlawful under the EEOA, then the exclusion of all class members is
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Counts II and III, Title VI and Equal Protection Claims Courts consider Title VI claims and Equal Protection claims under the same analytical framework. Methelus, 243 F. Supp. 3d at 1280. Thus, the Undersigned considers these claims together. As to these claims, Plaintiffs assert that at least one central question is capable of classwide resolution: “The questions of whether Policy 5112.01 has a disproportionate adverse impact or may be traced to a discriminatory purpose will generate common answers for all class members.” (Doc. 152 at 23). Under the Equal Protection clause, the Fourteenth Amendment prohibits states from denying “any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Title VI of the Civil Rights Act provides: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. “To state a claim for discrimination under this statute, a plaintiff must plausibly allege that the (1) defendant discriminated based on national origin; (2) discrimination was intentional; and (3) discrimination was a substantial or motivating factor for the defendant’s actions.” Methelus, 243 F. Supp. 3d at 1277. Thus, these claims require a showing of intentional discrimination and that discrimination was a motivating factor for Defendants’ actions. See id. Count V, FEEA Claim Plaintiffs assert that a common question under the FEEA is whether Policy 5112.01’s criteria for admission in a K-12 public school has the effect of restricting access
unlawful.” (Doc. 152 at 23). The Undersigned construes this statement as a common question directed to the § 1703(a) claim.
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by persons of a particular national origin from the K-12 public school system in Collier
County. (Doc. 152 at 23). The purpose of the FEEA is to prohibit discrimination based
on, inter alia, national origin against any student in the state public school system. C.P. v.
Leon Cty. Sch. Bd., No. 4:03 CV 65 RH/WCS, 2005 WL 2133699, at *4 (N.D. Fla. Aug.
27, 2005). The FEEA provides in relevant part:
(2)(a) Discrimination on the basis of race, ethnicity, national origin, gender, disability, or marital status against a student or an employee in the state system of public K-20 education is prohibited. No person in this state shall, on the basis of race, ethnicity, national origin, gender, disability, or marital status, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any public K-20 education program or activity, or in any employment conditions or practices, conducted by a public educational institution that receives or benefits from federal or state financial assistance.
(b) The criteria for admission to a program or course shall not have the effect of restricting access by persons of a particular race, ethnicity, national origin, gender, disability, or marital status.
(c) All public K-20 education classes shall be available to all students without regard to race, ethnicity, national origin, gender, disability, or marital status; however, this is not intended to eliminate the provision of programs designed to meet the needs of students with limited proficiency in English, gifted students, or students with disabilities or programs tailored to students with specialized talents or skills.
Fla. Stat. §§ 1000.05 (2)(a)-(c). To establish a violation of the FEEA, Plaintiffs must show
that Defendants’ discriminated against Named Plaintiffs and the putative class members.
Commonality Analysis as to the Remaining Claims
All of the above claims include an element of proof as to discrimination. Thus, the crux
of these claims asks why Defendants denied Plaintiffs and putative class members enrollment in
regular high school.
Defendants argue that the School District employs a number of factors to determine
whether students are eligible to attend regular high school. (Doc. 164 at 13). In this regard,
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Defendants cite to Christopher Smith’s declaration. Id. As a Coordinator of School Counseling for grades 9-12 in Collier County, Christopher Smith states that he reviews: (1) transcripts of students from foreign countries; (2) manuals and course credit evaluations; (3) school system structures; (4) progression; and (5) promotion relative to multiple countries worldwide. (Doc. 164-6 at 1 ¶ 2). He reviews them in conjunction with Dr. Ricciardelli. (Id.). Mr. Smith also meets with translators to review and compare original and translated versions of the school transcript to understand a student’s academic work in relation to a particular country’s standards and requirements. (Id. at 2 ¶ 4). Mr. Smith reviews transcripts of students from other countries to determine the number of credits they have earned for courses taken and completed and then compares them to the standards required in Florida. (Id.). Mr. Smith also spends additional time with paperwork from students who are seventeen (17) years of age or older to verify that they are able to complete high school in accordance with the maximum age requirements set forth in Policy 5112.01. (Id. at 3 ¶ 5). Thus, Mr. Smith as well as other employees of the School District carefully scrutinize the transcripts and paperwork from students seeking to enroll in high school to attempt to determine the students’ best placement. (Id. at 2 ¶ 4).
In this case, Named Plaintiffs’ academic backgrounds and other educational factors differ from each other. For example, I.A. finished the “tercero básico” grade in Guatemala, missed approximately three full quarters of coursework for the year, and tested into a Level 2 English class. (Doc. 155-10 at 3 ¶ 7; Doc. 155-1 at 17; Doc. 155-10 at 5 ¶¶ 23, 24). Nehemy, on the other hand, came from Haiti, was enrolled in grade “9em” in Haiti, progressed in English in the past year to allow him to take GED practice tests, and attends the Florida Virtual School. (Doc. 155-9 at 2 ¶ 4; Id. at 3 ¶ 9; Id. at 6 ¶¶ 25, 26, 27; Id. at 8 ¶ 38). To place both I.A. and Nehemy,
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Defendants reviewed each student’s individualized characteristics, including age, educational history, English ability, and other factors to determine their placement.
Here, the legal and factual issues for the claims under EEOA 20 U.S.C. § 1703(a) (Count I), Title VI (Count II), Equal Protection (Count III), and FEEA (Count V) are not capable of classwide resolution because Plaintiffs have not met their burden of showing that the commonality requirement of Fed. R. Civ. P. 23(a)(2) is satisfied as to these claims.
Even though Plaintiffs argue that Policy 5112.01 applies to Plaintiffs and putative class members equally, the class-certification record shows that Defendants actually review the qualifications of each student individually to determine whether he or she is eligible for placement in regular high school. Prior to May 2016, the principals of each school had discretion to determine whether a student was eligible to attend that school. After May 2016, the School District employees have discretion to determine whether a student meets the eligibility requirements to attend regular high school. Each individual student’s academic qualifications, including their (1) educational grade level; (2) ability to speak, read, and write English; and (3) educational gaps, as well as other factors, were utilized to determine a student’s enrollment. Under these circumstances, where enrollment grants or denials are being made following highly individualized assessments of each putative class member’s individual characteristics and the exercise of discretion by different decisionmakers, proving discriminatory intent or disproportionate adverse impact (as well as proving the defenses to those claims) would require highly individualized proof. See Dukes, 564 U.S. at 350.
Stated differently, Plaintiffs fail to provide the glue necessary to hold the putative class claims together under the commonality analysis for Plaintiffs’ EEOA 20 U.S.C. § 1703(a)
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(Count I), Title VI (Count II), Equal Protection (Count III), and FEEA claims (Count V). See id. at 352. Thus, Plaintiffs fail to establish the prerequisite of commonality as to these claims.
5. Rule 23(a)(3) Typicality Rule 23(a) also requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “A class representative must possess the same interest and suffer the same injury as the class members in order to be typical under Rule 23(a)(3). . . . [T]ypicality measures whether a sufficient nexus exists between the claims of the named representatives and those of the class at large.” Cooper, 390 F.3d at 713 (quoting Prado-Steiman, 221 F.3d at 1279). Traditionally, commonality refers to the group characteristics of the class as a whole, whereas typicality refers to the individual characteristics of plaintiffs in relation to the class. Id. All putative class members are not required to share identical claims, and factual differences among the claims of the putative class do no defeat certification. Id. (citation omitted). Nonetheless, Plaintiffs’ claims must share the same “essential characteristics as the claims of the class at large.” Id. (citations omitted). “The claim of a class representative is typical if the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory.” Williams, 568 F.3d at 1357 (citing Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984)). “Thus, typicality is often met when, in proving her case, the representative plaintiff establishes the elements needed to prove the class members’ case.” Colomar v. Mercy Hosp., Inc., 242 F.R.D. 671, 677 (S.D. Fla. 2007). To determine typicality, the Undersigned again separates the Due Process and § 1703(f) claims and then turns to the remaining claims.
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Plaintiffs generally assert that the claims of I.A. and Nehemy are typical of the putative class members’ claims. (Doc. 152 at 26). Plaintiffs state that Named Plaintiffs’ claims, like class members’ claims, “challenge the District’s practice, pursuant to Policy 5112.01, of denying enrollment to substantial numbers of foreign-born ELLs whose previous schooling was outside the United States.” (Id.). Further, Plaintiff’s contend that Named Plaintiffs, like class members, “challenge the absence of adequate procedures for appealing a denial of enrollment pursuant to Policy 5112.01.” (Id.). Likewise, Named Plaintiffs’ and class members’ claims arise under the EEOA, Title VI, the Equal Protection clause, the Due Process clause, and the FEEA. (Id.).
Defendants, on the other hand, assert that typicality is “not present, if the class representative’s claim is subject to unique defenses.” (Doc. 164 at 16). Defendants also state that “[a]ccording to the Report and Recommendation, Plaintiffs themselves have not been harmed,” and “Plaintiffs’ unique educational issues will undoubtedly preoccupy the litigation on the merits.” (Id.).
a. Count I, EEOA 20 U.S.C. § 1703(f) Claim Here, Defendants allegedly denied enrollment in regular high school to both Named Plaintiffs and putative class members. The focus of the § 1703(f) claim is not on why Defendants denied the Named Plaintiffs and putative class members enrollment in a regular high school. The focus is on whether the particular programs in which Defendants enrolled Named Plaintiffs and the putative class members – i.e., the Adult ESOL and the ELCATE Academy – constitute standard instructional programs. (Doc. 152 at 22-23). The Court set forth the elements of the § 1703(f) claim, including the Castaneda test applicable to the third element of the claim, in detail in the commonality section above. See Discussion Part II.A.4.a supra. As with commonality, the problematic elements under a rigorous
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typicality analysis are the third and fourth elements of the § 1703(f) claim—namely, whether Defendants failed to take appropriate action to overcome language barriers and whether Defendants denied equal educational opportunity on account of national origin. Methelus, 243 F. Supp. 3d at 1275.
I.A.’s and Nehemy’s claims are not typical of the class under the third element of the § 1703(f) claim and the Fifth Circuit’s Castaneda test because in proving their individual cases, Plaintiffs will not establish the elements needed to prove the class members’ cases. Specifically, Plaintiffs must show under Castaneda that even if the ELCATE Academy and/or the Adult ESOL program are sound and effective, these programs fail to produce results indicating that language barriers are actually being overcome. See Methelus, 243 F. Supp. 3d at 1276. Plaintiffs do not address how they intend to prove this element on a classwide basis by proving their own claims. Even if Plaintiffs succeed in proving that the Adult ESOL and ELCATE programs failed to produce results for them and failed to help them actually overcome their language barriers, they will not necessarily prove that other students participating in the programs were unable to overcome their specific language barriers for the same reasons. There may be other reasons Defendants cite to explain why other class members failed to obtain results from the programs. Those other reasons – which would be highly individualized, specific to each individual class member, and require a case-by-case determination – will certainly give rise to unique defenses to liability under § 1703(f) to each class member’s individual claim. Defendants are entitled to assert those unique defenses, which would destroy typicality. Accordingly, the Undersigned finds that Named Plaintiffs’ claims are not typical of the class at large.
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As for the fourth element of the § 1703(f) claim, the Undersigned finds that I.A’s. and Nehemy’s claims are typical of the class. If I.A. and Nehemy establish a nexus between their national origin and the actions of the School District in allegedly not affording an effective educational opportunity, then I.A. and Nehemy will establish this element for the putative class. Any dissimilarities in national origin of putative class members will not impede typicality.
Accordingly, the Undersigned finds that Plaintiffs have not demonstrated typicality as to the § 1703(f) claim (Count I) because this claim is subject to individualized proof and unique defenses.
b. Count IV, Due Process In the Due Process claim, Named Plaintiffs focus on whether Defendants provide a process for appealing Defendants’ decision, and not on why any single decision to deny enrollment may have been improper or illegal. (Doc. 155-10 at 6 ¶ 20; Doc. 155-9 at 4 ¶ 17). Named Plaintiffs assert that Defendants did not afford them notice and the opportunity to challenge or appeal the decision not to allow them to enroll in regular high school. (Id.). Named Plaintiffs also contend that the School District lacked a custom, policy, and practice of affording students notice and an opportunity to be heard regarding the student’s denial of public school enrollment. (Doc. 76 at 46-47 ¶¶ 174-76). If Named Plaintiffs prove that Due Process requires Defendants to provide notice and an opportunity to be heard, then this proof will resolve the claim for the putative class members as well. Thus, the Undersigned finds that Plaintiffs have satisfied the prerequisite for typicality as to the Due Process claim (Count IV).13
13 As indicated supra at foonote 10, if Plaintiff’s theory of liability under Count IV changes, the class would likely need to be decertified under both the commonality and typicality elements of Fed. R. Civ. P. 23(a). Although the Named Plaintiffs here contend that they were not told of any
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c. Remaining Claims Plaintiffs fail to establish the typicality requirement for the EEOA claim under 20 U.S.C. § 1703(a) (Count I), the Title VI claim (Count II), the Equal Protection claim (Count III), and the FEEA claim (Count V). To prove each of these claims, Named Plaintiffs must prove discrimination by Defendants in making the decision not to enroll Named Plaintiffs and putative class members in regular high school. See 20 U.S.C. § 1703(a); Methelus, 243 F. Supp. 3d at 1277, 1280; U.S. Const. amend. XIV, § 1; Fla. Stat. § 1000.05(2). To prove discrimination, Named Plaintiffs must demonstrate that there are intentional and/or deliberate acts of discrimination and these acts led to Defendants not enrolling I.A. and Nehemy in regular high school. The reasons why Defendants denied each Named Plaintiff and each individual class member enrollment in regular high school require consideration of the age of the individual, the education of the individual, any gap in education of the individual, the English language ability of the individual, as well as other factors. (Doc. 164-6 at 2 ¶ 4; Doc. 164-4 at 3 ¶ 5). The Named Plaintiffs illustrate this. As stated above and bears repeating here, I.A. finished the “tercero básico” grade in Guatemala, missed approximately three full quarters of coursework for the year, and tested into a Level 2 English class. (Doc. 155-10 at 3 ¶ 7; Doc. 155-1 at 17; Doc. 155-10 at 5 ¶¶ 23, 24). Nehemy, on the other hand, came from Haiti, was enrolled in grade
procedure to appeal Defendant’s decision to deny them regular high school enrollment (Doc. 155-9 at 4 ¶ 17; Doc. 155-10 at 6 ¶ 20), such claims would not be typical of class members who, for example, (1) were told of any such procedure but voluntarily chose not to pursue it or (2) were told of any such procedure, pursued it, but still claim the procedure violated due process. In other words, by proving that they were not told of any procedure to appeal, the Named Plaintiffs would not necessarily prove the due process claims of other class members who may have been told and either chose not to pursue it or chose to pursue it and have other complaints about the process.
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Case 2:16-cv-00379-SPC-MRM Document 183 Filed 08/08/18 Page 40 of 49 PageID 5718
“9em” in Haiti, progressed in English in the past year to allow him to take GED practice tests, and attends the Florida Virtual School. (Doc. 155-9 at 2 ¶ 4; Id. at 3 ¶ 9; Id. at 6 ¶¶ 25, 26, 27; Doc. 155-9 at 8 ¶ 38). To place I.A. and Nehemy, Defendants conducted an individualized review of I.A.’s and Nehemy’s age, educational history, English ability, and other factors. In defending against the claims of discrimination, Defendants will rely on the factors considered for each Named Plaintiff and each and every member of the putative class. (Doc. 162 at 10-14). As Defendants argue in their opposition brief, “[t]he reasons for the particular educational placement decision are as unique as are the students themselves.” (Id. at 11). “Appropriate educational decisions require individualized determinations.” (Id. at 12).
Although Named Plaintiffs are not required to share factually identical claims, they nonetheless must share the same essential characteristics as the claims of the class at large. Cooper, 390 F.3d at 713. Here, Plaintiffs have not met their burden to show that their remaining discrimination claims are typical of the claims of the putative class members because each Named Plaintiff and each putative class member will potentially be subject to unique defenses based on their individual characteristics. Accordingly, the Undersigned finds that Plaintiffs have not met their burden to establish typicality for the claims under 20 U.S.C. § 1703(a) (Count I), Title VI (Count II), the Equal Protection clause (Count III), and the FEEA (Count V).
6. Rule 23(a)(4) Adequacy of Representation The final requirement of Rule 23(a) is that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). This requirement applies equally to the class representatives and counsel. London v. Wal-Mart Stores, Inc., 340 F.3d 1246, 1253 (11th Cir. 2003). The adequacy of representation requirement encompasses two separate inquiries: (1) whether there are substantial conflicts of interest between the named
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Case 2:16-cv-00379-SPC-MRM Document 183 Filed 08/08/18 Page 41 of 49 PageID 5719
representatives of the class and the class members; and (2) whether the representatives will adequately prosecute the action. Valley Drug Co., 350 F.3d at 1189. If substantial conflicts exist between the class representatives and the putative class members, then class certification is inappropriate. Id. Minor conflicts alone will not defeat a party’s claim for class certification, the conflict must be fundamental. Id. The Court turns to each element for adequacy of representation beginning with whether substantial conflicts of interest exist and then addresses whether Named Plaintiffs will adequately represent the class.
Plaintiffs assert that they will fairly and adequately represent the class. (Doc. 152 at 28). Plaintiffs claim that their interests align with those of the class members and present no danger of a substantial conflict of interest. (Id.). Plaintiffs also claim that they “are foreign-born ELLs who are being denied a regular public school education in Collier County, and they seek to enjoin Defendants’ practice of denying enrollment to similarly-situated individuals pursuant to Policy 5112.01.” (Id.). Defendants do not address the issue of whether Plaintiffs or their counsel have substantial conflicts of interests with putative class members. (See generally Doc. 164 at 16-19).
Here, the Undersigned finds no basis to conclude that Named Plaintiffs have substantial conflicts of interests with putative class members. Plaintiffs are foreign-born ELLS who Defendants denied enrollment in regular high school in Collier County and seek to enjoin Defendants’ practice of denying enrollment to similarly-situated individuals under Policy 5112.01. No apparent conflict exists. In addition, the Undersigned finds no basis on which to conclude that there are substantial conflicts of interest between Plaintiffs’ counsel, the Named Plaintiffs, and putative class members. Accordingly, Plaintiffs have met their burden for the first element of adequacy of representation.
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Next, Plaintiffs must show that the representatives will adequately prosecute the action. Valley Drug Co., 350 F.3d at 1189. The Court first addresses whether proposed class counsel will adequately protect the interests of the class and then turns to the contested issue of whether I.A. and Nehemy will adequately represent the putative class.
Pursuant to Rule 23(g)(4), class counsel must fairly and adequately represent the interests of the class. Fed. R. Civ. P. 23(g)(4). When appointing class counsel, a court must consider the following: “i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class.” Fed. R. Civ. P. 23(g)(1)(A)(i)-(iv). Further, a court may consider any other matter that is pertinent to counsel’s ability to represent the interests of the class fairly and adequately. Fed. R. Civ. P. 23(g)(1)(B).
Plaintiffs’ counsel assert that they are from the Southern Poverty Law Center (“SPLC”), a non-profit civil rights firm that provides services in this case on a pro bono basis. (Doc. 152 at 31). Plaintiffs’ counsel claim that SPLC has extensive experience in prosecuting federal civil rights actions, including serving as class counsel and representing immigrant plaintiffs. (Id.). Specifically, attorney Michelle Lapointe has over nine (9) years of federal civil rights litigation experience on behalf of immigrants and supervises attorneys Gillian Gillers and Viviana Bonilla López in this case. (Id.). Further, counsel have identified and investigated potential claims in this case, have and will contribute substantial resources to this case, and will vigorously litigate this action. (Id. at 31-32). For their part, Defendants did not specifically address the issue of the adequacy of counsel.
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The Undersigned finds that Plaintiffs’ counsel have demonstrated that they have diligently worked to identify and investigate potential claims, that they have attorneys with experience in handling complex litigation containing immigrant issues, that they are knowledgeable of the applicable law, and that they have the resources needed to commit to representing the class. Accordingly, the Undersigned finds that Plaintiffs’ counsel will fairly and adequately represent the putative class. Next, the Court addresses the issue of whether I.A. and Nehemy will adequately represent the putative class.
I.A. and Nehemy assert that they will adequately prosecute this case on behalf of the class. (Doc. 152 at 29). In support of this assertion, I.A. and Nehemy claim that they have appeared for depositions, responded to written discovery requests, appeared for a court hearing, and will provide additional discovery as needed. (Id.). I.A., her guardian and next friend Marta Alonzo, and Nehemy claim to understand that they represent the interests of the other class members. (Id.).
Defendants argue that Nehemy Antoine is not an adequate class representative. Defendants argue that Nehemy does not understand his role in the lawsuit, does not understand the meaning of a complaint, does not know the meaning of the term “class action,” does not spend much time with his attorneys, does not search for documents in response to a request for production, does not know the meaning of the term “injunction,” does not know whether he seeks money damages, does not know any of the claimed violations in this case, cannot name the other Plaintiff in this case, does not know the name of Defendants, and does not know the status of the litigation. (Doc. 164 at 18). Defendants also contend that I.A. knows even less than Nehemy. (Id.). Defendants claim that I.A. only knew she wanted a normal education and otherwise “demonstrated a paucity of knowledge about the lawsuit.” (Id.). Defendants argue
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Case 2:16-cv-00379-SPC-MRM Document 183 Filed 08/08/18 Page 44 of 49 PageID 5722
that Plaintiffs have not produced sufficient evidence that they can represent the interests of the proposed class. (Id. at 19).
“To satisfy the adequacy requirement, the named plaintiff and her counsel must demonstrate that they will adequately protect the interests of the putative class.” Muzuco v. Re$ubmitIt, LLC, 297 F.R.D. 504, 517 (S.D. Fla. 2013) (citing Valley Drug Co., 350 F. 3d at 1187). However, it is well-settled that it is not necessary for the named class representatives to be “‘knowledgeable, intelligent or have a firm understanding of the legal or factual basis on which the case rests in order to maintain a class action.’” Id.
In their affidavits, I.A. and Nehemy clearly understand that they attempted to enroll in regular high school, but were told that they were not eligible to enroll. (Doc. 155-9 at 3 ¶¶ 10, 14; Doc. 155-10 at 2 ¶10; Doc. 155-10 at 4 ¶¶ 16, 17). They both enrolled in Adult ESOL classes. (Doc. 155-9 at 5 ¶ 20; Doc. 155-10 at 5-6 ¶ 22). Nehemy and I.A. want to obtain regular high school diplomas. (Doc. 155-9 at 5 ¶ 19; Doc. 155-10 at 9 ¶ 37). Further, I.A. and Nehemy appeared for their depositions and provided affidavits in this case. (Doc. 155-9; Doc. 155-10; Doc. 164-9; Doc. 164-10). Thus, even if I.A. and Nehemy do not have a firm understanding of the legal or factual basis of this lawsuit, they do understand that they were denied access to attend regular high school, they continue to wish to attend regular high school, and they play active roles in this litigation. Accordingly, the Undersigned finds that I.A. and Nehemy, along with their counsel, will adequately prosecute this case on behalf of the class.
The Undersigned finds that there are no substantial conflicts of interest between Plaintiffs and the class members or that Plaintiffs and their counsel will fail to adequately prosecute this action. See Valley Drug Co., 350 F.3d at 1189. Accordingly, the Undersigned finds Plaintiffs met the adequacy of representation requirement. See Fed. R. Civ. P. 23(a)(4).
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B. Fed. R. Civ. P. 23(b)(2) Once parties meet all of the requirements of Rule 23(a), then they must satisfy one of the requirements of Rule 23(b). Valley Drug Co., 350 F.3d at 1188. Here, Plaintiffs seek certification under Fed. R. Civ. P. 23(b)(2). Rule 23(b)(2) permits class treatment when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “The key to the (b)(2) class is ‘the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Dukes, 564 U.S. at 360 (citation omitted). Stated differently, Rule 23(b)(2) applies only when a single injunction or declaratory judgment provides relief to each class member. Id. Conversely, Rule 23(b)(2) does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Id. In their Second Amended Complaint, Plaintiffs’ detail the litany of declaratory and injunctive relief they seek. (Doc. 76 at 49-52). Against this backdrop, the Court considers whether a class may be certified under Rule 23(b)(2) as to each claim raised by Plaintiffs. The Court again logically groups the claims – as it did under the Rule 23(a) analysis – by separately addressing the EEOA § 1703(f) (Count I) and Due Process (Count IV) claims and then turning to the remaining claims under the EEOA § 1703(a) (Count I), Title VI (Count II), Equal Protection (Count III), and FEEA (Count V). 1. Count I, EEOA 20 U.S.C. § 1703(f) Claim Regarding the § 1703(f) claim, for brevity the Court will not repeat the elements set forth at length in the Rule 23(a)(2) commonality discussion above. Discussion Part II.A.4.a supra.
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Suffice it to say that the contested third element – whether Defendants failed to take appropriate action to overcome the language barriers to allow equal participation in instructional programs – does not satisfy the Fed. R. Civ. P. 23(b)(2) requirements. Under the Castaneda test, to determine whether the ELCATE Academy and/or Adult ESOL programs produce results indicating that language barriers are actually being overcome requires individualized inquiry into the progress of each student. Some students may have obtained results (or varying degrees of results as illustrated by the Named Plaintiffs’ differences), and others may not have obtained any results for a variety of reasons. All of that remains to be demonstrated on the merits. In light of this, however, it appears that a single injunction or declaratory judgment relating to the § 1703(f) could not be crafted to provide relief to each and every class member.
Plaintiffs, for their part, have not explained how a single injunction or declaratory judgment could be crafted to provide classwide relief. Arguably, different injunctions or declaratory judgments tailored to each individual class member would be required to address each individual class members’ situation. This is bolstered by the specific language Plaintiffs use in the Second Amended Complaint to describe generally the injunctive relief they seek relating to the EEOA claim. (See Doc. 76 at 51). Plaintiffs ask for “injunctive relief in the form of: (1) Requiring Defendants to take affirmative steps to enroll Plaintiff Children, and similarly situated students, in an age-appropriate, public school setting.” (Id.). Determining what “affirmative steps” will be needed for any particular class member, determining ageappropriateness for any particular class member, and determining what specific public school setting is appropriate for any particular class member would all require individual inquiries and individually crafted relief. For that reason, Plaintiffs have not shown that certification pursuant to Fed. R. Civ. P. 23(b)(2) is appropriate.
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Accordingly, the Undersigned finds that Plaintiffs fail to establish the Fed. R. Civ. P. 23(b)(2) requirements for class certification as to this claim.
2. Count IV, Due Process Claim For many of the same reasons that the Undersigned finds that the Due Process claim satisfies the Fed. R. Civ. P. 23(a) prerequisites, so too does it satisfy the Fed. R. Civ. P. 23(b)(2) requirements. In addressing the Due Process claim, Plaintiffs must show that Defendants deprived them of a constitutionally protected liberty or property interest without notice and an opportunity to be heard. Methelus, 243, F. Supp. 3d at 1280. The issues of whether Plaintiffs and putative class members have a property interest or were afforded notice and an opportunity to challenge or appeal the decision not to enroll them in regular high school are matters that can be enjoined or declared unlawful as to all of the class members or as to none of them. See Dukes, 564 U.S. at 360. Thus, the Undersigned finds that Plaintiffs have satisfied the Fed. R. Civ. P. 23(b)(2) requirements for class certification as to the Due Process claim. 3. Remaining Claims For many of the same reasons that the Undersigned finds that the EEOA claim under 20 U.S.C. § 1703(a) (Count I), the Title VI claim (Count II), the Equal Protection claim (Count II), and the FEEA claim (Count V) do not satisfy some of the Fed. R. Civ. P. 23(a) prerequisites, so too the Undersigned finds that these claims do not satisfy the Fed. R. Civ. P. 23(b)(2) requirements. To prove each of these claims, Plaintiffs must demonstrate that Defendants discriminated against Named Plaintiffs and putative class members in making the decision not to enroll them in regular high school. See 20 U.S.C. § 1703(a); Methelus, 243 F. Supp. 3d at 1277,
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1280; U.S. Const. amend. XIV, § 1; Fla. Stat. § 1000.05(2). The reasons why Defendants denied enrollment to Named Plaintiffs and putative class members requires individualized inquiry into the educational background of each student, gaps in education, and English proficiency, as well as other factors such as age. Thus, Plaintiffs have not shown that Defendants acted or refused to act on grounds that apply generally to the class. See Fed. R. Civ. P. 23(b)(2). Further, Plaintiffs have not demonstrated that a single injunction or declaratory remedy is appropriate for the entire class. Due to the differences in educational experiences, even if Plaintiffs prevail, the placement of Plaintiffs and putative class members into a public educational system arguably will require an individualized assessment for each student and will not lend itself to a single injunction or declaratory relief. Thus, the Undersigned finds that Plaintiffs fail to establish the Fed. R. Civ. P. 23(b)(2) requirements for class certification as to these claims.
CONCLUSION In sum, the Undersigned finds that Plaintiffs demonstrate that the requirements of Rule 23(a) and 23(b)(2) are met for the Due Process claim (Count IV). Thus, class certification is appropriate as to this claim. Otherwise, the Court finds that none of the remaining claims (Counts I-III and V) are appropriate for class treatment for the reasons explained above. Thus, class certification should be granted as to Count IV and denied as to all other claims. Accordingly, it is RESPECTFULLY RECOMMENDED that: 1) The Motion for Class Certification be GRANTED in part and DENIED in part as
follows: a) The Motion for Class Certification be GRANTED as to the Due Process claim
(Count IV); b) The Motion for Class Certification be DENIED as to all other claims asserted.
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Case 2:16-cv-00379-SPC-MRM Document 183 Filed 08/08/18 Page 49 of 49 PageID 5727 Respectfully RECOMMENDED in Chambers in Ft. Myers, Florida on August 8, 2018,
2018.
NOTICE TO PARTIES A party has fourteen days from this date to file written objections to the Report and Recommendation’s factual findings and legal conclusions. A party’s failure to file written objections waives that party’s right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R. 3-1. Copies furnished to: Counsel of Record Unrepresented Parties
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 Case 2:16-cv-00379-SPC-MRM Document 202 Filed 10/17/18 Page 1 of 15 PageID 6374

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

MARTA ALONSO and NEHEMY ANTOINE, as next friend on behalf of I.A., on behalf of themselves and all others similarly situated,

Plaintiffs,

v.

Case No: 2:16-cv-379-FtM-38MRM

THE SCHOOL BOARD OF COLLIER COUNTY, FLORIDA and KAMELA PATTON,

Defendants. /
AMENDED1 OPINION AND ORDER2

Before the Court is United States Magistrate Judge Mac R. McCoy’s Report and

Recommendation (“R&R”). (Doc. 183). Judge McCoy recommends granting in part and

denying in part the Motion for Class Certification filed by Plaintiffs Nehemy Antoine and

Marta Alonzo, on behalf of I.A., a minor. Plaintiffs object to the R&R (Doc. 185), and

Defendants School Board of Collier County, Florida and Kamela Patton have responded

1 The Court amends its previous Opinion and Order (Doc. 198) to correct only a typographical error in the second paragraph of the ordered clause.
2 Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or websites. These hyperlinks are provided only for users’ convenience. Users are cautioned that hyperlinked documents in CM/ECF are subject to PACER fees. By allowing hyperlinks to other websites, this Court does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their websites. Likewise, the Court has no agreements with any of these third parties or their websites. The Court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the Court.

Case 2:16-cv-00379-SPC-MRM Document 202 Filed 10/17/18 Page 2 of 15 PageID 6375
to the objections (Doc. 193). For the following reasons, the Court accepts and adopts the
R&R.
BACKGROUND
The Report and Recommendation makes factual findings and recounts this case’s
procedural history, both of which the Court adopts. A detailed review of that information
is unnecessary. For completeness and context, however, the Court will highlight relevant
facts below.
Plaintiffs are foreign-born, teenagers who want to attend public high school in
Collier County. They allegedly cannot do so because of Defendants’ policy and practice
that denies school enrollment to foreign-born English Language Learner (“ELL”) students
ages fifteen and older. (Doc. 76 at ¶ 47). The challenged policy, called “Policy 5112.01,”
governs the maximum age a student may participate in the regular high school program.
It says, in relevant part, that
to provide reasonable consistency of maturity levels among students in the regular high school program, no person shall be permitted to attend the regular high school program after attaining the age of nineteen (19). Those who attain the age of nineteen (19) during a school year may complete that school year. Persons who are seventeen (17) years old or older and who, by earning eight (8) credits per academic year, cannot meet graduation requirements, including grade point average (GPA), prior to the end of the school year during which they attain the age of nineteen (19), shall not be permitted to attend the regular high school program beyond the end of the academic year in which they attain the age of seventeen (17). Such persons shall be afforded an opportunity to pursue a high school diploma through the Adult High School or General Educational Development (GED) programs of the District.
(Doc. 152-4 at 2). Policy 5112.01 took effect in August 2013. (Id.).
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Since May 2016, students enroll in a Collier County public school at a central location. (Doc. 154-3 at 16; Doc. 155-5 at 3-4). For students seventeen years old and over, Dr. Leslie Ricciardelli, the Executive Director Secondary Programs, Curriculum, and Instruction, examines their transcripts and recommends they attend either regular high school, the English Literacy for Career and Technical (“ELCATE”) program, or another program. (Doc. 155-1 at 6-7; Doc. 155-5 at 7-8).
Pertinent here, the ELCATE Academy allows students who are between sixteen and twenty-one years old to earn a GED, enroll in the Adult English Speakers of Other Languages (“Adult ESOL”) program, and have gaps in their education. (Doc. 118-1 at ¶ 7; Doc. 153-2 at 20-22; Doc. 155-5 at 2). According to the ELCATE Academy’s brochure, the “curriculum is focused on English Literacy, social studies, math, and science in preparation to attain a high school diploma by passing the GED exam.” (Doc. 152-5 at 3). The ELCATE Academy has six levels of competencies from beginning to advanced, and a student must show that s/he has mastered at least level five before trying for a GED, other career-based programs, or employment. (Doc. 118-1 at ¶¶ 10-11).
As stated, Plaintiffs and others like them have been denied enrollment in a public high school. They want a free public education alongside their peers, the chance to learn core educational content and skills, and to participate in extracurricular activities. And they are suing Defendants to achieve this result. (Doc. 76). Plaintiffs assert that Defendants’ policy and practice, namely Policy 5112.01, violates these laws:
• Count I: Equal Educational Opportunities Act of 1974 (“EEOA”), 20 U.S.C. §§ 1703(a) and (f);
• Count II: Section 601 of Title VI of the Civil Rights Act of 1964 (“Title VI”), 42 U.S.C. § 2000d;
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• Count III: Equal Protection clause of the Fourteenth Amendment to the United States Constitution, U.S. Const., amend XIV, § 1;
• Count IV: Due Process clause of the Fourteenth Amendment to the United States Constitution, id.; and
• Count V: Florida Educational Equity Act (“FEEA”), Fla. Stat. § 1000.05. (Doc. 76).
Besides compensatory damages, Plaintiffs seek a declaration that Defendants’ acts and omissions violate the rights of Plaintiffs and class members under these laws. (Id. at 50, 52). They also seek injunctive relief requiring Defendants to, among other things, (1) “take affirmative steps to enroll Plaintiff Children, and similarly situated students, in an age-appropriate, public school setting”; (2) “communicate to all class members . . . that they can enroll in school and can make up any days of school that they missed as a result of Defendants’ unlawful policy and practice of denying them enrollment”; and (3) “provide compensatory education to Plaintiff Children to remedy the harms caused by Defendants’ unlawful policy and practice of denying them enrollment.” (Id. at 51-52).
At issue now is Plaintiffs’ request to certify a class defined as follows: All foreign-born, English Language Learner (ELL) children ages fifteen to twenty-one whose last completed schooling (not including adult education courses) was at a non-U.S. school, and who, after August 1, 2013, while residing in Collier County, sought or will seek to enroll in the Collier County public school system serving grades K-12, and were or will be denied enrollment by the Defendants.
(Doc. 152 at 2). They argue all requirements for class certification under Federal Rule of Civil Procedure 23(a) and (b)(2) are satisfied.
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The undersigned referred Plaintiffs’ Motion for Class Certification to Judge McCoy for a report and recommendation. The R&R recommends certifying only Plaintiffs’ due process claim (Count IV). (Doc. 183). No party objects to this recommendation or the R&R’s findings on Plaintiffs’ standing and proposed class definition. Plaintiffs object, however, to the R&R denying class certification for the remaining counts. (Doc. 185).
STANDARD OF REVIEW In reviewing a report and recommendation, the district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3). When a party makes specific objections to a magistrate judge’s report, the district court engages in de novo review of the issues raised. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). A de novo review means the district court “give[s] fresh consideration to those issues to which specific objection has been made by a party.” Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (citation omitted). Also, a magistrate judge’s conclusions of law are reviewed de novo, even in the absence of an objection. See Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994).
CLASS ACTION LEGAL STANDARDS Federal Rule of Civil Procedure 23 outlines the requirements for class actions. Under Rule 23(a), the party seeking class certification must prove that “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed R. Civ. P. 23(a).
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A proposed class must also satisfy at least one part of Rule 23(b). Plaintiffs here are seeking to proceed under Rule 23(b)(2), which applies when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole[.]” Fed. R. Civ. P. 23(b)(2).
“The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011) (internal quotations omitted); see also Brown v. Electrolux Home Products, Inc., 817 F.3d 1225, 1234 (11th Cir. 2016) (stating “the presumption is against class certification because class actions are an exception to our constitutional tradition of individual litigation”). “A district court that has doubts about whether ‘the requirements of Rule 23 have been met should refuse certification until they have been met.’” Brown, 817 F.3d at 1233-34 (citations omitted).
The party seeking class certification has a burden of proof – not a burden of pleading – to show a proposed class satisfies Rule 23. See Wal-Mart, 564 U.S. at 351 (“Rule 23 does not set forth a mere pleading standard.”). “[T]he entire point of a burden of proof is that, if doubts remain about whether the standard is satisfied, the party with the burden of proof loses.” Brown, 817 F.3d at 1234 (internal quotations omitted). It follows that courts conduct a “rigorous analysis” to decide whether movants carry their burden of proof. Wal-Mart, 564 U.S. at 350-51. This analysis may “overlap with the merits of the plaintiff’s underlying claim.” Id. at 351. Courts consider the merits, however, “only to the extent they are relevant to determining whether the Rule 23 prerequisites for class
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certification are satisfied.” Brown, 817 F.3d at 1234 (internal quotations and citation omitted).
Against these principles, the Court will address Plaintiffs’ objections to the R&R. DISCUSSION
The R&R examines each count under Rule 23(a)’s four requirements – numerosity, commonality, typicality, and adequate representation.3 It finds that Counts I, II, III, and V do not satisfy the commonality and typicality requirements. Although these findings alone call for denying class certification, the R&R addresses the same counts under Rule 23(b)(2). And it finds that a single injunctive or declaratory judgment on these counts is not proper for the entire class. The Court will review the R&R’s findings, starting with Rule 23(b)(2).
The Court can certify Counts I, II, III, and V for class certification under Rule 23(b)(2) only if Defendants acted on grounds that apply generally to the class so injunctive or declaratory relief is proper for the entire group. Fed. R. Civ. P. 23(b)(2). Regarding this requirement, the Supreme Court has explained:
[t]he key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful as to all of the class members or as to none of them . . . In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.
3 No party objects to the R&R’s findings on Plaintiffs’ standing, proposed class definition, and due process claim (Count IV). Upon a de novo review of the record, parties’ filings, and applicable law, the Court agrees with, accepts, and adopts these findings as well reasoned and legally sound.
7

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Wal-Mart, 564 U.S. at 360 (internal quotations omitted) (emphasis original); see also Braggs v. Dunn, 317 F.R.D. 634, 668 (M.D. Ala. 2016) (stating “Rule 23(b)(2) focuses on the nature of defendants’ acts and omissions and the suitability of class-wide relief, and does not require that the class-wide relief benefit each class member in precisely the same way”). Again, Plaintiffs bear the burden under Rule 23(b)(2).
Under the facts presented here, Rule 23(b)(2) class certification is not proper. The Court cannot fashion a single injunctive or declaratory judgment that gives relief to each class member. Plaintiffs’ claims, and the injunctive relief demanded, will instead need individualized inquires as to each class member. Such inquiries defeat the point (and spirit) of class certification. That said, the Court will address Counts I, II, III, and V in more detail below. A. Count I – § 1703(f) of the EEOA
The EEOA prohibits a State from denying equal educational opportunities to individuals based on their national origin. 20 U.S.C. § 1703. Such a denial occurs when an educational agency does not “take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.” Id. § 1703(f).
Consistent with the foregoing, Count I alleges that Defendants did not take appropriate action to overcome language barriers that impede the equal participation of Plaintiffs and other similarly situated students in Defendants’ programs.4 (Doc. 76 at 3840). According to Plaintiffs, this claim satisfies Rule 23(b)(2) because Defendants have
4 Count I claims that Defendants violated two subsections of the EEOA – § 1703(a) and (f). The Court will address § 1703(f) in this section and § 1703(a) in the next.
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injured all class members in the same way by not enrolling recently-arrived, foreign-born ELLs in public schools under Policy 5112.01. (Id. at ¶ 138). Plaintiffs thus conclude classwide remedies will give relief to each member. (Doc. 152 at 33).
The Court disagrees with Plaintiffs’ conclusion. To understand why, the Court starts at the beginning. A plaintiff alleging a § 1703(f) violation must satisfy four elements: (1) defendant is an educational agency; (2) he faces language barriers that impede his equal participation in defendant’s instructional programs; (3) defendant failed to take appropriate action to overcome those barriers; and (4) he was denied equal educational opportunity because of their national origin. See Methelus v. Sch. Bd. of Collier Cty., Fla., 243 F. Supp. 3d 1266, 1275 (M.D. Fla. 2017) (citing Issa v. Sch. Dist. of Lancaster, 847 F.3d 121, 132 (3d Cir. 2017)). The third element is problematic here.
The third element focuses on whether a school district took “appropriate action” to overcome language barriers. The Fifth Circuit’s decision in Castaneda v. Pickard, 648 F.2d 989 (5th Cir. 1981) is the seminal case on this element.5 The Fifth Circuit created a three-part “mode of analysis” for courts to use when deciding whether a school’s “language remediation efforts” are appropriate. Id. at 1009. “First, the court must examine carefully the evidence the record contains concerning the soundness of the educational theory or principles upon which the challenged program is based.” Id. (emphasis added). “The court’s second inquiry would be whether the programs and practices actually used by a school system are reasonably calculated to implement effectively the educational theory adopted by the school.” Id. at 1010 (emphasis added).
5 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as precedent the decisions of the former Fifth Circuit rendered prior to October 1, 1981.
9

Case 2:16-cv-00379-SPC-MRM Document 202 Filed 10/17/18 Page 10 of 15 PageID 6383
Third, “[i]f a school’s program, although premised on a legitimate educational theory and implemented through the use of adequate techniques, fails . . . to produce results indicating that the language barriers confronting students are actually being overcome, that program may, at that point, no longer constitute appropriate action as far as that school is concerned.” Id. Castaneda’s three-prong test is conjunctive, meaning “[a]ll three prongs must be met for an educational agency’s program to satisfy § 1703(f)’s ‘appropriate action’ element.” Issa, 847 F.3d at 134 n.7.
The crux of the R&R is that § 1703(f) is not suited for Rule 23(b)(2) class certification because no common relief can be given. The R&R finds so because the Court will need to make individualized inquiries into each class members’ progress to decide whether Defendants’ programs are overcoming language barriers. (Doc. 183 at 46). Plaintiffs object to this finding.
Plaintiffs contend that Defendants have equally harmed them and class members, namely not enrolling them in public high school, under Policy 5112.01. (Doc. 185 at 20). Consequently, Plaintiffs say injunctive or declaratory relief will help all class members. They also criticize the R&R for focusing on all three of Castaneda’s prongs. They posit, for the first time, that Defendants’ failure to fulfill any of the prongs, standing alone, triggers a violation § 1703(f). And because Plaintiffs say they will win on either the first or second prong, the R&R did not need to consider the third prong, which is fatal to class certification. (Id. at 20-21). In order words, Plaintiffs contend the third prong is irrelevant. Finally, they argue the R&R’s analysis on the third prong erroneously focuses on students’ individualized progress in overcoming language barriers. What matters, according to Plaintiffs, is whether challenged program as a whole overcomes the barriers. (Id. at 21).
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Plaintiffs’ objections miss the mark. They want this Court to ignore Castaneda’s three-prong conjunctive test to find that a single declaratory or injunctive relief can work for the entire class. But the Castaneda mode of analysis binds this Court – all three prongs. The Court cannot choose which prongs to consider to certify Plaintiffs’ desired class. And Plaintiffs cite no case law in which a court has certified a class action with less. Also, under Plaintiffs’ logic, the order of Castaneda’s prongs matters. Plaintiffs’ argument would be turned on its head if the Court examined the third element first.
Ignoring Castaneda’s third prong is also problematic at this procedural stage. The Court is not deciding the merits of Plaintiffs’ § 1703(f) claim (nor does it have any evidence before it to do so). Although Plaintiffs may argue they can win under Castaneda’s first or second prongs, that position is better suited for a summary judgment motion or trial – not class certification. The Court is hard-pressed to find the magistrate judge in the R&R was mistaken to examine all three prongs.
Boiled down, the Court cannot examine whether Defendants’ programs overcome language barriers without considering – at least to some extent – the individual students’ progress. The proposed class members are different. They will succeed or fail academically for reasons unique to them and outside the soundness or effective implementation of Defendants’ programs. As the R&R recognized, the unique individual circumstances include “their individual learning ability, interest level, effort, ambition, family support, economic demands, personal distractions, outside interests, behavioral issues, social influences, personal priorities, attendance record, and motivation.” (Doc. 183 at 25-26). What is more, students enter the ELCATE Academy at different levels of competencies and move through the program at varying speeds. Because students
11

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achieve different results (including Plaintiffs), the reasons for class members’ success or failure is relevant to examining Defendants’ program as a whole. See, e.g., Issa, 847 F.3d at 137 (considering plaintiffs’ testimony that “they couldn’t understand what their teachers and classmates were saying in their content classes at Phoenix” to find that plaintiffs showed a likelihood of success on the matters on Castaneda’s prong three). To ignore the class members’ individuality to force common relief is counter-intuitive and goes against the essence of § 1703(f).
Also, the differences between class members matters given Plaintiffs’ requested relief. For example, Plaintiffs ask for “injunctive relief in the form of: (1) Requiring Defendants to take affirmative steps to enroll Plaintiff Children, and similarly situated students, in an age-appropriate, public school setting.” (Doc. 76 at 51). To decide the affirmative steps a class member needs and his/her age-appropriate school setting will require individual inquires and individually crafted relief. (Doc. 183 at 46). A one-size fits all solution is not possible. And Plaintiffs do not explain how a single injunction or declaratory judgment could be crafted to provide the same.
In conclusion, assessing whether Defendants’ programs produce results showing they overcome language barriers will require individualized inquiries on whether each class members are obtaining results and, if not, why. And the vast differences between individual students means tailored injunctions will be needed to address their specific situation. Accordingly, because Plaintiffs have not carried their burden to satisfy Rule 23(b)(2), the Court overrules their objections and denies class certification as to § 1703(f).
12

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B. Counts I, II, III, and V – § 1703(a), Title VI, Equal Protection Clause, and FEEA The Court next addresses Rule 23(b)(2) for the other claims: § 1703(a) of the
EEOA, Title VI, Equal Protection, and FEEA. Because the R&R grouped these counts together so too will the Court.
To prevail on these claims, the R&R explained that Plaintiffs must show Defendants unlawfully discriminated against them and class members by not enrolling them in regular high school. From there, the R&R said that Defendants’ reasons for denying enrollment will need individualized inquiries into each student’s education background, English proficiency, and other factors like age. (Doc. 183 at 47). Because of the individualized inquires, the R&R finds that Plaintiffs cannot show that Defendants acted or refused to act on grounds that apply generally to the class so injunctive or declaratory relief is appropriate for the entire class. (Id. at 48).
Plaintiffs object to this finding. Focusing first on the claims under § 1703(a), Title VI, and Equal Protection clause, Plaintiffs argue the R&R rests on a “flawed legal conclusion on [Rule 23(a)’s] commonality.” (Doc. 185 at 21). It is their position that “if the Court finds that Board Policy 5112.01 has had a disparate impact on foreign-born ELLs that may be traced to a discriminatory purpose, declaratory and injunctive relief will apply to the class as a whole, irrespective of factual variations in the class members’ backgrounds.” (Id.). But Plaintiffs offer nothing to support this conclusory argument. Without more explanation, the Court will not reject the R&R’s sound analysis on these claims.
Plaintiffs’ objection to the FEEA claim fares no better. Plaintiffs say if the Court finds that Policy 5112.01 had a disparate impact on their and class members’ national
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origin, a single injunction against Defendants applying the Policy will allow class members to enroll in public school. (Id.). Even accepting Plaintiffs’ disparate impact theory on the FEEA claim, their objection glosses over a glaring defect. That defect is Defendants will have to make individualized assessments on where to place Plaintiffs and class members in public school because of their different educational experiences and ages. Indeed, as Plaintiffs themselves admit, class members will need to be assessed per Defendants’ ELL Plan and offered an individualized ELL student plan. That assessment will include the student’s English language skills and academic level.6 (Doc. 76 at ¶¶ 36-38). No matter how Plaintiffs couch the discrimination theory, they cannot overcome that a single injunction or declaratory relief is unachievable with the differences between the Plaintiffs and class members.
In conclusion, the Court denies class certification on Counts I, II, III, and V because Plaintiffs have not satisfied Rule 23(b)(2)’s requirements. And because the Court can deny class certification on this basis alone, it need not address Plaintiffs’ objections on Rule 23(a).7
Accordingly, it is now ORDERED: (1) United States Magistrate Judge Mac R. McCoy’s Report and Recommendation
(Doc. 183) is ACCEPTED and ADOPTED and the findings incorporated herein.
6 Under Defendants’ ELL Plan, they “assess an ELL students’ academic level using testing and previous school records, and, in the absence of such records, using interviews of the student and parents and other assessment tools.” (Doc. 76 at ¶¶ 36-38). 7 Because the R&R provides common reasons to deny class certification under Rule 23(a) and (b)(2) for each count, and because Plaintiffs’ objections on both rules overlap, the Court’s findings on Rule 23(b)(2) likely also apply to Rule 23(a).
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Case 2:16-cv-00379-SPC-MRM Document 202 Filed 10/17/18 Page 15 of 15 PageID 6388 (2) Plaintiffs’ Motion for Class Certification (Doc. 152) is GRANTED in part and DENIED in part. The motion is granted on the due process claim (Count IV) and denied on all other claims. DONE and ORDERED in Fort Myers, Florida this 17th day of October 2018.
Copies: All Parties of Record
15

 
 Case 2:16-cv-00379-SPC-MRM Document 239 Filed 02/25/19 Page 1 of 5 PageID 7651

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

NEHEMY ANTOINE and INGRID ALONZO,

Plaintiffs,

v.

Case No: 2:16-cv-379-FtM-38MRM

THE SCHOOL BOARD OF COLLIER COUNTY, FLORIDA and KAMELA PATTON,

Defendants.

/ OPINION AND ORDER1

Before the Court is Defendants School Board of Collier County, Florida and

Kamela Patton’s Motion to Dismiss (Doc. 228) and Plaintiffs Nehemy Antoine and Ingrid

Alonzo‘s response in opposition (Doc. 232). For the following reasons, Defendants’

motion is granted in part and denied in part.

This is a national origin discrimination action. Plaintiffs are foreign-born, English

Language Learner children who were denied access to free public education in Collier

County, Florida, through the Defendants’ policy and practice of excluding such children

from public school. (Doc. 221). The parties have been litigating this case for nearly three

1 Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or websites. These hyperlinks are provided only for users’ convenience. Users are cautioned that hyperlinked documents in CM/ECF are subject to PACER fees. By allowing hyperlinks to other websites, this Court does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their websites. Likewise, the Court has no agreements with any of these third parties or their websites. The Court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the Court.

Case 2:16-cv-00379-SPC-MRM Document 239 Filed 02/25/19 Page 2 of 5 PageID 7652
years, yet they are still quibbling over the pleadings. Even with a looming summary judgment deadline, Defendants now move to dismiss Plaintiffs’ Third Amended Complaint.2 (Docs. 23 at 2; 228). Based on Defendants’ motion, Plaintiffs’ response, and controlling authority, the Court makes the following findings:
First, the Third Amended Complaint is a “proverbial shotgun pleading,” as it incorporates all preceding paragraphs into each subsequent count and thus does not comply with Federal Rule of Civil Procedure 8.3 Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1279 (11th Cir. 2006). As a result, the Court dismisses the Third Amended Complaint, but grants Plaintiffs leave to file a fourth (and final) amended complaint.
Second, the Third Amended Complaint contains improper citations to legal authority and legal argument. See Blount v. Nugen, No. 6:16-CV-1971-ORL-41KRS, 2016 WL 8793749, at *2 (M.D. Fla. Nov. 15, 2016), report and recommendation adopted, No. 6:16-CV-1971-ORL-41GJK, 2017 WL 1438328 (M.D. Fla. Apr. 24, 2017) (“Citations of case law and statutes are not appropriate in the complaint, but rather may be included
2 Although labeled a motion to dismiss, Defendants’ arguments are better suited procedurally as a motion to strike or motion for a more definite statement. See, e.g., Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1331 n.10 (11th Cir. 2015) (citation omitted); Hutchings v. Fed. Ins. Co., No. 6:08-CV-305-ORL-19KR, 2008 WL 4186994, at *2 (M.D. Fla. Sept. 8, 2008) (citations omitted). Because this case has been pending for nearly three years and discovery is set to expire in less than three weeks, the Court will review the motion as is for the “just, speedy, and inexpensive determination” of this case. Fed. R. Civ. P. 1. Defendants should not expect such leniency from the Court in the future. 3 When Plaintiffs file a fourth amended complaint, they must follow the pleading requirements set forth in the Federal Rules of Civil Procedure. For example, the allegations should be stated “in numbered paragraphs, each limited as far as practicable to a single set of circumstances,” rather than in long, run-on paragraphs. Fed. R. Civ. P. 10(b).
2

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at the time of trial or in a motion for summary judgment.”); see also Hernandez v. Century Corr. Inst., No. 3:07CV404LAC/EMT, 2010 WL 1531238, at *1 (N.D. Fla. Mar. 31, 2010), report and recommendation adopted, No. 3:07CV404/LAC/EMT, 2010 WL 1531278 (N.D. Fla. Apr. 15, 2010) (finding legal arguments inappropriate in a complaint). Although Defendants do not state with specificity the violating paragraphs, the Court expects Plaintiffs’ next pleading to eliminate legal authority and arguments.
Third, the operative pleading continues to include class action allegations the Court rejected in denying class certification on the Equal Educational Opportunities Act, Title VI, Equal Protection, and Florida Educational Equity Act claims. (Docs. 183; 202). Fed. R. Civ. P. 23(d)(1)(D) provides, in pertinent part, “the court may issue orders that . . . require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly.” The rule’s Advisory Committee Notes explain that “[a] negative determination means that the action should be stripped of its character as a class action.” Because class certification is alive only as to the due process claim, the fourth amended complaint must leave out paragraphs 86 to 106 of the Third Amended Complaint and other allegations that do not comport with the Court’s prior rulings. (Docs. 183; 202).
Fourth, Defendants’ attempt to re-hash their standing argument this Court previously rejected is denied. (Docs. 62 at 27-28; 183 at 11-13; 202 at n.3).
Fifth, although not the model of clarity, the Third Amended Complaint does not reallege the previously dismissed Title IV and 42 U.S.C. § 1983 claims against Superintendent Patton. (Doc. 221 at ¶¶ 121-150). To that extent, Defendants’ motion is denied.
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Finally, Defendants’ motion to strike three allegations as impertinent or immaterial is granted in part and denied in part. (Doc. 228 at 6-7). Under Federal Rule of Civil Procedure 12(f), “[t]he court may strike from a pleading . . . any . . . immaterial [or] impertinent . . . matter.” “An allegation is immaterial if it has no value in developing the issues of the case.” Jacques v. Jacques, No. 8:16-CV-1297-T-33TGW, 2016 WL 7034513, at *5 (M.D. Fla. Dec. 1, 2016). In addition, “[a]n allegation is impertinent if it is irrelevant to the issues and which are not properly in issue between the parties.” Id. A motion to strike should be granted it “the matter sought to be omitted has no possible relationship to the controversy, may confuse the issues, or otherwise prejudice a party.” Reyher v. Trans World Airlines, Inc., 881 F. Supp. 574, 576 (M.D. Fla. 1995) (citations omitted).
Here, the Court strikes paragraphs 37 and 38 on the history of foreign-born unaccompanied minors and a Cuban student who was denied enrollment in 2012 because the paragraphs either confuse the issues or are immaterial and thus have no value in developing the issues of this case. (Doc. 221 at ¶¶ 37-38). The Court, however, denies Defendants’ motion to strike paragraph 45, which states, “School officials make the discriminatory assumption that such children are likely to fail academically when they deny them enrollment. This assumption is not based on any testing or assessment of the individual student; rather, the denial of enrollment occurs without any individualized assessment. At most, this determination is based solely on the student’s transcript from a prior school.” (Id. at ¶ 45). The Court finds paragraph 45 is relevant and has value to the issues in this case.
Accordingly, it is now
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Case 2:16-cv-00379-SPC-MRM Document 239 Filed 02/25/19 Page 5 of 5 PageID 7655 ORDERED: 1. Defendants School Board of Collier County, Florida and Kamela Patton’s Motion to Dismiss (Doc. 228) is GRANTED in part and DENIED in part to the extent stated above. The Third Amended Complaint (Doc. 221) is dismissed without prejudice. 2. Plaintiffs may file a Fourth Amended Complaint consistent with this Order on or before March 1, 2019. Failure to do so will result in this case being dismissed with prejudice. 3. Defendants must answer Plaintiffs’ Fourth Amended Complaint on or before March 5, 2019. DONE and ORDERED in Fort Myers, Florida this 25th day of February 2019.
Copies: All Parties of Record
5

 
 Case 2:16-cv-00379-SPC-MRM Document 243 Filed 03/01/19 Page 1 of 41 PageID 7673

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FT. MYERS DIVISION

NEHEMY ANTOINE

)

and INGRID ALONZO, on behalf of

)

themselves and all others similarly situated,

) Civil Case No.

) 2:16-cv-00379-SPC-MRM

Plaintiffs,

)

)

v.

)

)

THE SCHOOL BOARD OF COLLIER

)

COUNTY, FLORIDA, and KAMELA PATTON, )

Superintendent of Collier County Public Schools, )

in her official capacity,

)

)

Defendants.

)

_______________________________________ )

FOURTH AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES

1. Plaintiffs are foreign-born English Language Learner (“ELL”)

students who recently arrived in the United States, reside in Collier County,

Florida, and seek to attend public high school.

2. Nehemy Antoine and Ingrid Alonzo (“Plaintiffs”) seek relief

from this Court because they have been denied equal access to educational

opportunities as a result of Defendants’ custom, policy, and practice of

excluding them and those similarly situated from enrollment in public schools.

3. These ELL students seek to enroll in Collier County Public

Schools to further their education, but are excluded from a free public

1

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education due to the actions of Defendants, the School Board of Collier County, Florida, and Superintendent Kamela Patton, in her official capacity (“Defendants”).
4. When Plaintiffs were denied enrollment in public school, Defendants did not give them any option to attend any other educational program.
5. Defendants did not even keep a formal record of the interaction that took place at the school.
6. Defendants maintain a custom, policy, and practice of excluding recently-arrived, foreign-born, ELL students ages fifteen (15) and older from enrollment in Collier County public schools.
7. Defendants’ actions deny Plaintiffs and other foreign-born ELLs a free public education alongside their peers, the chance to learn core educational content and skills (“Florida Standards”), and access to other activities and programs available to students enrolled in public school.
8. Defendants deprive Plaintiffs and other foreign-born ELLs of the opportunity to earn credits toward a standard high school diploma and to realize their full learning and eventual earning potential.
9. Defendants’ refusal to enroll Plaintiffs and other ELL immigrant students denies them meaningful and equal educational opportunity and
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violates the Equal Educational Opportunities Act (“EEOA”), 20 U.S.C. §§ 1703(a) and (f); Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, (“Title VI”); the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U.S. Constitution, U.S. Const., amend XIV, § 1; the Florida Educational Equity Act, Fla. Stat. § 1000.05; and Fla. Admin. Code Ann. r. 6A-19.001.
10. Plaintiffs ask the Court to grant declaratory and injunctive relief to them and similarly situated students, including an injunction requiring Defendants to enroll Plaintiffs in free public school.
11. Named Plaintiffs also seek compensatory damages for their claims under Title VI and the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
JURISDICTION 12. This case arises under the United States Constitution and the laws of the United States, including the EEOA, 20 U.S.C. § 1703; Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d; and 42 U.S.C. § 1983. 13. The Court has subject matter jurisdiction under 28 U.S.C. §§ 1331(a), 1343, 2201, and 2202, and 20 U.S.C. §§ 1706, 1708.
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14. The Court may exercise supplemental jurisdiction over Plaintiffs’ state law claims under the Florida Educational Equity Act, Fla. Stat. §§ 1000.05 and Fla. Admin. Code Ann. r. 6A-19.001. See 28 U.S.C. § 1367(a).
VENUE 15. Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because “a substantial part of the events or omissions giving rise to the claim[s] occurred” in this district.
PARTIES Named Plaintiffs 16. Nehemy Antoine resides within Golden Gate High School’s attendance zone in Collier County. Nehemy is of limited English proficiency and Haitian national origin. 17. Ingrid Alonzo resides within Naples High School’s attendance zone in Collier County. Ingrid is of limited English proficiency and Guatemalan national origin.
Defendants 18. Defendant School Board of Collier County, Florida (“School Board”), is responsible for directing, operating, controlling, and supervising all free public schools in Collier County.
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19. The School Board is responsible for the operation of schools within the Collier County School District.
20. The School Board is the contracting agent on behalf of the School District and is subject to suit.
21. The School Board has acted under color of state law at all times referenced in this complaint within the meaning of 42 U.S.C. § 1983.
22. Defendant Kamela Patton, as Superintendent of the Collier County Public Schools, is the secretary and executive officer of the Collier County School Board.
23. Superintendent Patton is responsible for the administration and management of the schools.
24. She is charged with recommending the operation of schools, classes, and services as are needed to provide adequate educational opportunities for all children in the district.
25. Defendant Patton is also charged with ensuring that all laws and rules of the State Board of Education are properly observed.
26. She is responsible for enforcing school attendance of all students subject to compulsory school age in the school district. Superintendent Patton has acted under color of state law at all times referenced in this complaint within the meaning of 42 U.S.C. § 1983. She is sued in her official capacity.
5

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BACKGROUND Defendants’ Obligation to Educate English Language Learners 27. The education of children is a fundamental value of the people of the State of Florida under its constitution. 28. Education in Florida is compulsory for all children between the ages of six (6) and sixteen (16) without exception. Even after age sixteen (16), students are expected to remain in school unless they file a declaration with the school board explaining their intent to terminate school enrollment. 29. Federal and state laws and regulations require ELLs to receive access to the same curriculum and opportunity as non-ELLs. 30. Defendant School Board, as the contracting agent of the School District, receives federal funding, including but not limited to English Language Acquisition funding, to provide instructional programs and services to ELL students. 31. On September 14, 2016, Defendant Patton signed and submitted to the Florida Department of Education a “District ELL Plan.” See Ex. 1. The plan certifies Collier County public schools’ compliance with, inter alia, the EEOA, Title VI and the requirements of the Office for Civil Rights Standards for Title VI compliance; Fla. Stat. § 1003.56; applicable administrative
6

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regulations; and the Florida Educational Equity Act—all of which require equal access to educational opportunities for ELL students. Ex. 1.
32. The District ELL Plan sets forth the policies and procedures for providing instruction to ELL students, including identification, evaluation, and placement.
33. The ELL Plan requires schools to identify ELL students at the time of registration using a home language survey. Ex. 1 at 5-6.
34. Under Defendants’ ELL Plan, schools must individually assess both 1) the student’s English language skills and 2) the student’s academic skills. Id. at 6-9.
35. As part of these assessments, schools are to administer the Comprehensive English Language Learning Assessment (CELLA), specifically the “On-line Form 3 CELLA.” Id. at 7-8.
36. Based on results of the assessment, the school’s ELL committee is then to place the student in an English language class. Id. at 8-10.
37. The school is also required to assess ELL students’ academic level using testing and previous school records, and, in the absence of such records, using interviews of the student and parents and other assessment tools. Id. at 9-10.
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38. To “address the placement of ELLs with limited or no prior school experience(s), or whose prior school records are incomplete,” the ELL plan provides that “school personnel will request records” from the previous school. Id. at 9.
39. After such assessment, the ELL contact or guidance counselor is to place the student in an appropriate school grade and develop an ELL student plan for the student. Id. at 7-11.
40. The ELL plan requires that placements be “age appropriate.” Id. at 9.
Defendants’ Policy and Practice of Denying Equal Access to Educational Opportunity
41. On or about February 12, 2013, Defendant School Board adopted School Board Policy 5112.01 (“the Policy”), which states:
Persons who are seventeen (17) years old or older and who by earning eight (8) credits per academic year, cannot meet graduation requirements including grade point average (GPA), prior to the end of the school year in which they attain the age of nineteen (19), shall not be permitted to attend the regular high school program beyond the end of the academic year in which they attain the age of seventeen (17). Such persons shall be afforded an opportunity to pursue a high school diploma through the Adult High School or General Educational Development (GED) programs of the District. Ex. 2 (emphasis added).
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42. By its plain language, the Policy applies only to children “who are seventeen (17) years old or older.” Id. It allows those children to attend school through the end of the academic year in which they “attain the age of seventeen (17).”
43. However, Defendants purport to rely on the Policy to deny enrollment to ELL students as young as fifteen (15) years old.
44. Defendants have a custom, policy, and practice of denying school enrollment to recently-arrived, foreign-born, ELL students aged fifteen (15) and older.
45. Upon information and belief, children aged fifteen (15) and older who are not recently-arrived, foreign-born, ELL students are permitted to either enroll in or continue to attend Collier County public schools and receive a free public education in which they earn credits toward a standard high school diploma. This includes students who have been retained, who are not on grade level, and who are not on track to graduate.
46. During a January 2013 School Board Workshop meeting discussing the proposed policy, Board members raised a concern about the Policy’s impact on currently enrolled students. District employee Christy Kutz emphasized that the Policy was targeted at “new kids enrolling at our schools.”
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47. The District maintains no formal records of attempts of recentlyarrived, foreign-born ELL students aged 15 and older who seek to enroll in schools but are turned away.
48. School officials make the discriminatory assumption that such children are likely to fail academically when they deny them enrollment.
49. This assumption is not based on any testing or assessment of the individual student; rather, the denial of enrollment occurs without any individualized assessment.
50. At most, this enrollment determination is based solely on the student’s transcript from a prior school.
51. By denying enrollment to recently-arrived, foreign-born ELL students ages fifteen (15) and older, Defendants procedurally and substantively depart from the norms as embodied in their ELL Plan and enrollment of students in general.
52. Not only are these students not assessed as required by the ELL Plan; they are also deprived of the other benefits of the ELL Plan required by law.
53. These students are not offered an individualized ELL student plan, as required by the ELL plan.
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54. These students are not offered mathematics, science, or social studies classes, as required by the ELL plan and by law.
55. These students are not offered classes taught to the Florida Standards, as required by the ELL plan and by law.
56. These students are not offered equal access to the regular curriculum, as required by the ELL plan and by law.
57. These students are not offered instruction equal in amount, sequence and scope to that provided to non-ELL students, as required by the ELL plan and by law.
58. These students are not offered assessments of their academic and language progress, as required by the ELL plan and by law.
59. After denying enrollment, school officials refer some of these students to off-site, noncredit, Adult English for Speakers of Other Languages (“ESOL”) programs at Lorenzo Walker Technical College, Immokalee Technical College, also known as Immokalee Technical Center (“iTech”), or other locations, which charge a fee.
60. Defendants provide other students with no additional information and leave them to fend for themselves.
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61. Since 2013, several hundred foreign-born children between the ages of fifteen (15) and eighteen (18) have found their way to these Adult ESOL programs after being excluded from Collier County public schools.
62. Defendants are aware of the large numbers of foreign-born ELL students turned away from Collier County public high schools.
63. To the extent Defendants divert these students to a noncredit, feebased Adult ESOL program, Defendants procedurally and substantively depart from the norms set out in the ELL Plan in a number of ways, as described below.
64. Adult ESOL is an English language program. It does not teach the skills and subject matters required under Florida law and the ELL Plan.
65. The Adult ESOL program was designed only to improve the employability of the state’s workforce through development of communication skills and cultural competencies, as well as learning English.
66. The Adult ESOL program does not provide instruction in basic subject areas of math, science or social studies, as required by the ELL Plan and by law.
67. Students enrolled at Collier County public high schools, by contrast, do receive such instruction.
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68. The Adult ESOL program does not provide any credit toward a standard high school diploma.
69. By contrast, basic ESOL classes for ELL students in free public schools must provide credits toward a high school diploma.
70. Defendants do not evaluate ELL children excluded from public school to determine whether and when they should transition into high school. For these children, Adult ESOL classes are an educational dead-end.
71. For a time, Adult ESOL cost Plaintiff Nehemy Antoine and other foreign-born ELLs thirty dollars ($30.00) per semester plus other costs, in violation of the Florida Constitution, which mandates free public schools.
72. Defendants have since represented that they do not currently charge the $30.00 fee to Plaintiffs and other similarly situated students.
73. ELL students who are diverted from high school and who enroll in the Adult ESOL program are segregated from their peers and denied the opportunity to participate in any of the high school’s academic enrichment, sports, or extracurricular activities.
74. This violates Florida administrative regulations that entitle ELL students to equal access to programs and services other than ESOL.
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75. It is also contrary to federal guidance stating that ELL students should have equal opportunities to meaningfully participate in all school programs and activities.
76. At the Adult ESOL programs, students as young as fifteen (15) are enrolled in classes with adults, some of whom are older than the students’ parents or grandparents.
77. This contravenes federal guidelines and Defendants’ ELL Plan, which require age appropriate placement. Ex. 1 at 8.
78. By signing the District ELL Plan, Defendant Patton certified the District’s compliance with civil rights statutes, including Title VI and the EEOA, and with federal administrative guidance on the District’s obligations under these laws.
79. Defendants were on notice that these laws require them to provide meaningful access to a public education for ELL students.
80. Through their custom, policy, and practice, Defendants segregate Plaintiffs and other foreign-born ELLs from their peers and deprive them of equal access to educational opportunities offered in high school.
81. Through their custom, policy, and practice, Defendants deprive these students of the opportunity to earn credits toward a high school diploma and to learn skills and core subject matter that they will need in the future.
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82. Defendants’ custom, policy and practice limit these children’s educational and career opportunities, and their future earning potential.
83. Upon information and belief, Defendants’ custom, policy, and practice of denying enrollment to recently-arrived, foreign-born ELL students have had a chilling effect on student enrollment. Some immigrant students have not sought to enroll in school because they have heard that they cannot enroll if they are fifteen (15) or older.
NAMED PLAINTIFFS’ ALLEGATIONS 84. Nehemy Antoine, who is from Haiti, arrived in Naples in February 2016 at the age of seventeen (17). 85. He lives with his father, Emile Antoine. 86. Nehemy’s favorite subjects are math, physics, and French. 87. He likes to tinker with electronics in his spare time. 88. He aspires go to college, study computer science, and work with computers and electronics when he grows up. 89. When Nehemy left his school in Haiti in January 2016 to move to the United States, he was in what was considered there to be the ninth grade. 90. On February 29, 2016, Nehemy and his father, Emile Antoine, went to Lely High School in Naples to enroll Nehemy in school. 91. They brought their cousin along to interpret.
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92. School staff told them that Nehemy needed immunizations to enroll.
93. Nehemy obtained the required immunizations and returned to Lely High School on March 4, 2016, with proof of immunizations, along with his passport, social security card, and his report cards from Haiti.
94. The school staff person then told Nehemy and his father that Nehemy was too old to attend Lely High School.
95. Nehemy and his father later learned that the assigned high school for their home was actually Golden Gate High School, not Lely.
96. Soon after, in March 2016, Nehemy went with his father to Golden Gate High School to request enrollment.
97. They did not have anyone available to interpret, and the school did not provide an interpreter.
98. Nehemy and his father presented the same paperwork that they had presented at Lely to the Golden Gate staff person.
99. A staff person at the school gave Nehemy and Emile Antoine a piece of paper written only in English. The paper stated that Nehemy was “no longer eligible to pursue a traditional High School Diploma in Collier County Public Schools, including those programs offered through Alternative Programs.”
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100. Emile Antoine understood that a staff person at Golden Gate High School would communicate with him by phone about Nehemy’s enrollment in school, but no one ever called him.
101. Emile Antoine followed up by telephone, but Nehemy was not permitted to enroll at Golden Gate High School.
102. Soon after, a friend told Emile Antoine about a program at Lorenzo Walker Technical College (“Lorenzo Walker”).
103. Emile Antoine took Nehemy to Lorenzo Walker where he paid thirty dollars ($30.00) to enroll Nehemy in Adult ESOL.
104. At Lorenzo Walker, Nehemy has attended classes with people much older than he is, including one man Nehemy estimates is in his 40s.
105. Nehemy does not receive instruction pursuant to the Florida Standards in content areas such as math, science or social studies, and does not receive credits toward a high school diploma.
106. High school programs and activities are not available to him. 107. He feels frustrated and desperate due to the Defendants’ refusal to allow him to access a high school education. 108. Ingrid Alonzo, who is from Guatemala, arrived in Naples in January 2017.
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109. At that time, her birth certificate indicated that she was seventeen (17), although she later learned from family members that the birth certificate inaccurately stated the year of her birth as one year earlier than her true age.
110. She lives with her aunt, Marta Alonzo, in Naples. 111. Ingrid’s favorite subjects are math and science. 112. She aspires to become a nurse because she likes to help people. She would like to practice nursing in a hospital. 113. When Ingrid arrived in Naples, Marta Alonzo asked a friend where she needed to go to enroll Ingrid in school. 114. Her friend told her that she would give her a ride to the place where foreign students were supposed to enroll. 115. In early February 2017, they went to the Student Registration department of the Collier County School District administration building, located at 5775 Osceola Trail in Naples, Florida. 116. Marta Alonzo and Ingrid brought Ingrid’s birth certificate and her school records from Guatemala. 117. They provided Ingrid’s documents to a secretary in the Student Registration office and told her that they wanted to enroll Ingrid in school. 118. The secretary took the documents and gave Marta and Ingrid a Collier County Public Schools envelope that contained a checklist of items that
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Ingrid needed to register for school, including a declaration of domicile and proof of immunizations and physical. The secretary told them to return with the requested documents.
119. Marta and Ingrid obtained the requested items and returned to Student Registration a few days later.
120. Ingrid and Marta spoke to a different secretary during their second visit to Student Registration.
121. The second secretary gave Marta and Ingrid documents in English and explained that the Collier County School District had a translator translate her school records into English.
122. The translation reflected that Ingrid had completed 10th grade in Guatemala.
123. The secretary also gave them a printout of an email from Collier County Schools staff that contained a translation of Ingrid’s birth certificate.
124. The second secretary told Marta and Ingrid that she did not need any additional documents from them.
125. She told them, however, that Ingrid did not qualify to go to school because she was almost an adult and she was too old. She wrote on the outside of the envelope “*MAX AGE*.” See Ex. 3.
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126. Marta asked the second secretary where Ingrid could go to school. The second secretary told Marta that she would need to check to find out if any other school would accept Ingrid.
127. Marta asked the second secretary whether she needed to come back or whether she should call. The secretary told Marta to call her back in a week to find out whether or not another school would accept Ingrid.
128. Marta called the second secretary a week later, but the secretary said that she did not have an answer yet.
129. The second secretary then called Marta a few days later. She told Marta that Ingrid did not qualify for school because she was too old.
130. The secretary did not provide Marta with any other option as to where Ingrid could attend school.
131. Marta knew about Lorenzo Walker because she had attended English classes there in the past. Her friend also suggested that Ingrid attend Lorenzo Walker.
132. Marta took Ingrid to Lorenzo Walker, where Ingrid was offered only the option of enrolling in the Adult ESOL program.
133. At Lorenzo Walker, Ingrid does not receive instruction in the basic subject areas required by the Florida Standards such as math, science or social studies, and does not receive credits toward a high school diploma.
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134. High school programs and activities are not available to her. 135. She feels frustrated due to the Defendants’ refusal to allow her to attend high school. 136. Ingrid feels bad, disappointed, excluded and desperate as a result of her exclusion from District high schools. 137. Both Plaintiffs want to continue their education. 138. Neither Nehemy nor Ingrid has ever filed a declaration of intent to terminate school enrollment with any school board or otherwise relinquished their right to attend school. 139. No one at Lely, Golden Gate High School, or at the Collier County School District administration building, ever assessed these students to determine their academic level or English proficiency before denying them enrollment in Collier County public schools. 140. Neither Nehemy or Ingrid, nor their parents or guardians, were given the opportunity to appeal the decision to deny them enrollment. 141. On September 17, 2015, Plaintiffs’ attorney wrote a letter to Defendant Patton, identifying the Defendants’ refusal to enroll ELL students aged sixteen (16) and older in Collier County public schools; stating that enrollment of students in Adult ESOL rather than in school violated state and federal laws; requesting rescission of Policy 5112.01; requesting that
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immediate steps be taken to enroll two minors, former Plaintiffs G.O. and M.D. in school; and requesting that similarly situated students be ensured equal access to educational opportunities.
142. Defendants’ general counsel responded to the letter, but refused to enroll the students in high school or to revise the School Board’s policy or practice relating to enrollment.
143. Around the spring of 2016, Defendants began a program for 16-21 year-old ELLs in Adult Education that they called the ELCATE (“English Literacy for Career and Technical Education”) Academy at Lorenzo Walker and Immokalee Technical College.
144. In the “ELCATE Academy,” students take Adult ESOL classes until they demonstrate that they are ready to sit for initial testing for the Test for Adult Basic Education (“TABE”).
145. Once they have completed a certain level of Adult ESOL, students can start taking preparation courses for a General Educational Development (“GED”) test.
146. Both Plaintiffs are currently enrolled at Lorenzo Walker. The only classes they have taken are: Adult ESOL (Nehemy and Ingrid) and GED Preparation courses (Nehemy).
CLAIMS FOR RELIEF
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COUNT I Equal Educational Opportunities Act of 1974 (“EEOA”) 147. Plaintiffs re-allege and incorporate by reference the allegations set forth in paragraphs 1-8 (summary of facts); 16-26 (Plaintiffs and Defendants); 27-83 (Defendants’ obligations to ELLs, ELL plan, and policy); and 84-146 (Named Plaintiffs’ allegations) of this Complaint as if fully restated herein. 148. Defendants Collier County School Board and Superintendent Patton are bound by the provisions of the EEOA, 20 U.S.C. § 1703. 149. Section 1703 of the EEOA states in part: No State shall deny equal educational opportunity to an individual on account of his or her race, color, sex or national origin by: (a) the deliberate segregation by an educational agency of students on the basis of race, color, sex or national origin among or within schools;
[or] . . . (f) the failure of an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs. 20 U.S.C. § 1703(a), (f). 150. Through their actions and inactions, including the act of excluding Plaintiffs from public school, Defendants have denied Plaintiffs and
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similarly-situated students equal educational opportunity on account of their national origin by deliberately segregating them from their peers because of their national origin.
151. Defendants’ “ELCATE Academy” segregates Plaintiffs and other foreign-born ELLs, ages 16-21, from their English-speaking peers who are enrolled in District high schools.
152. Through their actions and inactions, including denying Plaintiffs enrollment, Defendants have denied Plaintiffs equal educational opportunities on account of their national origin by failing to take appropriate action to overcome language barriers that impede Plaintiffs’ equal participation in Defendants’ public school programs.
153. Defendants’ failure to take appropriate action includes but is not limited to refusing to enroll Plaintiffs in public school.
154. Defendants’ failure to take appropriate action includes but is not limited to funneling Plaintiffs to noncredit Adult ESOL classes that do not teach to the Florida standards or provide any opportunity to reintegrate into public school or earn credits toward a standard high school diploma.
155. Defendants’ failure to take appropriate action includes but is not limited to failing to properly assess Plaintiffs’ English proficiency and academic levels, place them according to English and academic skills, and
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develop an ELL student plan for each student in accordance with Defendants’ ELL Plan.
156. As a result, Defendants deny Plaintiffs and similarly situated students a free public education, the opportunity to learn the skills and subject matter set forth in the Florida Standards, credits toward a standard high school diploma, access to the other activities and programs available to students enrolled in public schools, and their full learning and earning potential.
157. Defendants’ refusal to enroll Plaintiffs and others similarly situated in public high schools, which leaves them with no other option but to attend Adult Education, is not based on a sound educational theory.
158. Placement of Plaintiffs and other similarly-situated ELLs in Adult Education, as opposed to public high school, is not based on any sound educational theory that is reasonably calculated to overcome the language barriers that impede the equal participation in Defendants’ regular instructional program.
159. Adult Education, including the “ELCATE Academy” is a wholly inappropriate educational placement for Plaintiffs.
160. Defendants further violate the EEOA because their Adult Education Programs, including the “ELCATE Academy,” are not reasonably calculated to implement effectively any sound educational theory to overcome
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the language barriers that impede the equal participation of Plaintiffs and those similarly situated in Defendants’ instructional programs.
161. Placement of Plaintiffs and those similarly situated in Adult Education, including the “ELCATE Academy,” further violates the EEOA because Defendants’ Adult Education programs fail to produce results showing that language barriers to equal participation in the instructional programs are actually being overcome.
162. By failing to take appropriate action to overcome language barriers that impede Plaintiffs’ equal participation in Defendants’ instructional programs, Defendants have denied Plaintiffs an equal education in violation of the EEOA on account of their national origin.
163. Defendants’ conduct violates Plaintiffs’ rights under the EEOA. 164. As a result of Defendants’ actions and inactions, Plaintiffs have suffered and will continue to suffer irreparable harm, which includes, but is not limited to, the loss of education, an inability to overcome language barriers, and diminished educational and future employment opportunities. 165. Plaintiffs request declaratory and injunctive relief to remedy Defendants’ ongoing violation of these rights.
COUNT II Title VI of the Civil Rights Act of 1964
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166. The named Plaintiffs re-allege and incorporate by reference the allegations set forth in paragraphs 1-8 (summary of facts); 16- 21(Plaintiffs and Defendant School Board of Collier County); 27-83 (Defendants’ obligations to ELLs, ELL plan and policy); and 84-146 (Named Plaintiffs’ allegations).
167. Title VI provides that no person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subject to discrimination under, any program receiving federal funding. 42 U.S.C. § 2000d.
168. As a recipient of federal funding, Defendant the School Board of Collier County, Florida, is prohibited from discriminating against Plaintiffs by excluding them from instructional services, failing to provide them with instructional services, or providing them with inferior services on the basis of their national origin.
169. Defendant is aware of its Title VI obligations, as certified in its ELL Plan.
170. Defendant, under color of law, deprived Plaintiffs and other foreign-born ELL students of their right to a free public education on the basis of their national origin.
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171. Defendant acted intentionally or with deliberate indifference to the likelihood that the federally-protected rights of Plaintiffs and other foreignborn ELLs would be violated.
172. Defendant has discriminated against Plaintiffs and other similarly situated students on the basis of their national origin by excluding them from Defendant’s schools.
173. Defendant has discriminated against Plaintiffs and other similarly-situated students on the basis of their national origin by referring some of them to noncredit Adult ESOL classes that segregate them from their peers.
174. Defendant has discriminated against Plaintiffs and similarlysituated students on the basis of their national origin by failing to teach math, science, social studies and other skills and subject matter set forth in the Florida Standards.
175. Defendant has discriminated against Plaintiffs and similarlysituated students on the basis of their national origin by failing to provide credits toward a high school diploma.
176. Defendant has discriminated against Plaintiffs and similarlysituated students on the basis of their national origin by denying access to other activities and programs available to students enrolled in public schools.
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177. Defendant denies enrollment to Plaintiffs and similarly-situated students based on a discriminatory blanket assumption that these children are likely to fail academically in a regular high school program, rather than performing individualized language and academic assessments of Plaintiffs and class members.
178. Defendant knows that recently-arrived, foreign-born ELL students have been and are being denied enrollment from public high schools in Collier County.
179. Defendant is also aware of the large numbers of these students enrolled in noncredit adult ESOL classes that fail to provide instruction in any other curricular areas or offer an opportunity to progress toward a standard high school diploma.
180. Yet Defendant continues to deny these students enrollment in its public schools.
181. Defendant fails to maintain formal records of foreign-born ELLs who have attempted to enroll in Collier County high schools, which facilitates the evasion of their own ELL Plan, state and federal law.
182. Through its actions and inactions on the basis of national origin, Defendant has excluded Plaintiffs, and those similarly situated, from participation in a public school education and Defendant’s ELL program,
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denied them the benefits of these programs, and subjected them to discrimination as set forth above.
183. As a result of Defendant’s actions and inactions, Plaintiffs have suffered and will continue to suffer irreparable harm, which includes, but is not limited to, the loss of educational time, an inability to overcome language barriers, and diminished educational and future employment opportunities.
184. Defendant’s actions have caused and will continue to cause the named Plaintiffs to suffer compensable injuries, entitling the named Plaintiffs to compensatory damages.
185. Plaintiffs seek declaratory and injunctive relief to remedy these ongoing violations. Plaintiffs also seek compensatory damages.
COUNT III Fourteenth Amendment Equal Protection Clause
(42 U.S.C. § 1983) 186. The named Plaintiffs re-allege and incorporate by reference the allegations set forth in paragraphs 1-8 (summary of facts); 16- 21(Plaintiffs and Defendant School Board of Collier County); 27-83 (Defendants’ obligations to ELLs, ELL plan and policy); and 84-146 (Named Plaintiffs’ allegations). 187. The Fourteenth Amendment’s Equal Protection Clause provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV.
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188. Defendant the School Board of Collier County, Florida, under color of state law, has acted and continue to act pursuant to a policy and practice to deprive Plaintiffs, and those similarly situated, of the right to equal protection of the laws under the Fourteenth Amendment.
189. Defendant maintains a custom, policy, and practice of excluding recently-arrived, foreign-born ELL students from enrollment in public school.
190. School officials deny enrollment, acting purportedly pursuant to a District Policy that excludes children from public school in the academic year after they turn seventeen (17) years old, under the assumption that these children will not meet certain academic requirements by the time they turn nineteen (19).
191. Defendant discriminates against Plaintiffs and those similarly situated by enforcing that policy against recently-arrived, foreign-born ELL children as young as fifteen (15) seeking enrollment in school.
192. The Policy was adopted and is enforced with the intent to discriminate against Plaintiffs and those similarly situated on the basis of their national origin.
193. As the result of Defendant’s actions, hundreds of recentlyarrived, foreign-born ELL students—including those as young as 15—have
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been prevented from enrolling in public schools. Some have enrolled in the Adult ESOL program for a fee, alongside individuals decades their senior.
194. Defendant is aware of the large numbers of students excluded from public school, but maintains this unconstitutional policy and practice.
195. As a result, Defendant denies Plaintiffs, and those similarly situated, a public school education, the opportunity to learn the skills and subject matter set forth in the Florida Standards, credits toward a standard high school diploma, access to the other activities and programs available to public school students, and their full learning and earning potential.
196. Defendant’s actions in denying Plaintiffs and other foreign-born ELLs access to a public school education depart procedurally and substantively from the norms set forth in, inter alia, their own ELL Plan.
197. As a result of Defendant’s actions and inactions, Plaintiffs have suffered and will continue to suffer irreparable harm, which includes but is not limited to the loss of educational time, an inability to overcome language barriers, and diminished educational and future employment opportunities.
198. Defendant’s actions have caused and will continue to cause the Plaintiffs to suffer compensable injuries, entitling them to compensatory damages.
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199. Plaintiffs seek declaratory and injunctive relief to remedy these ongoing, constitutional violations. Plaintiffs also seek compensatory damages.
COUNT IV Fourteenth Amendment Due Process Clause
(42 U.S.C. § 1983) 200. The named Plaintiffs, on behalf of themselves and all those similarly-situated, re-allege and incorporate by reference the allegations set forth in paragraphs 1-8 (summary of facts); 16-21 (Plaintiffs and Defendant School Board of Collier County); 27-83 (Defendants’ obligation to ELLs, ELL plan, and policy); and 84-146 (Named Plaintiffs’ allegations). 201. Through their actions and inactions, Defendant the School Board of Collier County, Florida has deprived Plaintiffs and all others similarly situated, of their constitutionally-protected property interest to a public education by denying them the right to enroll in public school. 202. Defendant’s lack of any procedures following denial of enrollment is constitutionally inadequate. 203. Defendant denied Plaintiffs, and all others similarly situated, the right to attend public school without any procedures, including notice, an opportunity to be heard, or an avenue to challenge an adverse determination.
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204. As a result, Defendant denies Plaintiffs, and similarly situated students, notice and an opportunity to be heard regarding their denial of public school enrollment and related educational opportunities.
205. Defendant acted pursuant to a custom, policy, and practice in depriving Plaintiffs, and all others similarly situated, of a public education without notice or opportunity to be heard.
206. As a result of Defendant’s actions and inactions, Plaintiffs and class members have suffered and will continue to suffer irreparable harm, which includes, but is not limited to, the loss of educational time, an inability to overcome language barriers, and diminished educational and future employment opportunities.
207. Defendant’s actions have caused and will continue to cause the named Plaintiffs to suffer compensable injuries, entitling the named Plaintiffs to compensatory damages.
208. The named Plaintiffs, on behalf of themselves and others similarly situated, seek declaratory and injunctive relief to remedy these ongoing, constitutional violations. The named Plaintiffs, individually, also seek compensatory damages.
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COUNT V Florida Educational Equity Act, Fla. Stat. §§ 1000.05 et seq. and
Fla. Admin. Code Ann. r. 6A-19.001 et seq. 209. The named Plaintiffs, on behalf of themselves and all others similarly situated, re-allege and incorporate by reference the allegations set forth in paragraphs 1-8 (summary of facts); 16-27 (Plaintiffs and Defendants); 27-81 (Defendants’ obligations to ELLs, ELL plan and Defendants’ policy); and 82-144 (Named Plaintiffs’ facts). 210. The Florida Educational Equity Act prohibits the exclusion of or discrimination against students on the basis of national origin. See Fla. Stat. § 1000.05(2)(a). 211. Under the Act, “discrimination” includes taking admission actions that adversely affect an applicant for admission based on “linguistic characteristics of a national origin group,” or “belonging to a national origin minority group, unnecessarily based on limited-English-language skills.” Fla. Admin. Code Ann. r. 6A-19.001. 212. The Act also bans admissions criteria that result in a disparate impact. Fla. Stat. § 1000.05(2)(b) (“[T]he criteria for admission to a program or course shall not have the effect of restricting access by persons of a particular race, ethnicity, national origin, gender, disability or marital status”).
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213. Defendants’ actions and inactions to exclude Plaintiffs and other foreign-born ELLs from enrollment in public school violate the Florida Educational Equity Act.
214. Defendants’ policy and practice violate Plaintiffs’ rights under the Florida Educational Equity Act.
215. Defendants deny Plaintiffs and other recently-arrived foreignborn ELLs a public school education, the opportunity to learn the skills and subject matter set forth in the Florida Standards, credits toward a standard high school diploma, access to other activities and programs available to students enrolled in public school, and their full learning and earning potential.
216. The named Plaintiffs seek declaratory and injunctive relief to remedy these ongoing violations of the Florida Educational Equity Act.
REQUESTS FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court:
a. Assume jurisdiction over this matter; b. Certify Plaintiffs’ Due Process claims (Count IV) as class claims
pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure;
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c. Designate named Plaintiffs as representatives for the Due Process class and designate the named Plaintiffs’ counsel as counsel for the class pursuant to Federal Rule of Civil Procedure 23;
d. Declare that Defendants’ acts and omissions violate the rights of Plaintiffs under the Equal Educational Opportunities Act;
e. Declare that Defendant School Board of Collier County’s acts and omissions violate the rights of Plaintiffs under Title VI of the Civil Rights Act of 1964;
f. Declare that Defendant School Board of Collier County’s actions and omissions violate the rights of Plaintiffs under the Fourteenth Amendment Equal Protection Clause;
g. Declare that Defendant School Board of Collier County’s acts and omissions violate the rights of Plaintiffs and class members under the Fourteenth Amendment Due Process Clause;
h. Declare that Defendants’ acts and omissions violate the rights of Plaintiffs to be free from discrimination under the Florida Educational Equity Act;
i. Declare Defendants to be liable for the days of school Plaintiffs missed due to Defendants’ unlawful policy and practice of denying them enrollment;
37

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j. Enter injunctive relief in the form of: 1. Requiring Defendants to enroll Plaintiffs in the District’s public high school system. 2. Requiring Defendants to adopt policies, procedures, and training to end Defendants’ ongoing violations of the EEOA, Title VI, the U.S. Constitution and state law, and to publicize to the community at large and to class members, in a language and form of communication that they understand, those new policies and procedures. 3. Requiring Defendants to adopt policies and procedures to provide prospective students with notice and an opportunity to be heard regarding decisions about eligibility for enrollment in Defendants’ public schools. 4. Requiring Defendants to provide compensatory education to Plaintiffs to remedy the harms caused by Defendants’ unlawful policy and practice of denying them enrollment.
38

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k. Award compensatory damages to Plaintiffs for emotional distress, mental anguish, and/or related emotional damages that Plaintiffs have incurred as a result of Defendants’ unlawful conduct in violation of Title VI and the Equal Protection and Due Process Clauses of the Fourteenth Amendment;
l. Award nominal damages to Named Plaintiffs for their Title VI, Equal Protection, and Due Process claims;
m. Award Plaintiffs reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and Fla. Stat. § 1000.05(7); and
n. Grant any other relief the Court deems just and reasonable.
39

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Respectfully submitted this 1st day of March, 2019,
SOUTHERN POVERTY LAW CENTER By: /s/ Viviana Bonilla López
Viviana Bonilla López Fla. Bar. No. 1003205 4770 Biscayne Blvd., Ste. 760 Miami, Florida 33137 T: 786.347.2056 F: 786.237.2949 Viviana.BonillaLopez@splcenter.org Michelle R. Lapointe* GA Bar No. 007080 Gillian Gillers* GA Bar No. 311522 150 East Ponce de Leon Ave, Suite 340 Decatur, GA 30030 T: 404.521.6700 F: 404.221.5857 Michelle.Lapointe@splcenter.org Gillian.Gillers@splcenter.org * Admitted Pro Hac Vice
Counsel for Plaintiffs
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CERTIFICATE OF SERVICE I certify that on March 1, 2019, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will provide service to the following: James D. Fox ROETZEL & ANDRESS, LPA 850 Park Shore Drive Trianon Centre – Third Floor Naples, Florida 34103 T: 239.649.2705 F: 239.261.3659 jfox@ralaw.com Jon Fishbane District General Counsel Collier County School District 5775 Osceola Trail Naples, Florida 34109 T: 239.377.0499 F: 239.377.0501 fishbj@collierschools.com
/s/ Viviana Bonilla López
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 Case 2:16-cv-00379-SPC-MRM Document 271-1 Filed 07/23/19 Page 1 of 9 PageID 8114
Exhibit 1
Due Process Settlement Agreement and
Administrative Procedure for Policy 5112.01

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Case 2:16-cv-00379-SPC-MRM Document 271-1 Filed 07/23/19 Page 3 of 9 PageID 8116

Case 2:16-cv-00379-SPC-MRM Document 271-1 Filed 07/23/19 Page 4 of 9 PageID 8117

Case 2:16-cv-00379-SPC-MRM Document 271-1 Filed 07/23/19 Page 5 of 9 PageID 8118

Case 2:16-cv-00379-SPC-MRM Document 271-1 Filed 07/23/19 Page 6 of 9 PageID 8119

Case 2:16-cv-00379-SPC-MRM Document 271-1 Filed 07/23/19 Page 7 of 9 PageID 8120
ADMINISTRATIVE PROCEDURE (AP) FOR POLICY 5112.01: MAXIMUM AGE FOR PARTICIPATION IN THE REGULAR HIGH SCHOOL
PROGRAM
When the Collier County School District, pursuant to School Board Policy 5112.01, makes a determination that a student is ineligible to attend the regular public high school program, the student, if age 18 years or older, or the parent of the student, if age 17 years old, will be notified in writing within ten (10) days of the ineligibility determination. A “parent” shall be defined as provided in F.S. 1000.21(5). The notification must include a recommendation of placement in the Adult Education Program, rather than high school, if appropriate; the number of credits awarded for previous coursework; the number of credits required for graduation; copies of any translations of transcripts or translations of other academic records relied upon by the District staff in reaching their enrollment determination; a list of appropriate credit recovery programs available to students; notification that the decision may be appealed in accordance with this Administrative Procedure, a copy of which is attached herewith; and notice should be provided that if at any juncture of the process the parent or student believes the student has special needs that could qualify the student for special education services, that they have the right to be assessed pursuant to federal law.
The notice must be written in English and, if practicable, in the language spoken by both the parent and the student. In the event that a parent needs translation support at any level of appeal, the parent may request, and the District will provide, if practicable, a translator for such language.
If a parent, or a student over 18 years of age, does not agree with the enrollment decision reached by the District staff, such parent or student may request a meeting with the Associate Superintendent of Curriculum and Instruction (Associate Superintendent of C&I). The request for such a meeting must be made in writing within fifteen (15) days of the issuance of that decision, including whether the parent or student will bring a friend, relative, or representative. The Associate Superintendent of C&I will schedule a meeting within seven (7) days of receiving the parent or student’s request. If an understanding is not reached at the meeting, the parent or student may file a written appeal to the Office of the Associate Superintendent for School and District Operations (“Associate Superintendent for Operations”). The request for an appeal must be received within fifteen (15) days of the decision of the Associate Superintendent of C&I.
Upon receipt of the appeal, the Associate Superintendent of C&I will arrange for an administrative hearing to be held within twenty (20) days of receipt of the written appeal so that the parent or student may present his or her concerns for additional review. District staff involved in the enrollment decision will be notified and required to attend the administrative hearing. The student and/or parent will be provided notice, including the date, time, and location of the hearing, at least five (5) business days prior to the hearing. The Associate Superintendent of C&I will notify the parties at least five (5) business days prior to the hearing of what documents each party is to bring, if any, to assist in an appropriate review.
The appeal shall be heard and reviewed before a panel that will include the following: The Associate Superintendent for Operations, the Administrative Director of School Leadership (secondary schools), a high school principal, and a high school Counseling Department Chair, and the Coordinator of English Language Learner Services (“ELL”). The hearing will be recorded and

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a copy of the recording will be made available to the student or parent upon request. The student and/or parent may bring a friend, relative, legal counsel, or other representative to the hearing and will be given the opportunity to participate and discuss related issues believed to be pertinent for the panel to consider. Decisions will be made by a majority vote of all panel members. The decision reached on appeal shall be final and complete as to the enrollment matter under review.
After the hearing, and within twenty (20) days of the hearing, the Associate Superintendent for Operations will inform the parent or the student of the panel’s decision. This decision will be made in writing in English and the language understood by both the parent and the student. The decision reached on appeal shall be final and complete as to the enrollment matter under review.

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Request for Hearing Before Appeals Panel
By signing below, I hereby request a hearing to appeal the District’s decision to deny ________________ enrollment in the regular high school program of the Collier County Public Schools. I understand that I have the right to bring an advocate, which may include a relative, friend, or an attorney, at my own expense, to the hearing and that I may present evidence and witnesses at the hearing. I understand that upon my request, this hearing shall be scheduled for twenty (20) days from the date listed below.

___________________________ ________________________

Signature

Relationship to Student

Received by: __________________

Date:

__________________

________________ Date

 
 Case 2:16-cv-00379-SPC-MRM Document 38 Filed 09/26/16 Page 1 of 22 PageID 344

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION
LESLY METHELUS, on behalf of Y.M., a minor; ROSALBA ORTIZ, on behalf of G.O., a minor; ZOILA LORENZO, on behalf of M.D., a minor; on behalf of themselves and all other similarly situated, Plaintiff

vs.

No. 2:16-cv-00379-SPC-MRM

THE SCHOOL BOARD OF COLLIER COUNTY, FLORIDA and KAMELA PATTON, Superintendent of Collier County Public Schools, in her official capacity, Defendants ____________________________________/

INTEREST OF THE UNITED STATES

The United States has authority to file this Statement of Interest pursuant to 28 U.S.C.

§ 517, which permits the Attorney General to attend to the interests of the United States in any

case pending in a federal court. This litigation implicates a matter of critical national importance

– the right of English Learner (EL) students to equal access to a high-quality education.

The United States submits this Statement of Interest to assist the Court in evaluating

Plaintiffs’ claims under the Equal Educational Opportunities Act (EEOA), 20 U.S.C. § 1701 et

seq., and Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d–2000d-7, and its

implementing regulations, see e.g. 28 C.F.R. Part 42, 34 C.F.R. Part 100 (Title VI). The U.S.

Department of Justice (DOJ) is responsible for enforcing the EEOA, see 20 U.S.C. §§ 1706,

1709 (authorizing DOJ to bring suit and to intervene in private cases), and ensuring that courts

correctly interpret the statute, including its requirement that schools take “appropriate action” to

serve EL students, 20 U.S.C. § 1703(f). DOJ also is responsible for ensuring consistent

enforcement of Title VI across the federal government under Exec. Order No. 12250, Leadership

and Coordination of Nondiscrimination Laws, 45 Fed. Reg. 72,995 (Nov. 2 1980), and enforces

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Title VI in federal court. The United States is uniquely situated to aid the Court in analyzing the legal standards applicable to both statutes, having enforced both the EEOA and Title VI on behalf of EL students for decades, and having promulgated guidance explaining school districts’ statutory obligations under both laws.1
BACKGROUND Plaintiffs – the parents and guardians of EL students named Y.M., G.O., M.D., T.J.H., K.V., and N.A. who are either Haitian or Guatemalan (Plaintiff ELs) – allege that the School Board of Collier County, Florida (Board) and the Superintendent deny their immigrant EL children equal educational opportunities based on national origin, including their foreign birth and limited English proficiency. Am. Compl. (Doc. 30) ¶¶ 1, 9–14, 124–25. Among other claims, Plaintiffs bring individual and class claims under the EEOA and Title VI. Id. ¶¶ 5, 100, 121–130 (EEOA/Count I), 131–141 (Title VI/Count II). According to Plaintiffs’ Amended Complaint, Board practices deny “recently-arrived, foreign-born, ELL2 students” ages 15 and older enrollment in regular high schools. Id. ¶ 45. Plaintiffs allege that the Board “purports to rely on” a February 2013 policy barring enrollment of students ages 17 or older in the regular high school program if they cannot meet graduation requirements prior to the end of the school year in which they turn 19 (Policy). Id. ¶¶ 43–44. Under that Policy, such students cannot attend the regular high school program but must be afforded the opportunity to pursue a high school diploma through the Board’s Adult High School or General Educational Development (GED) programs. Id. ¶ 43. Plaintiffs also assert that the Board adopted the Policy, which revised an earlier policy regarding the enrollment of students
1 The United States is addressing only the legal standards applicable to Plaintiffs’ claims under § 1703(f) of the EEOA and an intentional discrimination claim based on national origin under Title VI. 2 While Plaintiffs use the term “ELL” in their Amended Complaint, federal guidance uses this term along with “EL” and “LEP.” All are interchangeable.
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ages 18-21, after a “sharp increase in the number of unaccompanied minors arriving to the United States from abroad,” most of whom were 16 or 17. Id. ¶ 41, 102–106 & Ex. 2. Although the Policy does not delineate between currently enrolled and prospective students, Plaintiffs allege that a district employee represented to the Board that the Policy targets “new kids enrolling at our schools.” Id. ¶ 47.
Plaintiffs further allege that the Board relies on the Policy as part of a larger “practice of denying high school enrollment to recently-arrived, foreign-born ELL students” age 15 and older, in contravention of the Policy’s express terms and federal EL requirements, including those in the District’s EL Plan. Id. ¶¶ 45, 50–64. According to the Amended Complaint, the Board refers some of these students to “noncredit, adult English for Speakers of Other Languages (Adult ESOL) classes that charge a fee” and that offer no opportunity to obtain a standard diploma, learn core subjects, or participate in high school activities. Id. ¶¶ 3–4, 51–52, 56-61. Plaintiffs allege that, since 2013, several hundred foreign-born children between the ages of 15 and 18 have been denied enrollment in regular high schools and found their way to these Adult ESOL programs. Id. ¶ 53. In contrast, Plaintiffs allege that the Board permits students 15 and older who are not recently arrived, foreign-born ELs to enroll in or continue to attend a regular high school even though they are far behind and not on track to graduate. Id. ¶¶ 46–47.
Plaintiffs recount that when they tried to enroll Y.M. (age 15), G.O. (age 16), M.D. (age 16), and T.J.H. (age 17) at Immokalee High School, all four were denied admission, and three were told to enroll in Immokalee Technical Center, which offers an Adult ESOL program for $30 per semester. Id. ¶¶ 67–68, 71–72, 74, 94. Plaintiffs further allege that when K.V. (age 16 in her third year of high school in Haiti) tried to enroll at Golden Gate High School, a Board employee “told K.V. that she could not enroll because she did not speak English well … and did
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not have enough credits.” Id. ¶ 80. Board employees did not advise K.V. of any alternate enrollment options. Id. They similarly failed to advise N.A. (age 17) of other enrollment options when denying his enrollment at Lely High School for being “too old” and at Golden Gate High School for being “no longer eligible” for a regular diploma or alternative program. Id. ¶¶ 87, 89. K.V. and N.A. found Adult ESOL Programs on their own and paid $30 to attend. Id. ¶¶ 81, 90.
Plaintiffs allege that the Adult ESOL programs that Plaintiff ELs and hundreds like them were referred to (or located on their own) do not teach math, science, social studies, or the standard curriculum that ELs are entitled to under federal law and the District EL Plan. Id. ¶¶ 32, 39, 57, 68, 72, 76, 95. Further, unlike non-ELs and ELs receiving EL services in regular high school, and in contravention of state law and the District EL Plan, ELs in Adult ESOL programs must pay $30 and cannot earn credit toward a standard diploma. Id. ¶¶ 40, 58.
The Board moved to dismiss, Defs.’ Mot. to Dismiss (MTD) (Doc. 37), erroneously arguing that it satisfies its federal obligations. MTD at 2, 3, 9, 11. The Board repeatedly invokes the February 2013 Policy, but ignores Plaintiffs’ allegations that: the Board’s actions are not consistent with the Policy; the Policy is intentionally discriminatory and is discriminatorily applied; and the Adult ESOL programs provide no opportunity to participate in the standard instructional program. Id. 7, 12, 14. Instead, the Board asserts that Plaintiff ELs were ineligible for regular high school because two were not already enrolled in school, none had the “demonstrated proficiency in English, Mathematics, Social Studies, and Science” required to enter high school, and none, in the Board’s view, could complete high school by 19. Id. 7–8.
ARGUMENT Both the EEOA and Title VI prohibit States and school districts from denying equal educational opportunity to individuals based on their national origin. See 20 U.S.C. § 1703; 42
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U.S.C. § 2000d. Decades of federal case law and guidance interpreting the EEOA and Title VI and its implementing regulations establish both that school districts must make their standard instructional programs accessible to ELs through language assistance programs and that discrimination against limited English proficient (LEP) persons can give rise to a claim of unlawful national origin discrimination. In arguing that this Court should dismiss Plaintiffs’ EEOA and Title VI claims, the Board misconstrues governing legal standards, cites cases out of context, and invokes a Policy that Plaintiffs have alleged provides Plaintiff ELs no access to the standard instructional program and is intentionally discriminatory.
Rather, taking Plaintiffs’ alleged facts as true, as this Court must at the motion to dismiss stage, Plaintiffs have adequately pled violations of § 1703(f) of the EEOA and Title VI based on the Board’s denial of Plaintiff ELs’ enrollment in its regular high school program3 and its referral, if any, of Plaintiff ELs to inadequate educational programs. I. The EEOA Requires “Appropriate Action” To Overcome Language Barriers That
Impede ELs’ Equal Participation In Its Standard Instructional Program A. The Board’s Obligations Under The EEOA The EEOA prohibits States from denying equal educational opportunity to any person “on account of his or her race, color, sex, or national origin.” 20 U.S.C. § 1703. Such a denial occurs when, inter alia, a state or local education agency fails “to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.” Id. District courts have held that in order to state a plausible claim for national origin discrimination under § 1703(f), ELs need only allege facts showing “(1) language barriers; (2)
3 The Board’s practice of denying enrollment to recently-arrived, foreign-born EL students in its regular high schools and referring them to Adult ESOL programs that charge a fee bears some similarity to the policies and practices struck down by the Supreme Court as unlawful in Plyler v. Doe, 457 U.S. 202, 222 (1982) (striking down a state law denying free public education to undocumented immigrant students as well as a school district’s attempt to charge such students an annual tuition fee as unlawful intentional discrimination).
5

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defendant’s failure to take appropriate action to overcome these barriers; and (3) a resulting impediment to students’ equal participation in instructional programs.” C.G. v. Pa. Dep’t of Educ., 888 F.Supp. 2d 534, 575 (M.D. Pa. 2012) (internal citation omitted); see also Leslie v. Bd. of Educ. for Ill. Sch. Dist. U-46, 379 F.Supp. 2d 952 (N.D. Ill. 2005); Khadidja v. Sch. Dist. of Lancaster, 5:16-CV-03881-EGS, 2016 WL 4493202, at *2–8 (E.D. Pa. Aug. 26, 2016) (applying C.G. and Castañeda v. Pickard, 648 F.2d 989 (5th Cir. 1981) in decision granting preliminary injunction under the EEOA to EL refugee plaintiffs ages 17-20 who were denied enrollment in regular high school program and placed in an alternative, credit recovery program where they could earn “a diploma and all of the attendant benefits.”), expedited appeal filed, No. 16-3528 (3d Cir. Sept. 2, 2016).
Neither the text nor legislative history of the EEOA defines “appropriate action” for purposes of § 1703(f). In Castañeda, a case that controls here,4 the Fifth Circuit interpreted § 1703(f) by establishing a three-part framework for assessing state and local education agencies’ compliance with §1703(f). Under that framework, this Court must consider whether: (1) the Board’s EL program is based upon a sound educational theory; (2) the program, in practice, is reasonably calculated to implement effectively that theory, including the provision of sufficient resources and personnel; and (3) the program has been successful after a legitimate trial period. Id. at 1009–10. Plaintiffs need not prove discriminatory intent to establish a violation of § 1703(f). See id. at 1007–08. In interpreting § 1703(f) and establishing the three-part test, Castañeda relied on Lau v. Nichols, 414 U.S. 563, 568 (1974), a decision that Congress codified in § 1703(f) and that required schools to provide English language instruction to ELs to ensure their meaningful participation in regular education programs. Castañeda, 648 F.2d at 1008.
4 Decisions of the former Fifth Circuit rendered before October 1, 1981 – such as Castañeda – serve as binding precedent of the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
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Castañeda enables education officials to adopt the types of EL programs that will be most responsive to student needs. See Castañeda, 648 F.2d at 1008–09; Horne v. Flores, 557 U.S. 433, 454 (2009). Yet Castañeda recognized that Congress intended to ensure that states and school districts “made a genuine and good faith effort” to implement sound EL programs “to remedy the language deficiencies of their students and deliberately placed on federal courts the difficult responsibility of determining whether that obligation had been met.” 648 F.2d at 1009. Castañeda then proceeded to establish the three-part test to assist courts in evaluating whether a district’s EL program satisfies its obligations under § 1703(f). Id. at 1009–10.
Castañeda makes clear that a district’s EL program may not permanently sacrifice or even unreasonably delay academic instruction in favor of English language development (ELD). Id. at 1011. Rather, “§ 1703(f) leaves schools free to determine the sequence and manner in which [EL] students tackle this dual challenge [of learning English and academic content] so long as the schools design [EL] programs which are reasonably calculated to enable [ELs] to attain parity of participation in the standard instructional program within a reasonable length of time.” Id. at 1011 (emphasis added). Under Castañeda, schools may implement EL programs that emphasize ELD “during the early part of [students’] school career[s] . . . even if the result of such a program is an interim sacrifice of learning in other areas during this period.” Id. at 1011. Yet, Castañeda cautioned such schools that “to be able ultimately to participate equally with the students who entered school with an English language background, [ELs] will have to . . . recoup any deficits which they may incur in other areas of the curriculum as a result of th[eir] extra expenditure of time” acquiring English. Id. Mindful of the “equal participation in instructional programs” language in § 1703(f), the Court thus concluded that § 1703(f) imposes “a duty to provide [ELs] with assistance in other areas of the curriculum where their equal participation
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may be impaired because of deficits incurred [while] participat[ing] in” the EL program. Id. If no such opportunity to recoup academic deficits is provided, the Court explained, “the language barrier, although itself remedied, might, nevertheless, pose a lingering and indirect impediment to [ELs’] equal participation in the regular instructional program.” Id.
The Departments of Education and Justice summarized these requirements in their joint 2015 Dear Colleague Letter on EL Students and LEP Parents (EL DCL): “To ensure that EL students can catch up in those core areas within a reasonable period of time, such districts must provide compensatory and supplemental services to remedy academic deficits that the student may have developed while focusing on English language acquisition.” MTD at 13 (quoting EL DCL at 19).This summary is entirely consistent with § 1703(f) and the binding Castañeda standards just described.5 Ignoring these standards, the Board asks this Court to reject this guidance on the basis of a case that is not binding and completely at odds with these standards. See infra discussion of Flores v. Huppenthal, 789 F.3d 994 (9th Cir. 2015) at 11-12.
B. The Board Cannot Show Plaintiffs’ EEOA Claim Fails As A Matter Of Law Here, Plaintiffs allege facts sufficient to survive a motion to dismiss under the Castañeda standards. In particular, Plaintiffs allege that, contrary to the Board’s EEOA duty to offer a sound EL program that enables ELs to attain parity of participation in the standard instructional program, the Board denied Plaintiff ELs access to its free EL program and standard instructional program altogether by refusing to enroll them in regular high schools. Am. Compl. ¶¶ 67–89. More specifically, as to ELs ages 15 and 16, Plaintiffs allege that the Board denied them
5 Castañeda’s interpretation of § 1703(f) controls here, but even if it did not, this guidance regarding the EEOA,
Title VI, and its implementing regulations is entitled to substantial deference because DOJ and ED are the agencies tasked with enforcing the EEOA, Title VI, and their implementing regulations. See Chevron U.S.A. v. NRDC, 467
U.S. 837, 843–44 (1984) (where a statute that an agency administers is silent with respect to a specific issue, the
question is whether the agency’s interpretation is “based on a permissible construction of the statute”); Auer v. Robbins, 519 U.S. 452, 461 (1997) (deference is warranted provided agency interpretation is not “plainly erroneous or inconsistent with the regulation[s]”).
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enrollment in the regular high school program in contravention of the Board’s own Policy. As to K.V. (16), Plaintiffs allege that the Board assumed her inability to timely graduate based on her limited English and did not offer her any enrollment option. Id. ¶ 80. Even when the Board referred some Plaintiff ELs to Adult ESOL programs, these referrals did not satisfy the Board’s own Policy mandate to offer a high school diploma or GED. See Id. ¶ 43 & Ex. 2. Nor did those Adult ESOL programs meet Castañeda’s standards because they cost $30 per semester and offer no math, science, or social studies, and no credit toward a standard diploma.
In a recent case involving similar claims, the court denied the school district’s motion to dismiss EEOA and Title VI claims. See New York by Schneiderman v. Utica City Sch. Dist., 2016 WL 1555399 (N.D.N.Y 2016). In Utica, the plaintiff alleged that the district intentionally denied immigrant ELs aged 17-20 enrollment in the regular high school program and diverted them to alternative programs that offered “little more than basic instruction in the English language” and “a high school equivalency program,” but not a regular diploma. Id. at *1–2. In refusing to dismiss the EEOA claim, the court relied upon allegations that the ELs had been “denied equal educational opportunities on the basis of their national origin as part of a diversionary policy enacted and enforced by senior policymakers in the District.” Id. at *10. Like the plaintiffs in Utica, Plaintiffs here plead a plausible claim under § 1703(f) of the EEOA.
The Board does not refute Plaintiffs’ allegations. Nor could it on a motion to dismiss. Instead, the Board incorrectly argues that the EEOA: (1) gives it “latitude” to offer Adult ESOL programs with no core content instruction or way to earn a regular diploma; (2) allows it to deny ELs enrollment in regular schools because they lack “demonstrated proficiency in English, Mathematics, Social Studies, and Science” and are thus “unqualified” for high school; and (3)
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allows it to “legally send [ELs] to English Language and adult education programs” based on a misreading of the EEOA and the federal guidance in the EL DCL. MTD at 8, 11–12 & n.22.
To be sure, step one of the three-part test in Castañeda (which the Board ignores) gives officials “substantial latitude” to choose among educationally sound EL programs. See 648 F.2d at 1008–10. However, such “latitude” does not include the wholesale exclusion of ELs from the Board’s regular schools. Indeed, such an interpretation flatly contradicts Congress’s intent to codify Lau in § 1703(f) and leads to absurd results. In Lau, California’s graduation and compulsory education standards, which closely resemble those of Florida,6 informed the Court’s holding that districts must help ELs learn English so that they have a meaningful opportunity to earn a regular diploma. Id. In reaching this holding, the Court rejected the “unqualified” argument that the Board now urges, concluding that to mandate English skills as a prerequisite to participation in the standard educational program would be “to make a mockery of public education.” Id. Indeed, if a district can deny ELs enrollment in regular high schools based on “academic qualifications,” MTD at 8, then new EL immigrants of any age could be denied enrollment in regular schools since their language barriers and schooling abroad often will mean that they lack the academic prerequisites for a given age/grade in U.S. schools. In codifying Lau, Congress rejected this senseless outcome.
The Board also quotes selectively from Horne to argue for unfettered “latitude in choosing the programs and techniques … to meet [its] obligations under the EEOA,” MTD at 12, but omits that Horne itself relied on Castañeda. The language the Board quotes, when read in
6 California required “proficiency in ‘English,’ as well as other prescribed subjects” to obtain a high school diploma, and made education compulsory for “children between the ages of six and 16 years.” Lau, 414 U.S. at 566. The Board suggests that its EEOA and Title VI duties to ELs end at age 16 based on Florida law. MTD at 4-5. While the EEOA and Title VI afford districts and states some latitude over how they will provide ELs access to their regular education programs, a state or school district cannot deny this access entirely. See Hillman v. Maretta, 133 S. Ct
1943, 1949–50 (2013); 42 U.S.C. § 2000h-4 (invalidating any provision of State law when “such provision is
inconsistent with any of the purposes of [Title VI]”).
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context, makes clear that the “latitude” afforded to schools applies only to the type of EL program and techniques offered – for example, bilingual education – and must be exercised in “good faith” to ensure ELs’ meaningful participation in the standard instructional program. Castañeda, 648 F.2d at 1009;7 see also id. at 1011. Indeed, in both Horne and U.S. v. Tex., 601 F.3d 354 (5th Cir. 2010), another case the Board cites for its purported “latitude” to exclude ELs from regular schools, the courts applied Castañeda to examine the EEOA claims. Horne, 557 U.S. at 440–41, 454; Texas, 601 F.3d at 367–73. Far from supporting an argument that this Court should dismiss Plaintiffs’ EEOA claim, the cases demonstrate the fact-intensive inquiry courts must undertake to determine if districts are meeting their obligations under § 1703(f).
The Board’s reliance on Flores v. Huppenthal, 789 F.3d 994 (9th Cir. 2015), is similarly misplaced. See MTD at13. Although Huppenthal invoked Castañeda’s “latitude” quote in stating that the EEOA does not impose an obligation on schools to assist ELs in recovering academic content they have missed while in intensive ELD programs, this statement flatly conflicts with Castañeda’s interpretation of § 1703(f), which is binding on this Court. Huppenthal, 789 F.3d at 1007 (quoting Castañeda, 648 F.2d at 1009). The rest of the Castañeda opinion explains that the “latitude” to choose among EL programs is limited by “a duty to provide [EL] students with assistance in other areas of the curriculum where their equal participation may be impaired
7 By lifting the following “latitude” quote out of context, the Board misinterprets Castañeda and § 1703(f):
Congress, in describing the remedial obligation it sought to impose on the states in the EEOA, did not specify that a state must provide a program of ‘bilingual education’ to all limited English speaking students. We think Congress’ use of the less specific term, ‘appropriate action,’ rather than ‘bilingual education,’ indicates that Congress intended to leave state and local educational authorities a substantial amount of latitude in choosing the programs and techniques they would use to meet their obligations under the EEOA. However, by including an obligation to address the problem of language barriers in the EEOA and granting [EL] students a private right of action to enforce that obligation in s 1706, Congress also must have intended to insure that schools made a genuine and good faith effort, consistent with local circumstances and resources, to remedy the language deficiencies of their students. Id.
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because of deficits incurred during participation in an agency’s [EL] program.” Id. at 1011. Here, Plaintiffs allege that Adult ESOL programs do not even teach other areas and provide no access to the standard program. Further, Huppenthal addressed only whether the district court abused its discretion under Federal Rule 60(b)(5) in granting Arizona’s request for relief from a decadesold judgment for alleged violations of the EEOA based on changed circumstances. See id. at 997–998, 1001–1008. The post-trial, fact-intensive analysis in Huppenthal under Rule 60(b)(5) does not support dismissal under Rule 12(b)(6) of Plaintiffs’ EEOA claim here, especially where Plaintiffs allege that the Board has denied them any semblance of a high school education.8
Lastly, the Board’s argument that the EEOA allows it to “legally send” Plaintiff ELs to Adult ESOL programs misreads this same “latitude” quote as well as federal guidance. MTD at 11-12 & n.22. Consistent with § 1703(f) and Castañeda’s standards, federal guidance advises districts to “place EL students in age-appropriate grade levels so that they can have meaningful access to their grade-appropriate curricula and an equal opportunity to graduate” and cautions districts against placing older ELs who are below grade level in age-inappropriate programs that do not teach core content courses that earn credit toward graduation. EL DCL at 18 & n.50. Neither this guidance nor § 1703(f) allows the Board to exclude ELs from regular high schools and offer only fee-based Adult ESOL programs with no core content instruction. Further, placing 15- to 17-year old ELs in regular high schools is more age-appropriate than placing them with “adults, some of whom are older than the students’ parents or grandparents.” Am Compl. ¶ 62.
8 The Board faults Plaintiffs for not alleging different treatment of similarly situated comparators, MTD at 12, but § 1703(f) does not require proof of intentional discrimination, Castañeda, 648 F.2d at 1008. And offering immigrant ELs an equal opportunity to participate in the standard instructional program and earn a regular high school diploma is the very type of equal treatment that lies at the heart of the EEOA’s “appropriate action” requirement – and not “preferential treatment,” as the Board contends. 20 U.S.C. § 1703(f); MTD at 12.
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II. Title VI Prohibits The Board From Engaging in National Origin Discrimination A. Intentional Discrimination Under Title VI Plaintiffs allege that the Board’s Policy, as applied, excludes recently-arrived foreign-
born students who are 17 or older who, in the view of the Board, cannot meet graduation requirements by the age of 19, and is intentionally discriminatory on the basis of national origin in violation of Title VI. Title VI states that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. To establish a Title VI violation, private litigants must prove a defendant acted with discriminatory intent. See Alexander v. Sandoval, 532 U.S. 275 (2001); Sirpal v. Univ. of Miami, 684 F.Supp.2d 1349, 1357 (S.D. Fl. 2010) (“to state a claim under Title VI, a plaintiff must allege facts establishing discriminatory intent.”).
To assess whether a facially neutral policy, such as the Board’s Policy here, was enacted, at least in part, with discriminatory intent, courts must undertake a “sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977). In doing so, courts rely on factors set forth in Arlington Heights, including: a challenged policy’s discriminatory impact, which “may provide an important starting point” in discerning a decisionmaker’s intent; the historical background; the sequence of events preceding the policy’s enactment; substantive and procedural departures from normal decision-making processes; and contemporaneous statements by decisionmakers. See id. at 265–268. These factors are neither all required nor exhaustive and include the foreseeability and knowledge of a discriminatory impact, as well as the availability of less discriminatory alternatives. See Jean v. Nelson, 711 F.2d 1455, 1486 (11th Cir. 1983). When
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establishing intent under Arlington Heights, “the plaintiff need provide very little such evidence ... to raise a genuine issue of fact ...; any indication of discriminatory motive ... may suffice to raise a question that can only be resolved by a fact-finder.” Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1159 (9th Cir. 2013) (citations omitted).
In arguing that Plaintiffs fail to state a Title VI claim of national origin discrimination, the Board urges application of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which provides a test for employment discrimination claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e–2000e-17. See MTD at 14-16. While the McDonnell Douglas framework is one way of demonstrating intentional discrimination based on national origin, it is not the appropriate framework to prove intentional discrimination under Title VI in this case. The totality of the relevant facts can show that national origin discrimination was the motivation behind a facially neutral law. See Washington v. Davis, 426 U.S. 229, 242 (1976); Arlington Heights, 429 U.S. at 264-68; cf. Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir. 2012) (McDonnell Douglas framework is generally more appropriate for individual claims). Given the neutral policy and facts alleged here, the Arlington Heights framework is more appropriate. See Elston v. Talladega Cty. Bd. of Educ., 997 F.2d 1394 (11th Cir. 1993) (applying Arlington Heights in Title VI intent case); Burton v. City of Belle Glade, 178 F.3d 1175 (11th Cir. 1999).
In determining whether a neutral policy is intentionally discriminatory, a court must also evaluate whether it is applied in a discriminatory way, as Plaintiff ELs have alleged. See Yick Wo v. Hopkins, 118 U.S. 356 (1886).
B. The Board Cannot Establish That Plaintiffs’ Title VI Claim Of Intentional National Origin Discrimination Fails As A Matter Of Law
Under the Arlington Heights framework, Plaintiffs adequately allege facts sufficient to state a plausible Title VI claim, and the inapposite cases the Board cites do not defeat this claim.
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1. Plaintiffs State a Title VI Claim of Intentional Discrimination Plaintiffs’ allegations include precisely the types of facts that courts regularly examine under Arlington Heights when evaluating intentional discrimination claims. Plaintiffs, for example, point to the discriminatory impact of the Board’s policy, which provides an “important starting point” in the intent analysis. Arlington Heights, 429 U.S. at 266 (citing Davis, 426 U.S. at 229). They allege that several hundred foreign-born children between the ages of 15 and 18 have found their way to Adult ESOL programs after being denied access to the Board’s regular high school program, including a free education, core content, credits toward a school diploma, academic enrichment, sports, and extracurricular activities; and that the Board is aware of this fact. Am. Compl. ¶¶ 4, 53–54, 61, 135. More specifically, Plaintiffs allege that in the 2015-2016 school year alone, at least 369 foreign-born students under the age of 18 were attending the Adult ESOL programs instead of Collier’s regular high school. Id. ¶ 106. Based on the timing, a fact-finder could determine that the Board’s decision to amend its policy to constrict access to a regular high school program was motivated, at least in part, by intent to exclude newly arrived foreign-born ELs based on national origin. Until August 1, 2013, the Board’s policy permitted persons to attend the regular high school program until they were 21. Id. Ex. 2. This earlier policy excluded people at age 18 only if they could not meet graduation requirements by the end of the school year during which they became 21 (i.e., up to three years later). Id. Only after the recent influx of unaccompanied EL minors arriving from abroad did the Board alter its policy to lower the age from 21 to 19 and exclude youth at age 17 if they could not, by the end of the school year during which they became 19 (i.e., up to 2 years later), meet the graduation requirements. Id. ¶¶ 41–43, 47, 147. For both policies, the Board asserted the purpose of keeping consistent maturity levels among high school students, even as it allegedly
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applied the policy to students as young as 15. Id. Ex. 2. In addition to the timing, Plaintiffs allege that despite the Policy’s express terms, which apply to both currently enrolled and prospective students, District employees explained to the Board that the Policy targeted “new kids enrolling at our schools.” Id. ¶ 47. Again, a fact-finder could determine that the “new kids” referred to the influx of “recently-arrived, foreign-born, ELL students.”
Plaintiffs also allege that the Board was aware of the harm to ELs created by its Policy, and nonetheless refused to remove those barriers. See id. ¶¶ 27-28, 32, 42, 54-56, 59, 98-99, 134; Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 272 (3d Cir. 2014) (applying deliberate indifference standard to Title VI intentional claim); Utica City Sch. Dist., 2016 WL 1555399 at *9–10.9
Plaintiffs further allege that the Board applies its Policy in a discriminatory manner. Upon Plaintiffs’ information and belief, in contrast to its treatment of recently-arrived, foreign born ELs ages 15 and older, the Board permits students 15 and older “who are not recently arrived, foreign born, ELL students . . . to either enroll in or continue to attend Collier County public schools . . . and earn credits toward a standard high school diploma,” including those “who are not on track to graduate.” Id. ¶¶ 45–46. Plaintiffs allege that because officials conduct no individualized assessments of ELs’ English or academic skills, enrollment decisions are based on discriminatory assumptions that these ELs will fail academically. Id. ¶ 49. In further support of an inference that the Board’s “neutral” Policy is a pretext for national origin discrimination, Plaintiffs claim that the Board imposes a $30/semester cost on ELs sent to Adult ESOL classes
9 See also Faith Action for Cmty. Equity v. Haw., 2015 WL 751134, at *7 (D. Haw. 2015); Almendares v. Palmer, 284 F. Supp. 2d 799, 806 (N.D. Ohio 2003) (“disparate impact, history of the state action, and foreseeability and knowledge of the discriminatory onus placed upon the complainants” is the type of circumstantial evidence upon which a case of intentional discrimination is often based.) (citations omitted); Cabrera v. Alvarez, 977 F.Supp. 2d 969, 973 (N.D. Cal. 2013) (a year before the lawsuit the plaintiff filed a complaint with the recipient “citing the failure to provide language translation services and the uninhabitable and unremedied living conditions”).
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and fails to keep records of attempts to enroll these EL children in regular high schools. Id. ¶¶ 47–48; see Utica, 2016 WL 1555399 at *10 (that district employees did not keep records, among other factual allegations, states a plausible claim of intentional discrimination under Title VI).
Plaintiffs also allege the Board’s actions depart substantively and procedurally from its Policy and state law. Id. ¶¶ 50–64. The Policy expressly applies to students over the age of 17, but the Board allegedly departs from the criteria set out in its own Policy by applying it to 15and 16-year-old ELs. Id. ¶ 44. The Board also allegedly turned away two Plaintiff ELs without offering them an adult program at all, even though the Policy is phrased in mandatory terms (person excluded “shall be afforded an opportunity to pursue a high school diploma” through other “programs of the District”). Id. ¶¶ 80, 89. Plaintiffs further allege deviations from state law: that students 16 and older are only “adults” under Florida law if they file a formal declaration of intent to terminate school enrollment with a school board. Id. ¶ 21. None of the named ELs filed such a declaration or was given the opportunity to appeal Collier’s denial of their enrollment; all want to continue their education. Id. ¶ 97. Charging EL students a fee for English instruction is also inconsistent with state and federal requirements.10 Id. ¶¶ 4–6. Plaintiffs’ factual allegations easily lend themselves to the sensitive, fact-intensive inquiry required under Arlington Heights and are sufficient to state a claim of intentional discrimination under Title VI.
2. Plaintiffs Allege National Origin Discrimination A policy that denies or limits ELs’ opportunity to participate in a federally funded program based on language barriers has long been recognized as implicating Title VI’s protections against national origin discrimination because there is an obvious nexus between limited English proficiency and national origin. See Lau, 414 U.S. at 568 (“[i]t seems obvious
10 See Dep’t of Justice, Guidance to Fed. Fin. Assistance Recipients Re. Title VI Prohibition Against National Origin Discrimination Affecting [LEP] Persons, 67 Fed. Reg. 41,455 (Jun. 18, 2002); see also Fla. Const. art. IX, § 1(a) (requiring a free public education).
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that the Chinese-speaking minority receive fewer benefits than the English-speaking majority from respondents’ school system which denies them a meaningful opportunity to participate in the educational program”). The non-binding cases the Board cites, such as Mumid v. Abraham Lincoln High Sch., 618 F.3d 789 (8th Cir. 2010), MTD at 16, overlook this longstanding Title VI precedent and ignore the sensitive inquiry that Arlington Heights demands. Indeed, a court recently declined to follow Mumid, noting “the absence of any discussion [in Mumid] of the Supreme Court’s decision in Lau.” U.S. v. Maricopa Cty., 915 F.Supp. 2d 1073, 1081 (8th Cir. 2012).
The Board asserts that Plaintiffs have not adequately pled a claim of intentional national origin discrimination under Title VI because “language and national origin are not interchangeable.” MTD at 16 (citing Mumid).11 As we understand Plaintiffs’ Amended Complaint, however, they do not claim that language and national origin are always interchangeable, such that a language barrier always results in intentional national origin discrimination. Rather, they allege that denying recently-arrived foreign-born ELs the opportunity to participate in the standard educational program, when examined in light of the totality of facts, can give rise to a claim of intentional national origin discrimination.
Indeed, Mumid did not dismiss the plaintiffs’ Title VI intent claim out of hand; rather, the claim was resolved on the basis of the record evidence at summary judgment. See 618 F.3d at 795. Moreover, regardless of the ultimate merits of the plaintiffs’ Title VI claim in Mumid, the school district in that case, unlike the Board here, actually provided the plaintiffs an education. As relevant here, Mumid erred in limiting its Title VI analysis to whether the plaintiffs could establish intentional discrimination through a facially discriminatory policy, direct evidence of
11 The Board’s focus on language also overlooks that Plaintiffs allege that the Board engages in national origin discrimination against the foreign born.
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discriminatory animus, or the McDonnell Douglas framework. Id. at 794–95. These approaches are not required to prove intentional discrimination under Title VI. Indeed, the court in Mumid did not even consider the settled Arlington Heights framework applicable here. 12
3. The Board’s Reliance on Holton Is Misplaced Lastly, the Board argues that “the State’s academic prerequisites for high school matriculation and adult education provide the kind of ability grouping that has been repeatedly upheld.” MTD at 3 (citing Holton v. City of Thomasville Sch. Dist., 490 F.3d 1257 (11th Cir. 2007)); see also MTD at 8–9 n.20, 11, 14, 16, 19. This line of Title VI cases, which rely on McNeal v. Tate Cty. Sch. Dist., 508 F.2d 1017 (5th Cir. 1975), has no place here.13 McNeal and its progeny, including Holton, address the narrow question of whether ability grouping is constitutionally permissible when it results in racially segregated classrooms within a school in a district that has a history of de jure segregation. McNeal affirms the “basic rule” prohibiting intentional segregation of students within schools and provides a standard for reviewing ability grouping across classes that has a disparate racial impact in districts with a history of de jure or de facto segregation that have or have not achieved unitary status. McNeal, 508 F.2d at 1019–20. By contrast, the Plaintiffs here allege the Board has a policy of intentionally excluding recent immigrant ELs from its regular high schools altogether and funneling them to non-credit, Adult ESOL programs in violation of Title VI and the EEOA. Holton is not an EEOA or EL case, and in the few desegregation cases where EEOA or Title VI claims by ELs have arisen,
12 The other cases the Board cites can be similarly distinguished. See Soberal-Perez v. Heckler, 717 F.2d 36, 38-41 (2d Cir. 1983) (Title VI claim against federal agency dismissed because Title VI does not apply to federally conducted programs and intent not alleged under Equal Protection claim); Olagues v. Russioniello. 770 F.2d 791 (9th Cir. 1985) (alleged facial classification under Voting Rights Act and U.S. Constitution); Santiago-Lebron v. Florida Parole Com'm, 767 F. Supp. 2d 1340, 1349 (S.D. Fla. 2011) (language and national origin not interchangeable in federal inmate’s habeas corpus case against the state bureau of prisons). 13 The Board cites Ga. State Conf. of Branches of NAACP v. Ga., 775 F.2d 1403 (11th Cir. 1985). MTD at 16. Like Holton, Georgia looks at ability grouping in the school desegregation context and is inapposite.
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courts carefully isolated the claims, citing McNeal solely with respect to classroom segregation,

and applying Castañeda’s three-part test to assess the adequacy of the EL program. See, e.g., Castañeda, 648 F.2d at 995–99; Morales v. Shannon, 516 F.2d 411, 413 (5th Cir. 1975).14 None

of the cases contemplated complete exclusion of ELs from regular high school programs.

Further, even if Holton were apposite, it would not foreclose Plaintiffs’ Title VI claim,

which alleges that the Board is intentionally segregating recently-arrived ELs out of a desire to

exclude them from the district’s regular high school programs. Am. Compl. ¶¶ 4, 46–50, 67, 70–

71, 74, 80, 86–87, 94. As the Eleventh Circuit made clear in its first Holton opinion: “‘[S]chool

systems are free to employ ability grouping, even when such a policy has a segregative effect, so

long, of course, as such a practice is genuinely motivated by educational concerns and not

discriminatory motives.’” 425 F.3d 1325, 1347 (11th Cir. 2005) (quoting Castañeda, 648 F.2d at

996–97) (emphasis in original). The Holton court went on to say that the proper resolution of

such a case turns on a careful assessment of the facts. Id. at 1348.

CONCLUSION The Board’s motion to dismiss Plaintiffs’ EEOA and Title VI claims should be denied.

Respectfully submitted,

A. LEE BENTLEY, III United States Attorney Middle District of Florida
s/ Yohance A. Pettis____________ YOHANCE A. PETTIS Assistant United States Attorney United States Attorney's Office

VANITA GUPTA Principal Deputy Assistant Attorney General EVE L. HILL Deputy Assistant Attorney General
SHAHEENA SIMONS (CA 225520) EMILY MCCARTHY (DC 463447) Educational Opportunities Section

14 Morales relies on McNeal when analyzing plaintiffs’ claims concerning the segregation of Mexican-American students and cites the EEOA and Lau when examining plaintiffs’ claims involving the lack of bilingual-bicultural instruction. 516 F.2d at 413, 415. Similarly, in Castañeda, Mexican-American students alleged, inter alia, that the school district used ability grouping that resulted in impermissible classroom segregation, and that court, citing McNeal, explained “[t]he rationale supporting judicial proscription of ability grouping” in the context of historically segregated schools. Id. at 996. Notably, the court applied the three-part test under § 1703(f) of the EEOA, not McNeal standards, to analyze the claim that the EL instruction was inadequate with respect to access to content.
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Middle District of Florida 400 North Tampa Street, Suite 3200 Tampa, FL 33602 Fla. Bar No.: 021216 Fax: 813-274-6198 Phone: 813-274-6000 Email: yohance.pettis@usdoj.gov
Dated: September 26, 2016

CHRISTINE STONEMAN (DC 462557) ANNA M. MEDINA (DC 483183) Federal Coordination and Compliance Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - NWB Washington, DC 20530 Telephone: (202) 353-3936 Email: anna.medina@usdoj.gov

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Statement of Interest of the United States of America has been filed electronically using the Court’s Electronic Case Filing (“ECF”) System, which sent a notice of filing activity to all attorneys of record. This document is available for viewing and downloading from the Court’s ECF System.

Dated: September 23, 2016

s/ Yohance A. Pettis YOHANCE A. PETTIS Assistant United States Attorney United States Attorney's Office Middle District of Florida 400 North Tampa Street, Suite 3200 Tampa, FL 33602 Fla. Bar No.: 021216 Fax: 813-274-6198 Phone: 813-274-6000 Email: yohance.pettis@usdoj.gov

22

 
 Case: 2:16-cv-379 As of: 05/27/2020 08:58 PM EDT 1 of 29
U.S. District Court Middle District of Florida (Ft. Myers) CIVIL DOCKET FOR CASE #: 2:16−cv−00379−DNF

CLOSED

Methelus et al v. The School Board Of Collier County, Florida et al Assigned to: Magistrate Judge Douglas N. Frazier Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 05/18/2016 Date Terminated: 05/28/2019 Jury Demand: Defendant Nature of Suit: 448 Civil Rights: Education Jurisdiction: Federal Question

Lesly Methelus on behalf of Y.M., a minor, on behalf of themselves and all others similarly situated TERMINATED: 08/02/2017

represented by Gillian B. Gillers Southern Poverty Law Center Suite 340 150 E. Ponce de Leon Ave. Decatur, GA 30030 404/521−6700 Email: GILLIAN.GILLERS@SPLCENTER.ORG LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica Zagier Wallace Southern Poverty Law Center P.O. Box 370037 Miami, FL 33137 786−347−2056 Fax: 786−237−2949 Email: zagierlaw@gmail.com TERMINATED: 12/11/2017 LEAD ATTORNEY

Michelle R. Lapointe Southern Poverty Law 150 East Ponce de Leon Ave. Suite 340 Decatur, GA 30030 404/521−6700 Fax: 404/221−5857 Email: michelle.lapointe@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tania Galloni Southern Poverty Law Center P.O. Box 370037 Miami, FL 33137 305 440 5433 Fax: 850.681.0020 Email: tgalloni@earthjustice.org TERMINATED: 09/28/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Rosalba Ortiz on behalf of G.O., a minor, on behalf of themselves and all others similarly situated TERMINATED: 08/02/2017

represented by Gillian B. Gillers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica Zagier Wallace (See above for address) TERMINATED: 12/11/2017

Case: 2:16-cv-379 As of: 05/27/2020 08:58 PM EDT 2 of 29

LEAD ATTORNEY

Michelle R. Lapointe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tania Galloni (See above for address) TERMINATED: 09/28/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Zoila Lorenzo on behalf of M.D., a minor, on behalf of themselves and all others similarly situated TERMINATED: 08/02/2017

represented by Gillian B. Gillers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica Zagier Wallace (See above for address) TERMINATED: 12/11/2017 LEAD ATTORNEY

Michelle R. Lapointe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tania Galloni (See above for address) TERMINATED: 09/28/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Maria Ange Joseph on behalf of K.V., a minor, on behalf of themselves and all others similarly situated, TERMINATED: 08/02/2017

represented by Gillian B. Gillers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica Zagier Wallace (See above for address) TERMINATED: 12/11/2017 LEAD ATTORNEY

Michelle R. Lapointe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tania Galloni (See above for address) TERMINATED: 09/28/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Emile Antoine on behalf of N.A., a minor, on behalf of themselves and all others similarly situated TERMINATED: 08/02/2017

represented by Gillian B. Gillers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:16-cv-379 As of: 05/27/2020 08:58 PM EDT 3 of 29

Jessica Zagier Wallace (See above for address) TERMINATED: 12/11/2017 LEAD ATTORNEY

Michelle R. Lapointe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tania Galloni (See above for address) TERMINATED: 09/28/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Lucenie Hilaire Durosier on behalf of T.J.H., a minor, on behalf of themselves and all others similarly situated TERMINATED: 08/02/2017

represented by Gillian B. Gillers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica Zagier Wallace (See above for address) TERMINATED: 12/11/2017 LEAD ATTORNEY

Michelle R. Lapointe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tania Galloni (See above for address) TERMINATED: 09/28/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Marta Alonso as next friend on behalf of I.A., on behalf of themselves and all others similarly situated, TERMINATED: 12/27/2018

represented by Gillian B. Gillers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica Zagier Wallace (See above for address) TERMINATED: 12/11/2017 LEAD ATTORNEY

Michelle R. Lapointe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Viviana Bonilla Lopez Southern Poverty Law Center 4770 Biscayne Blvd. Miami, FL 33137 786/347−2056 Fax: 786/237−2949 Email: viviana.bonillalopez@splcenter.org TERMINATED: 09/03/2019 ATTORNEY TO BE NOTICED

Case: 2:16-cv-379 As of: 05/27/2020 08:58 PM EDT 4 of 29

Plaintiff Waybert Nicolas on behalf of themselves and all others similarly situated TERMINATED: 08/02/2017
Plaintiff Nehemy Antoine
Plaintiff Techleer Junior Hilaire TERMINATED: 11/03/2017
Plaintiff Ingrid Alonzo

represented by Gillian B. Gillers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica Zagier Wallace (See above for address) TERMINATED: 12/11/2017 LEAD ATTORNEY
Michelle R. Lapointe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gillian B. Gillers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica Zagier Wallace (See above for address) TERMINATED: 12/11/2017 LEAD ATTORNEY
Michelle R. Lapointe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Viviana Bonilla Lopez (See above for address) TERMINATED: 09/03/2019 ATTORNEY TO BE NOTICED
represented by Gillian B. Gillers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica Zagier Wallace (See above for address) TERMINATED: 12/11/2017 LEAD ATTORNEY
Michelle R. Lapointe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gillian B. Gillers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle R. Lapointe (See above for address)

Case: 2:16-cv-379 As of: 05/27/2020 08:58 PM EDT 5 of 29
LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Viviana Bonilla Lopez (See above for address) TERMINATED: 09/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant The School Board Of Collier County, Florida
Defendant Kamela Patton Superintendent of Collier County Public Schools, in her official capacity
Interested Party United States of America

represented by James Donald Fox Roetzel & Andress, LPA Suite 300 850 Park Shore Dr Naples, FL 34103 239/649−2705 Fax: 239/261−3659 Email: jfox@ralaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan D. Fishbane Collier County School District 5775 Osceola Tr Naples, FL 34109−0919 239/377−0499 Fax: 239/377−0501 Email: fishbj@collierschools.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James Donald Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan D. Fishbane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anna Marie Medina US Department of Justice − Civil Rights Division* 950 Pennsylvania Ave NW Washington, DC 20530 Email: anna.medina@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Yohance Asim Pettis US Attorney's Office − FLM Suite 3200 400 N Tampa St Tampa, FL 33602−4798 813/274−6000 Fax: 813/274−6200

Case: 2:16-cv-379 As of: 05/27/2020 08:58 PM EDT 6 of 29

Email: yohance.pettis@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Counter Claimant
Kamela Patton Superintendent of Collier County Public Schools, in her official capacity TERMINATED: 08/09/2017

represented by James Donald Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan D. Fishbane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Counter Claimant
The School Board Of Collier County, Florida TERMINATED: 08/09/2017

represented by James Donald Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan D. Fishbane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/18/2016
05/19/2016 05/19/2016 05/20/2016 05/20/2016 05/20/2016 05/26/2016
06/01/2016 06/01/2016 06/01/2016

# Docket Text
1 COMPLAINT For Declaratory and Injunctive Relief against Kamela Patton, The School Board Of Collier County, Florida (Filing fee $400 receipt number FTM009403) filed by Rosalba Ortiz, Lesly Methelus, Zoila Lorenzo. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Civil Cover Sheet)(RMT) (Entered: 05/19/2016)
2 INTERESTED PERSONS ORDER Certificate of interested persons and corporate disclosure statement due by 6/2/2016. Signed by All Divisional Judges on 5/19/2016. (BJH) (Entered: 05/19/2016)
3 RELATED CASE ORDER AND NOTICE of designation under Local Rule 3.05 − track 2. Notice of pendency of other actions due by 6/2/2016. Signed by All Divisional Judges on 5/19/2016. (BJH) (Entered: 05/19/2016)
4 SUMMONS issued as to The School Board Of Collier County, Florida. (drn) (Entered: 05/20/2016)
5 SUMMONS issued as to Kamela Patton. (drn) (Entered: 05/20/2016)
6 STANDING ORDER: Filing of documents that exceed twenty−five pages. Signed by All Divisional Judges on 5/20/2016. (drn) (Entered: 05/20/2016)
7 MOTION to Certify Class by All Plaintiffs. (Attachments: # 1 Exhibit Declaration of Jennifer Anzardo Valdes, # 2 Exhibit Plaintiffs' Verifications, # 3 Exhibit Letter of Defendants, # 4 Exhibit Declarations of Counsel Tania Galloni and Jessica Zagier Wallace)(Wallace, Jessica) (Entered: 05/26/2016)
8 NOTICE of Appearance by James Donald Fox on behalf of Kamela Patton, The School Board Of Collier County, Florida (Fox, James) (Entered: 06/01/2016)
9 CERTIFICATE of interested persons and corporate disclosure statement by Kamela Patton, The School Board Of Collier County, Florida. (Fox, James) (Entered: 06/01/2016)
10 NOTICE of pendency of related cases re 3 Related case order and track 2 notice per Local Rule 1.04(d) by Zoila Lorenzo, Lesly Methelus, Rosalba Ortiz. Related case(s): no (Wallace, Jessica) (Entered: 06/01/2016)

Case: 2:16-cv-379 As of: 05/27/2020 08:58 PM EDT 7 of 29

06/01/2016 06/02/2016 06/02/2016 06/02/2016 06/15/2016 06/15/2016 06/21/2016 06/21/2016 06/22/2016
06/22/2016
07/07/2016 07/07/2016 07/08/2016
07/13/2016 07/18/2016 07/19/2016 07/21/2016

11 CERTIFICATE of interested persons and corporate disclosure statement re 2 Interested persons order by Zoila Lorenzo, Lesly Methelus, Rosalba Ortiz. (Wallace, Jessica) (Entered: 06/01/2016)
12 NOTICE of hearing: Preliminary Pretrial Conference set for 7/19/2016 at 09:30 AM in Ft. Myers Courtroom 5 C before Magistrate Judge Mac R. McCoy. (BJH) (Entered: 06/02/2016)
13 NOTICE of Appearance by Jonathan D. Fishbane on behalf of Kamela Patton, The School Board Of Collier County, Florida (Fishbane, Jonathan) (Entered: 06/02/2016)
14 TEXT ORDER. Notwithstanding any prior Order of the Court, the parties are to file a joint Case Management Report no later than July 12, 2016. Signed by Magistrate Judge Mac R. McCoy on 6/2/2016. (brh) (Entered: 06/02/2016)
15 RETURN of service executed on May 31, 2016 by Rosalba Ortiz, Lesly Methelus, Zoila Lorenzo as to Kamela Patton. (Wallace, Jessica) (Entered: 06/15/2016)
16 RETURN of service executed on May 31, 2016 by Rosalba Ortiz, Lesly Methelus, Zoila Lorenzo as to The School Board Of Collier County, Florida. (Wallace, Jessica) (Entered: 06/15/2016)
17 MOTION for Extension of Time to File Answer re 1 Complaint by All Defendants. (Fox, James) Motions referred to Magistrate Judge Mac R. McCoy. (Entered: 06/21/2016)
18 MOTION for Extension of Time to File Response/Reply to Motion to Certify Class Action by All Defendants. (Fox, James) Motions referred to Magistrate Judge Mac R. McCoy. (Entered: 06/21/2016)
19 ENDORSED ORDER granting 17 Agreed Motion for Extension of Time. Defendants shall have until July 18, 2016 in which to file a response to the Complaint. Signed by Magistrate Judge Mac R. McCoy on 6/22/2016. (brh) (Entered: 06/22/2016)
20 ENDORSED ORDER granting 18 Motion for Extension of Time to Respond to Motion to Certify Class Action. Defendants shall have until August 5, 2016 in which to file a response to Plaintiffs' Motion to Certify Class Action. Signed by Magistrate Judge Mac R. McCoy on 6/22/2016. (brh) (Entered: 06/22/2016)
21 Unopposed MOTION for Michelle R. Lapointe to appear pro hac vice by All Plaintiffs. (Galloni, Tania) Motions referred to Magistrate Judge Mac R. McCoy. (Entered: 07/07/2016)
***PRO HAC VICE FEES paid and Special Admission Attorney Certification Form filed by attorney Michelle Lapointe, appearing on behalf of plaintiffs. (Filing fee $150 receipt number FtM009619.). (drn) (Entered: 07/07/2016)
22 ORDER granting 21 Unopposed Motion to Appear Pro Hac Vice. The Clerk is directed to add Michelle R Lapointe to the service list. Within 14 days, Counsel shall register for CM/ECF. Signed by Magistrate Judge Mac R. McCoy on 7/8/2016. (brh) (Entered: 07/08/2016)
23 CASE MANAGEMENT REPORT. (Galloni, Tania) (Entered: 07/13/2016)
24 MOTION to dismiss for failure to state a claim by All Defendants. (Fox, James) (Entered: 07/18/2016)
25 Minute Entry. Proceedings held before Magistrate Judge Mac R. McCoy: PRELIMINARY PRETRIAL CONFERENCE held on 7/19/2016. (BJH) (Entered: 07/19/2016)
26 REPORT AND RECOMMENDATION recommending 7 Motion for Class Certification be denied without prejudice; and that this matter be referred to the Undersigned for the entry of a Case Management and Scheduling Order consistent with the recommendations set forth in the Report and Recommendation. Signed by Magistrate Judge Mac R. McCoy on 7/21/2016. (brh) (Entered: 07/21/2016)

Case: 2:16-cv-379 As of: 05/27/2020 08:58 PM EDT 8 of 29

07/22/2016 07/22/2016
08/03/2016 08/08/2016 08/09/2016 08/10/2016
08/11/2016 08/19/2016 08/19/2016
08/31/2016 09/09/2016 09/26/2016 09/26/2016 09/27/2016 09/27/2016
09/27/2016 09/28/2016

27 Unopposed MOTION to extend time to Respond to Motion to Dismiss by All Plaintiffs. (Lapointe, Michelle) Motions referred to Magistrate Judge Mac R. McCoy. (Entered: 07/22/2016)
28 ENDORSED ORDER granting 27 Unopposed Motion for Extension of Time to File Response to Motion to Dismiss. Plaintiffs shall have until August 10, 2016 in which to file a response. Signed by Magistrate Judge Mac R. McCoy on 7/22/2016. (brh) (Entered: 07/22/2016)
29 OBJECTION re 26 REPORT AND RECOMMENDATIONS re 7 MOTION to Certify Class filed by Zoila Lorenzo, Rosalba Ortiz, Lesly Methelus. . (Wallace, Jessica) (Entered: 08/03/2016)
30 AMENDED COMPLAINT against All Defendants filed by All Plaintiffs. (Attachments: # 1 Exhibit 1: Collier County ELL Plan, # 2 Exhibit 2: District Policy 5112.01)(Lapointe, Michelle) (Entered: 08/08/2016)
31 ORDER denying as moot 24 Motion to Dismiss for Failure to State a Claim. Signed by Judge Sheri Polster Chappell on 8/9/2016. (laf) (Entered: 08/09/2016)
32 FIRST AMENDED CERTIFICATE of interested persons and corporate disclosure statement re 2 Interested persons order First Amended by Emile Antoine, Lucenie Hilaire Durosier, Ange Marie Joseph, Zoila Lorenzo, Lesly Methelus, Rosalba Ortiz. (Wallace, Jessica) Modified on 8/11/2016, to correct docket entry. (SPB). (Entered: 08/10/2016)
33 RESPONSE to objections to 26 Report and Recommendations by Kamela Patton, The School Board Of Collier County, Florida. (Fox, James) (Entered: 08/11/2016)
34 Unopposed MOTION to extend time to respond to Amended Complaint by All Defendants. (Fox, James) Motions referred to Magistrate Judge Mac R. McCoy. (Entered: 08/19/2016)
35 ENDORSED ORDER granting 34 Unopposed Motion for Extension of Time. Defendants shall have until September 9, 2016 in which to file a response to the Amended Complaint. Signed by Magistrate Judge Mac R. McCoy on 8/19/2016. (brh) (Entered: 08/19/2016)
36 NOTICE of unavailability of counsel by Kamela Patton, The School Board Of Collier County, Florida from December 19, 2016 to January 2, 2017. (Fox, James) (Entered: 08/31/2016)
37 MOTION to Dismiss Amended Complaint by All Defendants. (Fox, James) (Entered: 09/09/2016)
38 NOTICE by United States re 37 MOTION to Dismiss Amended Complaint (Statement of Interest) (Pettis, Yohance) (Entered: 09/26/2016)
39 RESPONSE in Opposition re 37 MOTION to Dismiss Amended Complaint filed by Emile Antoine, Lucenie Hilaire Durosier, Ange Marie Joseph, Zoila Lorenzo, Lesly Methelus, Rosalba Ortiz. (Lapointe, Michelle) (Entered: 09/26/2016)
40 MOTION for Tania Galloni to withdraw as attorney (Unopposed motion) by All Plaintiffs. (Wallace, Jessica) Motions referred to Magistrate Judge Mac R. McCoy. (Entered: 09/27/2016)
41 ENDORSED ORDER granting 40 the Unopposed Motion to Withdraw Tania Galloni as Counsel. Tania Galloni shall have no further responsibility in this action. The Clerk of Court is directed to remove Tania Galloni from receiving further notices of electronic filing in this matter. Signed by Magistrate Judge Mac R. McCoy on 9/27/2016. (JTM) (Entered: 09/27/2016)
42 Unopposed MOTION for Leave to File Excess Pages by All Plaintiffs. (Wallace, Jessica) (Entered: 09/27/2016)
43 ENDORSED ORDER granting Plaintiffs' Unopposed Motion for Leave to File Excess Pages (Doc. #42) filed on September 27, 2016. Signed by Judge Sheri Polster Chappell on 9/28/2016. (CMC) (Entered: 09/28/2016)

Case: 2:16-cv-379 As of: 05/27/2020 08:58 PM EDT 9 of 29

10/07/2016 10/11/2016
11/15/2016 11/21/2016
11/22/2016 11/29/2016 11/29/2016 11/30/2016
12/02/2016 12/05/2016 12/09/2016 12/09/2016 12/12/2016 12/12/2016
12/12/2016 12/22/2016

44 MOTION for leave to file Respond to Statement of Interested filed by the Justice Department by All Defendants. (Fox, James) (Entered: 10/07/2016)
45 ENDORSED ORDER granting 44 Unopposed Motion for Leave to Respond to Statement of Interest by the United States. Defendants are permitted to file a response that does not exceed 10 pages in length, excluding signature block and certificate of service. Signed by Magistrate Judge Mac R. McCoy on 10/11/2016. (brh) (Entered: 10/11/2016)
46 MOTION for miscellaneous relief, specifically Schedule Status Conference by All Plaintiffs. (Lapointe, Michelle) (Entered: 11/15/2016)
47 TEXT ORDER amending 45 ENDORSED ORDER granting 44 Unopposed Motion for Leave to Respond to Statement of Interest by the United States. The ENDORSED ORDER 45 is amended to add that Defendants shall file their response to the Statement of Interest by the United States on or before December 5, 2016. Signed by Magistrate Judge Mac R. McCoy on 11/21/2016. (brh) (Entered: 11/21/2016)
48 NOTICE by Kamela Patton, The School Board Of Collier County, Florida Re: Mot. for Misc. Relief #46 (Attachments: # 1 Exhibit Ex. A (Email))(Fox, James) (Entered: 11/22/2016)
49 ORDER denying 46 Plaintiffs' Motion for Status Conference. Signed by Judge Sheri Polster Chappell on 11/29/2016. (LMF) (Entered: 11/29/2016)
50 MOTION for Extension of Time to File Response/Reply to Request for Production by All Defendants. (Attachments: # 1 Exhibit)(Fox, James) Motions referred to Magistrate Judge Mac R. McCoy. (Entered: 11/29/2016)
51 ORDER granting 50 Motion for Extension of Time to Respond to Request for Production. Defendants shall have an additional 20 days to respond to Plaintiffs' Requests for Production and shall have a reasonable period of time thereafter to produce the documents responsive to the requests that are not subject to objection or a claim of privilege. Signed by Magistrate Judge Mac R. McCoy on 11/30/2016. (brh) (Entered: 11/30/2016)
52 NOTICE by United States re 38 Notice (Other) (Attachments: # 1 Errata Corrected Statement of Interest)(Medina, Anna) (Entered: 12/02/2016)
53 Response to Interest of the United States re 38 Notice by All Defendants. (Fox, James) Modified on 12/6/2016 to edit docket text and filing event (drn). (Entered: 12/05/2016)
54 MOTION for miscellaneous relief, specifically to file a Corrected Response to the U.S. by All Defendants. (Attachments: # 1 Exhibit Corrected Response)(Fox, James) (Entered: 12/09/2016)
55 Unopposed MOTION for leave to file Response to Defendants' Response to Statement of Interest of the United States by All Plaintiffs. (Lapointe, Michelle) (Entered: 12/09/2016)
56 ENDORSED ORDER granting 54 Unopposed Motion to File Corrected Response to the Interest of the United States. The Clerk of Court is directed to file the Response as a new and separate document. Signed by Magistrate Judge Mac R. McCoy on 12/12/2016. (brh) (Entered: 12/12/2016)
57 ENDORSED ORDER granting 55 Unopposed Motion for Leave to Respond to Defendants' Response to the Statement of Interest of the United States. Within 14 days, Plaintiff may file a Reply to Defendants' Response to the Statement of Interest of the United States. Signed by Magistrate Judge Mac R. McCoy on 12/12/2016. (brh) (Entered: 12/12/2016)
58 RESPONSE to the interest of the United States re 52 Notice by Kamela Patton, The School Board Of Collier County, Florida. (drn) (Entered: 12/13/2016)
59 REPLY to Response to Motion re 53 MOTION for miscellaneous relief, specifically Response to Interest of the United States filed by Emile Antoine, Lucenie Hilaire Durosier, Ange Marie Joseph, Zoila Lorenzo, Lesly Methelus, Rosalba Ortiz. (Lapointe, Michelle) (Entered: 12/22/2016)

Case: 2:16-cv-379 As of: 05/27/2020 08:58 PM EDT 10 of 29

01/31/2017 03/08/2017 03/17/2017
03/17/2017
03/20/2017 04/03/2017 04/03/2017 04/04/2017 04/04/2017 04/18/2017 04/18/2017 04/20/2017

60 NOTICE of supplemental authority re 37 MOTION to Dismiss Amended Complaint , 39 Response in Opposition to Motion, 38 Notice (Other), 59 Reply to Response to Motion by Emile Antoine, Lucenie Hilaire Durosier, Ange Marie Joseph, Zoila Lorenzo, Lesly Methelus, Rosalba Ortiz. (Attachments: # 1 Exhibit Issa v. Lancaster School Dist. (3d Cir. Jan. 30, 2017))(Lapointe, Michelle) (Entered: 01/31/2017)
61 NOTICE of supplemental authority re 37 MOTION to Dismiss Amended Complaint by Kamela Patton, The School Board Of Collier County, Florida. (Attachments: # 1 Exhibit Supplemental Authority)(Fox, James) (Entered: 03/08/2017)
62 OPINION and ORDER granting in part and denying in part 37 Defendants School Board of Collier County, Florida and Kamela Patton's Motion to Dismiss. It is granted only to the extent that Counts II, III, and IV as against Defendant Kamela Patton are dismissed − those counts survive as against the School Board. The motion is denied in all other respects. Defendants shall file an answer to the Amended Complaint in accordance on or before April 3, 2017. Signed by Judge Sheri Polster Chappell on 3/17/2017. (LMF) (Entered: 03/17/2017)
63 ORDER adopting the Report and Recommendation of United States Magistrate Judge Mac R. McCoy. The Report and Recommendation of United States Magistrate Judge Mac R. McCoy 26 is ACCEPTED and ADOPTED, and the finding incorporated erein. Plaintiffs' Motion for Class Certification 7 is DENIED without prejudice. The matter is REFERRED to the Honorable Mac R. McCoy to hold a second preliminary pretrial conference in order to (1) discuss both case−management deadlines and a new motion for class certification deadline; and (2) issue a Case Management and Scheduling Order. The parties are directed to meet and confer in person in order to prepare an Amended Case Management Report, which they shall jointly file on or before April 3, 2017. Signed by Judge Sheri Polster Chappell on 3/17/2017. (LMF) (Entered: 03/17/2017)
64 NOTICE of hearing: Second Preliminary Pretrial Conference set for 4/18/2017 at 10:00 AM in Ft. Myers Courtroom 5 C before Magistrate Judge Mac R. McCoy. (jmc) (Entered: 03/20/2017)
65 ANSWER and affirmative defenses with Jury Demand to 30 Amended Complaint , COUNTERCLAIM against All Defendants by Kamela Patton, The School Board Of Collier County, Florida.(Fox, James) (Entered: 04/03/2017)
66 NOTICE of filing of Plaintiffs' proposed amended case management report and MOTION to extend time to file joint report by Emile Antoine, Lucenie Hilaire Durosier, Ange Marie Joseph, Zoila Lorenzo, Lesly Methelus, Rosalba Ortiz re 63 Order Adopting Report and Recommendations (Wallace, Jessica) Modified on 4/4/2017, to correct docket text. (SPB). (Entered: 04/03/2017)
67 ENDORSED ORDER granting 66 Motion to Extend Time to File Joint Report. The parties shall file their joint Amended Case Management Report by today, April 4, 2017. Signed by Magistrate Judge Mac R. McCoy on 4/4/2017. (brh) (Entered: 04/04/2017)
68 CASE MANAGEMENT REPORT. (Lapointe, Michelle) (Entered: 04/04/2017)
69 Minute Entry. Proceedings held before Magistrate Judge Mac R. McCoy: PRELIMINARY PRETRIAL CONFERENCE held on 4/18/2017. (Digital) (jmc) (Entered: 04/18/2017)
70 ORDER requiring Plaintiffs to file a response to the Counterclaim by April 24, 2017; file a motion for leave to add parties and amend pleadings by April 28, 2017; and file any motion related to Defendants' jury demand by May 2, 2017. Signed by Magistrate Judge Mac R. McCoy on 4/18/2017. (brh) (Entered: 04/18/2017)
71 CASE MANAGEMENT AND SCHEDULING ORDER: Final Pretrial Conference set for 1/25/2019 at 09:30 AM in Ft. Myers Courtroom 5 D before Judge Sheri Polster Chappell, Trial commencing 2/4/2019 at 09:00 AM in Ft. Myers Courtroom 5 D before Judge Sheri Polster Chappell. Signed by Magistrate Judge Mac R. McCoy on 4/20/2017. (jmc) (Entered: 04/20/2017)

Case: 2:16-cv-379 As of: 05/27/2020 08:58 PM EDT 11 of 29

04/24/2017 04/26/2017 04/28/2017 05/01/2017 05/03/2017
05/08/2017 05/08/2017 05/09/2017
05/11/2017 05/15/2017 05/16/2017 05/17/2017 05/24/2017 05/29/2017 06/14/2017

72 MOTION to dismiss the Counterclaim of Defendant / Counter Plaintiff The School Board of Collier County, Florida by All Plaintiffs. (Lapointe, Michelle) Modified on 4/25/2017, to edit docket text. (SPB). (Entered: 04/24/2017)
73 NOTICE of unavailability of counsel by Kamela Patton, The School Board Of Collier County, Florida from See Notice. (Fox, James) (Entered: 04/26/2017)
74 Unopposed MOTION for leave to file Second Amended Complaint by All Plaintiffs. (Attachments: # 1 Exhibit Proposed Second Amended Complaint with Exhibits, # 2 Exhibit Redline of Proposed Second Amended Complaint)(Wallace, Jessica) (Entered: 04/28/2017)
75 ORDER granting 74 Unopposed Motion for Leave to File Second Amended Complaint. The Clerk of Court is directed to file the Second Amended Compliant as a new and separate document. Signed by Magistrate Judge Mac R. McCoy on 5/1/2017. (brh) (Entered: 05/01/2017)
76 SECOND AMENDED COMPLAINT against Kamela Patton, The School Board Of Collier County, Florida filed by Lucenie Hilaire Durosier, Zoila Lorenzo, Lesly Methelus, Rosalba Ortiz, Emile Antoine, Marie Ange Joseph, Marta Alonso, Waybert Nicolas. Related document: 30 Amended Complaint filed by Zoila Lorenzo, Rosalba Ortiz, Lesly Methelus. (SPB) Modified on 5/3/2017, to correct docket attachments. (SPB). (Entered: 05/03/2017)
77 Unopposed MOTION for Gillian Gillers to appear pro hac vice by All Plaintiffs. (Wallace, Jessica) Motions referred to Magistrate Judge Mac R. McCoy. (Entered: 05/08/2017)
***PRO HAC VICE FEES paid and Special Admission Attorney Certification Form filed by attorney Gillian B. Gillers, appearing on behalf of (Filing fee $150 receipt number FTM010867.) Related document: 77 Unopposed MOTION for Gillian Gillers to appear pro hac vice. (SPB) (Entered: 05/11/2017)
78 ORDER granting 77 Unopposed Motion to Appear Pro Hac Vice. Unless already completed, within 14 days, Attorney Gillian B. Gillers shall send to the Clerk's Office, the application for special admission to practice along with the required application fee. Within 5 days, attorney Gillian B. Gillers shall file a Notice of Appearance that contains her contact information. Within 14 days, Counsel shall register for CM/ECF. Signed by Magistrate Judge Mac R. McCoy on 5/9/2017. (brh) (Entered: 05/09/2017)
79 NOTICE of Appearance by Gillian B. Gillers on behalf of Marta Alonso, Emile Antoine, Lucenie Hilaire Durosier, Zoila Lorenzo, Maria Ange Joseph, Lesly Methelus, Waybert Nicolas, Rosalba Ortiz (Gillers, Gillian) (Entered: 05/11/2017)
80 ANSWER and affirmative defenses with Jury Demand to 76 Amended Complaint , Amended COUNTERCLAIM against All Defendants by Kamela Patton, The School Board Of Collier County, Florida.(Fox, James) (Entered: 05/15/2017)
81 ORDERED: Plaintiffs/Counter−Defendants' Motion to Dismiss the Counterclaim of Defendant/Counter−Plaintiff the School Board of Collier County, Florida Doc. 72 is DENIED as moot. Signed by Judge Sheri Polster Chappell on 5/16/2017. (laf) (Entered: 05/16/2017)
82 NOTICE of change of address by Michelle R. Lapointe (Lapointe, Michelle) (Entered: 05/17/2017)
83 NOTICE of unavailability of counsel by The School Board Of Collier County, Florida from June 16, 2017 to June 29, 2017. (Fishbane, Jonathan) (Entered: 05/24/2017)
84 MOTION to dismiss for failure to state a claim , MOTION to dismiss for lack of jurisdiction by All Plaintiffs. (Lapointe, Michelle) (Entered: 05/29/2017)
85 MOTION for Extension of Time to File Response/Reply as to 84 MOTION to dismiss for failure to state a claim MOTION to dismiss for lack of jurisdiction by All Defendants. (Fox, James) Motions referred to Magistrate Judge Mac R. McCoy. (Entered: 06/14/2017)

Case: 2:16-cv-379 As of: 05/27/2020 08:58 PM EDT 12 of 29

06/14/2017 06/21/2017
06/26/2017 06/27/2017 06/27/2017
06/27/2017 07/05/2017 07/05/2017 07/07/2017 07/12/2017 07/13/2017 07/14/2017

86 ENDORSED ORDER granting 85 Agreed Motion for Extension of Time. Defendants shall have until June 28, 2017 in which to file a response to the Motion to Dismiss the Amended Counterclaim. Signed by Magistrate Judge Mac R. McCoy on 6/14/2017. (brh) (Entered: 06/14/2017)
87 MOTION for preliminary injunction by Marta Alonso, Emile Antoine, Lucenie Hilaire Durosier. (Attachments: # 1 Exhibit Index of Exhibits, # 2 Exhibit 1 − Declaration of I.A., # 3 Exhibit 2 − Declaration of N.A., # 4 Exhibit 3 − Declaration of T.J.H., # 5 Exhibit 4 − Declaration of Dr. Mary Rebecca Burns, Ph.D., # 6 Exhibit 5 − Defendants' Amended Responses to Plaintiffs' First Requests for Production, # 7 Exhibit 6 − CCPS Adult Education Contract and Goals, # 8 Exhibit 7 − Declaration of Michael Scanlan,: # 10 Exhibit 8− Declaration of Leah Whitlow, # 11 Exhibit 9− CCPS ELL Plan (2013−15), # 12 Exhibit 10− CCPS ELL Plan (2016−19), # 13 Exhibit 11− Letter of J. Fishbane to L. Carmona (Lapointe, Michelle) (SPB). Additional attachment(s) added on 7/5/2017, Pursuant to 90 Order.(SPB). (SEALED EXHIBIT 8 added: # 14 Exhibit) (SPB). (Entered: 06/21/2017)
88 Unopposed MOTION for leave to file under seal by Marta Alonso, Emile Antoine, Lucenie Hilaire Durosier. (Attachments: # 1 Exhibit Proposed Replacement Exhibit)(Lapointe, Michelle) (Entered: 06/26/2017)
89 MOTION for Extension of Time to File Response/Reply as to 84 MOTION to dismiss for failure to state a claim MOTION to dismiss for lack of jurisdiction by All Defendants. (Fox, James) Motions referred to Magistrate Judge Mac R. McCoy. (Entered: 06/27/2017)
90 ORDER granting 88 Unopposed Motion to Seal Exhibit Pursuant to Federal Rule of Civil Procedure 5.2(a). The Clerk of Court is directed to remove unredacted Exhibit 8 (Declaration of Leah Whitlow) from the public record. The Clerk of Court shall file unredacted Exhibit 8 (Declaration of Leah Whitlow) under seal. The unredacted Declaration of Leah Whitlow shall remain under seal for the duration of this action and any appeal thereto, or until an order is entered unsealing the Declaration. Signed by Magistrate Judge Mac R. McCoy on 6/27/2017. (brh) (Entered: 06/27/2017)
91 ENDORSED ORDER granting 89 Agreed Second Motion for Extension of Time. Defendants shall have until July 7, 2017 in which to file a response to the Motion to Dismiss Counterclaim. Signed by Magistrate Judge Mac R. McCoy on 6/27/2017. (brh) (Entered: 06/27/2017)
92 MOTION for Extension of Time to File Response/Reply as to 87 MOTION for preliminary injunction by All Defendants. (Fox, James) Motions referred to Magistrate Judge Mac R. McCoy. (Entered: 07/05/2017)
93 ENDORSED ORDER granting 92 Agreed Motion for Extension of Time. Defendants shall have up to and including July 19, 2017 in which to file a Response to Plaintiffs' Motion for Preliminary Injunction. Signed by Magistrate Judge Mac R. McCoy on 7/5/2017. (brh) (Entered: 07/05/2017)
94 RESPONSE to Motion re 84 MOTION to dismiss for failure to state a claim MOTION to dismiss for lack of jurisdiction filed by Kamela Patton(Superintendent of Collier County Public Schools, in her official capacity), The School Board Of Collier County, Florida. (Fox, James) (Entered: 07/07/2017)
95 NOTICE of hearing on motion re 87 MOTION for preliminary injunction . Motion for Preliminary Injunction Hearing set for 8/11/2017 at 09:30 AM in Ft. Myers Courtroom 5 D before Judge Sheri Polster Chappell. (LMF) (Entered: 07/12/2017)
96 JOINT MOTION for protective order by All Plaintiffs, and Defendants. (Attachments: # 1 Text of Proposed Order Stipulated Protective Order)(Lapointe, Michelle) Motions referred to Magistrate Judge Mac R. McCoy. Modified on 7/14/2017, to correct docket text. (SPB). (Entered: 07/13/2017)
97 ORDER granting 96 Joint Motion for Entry of Protective Order. The Stipulated Protective Order is approved as modified. Signed by Magistrate Judge Mac R. McCoy on 7/14/2017. (brh) (Entered: 07/14/2017)

Case: 2:16-cv-379 As of: 05/27/2020 08:58 PM EDT 13 of 29

07/14/2017 07/17/2017 07/17/2017
07/17/2017
07/18/2017 07/18/2017
07/19/2017 07/20/2017
07/20/2017 07/27/2017 07/27/2017 08/01/2017 08/01/2017 08/02/2017
08/02/2017

98 STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Mac R. McCoy on 7/14/2017. (brh) (Entered: 07/14/2017)
99 MOTION for clarification re 87 MOTION for preliminary injunction by All Defendants. (Fox, James) (Entered: 07/17/2017)
100 RESPONSE in Opposition re 99 MOTION for clarification re 87 MOTION for preliminary injunction filed by Marta Alonso, Emile Antoine, Lucenie Hilaire Durosier, Zoila Lorenzo, Maria Ange Joseph, Lesly Methelus, Waybert Nicolas, Rosalba Ortiz. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Lapointe, Michelle) (Entered: 07/17/2017)
101 TEXT ORDER granting in part and denying in part 99 Motion for Clarification of Deadline or Extension of Time. The Motion is granted to the extent that Defendants shall have until July 21, 2017 in which to file a response to the Motion for Preliminary Injunction. In all other respects, the Motion is denied. Signed by Magistrate Judge Mac R. McCoy on 7/17/2017. (brh) (Entered: 07/17/2017)
102 MOTION for Reconsideration re 101 Order on motion for clarification by All Defendants. (Fox, James) (Entered: 07/18/2017)
103 RESPONSE in Opposition re 102 MOTION for Reconsideration re 101 Order on motion for clarification filed by Marta Alonso, Emile Antoine, Lucenie Hilaire Durosier, Zoila Lorenzo, Maria Ange Joseph, Lesly Methelus, Waybert Nicolas, Rosalba Ortiz. (Attachments: # 1 Exhibit June 16 email, # 2 Exhibit 30(b)(6) notice, # 3 Exhibit May 23 email, # 4 Exhibit Email offering to postpone corporate deposition, # 5 Exhibit June 5 email, # 6 Exhibit June 23 email, # 7 Exhibit July 10 email, # 8 Exhibit July 18 email)(Lapointe, Michelle) (Entered: 07/18/2017)
104 NOTICE canceling Motion for Preliminary Injunction hearing scheduled for 8/11/2017 (LMF) (Entered: 07/19/2017)
105 ORDER granting 102 Motion for Reconsideration. Defendants shall have until 5:00 P.M. (Eastern) on August 3, 2017 by which to file a response to the Motion for Preliminary Injunction. The Court is not inclined to extend this deadline any further. The hearing on the Motion for Preliminary Injunction is set for Thursday, August 17, 2017 beginning at 9:30 A.M. Plaintiffs shall be allotted no more than 2 hours to present their arguments and Defendants shall be allotted no more than 2 hours to present their arguments. The Clerk of Court is directed to enter a separate Notice of Hearing. Signed by Magistrate Judge Mac R. McCoy on 7/20/2017. (brh) (Entered: 07/20/2017)
106 NOTICE of hearing on motion re 87 MOTION for preliminary injunction . Motion Hearing set for 8/17/2017 at 09:30 AM in Ft. Myers Courtroom 5 C before Magistrate Judge Mac R. McCoy. (jmc) (Entered: 07/20/2017)
107 MOTION to Substitute Party by Emile Antoine, Lucenie Hilaire Durosier. (Wallace, Jessica) (Entered: 07/27/2017)
108 MOTION to Dismiss Claims (Voluntary Dismissal) by Zoila Lorenzo, Maria Ange Joseph, Lesly Methelus, Waybert Nicolas, Rosalba Ortiz. (Wallace, Jessica) (Entered: 07/27/2017)
109 Unopposed MOTION to Substitute Party (Amended Motion) by Emile Antoine, Lucenie Hilaire Durosier. (Wallace, Jessica) (Entered: 08/01/2017)
110 STIPULATION of Dismissal by Zoila Lorenzo, Maria Ange Joseph, Lesly Methelus, Waybert Nicolas, Rosalba Ortiz. (Wallace, Jessica) (Entered: 08/01/2017)
111 NOTICE of withdrawal of motion by Marta Alonso, Emile Antoine, Lucenie Hilaire Durosier, Zoila Lorenzo, Maria Ange Joseph, Lesly Methelus, Waybert Nicolas, Rosalba Ortiz re 108 MOTION to Dismiss Claims (Voluntary Dismissal) filed by Waybert Nicolas, Zoila Lorenzo, Maria Ange Joseph, Rosalba Ortiz, Lesly Methelus (Wallace, Jessica) (Entered: 08/02/2017)
112 MOTION for Leave to File Excess Pages by All Defendants. (Fox, James) (Entered: 08/02/2017)

Case: 2:16-cv-379 As of: 05/27/2020 08:58 PM EDT 14 of 29

08/02/2017
08/02/2017
08/02/2017 08/03/2017 08/03/2017 08/03/2017
08/04/2017 08/04/2017 08/04/2017 08/09/2017 08/10/2017 08/15/2017

113 ORDER re 108 MOTION to Dismiss Claims (Voluntary Dismissal) filed by Waybert Nicolas, Zoila Lorenzo, Maria Ange Joseph, Rosalba Ortiz, Lesly Methelus, 110 Stipulation of Dismissal filed by Waybert Nicolas, Zoila Lorenzo, Maria Ange Joseph, Rosalba Ortiz, Lesly Methelus. The Stipulated Dismissal of Claims of Lesly Methelus, Rosalba Ortiz, Zoila Lorenzo, Marie Ange Joseph, and Waybert Nicolas 110 is GRANTED. The Clerk of Court is DIRECTED to terminate Plaintiffs Lesley Methelus, on behalf of Y.M., Rosalba Ortiz, on behalf of G.O., Zoila Lorenzo, on behalf of M.D., Marie Ange Joseph, on behalf of K.V., and Waybert Nicolas from the case file. Plaintiffs' Motion for Voluntary Dismissal 108 is DENIED as moot. Signed by Judge Sheri Polster Chappell on 8/2/2017. (LMF) (Entered: 08/02/2017)
114 ORDER denying as moot 107 Plaintiffs N.A. and T.J.H.'s Motion to Substitute Parties; granting 109 Plaintiffs N.A. and T.J.H.'s Unopposed Amended Motion to Substitute Parties. Because N.A. and T.J.H. are substituted as named Plaintiffs, the case caption must be amended to reflect the substitution of "Nehemy Antoine" for "Emile Antoine, on behalf of N.A., a minor," and "Techeler Junior Hilaire" for Lucenie Hilaire Duroiser, on behalf of T.J.H., a minor." Signed by Judge Sheri Polster Chappell on 8/2/2017. (LMF) (Entered: 08/02/2017)
115 ENDORSED ORDER granting 112 Motion to Enlarge Page Limit. Defendants are permitted to file a Response to Plaintiffs' Motion for Preliminary Injunction that does not exceed 32 pages. Signed by Magistrate Judge Mac R. McCoy on 8/2/2017. (brh) (Entered: 08/02/2017)
116 ORDER allowing Defendants to file in the public record a redacted version of their opposititon to the Motion for Preliminary Injunction and any exhibits thereto. Defendants shall file an unreadacted version of these documents under seal and the Clerk of Court is directed to file such documents under seal. See Order for further details. Signed by Magistrate Judge Mac R. McCoy on 8/3/2017. (brh) (Entered: 08/03/2017)
117 Minute Entry. Proceedings held before Magistrate Judge Mac R. McCoy: Telephonic Discovery Hearing held on 8/3/2017. See Court Order 116. (Digital) (jmc) (Entered: 08/03/2017)
118 RESPONSE to Motion re 87 MOTION for preliminary injunction filed by Kamela Patton(Superintendent of Collier County Public Schools, in her official capacity), The School Board Of Collier County, Florida. (Attachments: # 1 Affidavit of Yolanda Flores, (Part 1 of 2) # 2 Affidavit of Yolanda Flores, (Part 2 of 2) # 3 Affidavit of Leslie Ricciardelli, # 4 Affidavit of Tobin Walcott, # 5 Affidavit of Edith Arpaia # 6 Affidavit of Aaron Paquette # 7 Affidavit of Luis Solano)(Fox, James) Modified on 8/4/2017, docket text added pursuant to LC/BH. (SPB). (Entered: 08/03/2017)
Sealed Document. (S−119) (SPB) (Entered: 08/04/2017)
120 Unopposed MOTION for leave to file Reply In Support of Motion for Preliminary Injunction by Marta Alonso, Nehemy Antoine, Techleer Junior Hilaire. (Wallace, Jessica) (Entered: 08/04/2017)
121 ENDORSED ORDER granting 120 Unopposed Motion for Leave to File a Reply in Support of Their Motion for Preliminary Injunction. On or before August 10, 2017, Plaintiffs may file a Reply that does not exceed 10 pages in length. Signed by Magistrate Judge Mac R. McCoy on 8/4/2017. (brh) (Entered: 08/04/2017)
122 ORDER granting 84 Plaintiffs'/Counter−Defendants' Motion to Dismiss the Amended Counterclaim of Defendants/Counter−Plaintiffs the School Board of Collier County, Florida and Kamela Patton. Defendants' amended counterclaim is DISMISSED. Signed by Judge Sheri Polster Chappell on 8/9/2017. (LMF) (Entered: 08/09/2017)
123 REPLY to Response to Motion re 87 MOTION for preliminary injunction filed by Marta Alonso, Nehemy Antoine, Techleer Junior Hilaire. (Lapointe, Michelle) (Entered: 08/10/2017)
124 NOTICE by Kamela Patton(Superintendent of Collier County Public Schools, in her official capacity), The School Board Of Collier County, Florida re 123 Reply to Response to Motion (Fox, James) Modified on 8/16/2017, to correct event type, per

Case: 2:16-cv-379 As of: 05/27/2020 08:58 PM EDT 15 of 29

08/16/2017 08/17/2017 09/06/2017
09/06/2017
09/06/2017 10/03/2017 10/05/2017
11/01/2017 11/02/2017 11/10/2017
11/20/2017 11/21/2017

LC/BH. (SPB). (Entered: 08/15/2017)
125 ENDORSED ORDER granting 124 Motion to Amend Response to Plaintiffs' Motion for Temporary Injunction. The Court construes the Motion as a request for interlineation of the Response. The Response shall be modified as indicated in the Motion. Signed by Magistrate Judge Mac R. McCoy on 8/16/2017. (brh) . (Entered: 08/16/2017)
126 Minute Entry on Oral Argument portion of the Motion for Preliminary Injunction held before Magistrate Judge Mac R. McCoy: on 8/17/2017. Court Reporter: Jeffrey G. Thomas (jmc) (Entered: 08/17/2017)
127 REDACTED TRANSCRIPT of Plaintiffs' Motion for Preliminary Injunction held on 08/17/17 before Judge Mac R. McCoy. Court Reporter/Transcriber Jeffrey G. Thomas,Telephone number (239) 461−2033. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or purchased through the Court Reporter. Redaction Request due 9/27/2017, Redacted Transcript Deadline set for 10/10/2017, Release of Transcript Restriction set for 12/5/2017. (JGT) (Entered: 09/06/2017)
128 NOTICE to counsel of filing of OFFICIAL TRANSCRIPT. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal. Court Reporter: Jeffrey G. Thomas. (JGT) (Entered: 09/06/2017)
Sealed Document. (S−129) (SPB) (Entered: 09/06/2017)
130 Unopposed MOTION to Amend/Correct 71 Case management and scheduling order by All Defendants. (Fox, James) (Entered: 10/03/2017)
131 ORDER granting 130 Agreed Motion to Amend Scheduling Order. Class Certification Discovery deadline is extended to November 30, 2017; Motion for Class Certification deadline is extended to December 22, 2017; Response to Motion for Class Certification deadline is extended to January 12, 2018; and Reply to Motion for Class Certification deadline is extended to January 26, 2018. All other deadlines set forth in 71 Case Management and Scheduling Order shall remain in effect. Signed by Magistrate Judge Mac R. McCoy on 10/5/2017. (brh) (Entered: 10/05/2017)
132 STIPULATION of Dismissal of Techeler Junior Hilaire by Marta Alonso, Nehemy Antoine, Techleer Junior Hilaire. (Wallace, Jessica) (Entered: 11/01/2017)
133 ORDER re 132 Stipulation of Dismissal filed by Techleer Junior Hilaire, Nehemy Antoine, Marta Alonso. The Stipulated Dismissal of Claims of Techeler Junior Hilaire (Doc. 132) is GRANTED. The Clerk of Court is DIRECTED to terminate Plaintiff Techeler Junior Hilaire from the case file. Signed by Judge Sheri Polster Chappell on 11/2/2017. (LMF) (Entered: 11/02/2017)
134 MOTION to Compel Discovery by Marta Alonso, Nehemy Antoine. (Attachments: # 1 Errata Exhibit Index, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C, # 5 Exhibit Exhibit D, # 6 Exhibit Exhibit E, # 7 Exhibit Exhibit F, # 8 Exhibit Exhibit G, # 9 Exhibit Exhibit H, # 10 Exhibit Exhibit I, # 11 Exhibit Exhibit J, # 12 Exhibit Exhibit K, # 13 Exhibit Exhibit L, # 14 Exhibit Exhibit M, # 15 Exhibit Exhibit N, # 16 Exhibit Exhibit O, # 17 Exhibit Exhibit P, # 18 Exhibit Exhibit Q, # 19 Exhibit Exhibit R, # 20 Exhibit Exhibit S, # 21 Exhibit Exhibit T, # 22 Exhibit Exhibit U, # 23 Exhibit Exhibit V, # 24 Exhibit Exhibit W)(Gillers, Gillian) Motions referred to Magistrate Judge Mac R. McCoy. (Entered: 11/10/2017)
135 NOTICE of Appearance Viviana Bonilla Lopez Appearance by Viviana Bonilla Lopez on behalf of Marta Alonso, Nehemy Antoine (Bonilla Lopez, Viviana) (Entered: 11/20/2017)
136 MOTION to extend time to Respond to Plaintiffs' Motion to Compel by All Defendants. (Fox, James) Motions referred to Magistrate Judge Mac R. McCoy.

Case: 2:16-cv-379 As of: 05/27/2020 08:58 PM EDT 16 of 29

11/21/2017 12/01/2017
12/06/2017 12/11/2017 12/11/2017
12/13/2017 12/13/2017 12/14/2017
12/14/2017
12/15/2017 12/20/2017
01/02/2018

(Entered: 11/21/2017)
137 ENDORSED ORDER granting 136 Agreed Motion for Extension of Time. Defendants shall have until December 1, 2017 in which to file a response to the Motion to Compel. Signed by Magistrate Judge Mac R. McCoy on 11/21/2017. (brh) (Entered: 11/21/2017)
138 RESPONSE to Motion re 134 MOTION to Compel Discovery filed by Kamela Patton(Superintendent of Collier County Public Schools, in her official capacity), The School Board Of Collier County, Florida. (Attachments: # 1 Exhibit Second Amended Response to Plaintiffs' First Request for Production, # 2 Exhibit Amended Response to Plaintffs' Second Request for Production, # 3 Exhibit E−mail)(Fox, James) (Entered: 12/01/2017)
139 REPORT AND RECOMMENDATION recommending 87 Motion for Preliminary Injunction be denied. See Report and Recommendation for details. Signed by Magistrate Judge Mac R. McCoy on 12/6/2017. (brh) (Entered: 12/06/2017)
140 Unopposed MOTION for Jessica Zagier Wallace to withdraw as attorney by Marta Alonso, Nehemy Antoine. (Gillers, Gillian) Motions referred to Magistrate Judge Mac R. McCoy. (Entered: 12/11/2017)
141 ENDORSED ORDER granting 140 Unopposed Motion to Withdraw. Attorney Jessica Zagier Wallace is permitted to withdraw as counsel for Plaintiffs. Ms. Zagier Wallace shall have no further responsibility in this matter. The Clerk of Court is directed to remove Ms. Zagier Wallace from receiving electronic notification in this case. Signed by Magistrate Judge Mac R. McCoy on 12/11/2017. (brh) (Entered: 12/11/2017)
142 Unopposed MOTION to Amend/Correct 71 Case management and scheduling order by Marta Alonso, Nehemy Antoine. (Gillers, Gillian) (Entered: 12/13/2017)
143 Unopposed MOTION for leave to file Reply to Defendants' Response to Motion to Compel Discovery by Marta Alonso, Nehemy Antoine. (Gillers, Gillian) (Entered: 12/13/2017)
144 ORDER denying without prejudice 134 Motion to Compel Defendants' Responses to Plaintiffs' First and Second Sets of Requests for Production and to Compel Defendants to Submit Interrogatory Responses Under Oath; and denying 143 Unopposed Motion for Leave to File a Reply Relating to Plaintiffs' Motion to Compel Discovery for Purposes of Updating the Court. See Order for details. Signed by Magistrate Judge Mac R. McCoy on 12/14/2017. (brh) (Entered: 12/14/2017)
145 ORDER granting 142 Unopposed Motion to Modify Scheduling Order. The deadline to file a Motion for Class Certification is extended to January 12, 2018; the deadline to file a Response to the Motion for Class Certification is extended to February 2, 2018; and the deadline to file a Reply is extended to February 16, 2018. All other deadlines set forth in 71 Case Management and Scheduling Order shall remain in effect. Signed by Magistrate Judge Mac R. McCoy on 12/14/2017. (brh) (Entered: 12/14/2017)
146 NOTICE by Marta Alonso, Nehemy Antoine re 87 MOTION for preliminary injunction (Attachments: # 1 Exhibit Ex. A: Supp. Decl. of I.A.)(Gillers, Gillian) (Entered: 12/15/2017)
147 OBJECTION re 139 REPORT AND RECOMMENDATIONS re Sealed Document, 118 Response to motion filed by Kamela Patton, The School Board Of Collier County, Florida, 87 MOTION for preliminary injunction filed by Lucenie Hilaire Durosier, Emile Antoine, Marta . (Attachments: # 1 Exhibit A − Redacted Transcript of Preliminary Injunction Hearing, # 2 Exhibit B − 30(b)(6) Deposition of Yolanda Flores, # 3 Exhibit C − Deposition of Leslie Ricciardelli)(Lapointe, Michelle) (Entered: 12/20/2017)
148 MOTION to extend time to January 19, 2018 by All Defendants. (Fox, James) Motions referred to Magistrate Judge Mac R. McCoy. (Entered: 01/02/2018)

Case: 2:16-cv-379 As of: 05/27/2020 08:58 PM EDT 17 of 29

01/03/2018 01/05/2018 01/05/2018 01/12/2018
01/12/2018 01/12/2018 01/12/2018
01/19/2018 01/30/2018 01/30/2018 01/30/2018

149 ENDORSED ORDER granting 148 the Agreed Motion for Extension of Time. Defendants must file any response to Plaintiffs' objections no later than January 19, 2018. Signed by Magistrate Judge Mac R. McCoy on 1/3/2018. (JTM) (Entered: 01/03/2018)
150 Unopposed MOTION for Leave to File Excess Pages by Marta Alonso, Nehemy Antoine. (Gillers, Gillian) (Entered: 01/05/2018)
151 ENDORSED ORDER granting Plaintiffs' Unopposed Motion to Exceed Page Limitation (Doc. 150. Plaintiffs may file a motion for class certification that does not exceed 35 pages in length. Signed by Judge Sheri Polster Chappell on 1/5/2018. (CMC) (Entered: 01/05/2018)
152 MOTION to Certify Class by Marta Alonso, Nehemy Antoine. (Attachments: # 1 Exhibit Index, # 2 Ex. 2: Student Registration Form, # 3 Ex. 6: Administrator & Employee Acknowledgments, # 4 Ex. 10: School Board Policy 5112.01, # 5 Ex. 23: ELCATE Academy, # 6 Ex. 36: School & District Administrators Meeting, # 7 Ex. 37: Curriculum & Instruction Department PowerPoint, # 8 Ex. 44: Scanlan Email to Kutz, Nov. 2012, # 9 Ex. 47: CCPS Organizational Chart, # 10 Ex. 49: Superintendent Office Referral, # 11 Ex. 51: Scanlan Email to Patton, Jan. 2013, # 12 Ex. 52: Emails Kutz, Patton, Scanlan, Kirkpatrick, Jan. 2013, # 13 Ex. 53: Emails Kutz, Patton, Scanlan, Kirkpatrick, March 2013, # 14 Ex. 57: Student Registration Website, # 15 Ex. 65: Emails Dawes, Fishbane, Lynn, Huffman, Jan. 2015, # 16 Ex. 74: Scanlan Email to Kutz, March 2013, # 17 Ex. 81: Huffman Letter to Fishbane, Jan. 2015)(Gillers, Gillian) (Entered: 01/12/2018)
153 NOTICE by Marta Alonso, Nehemy Antoine re 152 MOTION to Certify Class (Attachments: # 1 Pls.' Ex. A: Lapointe Decl., # 2 Pls. Ex. B: Patton Dep. Excerpts, # 3 Pls.' Ex. C: Whitlow Decl. (+ attachments 1−12))(Gillers, Gillian) (Entered: 01/12/2018)
154 NOTICE by Marta Alonso, Nehemy Antoine re 152 MOTION to Certify Class (Attachments: # 1 Pls.' Ex. C (Whitlow Decl.) − attachments 13−19, # 2 Pls. Ex. D: Kutz Dep. Excerpts, # 3 Pls. Ex. E: Solano Dep. Excerpts)(Gillers, Gillian) (Entered: 01/12/2018)
155 NOTICE by Marta Alonso, Nehemy Antoine re 152 MOTION to Certify Class (Attachments: # 1 Pls. Ex. F: Ricciardelli Dep. Excerpts, # 2 Pls. Ex. G: Superintendent Cabinet Meeting, # 3 Pls. Ex. H: 30(b)(6) Aune Dep. Excerpts, # 4 Pls. Ex. I: Scanlan Decl., # 5 Pls. Ex. J: Dawes Dep. Excerpts, # 6 Pls. Ex. K: Emails Student Relations + Ricciardelli re 16 year−old, # 7 Pls. Ex. L: Emails Student Relations + Ricciardelli re English speaker, # 8 Pls. Ex. M: 30(b)(6) Flores Dep. Excerpts, # 9 Pls. Ex. N: N.A. Decl. June 2017, # 10 Pls. Ex. O: I.A. Decl. June 2017, # 11 Pls. Ex. P: Antoine Decl. Jan. 2018, # 12 Pls.' Ex. Q: I.A. Decl. Jan. 2018, # 13 Pls. Ex. R: FDOE Database Requirements, # 14 Pls. Ex. S: Alonzo Decl., # 15 Pls. Ex. T: Antoine Dep. Excerpts, # 16 Pls. Ex. U: I.A. Dep. Excerpts, # 17 Pls. Ex. V: Gillers Decl., # 18 Pls. Ex. W: Bonilla Lopez Decl., # 19 Pls. Ex. X: I.A. Decl. Dec. 2017)(Gillers, Gillian) (Entered: 01/12/2018)
156 RESPONSE re 147 Objection to the Magistrate's Report & Recommendations filed by Kamela Patton(Superintendent of Collier County Public Schools, in her official capacity), The School Board Of Collier County, Florida. (Fox, James) (Entered: 01/19/2018)
157 MOTION to extend time to Respond to Plaintiffs' Motion for Class Certification by All Defendants. (Fox, James) Motions referred to Magistrate Judge Mac R. McCoy. (Entered: 01/30/2018)
158 ENDORSED ORDER granting 157 Motion for Extension of Time to Respond to Plaintiff's Motion for Class Certification. Defendants shall have up to and including February 22, 2018 to file a response. Plaintiffs shall have up to and including March 8, 2018 in which to file a Reply. All other deadlines previously set that are not modified herein shall remain the same. Signed by Magistrate Judge Mac R. McCoy on 1/30/2018. (brh) (Entered: 01/30/2018)
159 TEXT ORDER requiring within 14 days that Plaintiffs comply with 6 Standing Order and submit to Chambers a courtesy copy in paper format of Plaintiffs' Motion for Class Certification and all exhibits thereto. Signed by Magistrate

Case: 2:16-cv-379 As of: 05/27/2020 08:58 PM EDT 18 of 29

02/16/2018 02/22/2018 02/22/2018 02/22/2018 02/26/2018 03/08/2018 03/14/2018
04/02/2018
04/04/2018 04/09/2018

Judge Mac R. McCoy on 1/30/2018. (brh) (Entered: 01/30/2018)
160 MOTION to Amend/Correct 71 Case management and scheduling order by Marta Alonso, Emile Antoine, Nehemy Antoine. (Gillers, Gillian) (Entered: 02/16/2018)
161 MOTION for leave to file under seal by All Defendants. (Fox, James) (Entered: 02/22/2018)
162 RESPONSE re 152 MOTION to Certify Class filed by Kamela Patton(Superintendent of Collier County Public Schools, in her official capacity), The School Board Of Collier County, Florida. (Attachments: # 1 Exhibit Nemeth Affidavit, # 2 Exhibit Flores Affidavit, # 3 Exhibit Pacquette Affidavit, # 4 Exhibit Pechokas Affidavit, # 5 Exhibit Flores Depo Transcript, # 6 Exhibit Smith Affidavit, # 7 Exhibit Dawes Affidavit, # 8 Exhibit Riccardelli Affidavit)(Fox, James) (Entered: 02/22/2018)
163 ORDER granting 161 Motion to File Under Seal. See Order for details. Signed by Magistrate Judge Mac R. McCoy on 2/22/2018. (brh) (Entered: 02/22/2018)
Sealed Document 164. (kma) (Entered: 02/27/2018)
165 REPLY to Response to Motion re 152 MOTION to Certify Class filed by Marta Alonso, Nehemy Antoine. (Attachments: # 1 Exhibit Pls.' Ex. Y: Ricciardelli Dep., # 2 Exhibit Pls.' Ex. Z: Patton Dep.)(Gillers, Gillian) (Entered: 03/08/2018)
166 ORDER adopting 139 REPORT AND RECOMMENDATIONS re Sealed Document, 118 Response to motion filed by Kamela Patton, The School Board Of Collier County, Florida, 87 MOTION for preliminary injunction filed by Lucenie Hilaire Durosier, Emile Antoine, Marta. The Report and Recommendation 139 is ACCEPTED and ADOPTED and the findings are incorporated herein in accordance with this Opinion and Order. The Motion for Preliminary Injunction 87 is DENIED. Signed by Judge Sheri Polster Chappell on 3/14/2018. (LMF) (Entered: 03/14/2018)
167 Second MOTION to Compel Discovery by Marta Alonso, Nehemy Antoine. (Attachments: # 1 Exhibit Index, # 2 Exhibit Letter from G. Gillers to J. Fox and J. Fishbane, Feb. 8, 2018, # 3 Exhibit Pls.' First Requests for Production, Oct. 24, 2016, # 4 Exhibit Pls.' Second Requests for Production, July 3, 2017, # 5 Exhibit Email Correspondence between M. Lapointe and J. Fox, Aug. 2−4, 2017, # 6 Exhibit Letter from M. Lapointe to J. Fox, Oct. 30, 2017, # 7 Exhibit Sample Missing Attachments from Defs.' Response to Initial Disclosures and RFP No. 70, # 8 Exhibit Defendants' Amended Response to Plaintiffs' First Request for Production, # 9 Exhibit Email from J. Fox to M. Lapointe, J. Zagier Wallace, and G. Gillers, Nov. 16, 2017, # 10 Exhibit Sample of Produced Student Records with Redacted Names (Bates No. CCPS−070747 to CCPS−070748), # 11 Exhibit Sample from Defs.' Initial Disclosures, # 12 Exhibit Screenshot Excerpt of Defs.' Response to RFP No. 62 Displaying Tabs for Each Spreadsheet Produced, # 13 Exhibit Email from M. Lapointe to J. Fox, Nov. 28, 2017, # 14 Exhibit Bates No. CCPS−05388, # 15 Exhibit Sample of Documents of Unreadable Text from Defs.' Response to RFP No. 23, # 16 Exhibit Bates No. CCPS−016535, # 17 Exhibit Bates No. CCPS−021223, # 18 Exhibit Bates No. CCPS−023063, # 19 Exhibit Bates No. CCPS−023381, # 20 Exhibit Bates No. CCPS−025317 to CCPS−025318, # 21 Exhibit Bates No. CCPS−026802, # 22 Exhibit Bates No. CCPS−026890 to CCPS−026895, # 23 Exhibit Bates No. CCPS−029948 to CCPS−029950, # 24 Exhibit Bates No. CCPS−071290 to CCPS−071291, # 25 Exhibit Bates No. CCPS−070597, # 26 Exhibit Excerpts from Deposition of Christy Kutz, November 21, 2017, # 27 Exhibit Excerpts from Deposition of Rachel Dawes, November 29, 2017, # 28 Exhibit Excerpts from Deposition of Roberto Soberon, November 29, 2017)(Bonilla Lopez, Viviana) Motions referred to Magistrate Judge Mac R. McCoy. (Entered: 04/02/2018)
168 TEXT ORDER directing the School Board of Collier County to file, on or before April 11, 2018, a response to 160 Motion to Amend Scheduling Order. Signed by Magistrate Judge Mac R. McCoy on 4/4/2018. (brh) (Entered: 04/04/2018)
169 RESPONSE to Motion re 160 MOTION to Amend/Correct 71 Case management and scheduling order filed by Kamela Patton(Superintendent of Collier County Public Schools, in her official capacity), The School Board Of Collier County, Florida. (Fox, James) (Entered: 04/09/2018)

Case: 2:16-cv-379 As of: 05/27/2020 08:58 PM EDT 19 of 29

04/09/2018 04/09/2018 04/10/2018 04/10/2018 04/18/2018 04/26/2018
06/25/2018 06/29/2018 06/29/2018 07/17/2018
07/20/2018 07/20/2018 08/03/2018

170 MOTION to extend time to file a response to Plaintiff's Renewed Motion to Compel Discovery by All Defendants. (Fox, James) Motions referred to Magistrate Judge Mac R. McCoy. (Entered: 04/09/2018)
171 ENDORSED ORDER granting 170 Motion for Extension of Time to Respond to Plaintiffs' Renewed Motion to Compel Discovery. Defendant shall have up to and including April 20, 2018 in which to file a response. Signed by Magistrate Judge Mac R. McCoy on 4/9/2018. (brh) (Entered: 04/09/2018)
172 MOTION to Amend/Correct 171 Order on motion to extend time by All Defendants. (Fox, James) (Entered: 04/10/2018)
173 ENDORSED ORDER granting 172 Amended Motion for Extension of Time to Respond to Plaintiffs' Renewed Motion to Compel Discovery. Defendants shall have up to and including April 26, 2018, in which to file a response. Signed by Magistrate Judge Mac R. McCoy on 4/10/2018. (brh) (Entered: 04/10/2018)
174 ORDER denying 160 Motion to Amend Scheduling Order. See Order for details. Signed by Magistrate Judge Mac R. McCoy on 4/18/2018. (brh) (Entered: 04/18/2018)
175 RESPONSE to Motion re 167 Second MOTION to Compel Discovery filed by Kamela Patton(Superintendent of Collier County Public Schools, in her official capacity), The School Board Of Collier County, Florida. (Attachments: # 1 Exhibit Ex. A, # 2 Exhibit Ex. B, # 3 Exhibit Ex. C, # 4 Exhibit Ex. D, # 5 Exhibit Ex. E, # 6 Exhibit Ex. F, # 7 Exhibit Ex. G, # 8 Exhibit Ex. H, # 9 Exhibit Ex. I, # 10 Exhibit Ex. J, # 11 Errata Ex. K)(Fox, James) (Entered: 04/26/2018)
176 MOTION to Amend/Correct 71 Case management and scheduling order by Marta Alonso, Nehemy Antoine. (Attachments: # 1 Exhibit Ex. A: Defs.' Resp. to Pls.' First Merits Requests for Production, # 2 Exhibit Ex. B: Pls.' First Merits Requests for Production)(Gillers, Gillian) (Entered: 06/25/2018)
177 RESPONSE to Motion re 176 MOTION to Amend/Correct 71 Case management and scheduling order filed by Kamela Patton(Superintendent of Collier County Public Schools, in her official capacity), The School Board Of Collier County, Florida. (Attachments: # 1 Exhibit Correspondence, # 2 Exhibit E−mail)(Fox, James) (Entered: 06/29/2018)
178 ENDORSED ORDER granting 176 Motion to Amend Scheduling Order. The deadline for merits expert reports is extended to August 20, 2018 and the deadline for rebuttal expert reports is extended to August 29, 2018. All other deadlines previously set shall remain in effect. Signed by Magistrate Judge Mac R. McCoy on 6/29/2018. (brh) (Entered: 06/29/2018)
179 MOTION to Compel Discovery (Time−Sensitive) by Marta Alonso, Nehemy Antoine. (Attachments: # 1 Exhibit Exhibit Index, # 2 Exhibit Ex. 1: Emails between J. Fox and G. Gillers, June 2018, # 3 Exhibit Ex. 2: Letter from G. Gillers to J. Fox and J. Fishbane, July 6, 2018, # 4 Exhibit Ex. 3: Emails between J. Fox and G. Gillers, July 2018, # 5 Exhibit Ex. 4: Pls.' First Merits Requests for Production, # 6 Exhibit Ex. 5: Pls.' First Merits Interrogatories, # 7 Exhibit Ex. 6: Defs.' Responses to Pls.' First Merits Requests for Production, # 8 Exhibit Ex. 7: Defs.' Responses to Pls.' First Merits Interrogatories, # 9 Exhibit Ex. 8: Excerpts from Deposition of Christy Kutz, Nov. 1, 2017)(Gillers, Gillian) Motions referred to Magistrate Judge Mac R. McCoy. (Entered: 07/17/2018)
180 MOTION to extend time to Respond to Motion to Compel by All Defendants. (Attachments: # 1 Exhibit Correspondence, # 2 Exhibit E−mail, # 3 Exhibit E−mail)(Fox, James) Motions referred to Magistrate Judge Mac R. McCoy. (Entered: 07/20/2018)
181 RESPONSE to Motion re 180 MOTION to extend time to Respond to Motion to Compel filed by Marta Alonso, Nehemy Antoine. (Gillers, Gillian) (Entered: 07/20/2018)
182 ORDER granting 180 Motion to Enlarge Time to Respond to Plaintiffs' Motion to Compel Discovery. Defendants shall have up to and including August 14, 2018 in which to file a response to the Motion to Compel. The deadlines set in the Case

Case: 2:16-cv-379 As of: 05/27/2020 08:58 PM EDT 20 of 29

08/08/2018 08/14/2018 08/22/2018 08/23/2018 08/24/2018 08/24/2018
08/24/2018
08/29/2018 08/29/2018

Management and Scheduling Order (Doc. 71) shall be held in abeyance until such time as the Motion for Class Certification is fully resolved by the Court. Signed by Magistrate Judge Mac R. McCoy on 8/3/2018. (brh) (Entered: 08/03/2018)
183 REPORT AND RECOMMENDATION recommending 152 Motion for Class Certification be granted in part and denied in part. See Report and Recommendation for details. Signed by Magistrate Judge Mac R. McCoy on 8/8/2018. (brh) (Entered: 08/08/2018)
184 RESPONSE to Motion re 134 MOTION to Compel Discovery filed by The School Board Of Collier County, Florida. (Attachments: # 1 Exhibit Ex. A, # 2 Exhibit Ex. B, # 3 Exhibit Ex. C)(Fox, James) (Entered: 08/14/2018)
185 OBJECTION re 183 REPORT AND RECOMMENDATIONS re 152 MOTION to Certify Class filed by Nehemy Antoine, Marta Alonso. . (Lapointe, Michelle) (Entered: 08/22/2018)
186 MOTION to quash Subpoena to Publix Supermarkets, Inc. by Nehemy Antoine. (kma). ( # 1 Exhibit A Dfs.'Notice to Pls. and Subpoena to Publix, # 2 Exhibit B Emails between M. Lapointe and J. Fox, Aug. 1 to 22,1018, # 3 Exhibit C Deposition of Nehemy Antoine, November 17, 2017)(Bonilla Lopez, Viviane)(Entered: 08/23/2018) Modified on 8/24/2018: 186, 186−1, and 186−3 were substituted pursuant to Court's Order 188.(kma). (Entered: 08/23/2018)
187 MOTION for leave to file under seal Motion to Quash Subpoena and Exhibits by Nehemy Antoine. (Attachments: # 1 Main Document Redacted Plaintiff Nehemy Antoine's Motion to Quash Subpoena (To Replace ECF No. 186), # 2 Exhibit Redacted Ex. A − Defendants Notice to Plaintiffs and Subpoena to Publix (To Replace ECF No. 186−1), # 3 Exhibit Redacted Ex. C − Deposition of Nehemy Antoine, November 17, 2017 (To Replace ECF No. 186−3))(Bonilla Lopez, Viviana) (Entered: 08/24/2018)
188 TEXT ORDER denying 187 Plaintiff Nehemy Antoine's Unopposed Motion to Seal and Exhibits Pursuant to Federal Rule of Civil Procedure 5.2(a). In lieu of the procedure Plaintiff urges the Court to follow, the Court hereby directs the Clerk of Court to modify the docket to: (1) replace Docket Entry 186 with Docket Entry 187−1; (2) replace Docket Entry 186−1 with Docket Entry 187−2; and (3) replace Docket Entry 186−3 with Docket Entry 187−3. The Clerk of Court shall also indicate in the docket text for Docket Entries 186, 186−1, and 186−3 that these documents were substituted pursuant to this Order. Once these adjustments are made, the Clerk of Court shall remove any seal or access restriction from Docket entry 186, 186−1, and 186−3 so these documents will be accessible as part of the public court file. This procedure will remove from the docket all documents containing unredacted personal identifying information filed in violation of Fed. R. Civ. P. 5.2(a) and obviate the need to place any documents under seal. Signed by Magistrate Judge Mac R. McCoy on 8/24/2018. (McCoy, Mac) (Entered: 08/24/2018)
189 TEXT ORDER: Upon a preliminary review of 186 Plaintiff Nehemy Antoine's Motion to Quash Subpoena, it is unclear to the Court whether the contested subpoena has been or will be served. Nevertheless, it appears that the date of compliance on the subpoena is August 31, 2018. Because the date of compliance occurs before the instant Motion will be fully briefed by the parties and resolved by the Court, the Court hereby STAYS any compliance with the subpoena until further order of the Court. Moreover, Defendant is hereby ordered to file an expedited response to the Motion to Quash (Doc. 186) no later than August 31, 2018. Signed by Magistrate Judge Mac R. McCoy on 8/24/2018. (McCoy, Mac) (Entered: 08/24/2018)
190 MOTION to extend time to respond to Plaintiff's Rule 72 Objections to Report & Recommendation of Magistrate and Plaintiff's Motion to Quash by All Defendants. (Attachments: # 1 Exhibit Email Exchange)(Fox, James) Motions referred to Magistrate Judge Mac R. McCoy. (Entered: 08/29/2018)
191 ENDORSED ORDER granting 190 Defendants' Motion for Extension of Time. Defendants' responses to 185 Plaintiffs' Rule 72 Objections to the Report and Recommendation and to 186 Plaintiff Nehemy Antoine's Motion to Quash

Case: 2:16-cv-379 As of: 05/27/2020 08:58 PM EDT 21 of 29

09/14/2018
09/14/2018 09/14/2018 09/17/2018
09/18/2018 09/18/2018
09/26/2018
09/27/2018 09/27/2018 10/11/2018 10/17/2018 10/19/2018

Subpoena shall be filed no later than 9/14/2018. Signed by Magistrate Judge Mac R. McCoy on 8/29/2018. (McCoy, Mac) (Entered: 08/29/2018)
192 RESPONSE in Opposition re 186 MOTION to quash Subpoena to Publix Supermarkets, Inc. filed by The School Board Of Collier County, Florida. (Attachment(s): # 1 Exhibit Redacted Deposition Trancript of Nehemy Antoine, # 2 Exhibit Second Affidavit of Ariel Pechokas, # 3 Exhibit Affidavit of Mr. Ariel Pechokas, # 4 Exhibit Redacted Subpoena to Publix Supermarkets) (RMT). Modified on 9/19/2018 per order 195 replacing exhibits A and D with redacted exhbits; per order 197 sealing exhibit C(kma). (Entered: 09/14/2018)
193 RESPONSE to objections to 183 Report and Recommendations filed by The School Board Of Collier County, Florida. (Fox, James) (Entered: 09/14/2018)
194 MOTION to remove exhibits A and D Motion to File Redacted Exhibits by The School Board Of Collier County, Florida. (Attachments: # 1 Exhibit Deposition Transcript, # 2 Exhibit Subpoena)(Huling, Marc) Modified on 9/17/2018 per lc BH (RMT). (Entered: 09/14/2018)
195 ORDER granting 194 Motion to Remove Exhibits A and D of its Opposition to Plaintiff's Motion to Quash Subpoena and Replace with Redacted Exhibits A and D. The Clerk of Court is directed to replace the unredacted Exhibits A and D to the Opposition (Doc. 192) with the redacted Exhibits A and D attached to the instant Motion (Doc. 194). Signed by Magistrate Judge Mac R. McCoy on 9/17/2018. (brh) (Entered: 09/17/2018)
196 REDACTION Motion to Remove and Replace Exhibit C by The School Board Of Collier County, Florida. (Attachments: # 1 Affidavit)(Fox, James) (Entered: 09/18/2018)
197 ORDER granting in part 196 Motion to Remove Exhibit C of it Opposition to Plaintiff's Motion to Quash Subpoena and to Replace with Redacted Exhibit C. The Clerk of Court is directed to remove Exhibit C (Affidavit of Mr. Ariel Pechokas) to the Opposition (Doc. 192) from the public record and place it under seal. Signed by Magistrate Judge Mac R. McCoy on 9/18/2018. (brh) (Entered: 09/18/2018)
198 ORDER adopting 183 REPORT AND RECOMMENDATIONS re 152 MOTION to Certify Class filed by Nehemy Antoine, Marta Alonso. United States Magistrate Judge Mac R. McCoy's Report and Recommendation (Doc. 183) is ACCEPTED and ADOPTED and the findings incorporated herein. Plaintiffs' Motion for Class Certification (Doc. 152) is GRANTED in part and DENIED in part. The motion is granted on the due process claim (Count VI) and denied on all other claims. Signed by Judge Sheri Polster Chappell on 9/26/2018. (LMF) (Entered: 09/26/2018)
199 ORDER granting in part and denying in part 186 Motion to Quash Subpoena. See Order for details. Signed by Magistrate Judge Mac R. McCoy on 9/27/2018. (brh) (Entered: 09/27/2018)
200 ORDER denying without prejudice 167 Renewed Motion to Compel Discovery; and denying without prejudice 179 Motion to Compel Discovery −− Time Sensitive. Within 14 days, the parties shall confer by telephone and file an Amended Case Management Report. Signed by Magistrate Judge Mac R. McCoy on 9/27/2018. (brh) (Entered: 09/27/2018)
201 CASE MANAGEMENT REPORT. (Gillers, Gillian) (Entered: 10/11/2018)
202 AMENDED OPINION AND ORDER re: 198 Order Adopting Report and Recommendations. Signed by Judge Sheri Polster Chappell on 10/17/2018. (LMF) (Entered: 10/17/2018)
203 CASE MANAGEMENT AND SCHEDULING ORDER: Final Pretrial Conference set for 7/26/2019 at 09:30 AM in Ft. Myers Courtroom 5 D before Judge Sheri Polster Chappell, Trial term commencing 8/5/2019 in Ft. Myers Courtroom 5 D before Judge Sheri Polster Chappell. Signed by Magistrate Judge Mac R. McCoy on 10/19/2018. (jmc) (Entered: 10/19/2018)

Case: 2:16-cv-379 As of: 05/27/2020 08:58 PM EDT 22 of 29

11/08/2018
11/08/2018 11/14/2018 11/14/2018 11/15/2018 11/19/2018 11/19/2018
11/20/2018

204 MOTION to Compel Discovery (TIME SENSITIVE) by Marta Alonso, Nehemy Antoine. (Attachments: # 1 Exhibit Ex. 1: Pls.' First Rule 34 Request, # 2 Exhibit Ex. 2: Letter from J. Fox to G. Gillers, # 3 Exhibit Ex. 3: Correspondence between G. Gillers and J. Fox, # 4 Exhibit Ex. 4: Email from M. Lapointe to J. Fox, # 5 Exhibit Ex. 5: Email from G. Gillers to J. Fox, # 6 Exhibit Ex. 6: Email from M. Lapointe to J. Fox, # 7 Exhibit Ex. 7: Email from M. Lapointe to J. Fox, # 8 Exhibit Ex. 8: Pls.' Second Rule 34 Request, # 9 Exhibit Ex. 9: Letter from M. Lapointe to J. Fox and J. Fishbane, # 10 Exhibit Ex. 10: Email from M. Lapointe to J. Fox, # 11 Exhibit Ex. 11: Letter from J. Fox to M. Lapointe, # 12 Exhibit Ex. 12: Pls.' First Merits RFPs, # 13 Exhibit Ex. 13: Letter from M. Lapointe to J. Fox and J. Fishbane)(Gillers, Gillian) Motions referred to Magistrate Judge Mac R. McCoy. (Entered: 11/08/2018)
205 ORDER requiring an expedited response to Plaintiff's Time−Sensitive Motion to Compel Defendants to Permit Rule 34 Inspection. Defendants shall file an expedited response on or before November 15, 2018. The Rule 34(a)(2) inspection/observation scheduled for November 14, 2018 is canceled. See Order for details. Signed by Magistrate Judge Mac R. McCoy on 11/8/2018. (brh) (Entered: 11/08/2018)
206 Unopposed MOTION for Leave to File Excess Pages (Time Sensitive) by Marta Alonso, Nehemy Antoine. (Attachments: # 1 Exhibit Ex. 1: Defs.' Amended Responses to Pls.' First Merits Requests for Production)(Gillers, Gillian) (Entered: 11/14/2018)
207 ENDORSED ORDER granting 206 Unopposed Time−Sensitive Motion to Expand Page Limitation or for an Exemption From Local Rule 3.04(a) for Their Motion to Compel Discovery. Plaintiffs may file a motion to compel discovery that does not exceed 40 pages in length, but must comply with Local Rule 3.04(a). Signed by Magistrate Judge Mac R. McCoy on 11/14/2018. (brh) (Entered: 11/14/2018)
208 RESPONSE to Motion re 204 MOTION to Compel Discovery (TIME SENSITIVE) filed by The School Board Of Collier County, Florida. (Attachments: # 1 Affidavit Affidavit of Yolanda Flores)(Fox, James) (Entered: 11/15/2018)
209 NOTICE of unavailability of counsel by Kamela Patton(Superintendent of Collier County Public Schools, in her official capacity), The School Board Of Collier County, Florida from December 24, 2018 to January 2, 2019. (Fox, James) (Entered: 11/19/2018)
210 MOTION to Compel Documents by Marta Alonso, Nehemy Antoine. (Attachments: # 1 Exhibit Ex. 1: School Board Policy 5112.01, # 2 Exhibit Ex. 2: Pls.' First Merits Requests for Production, # 3 Exhibit Ex. 3: Defs.' Responses to Pls.' First Merits RFPs, # 4 Exhibit Ex. 4: Defs.' Amended Responses to Pls.' First Merits RFPs, # 5 Exhibit Ex. 5: Letter from G. Gillers to J. Fox and J. Fishbane, July 6, 2018, # 6 Exhibit Ex. 6: Letter from J. Fox to G. Gillers, July 17, 2018, # 7 Exhibit Ex. 7: Letter from G. Gillers to J. Fox, July 20, 2018, # 8 Exhibit Ex. 8: Letter from V. Bonilla Lopez to J. Fox and J. Fishbane, Nov. 13, 2018, # 9 Exhibit Ex. 9: Correspondence between G. Gillers and J. Fox, Nov. 19, 2018, # 10 Exhibit Ex. 10: Sample blank email produced in response to RFP No. 1, # 11 Exhibit Ex. 11: Sample redacted document produced in response to RFP No. 1, # 12 Exhibit Ex. 12: Florida curricular framework for Adult ESOL, 2016−17, # 13 Exhibit Ex. 13: Excerpts from deposition of Kamela Patton, Nov. 20, 2017, # 14 Exhibit Ex. 14: FDOE Adult General Education−ESOL curriculum framework, 2017, # 15 Exhibit Ex. 15: FDOE Adult General Education curriculum framework, 2017, # 16 Exhibit Ex. 16: Letter from M. Lapointe to J. Fox, Oct. 10, 2018, # 17 Exhibit Ex. 17: Handout from ELCATE re teacher's Gmail, # 18 Exhibit Ex. 18: List of Pls.' classes, # 19 Exhibit Ex. 19: Sample transcript produced by Defs., # 20 Exhibit Ex. 20: Excerpts from deposition of Christy Kutz, # 21 Exhibit Ex. 21: Sample pages from Defs.' response to RFP No. 28, # 22 Exhibit Ex. 22: Sample pages from Defs.' initial disclosures, # 23 Exhibit Exhibit Index)(Gillers, Gillian) Motions referred to Magistrate Judge Mac R. McCoy. (Entered: 11/19/2018)
211 ORDER granting 204 Time−Sensitive Motion to Compel Defendants to Permit Rule 34 Inspection. See Order for further details, including time−sensitive deadlines. Signed by Magistrate Judge Mac R. McCoy on 11/20/2018. (brh) (Entered: 11/20/2018)

Case: 2:16-cv-379 As of: 05/27/2020 08:58 PM EDT 23 of 29

12/03/2018
12/05/2018 12/11/2018 12/18/2018 12/19/2018 12/20/2018 12/20/2018 12/27/2018 12/28/2018 01/02/2019
01/03/2019
01/11/2019 01/16/2019

212 RESPONSE to Motion re 210 MOTION to Compel Documents filed by Kamela Patton, The School Board Of Collier County, Florida. (Attachments: # 1 Exhibit School Board & Patton's Second Amended Response to Plaintiffs' First Merits Requests for Production, # 2 Exhibit School Board & Patton's Second Amended Response to Plaintiff's First Request for Production, # 3 Exhibit School Board & Patton's Amended Response to Plaintiff's Second Request for Production, # 4 Exhibit School Board & Patton's Third Amended Response to Plaintiffs' First Merits Request for Production, # 5 Exhibit Letter from Southern Poverty Law Center, # 6 Exhibit Email from J. Fox, Esq. − Discovery Issues)(Fox, James) (Entered: 12/03/2018)
213 MOTION for leave to file Third Amended Complaint by Marta Alonso, Nehemy Antoine. (Attachments: # 1 Exhibit Ex. 1: Proposed Third Amended Complaint with Exhibits)(Gillers, Gillian) (Entered: 12/05/2018)
214 CERTIFICATE of counsel re 213 MOTION for leave to file Third Amended Complaint by Michelle R. Lapointe on behalf of Marta Alonso, Nehemy Antoine (Lapointe, Michelle) (Entered: 12/11/2018)
215 NOTICE by Kamela Patton, The School Board Of Collier County, Florida re 210 MOTION to Compel Documents (Fox, James) (Entered: 12/18/2018)
216 RESPONSE in Opposition re 213 MOTION for leave to file Third Amended Complaint filed by Kamela Patton, The School Board Of Collier County, Florida. (Fox, James) (Entered: 12/19/2018)
217 MOTION to Compel The Production of Documents from Plaintiffs, and Compel Substantive Testimony of I.A. by All Defendants. (Attachments: # 1 Exhibit Deposition Transcript of I.A., # 2 Exhibit Deposition Transcript of I.A., # 3 Exhibit Deposition Transcript of I.A., # 4 Exhibit Deposition of Nehemy Antoine)(Fox, James) Motions referred to Magistrate Judge Mac R. McCoy. (Entered: 12/20/2018)
218 Amended MOTION to Substitute Party by Marta Alonso. (Bonilla Lopez, Viviana) (Entered: 12/20/2018)
219 ORDER granting 218 Unopposed Amended Motion to Substitute Parties. The case caption is amended to reflect the substitution of "Ingrid Alonzo" for "Marta Alonzo, on behalf of I.A., a minor." The Clerk of Court is directed to amend the caption of the case as set forth above. Signed by Magistrate Judge Mac R. McCoy on 12/27/2018. (brh) (Entered: 12/27/2018)
220 ORDER granting 213 Motion for Leave to File Third Amended Complaint. The Clerk of Court is directed to file the Third Amended Complaint and attachments thereto as a new and separate docket entry. Signed by Magistrate Judge Mac R. McCoy on 12/28/2018. (brh) (Entered: 12/28/2018)
221 THIRD AMENDED COMPLAINT for declaratory and injunctive relief and for damages against Kamela Patton, The School Board Of Collier County, Florida filed by Nehemy Antoine, Ingrid Alonzo. Related document: 76 Amended Complaint filed by Waybert Nicolas, Lucenie Hilaire Durosier, Zoila Lorenzo, Maria Ange Joseph, Emile Antoine, Rosalba Ortiz, Marta Alonso, Lesly Methelus. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(RMT) (Entered: 01/02/2019)
222 RESPONSE to Motion re 217 MOTION to Compel The Production of Documents from Plaintiffs, and Compel Substantive Testimony of I.A. filed by Ingrid Alonzo, Nehemy Antoine. (Attachments: # 1 Exhibit A − Plaintiffs' Response to Defendants' First Requests for Production, # 2 Exhibit B − Plaintiffs' Amended Responses to Defendants' First Requests for Production, # 3 Exhibit C − Letter from J. Leon to M. Lapointe, Nov. 7, 2017, # 4 Exhibit D − Email from M. Lapointe to J. Leon, Dec. 11, 2017, # 5 Exhibit E − Email from J. Leon to M. Lapointe, Dec. 12, 2017, # 6 Exhibit F − Letter from J. Fox to M. Lapointe and G. Gillers, July 24, 2018, # 7 Exhibit G − Letter from M. Lapointe to J. Fox, Aug. 3, 2018, # 8 Exhibit H − Excerpt from Deposition of I.A.)(Lapointe, Michelle) (Entered: 01/03/2019)
223 NOTICE of mediation conference/hearing to be held on March 12, 2019 at 9:00 a.m. before James Nulman. (Fox, James) (Entered: 01/11/2019)
224 MOTION to extend time to January 21, 2019 by All Defendants. (Fox, James) Motions referred to Magistrate Judge Mac R. McCoy. (Entered: 01/16/2019)

Case: 2:16-cv-379 As of: 05/27/2020 08:58 PM EDT 24 of 29

01/16/2019 01/16/2019 01/17/2019 01/21/2019 01/28/2019 01/28/2019 01/31/2019 02/04/2019 02/05/2019 02/05/2019
02/15/2019
02/15/2019
02/19/2019

225 ENDORSED ORDER granting 224 Motion for Extension of Time to Respond to Plaintiffs' Third Amended Complaint. Defendants shall have up to and including January 21, 2019, in which to file a response to Plaintiffs' Third Amended Complaint. Signed by Magistrate Judge Mac R. McCoy on 1/16/2019. (brh) (Entered: 01/16/2019)
226 ORDER granting in part and denying in part 210 Motion to Compel Documents. See Order for details. Signed by Magistrate Judge Mac R. McCoy on 1/16/2019. (brh) (Entered: 01/16/2019)
227 ORDER denying 217 Motion to Compel the Production of Documents From Plaintiffs and Compel [the] Substantive Testimony of I.A. See Order for details. Signed by Magistrate Judge Mac R. McCoy on 1/17/2019. (brh) (Entered: 01/17/2019)
228 MOTION to Dismiss Third Amended Complaint by All Defendants. (Fox, James) (Entered: 01/21/2019)
229 MOTION for miscellaneous relief, specifically Motion for Representative to Attend Mediation with Full Authority to Recommend Settlement by All Defendants. (Fox, James) (Entered: 01/28/2019)
230 RESPONSE to Motion re 229 MOTION for miscellaneous relief, specifically Motion for Representative to Attend Mediation with Full Authority to Recommend Settlement filed by Ingrid Alonzo, Nehemy Antoine. (Attachments: # 1 Exhibit Emails between G. Gillers and J. Fox, Jan 21−24, 2019)(Bonilla Lopez, Viviana) (Entered: 01/28/2019)
231 ORDER granting 229 Motion for Representative to Attend Mediation With Full Authority to Recommend Settlement. See Order for details. Signed by Magistrate Judge Mac R. McCoy on 1/31/2019. (brh) (Entered: 01/31/2019)
232 RESPONSE in Opposition re 228 MOTION to Dismiss Third Amended Complaint filed by Ingrid Alonzo, Nehemy Antoine. (Gillers, Gillian) (Entered: 02/04/2019)
233 MOTION for Extension of Time to Complete Discovery by All Defendants. (Fox, James) Motions referred to Magistrate Judge Mac R. McCoy. (Entered: 02/05/2019)
234 ENDORSED ORDER granting 233 Agreed Motion for Extension of Time. Defendants shall complete their court−ordered document production, including any document redactions and any privilege log(s), no later than 2/12/2019. Defendants shall serve and file with this Court the previously ordered affidavit(s) no later than 2/15/2019. If Plaintiffs seek any further relief concerning depositions or experts after receiving Defendants' document production, privilege log(s), and affidavit(s) by the deadlines ordered herein, Plaintiffs shall file an appropriate motion no later than February 22, 2019. The parties are warned that the Court is not inclined to extend any of these deadlines again. Signed by Magistrate Judge Mac R. McCoy on 2/5/2019. (McCoy, Mac) (Entered: 02/05/2019)
235 NOTICE of compliance re 234 Order on Motion for Extension of Time to Complete Discovery by Kamela Patton(Superintendent of Collier County Public Schools, in her official capacity), The School Board Of Collier County, Florida (Attachments: # 1 Affidavit Dr. Ang, # 2 Affidavit John Antonacci, # 3 Affidavit Fernand Billon, # 4 Affidavit Morgan Timko, # 5 Affidavit Valerie Weinrich, # 6 Affidavit Roberto Soberon, # 7 Affidavit Yolanda Flores, # 8 Affidavit Ariel Pechokas, # 9 Affidavit Stephanie Lynn)(Fox, James) (Entered: 02/15/2019)
236 MOTION to Amend/Correct Case Management and Scheduling Order by Ingrid Alonzo, Nehemy Antoine. (Attachments: # 1 Exhibit A − Email from M. Lapointe to J. Fox, # 2 Exhibit B − Expert Requests for Production and Notice of Deposition, # 3 Exhibit C− Deposition Notices, # 4 Exhibit D − Defendants' Responses to Plaintiffs' First Requests for Production, # 5 Exhibit E − Defendants' Responses to Interrogatories, # 6 Exhibit F − Defendants' Amended Responses to Pls.' First Requests for Production, # 7 Exhibit G − Email from M. Ortega to M. Lapointe)(Lapointe, Michelle) (Entered: 02/15/2019)
237 ORDER granting 236 Motion to Amend Scheduling Order to Extend Plaintiffs' Rebuttal Expert Disclosure Deadline and deadline to Complete Merits Discovery.

Case: 2:16-cv-379 As of: 05/27/2020 08:58 PM EDT 25 of 29

02/22/2019
02/25/2019
02/25/2019 03/01/2019 03/01/2019 03/01/2019 03/01/2019 03/05/2019 03/12/2019 03/13/2019

The Rebuttal Experts report disclosure deadline is extended to March 1, 2019 for both parties. The merits discovery deadline is extended to March 8, 2019, for the sole purpose of deposing Defendants' expert Dr. Saad. All other case management deadlines set in 203 Case Management and Scheduling Order shall remain in effect. Signed by Magistrate Judge Mac R. McCoy on 2/19/2019. (brh) (Entered: 02/19/2019)
238 MOTION to supplement expert report and to compel Defendants to supplement production by Ingrid Alonzo, Nehemy Antoine. (Attachments: # 1 Exhibit Dfs. Court−Ordered Production Emails, # 2 Exhibit Emails between M. Lapointe and J. Fox, Feb. 21−22, 2019, # 3 Exhibit Pls. First Merits Requests for Production, # 4 Exhibit Dfs. Response to Pls. First Merits Requests for Production, # 5 Exhibit Dfs.' Amended Response to Pls. First Merits Requests for Production, # 6 Exhibit Dfs. Second Amended Response to Pls. First Merits Request for Production, # 7 Exhibit Dfs.' Third Amended Response to Pls.' First Merits Request for Production, # 8 Exhibit Dfs.' Supplemental Production Emails, # 9 Exhibit Expert Report of Dr. Deborah Short & Exhibits, # 10 Exhibit Sample Documents from Bate Stamps CCPS−088809 to CCPS−089006, # 11 Exhibit Sample Pages from PDF Bate−stamped CCPS−088786 et. seq., # 12 Exhibit Sample Pages from PDF Bate−stamped CCPS−088797 et. seq.)(Bonilla Lopez, Viviana) (Entered: 02/22/2019)
239 ORDER granting in part and denying in part 228 Defendants School Board of Collier County, Florida and Kamela Patton's Motion to Dismiss to the extent stated above. The Third Amended Complaint (Doc. 221) is dismissed without prejudice. Plaintiffs may file a Fourth Amended Complaint consistent with this Order on or before March 1, 2019. Failure to do so will result in this case being dismissed with prejudice. Defendants must answer Plaintiffs' Fourth Amended Complaint on or before March 5, 2019. Signed by Judge Sheri Polster Chappell on 2/25/2019. (LMF) (Entered: 02/25/2019)
240 ORDER granting 238 Motion for Further Relief Related to Expert Deadlines and Production of Documents. See Order for details and deadlines. Signed by Magistrate Judge Mac R. McCoy on 2/25/2019. (brh) (Entered: 02/25/2019)
241 NOTICE of compliance re 240 Order on motion to supplement by Kamela Patton(Superintendent of Collier County Public Schools, in her official capacity), The School Board Of Collier County, Florida (Attachments: # 1 Affidavit Supplemental Affidavit of Morgan Timko, # 2 Affidavit Supplemental Affidavit of Mr. Ariel Pechokas)(Fox, James) (Entered: 03/01/2019)
242 NOTICE of compliance by Kamela Patton(Superintendent of Collier County Public Schools, in her official capacity), The School Board Of Collier County, Florida (Attachments: # 1 Affidavit Supplemental Affidavit of Morgan Timko)(Fox, James) (Entered: 03/01/2019)
243 AMENDED COMPLAINT for Declaratory and Injunctive Relief and for Damages against Kamela Patton, The School Board Of Collier County, Florida filed by Nehemy Antoine, Ingrid Alonzo. (Attachments: # 1 Exhibit District English Language Learner's Plan 2016−2019, # 2 Exhibit School Board Policy 5112.01, # 3 Exhibit Max Age Envelope)(Bonilla Lopez, Viviana) (Entered: 03/01/2019)
244 NOTICE by Ingrid Alonzo, Nehemy Antoine Regarding Plaintiffs' Fourth Amended Complaint (Attachments: # 1 Exhibit Alternative Fourth Amended Complaint with Due Process Class Claims)(Bonilla Lopez, Viviana) (Entered: 03/01/2019)
245 ANSWER and affirmative defenses to 243 Amended Complaint by Kamela Patton(Superintendent of Collier County Public Schools, in her official capacity), The School Board Of Collier County, Florida.(Fox, James) (Entered: 03/05/2019)
246 MEDIATION report Hearing held on 03−12−2019. Hearing outcome: Impasse.. (Nulman, James) (Entered: 03/12/2019)
247 MOTION for miscellaneous relief, specifically take deposition of Dr. Silver, exceed page limit for Motion for Summary Judgment and enlargement of time to prepare Defendants' Motion for Summary Judgment by All Defendants. (Attachments: # 1 Exhibit Email exchange)(Fox, James) (Entered: 03/13/2019)

Case: 2:16-cv-379 As of: 05/27/2020 08:58 PM EDT 26 of 29

03/14/2019
03/14/2019 03/14/2019 04/05/2019 04/05/2019
04/08/2019 04/08/2019
04/08/2019 04/09/2019 04/11/2019

248 ORDERED:(1) Defendants The School Board of Collier County and Kamela Patton's Motion for Miscellaneous Relief Doc. 247 is GRANTED in part. a. The discovery deadline is extended to March 29, 2019, only for Defendants to depose Plaintiffs' rebuttal expert, Dr. David Silver. b. The dispositive motion deadline is extended to April 19, 2019, and responses are due fourteen (14) days later. c. Each side may file a motion for summary judgment not to exceed thirty five (35) pages in length. Responses to any motion must not exceed twenty (20) pages. (2) The parties must appear in person for a status conference with the Undersigned on April 8, 2019, at 1:30 p.m. The Clerk is directed to issue a notice of hearing under separate cover. Signed by Judge Sheri Polster Chappell on 3/14/2019. (laf) (Entered: 03/14/2019)
Set/reset scheduling order deadlines: Discovery due by 3/29/2019, Dispositive motions due by 4/19/2019 (laf) (Entered: 03/14/2019)
249 NOTICE of hearing: Status Conference set for 4/8/2019 at 01:30 PM in Ft. Myers Courtroom 5 D before Judge Sheri Polster Chappell (laf) (Entered: 03/14/2019)
250 MOTION for Extension of Time to File Daubert Motion and for Leave to Supplemental Expert Report by All Defendants. (Attachments: # 1 Exhibit Dr. Saad's Rebuttal Report, # 2 Exhibit E−mail, # 3 Exhibit E−mail)(Fox, James) (Entered: 04/05/2019)
251 MOTION to Strike and Exclude Expert Report of Dr. Ali Saad, Ph.D. by Ingrid Alonzo, Nehemy Antoine. (Attachments: # 1 Exhibit A − Declaration of Dr. Ali Saad, Ph.D., # 2 Exhibit B − Rebuttal Expert Report of Dr. David Silver, Ph.D., # 3 Exhibit C − Rebuttal Expert Report of Dr. Ali Saad, Ph.D., # 4 Exhibit D − Excerpts from Deposition of Lisa Roa, # 5 Exhibit E − Excerpts from Deposition of Dr. Ali Saad, # 6 Exhibit F − Redacted Enrollment−Related E−mail, # 7 Exhibit G− Declaration of Oliver Torres, # 8 Exhibit H − Declaration of T.J.H., # 9 Exhibit I − Excerpt from Deposition of Christopher Smith, # 10 Exhibit J − Letter from M. Lapointe to J. Fox, April 2, 2019, # 11 Exhibit K − Defendants' Responses to Pls.' First Merits Requests for Production, # 12 Exhibit L − Defendants' Am. Responses to Pls.' First Requests for Production, # 13 Exhibit M − Defendants' Responses to Plaintiffs' Interrogatories)(Lapointe, Michelle) (Entered: 04/05/2019)
252 Minute Entry. Proceedings held before Judge Sheri Polster Chappell: STATUS CONFERENCE held on 4/8/2019. (DIGITAL) (WRW) (Entered: 04/08/2019)
253 ORDER granting in part 250 Defendants the School Board of Collier County, Florida and Kamela Patton's Motion for Extension of Time to File Daubert Motion and for Leave to Supplement Expert Report. a. The motion is granted to the extent that Defendants' expert, Dr. Ali Saad, may file a supplement to his expert report on or before April 12, 2019. b. The deadline for both parties to file Daubert motions is extended to on or before April 19, 2019. c. The deadline for dispositive motions is extended to on or before April 24, 2019. (2) Plaintiffs' Motion to Exclude Expert Report and Strike Sur−rebuttal Report of Dr. Ali Saad (Doc. 251) is DENIED without prejudice. Signed by Judge Sheri Polster Chappell on 4/8/2019. (LMF) (Entered: 04/08/2019)
254 ORDER. (1) This case is REFERRED to the United States Magistrate Judge Douglas Frazier to conduct a settlement conference and issue any order deemed appropriate thereafter. All parties must attend the settlement conference as directed by Judge Frazier. (2) The parties are DIRECTED to contact Judge Frazier's Chambers at 239−461−2174 to arrange for a mutually agreeable time for the settlement conference. Signed by Judge Sheri Polster Chappell on 4/8/2019. (LMF) (Entered: 04/08/2019)
255 ORDER directing that a settlement conference shall be held before the undersigned on April 25, 2019, beginning at 9:00 AM, in Courtroom 6B at the United States Courthouse and Federal Building in Fort Myers, Florida, pursuant to 254 the Order entered by the Honorable Sheri Polster Chappell on April 8, 2019. See Order for details. Signed by Magistrate Judge Douglas N. Frazier on 4/9/2019. (APH) (Entered: 04/09/2019)
256 ENDORSED ORDER re 255 the Court's April 9, 2019 Order. Having conferred with counsel for the remaining parties, Plaintiffs Nehemy Antoine and Ingrid

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Alonzo and Defendants The School Board of Collier County, Florida and Kamela Patton, the settlement conference previously set for April 25, 2019 at 9:00 AM is RE−SCHEDULED for May 13, 2019 at 1:00 PM. The parties shall submit their confidential settlement conference statements no later than the close of business on May 6, 2019. All other terms and directives in 255 the April 9, 2019 Order remain unchanged. Signed by Magistrate Judge Douglas N. Frazier on 4/11/2019. (APH) (Entered: 04/11/2019)
257 NOTICE of filing Supplemental Report by Kamela Patton, The School Board Of Collier County, Florida re 253 Order on Motion for Extension of Time to FileOrder on Motion to Strike (Attachments: # 1 Exhibit Dr. Saad's Supplemental Expert Report)(Fox, James) Modified on 4/15/2019 as to docket text(MLS). (Entered: 04/12/2019)
258 Joint MOTION for Extension of Time to File Dispositive Motions and Daubert Motions by Ingrid Alonzo, Nehemy Antoine. (Lapointe, Michelle) (Entered: 04/17/2019)
259 ENDORSED ORDER granting the parties' Joint Motion to Extend Deadline to File Dispositive Motions and Motions to Exclude Experts (Doc. 258). Only because the parties have drafted the terms of a potential settlement and have a settlement conference with Magistrate Judge Douglas N. Frazier on May 13, 2019, the Court extends the deadline for dispositive and Daubert motions to May 17, 2019. Signed by Judge Sheri Polster Chappell on 4/18/2019. (CMC) (Entered: 04/18/2019)
260 MOTION for settlement conference attendance by All Defendants. (Fox, James) (Entered: 05/07/2019)
261 Unopposed MOTION for settlement conference to Excuse Plaintiff Alonzo from Settlement Conference by Ingrid Alonzo, Nehemy Antoine. (Lapointe, Michelle) (Entered: 05/09/2019)
262 ENDORSED ORDER granting 260 the School Board of Collier County Florida's Motion for Representative to Attend Settlement Conference with Full Authority to Recommend Settlement. Defendant is permitted to send a representative with full authority to negotiate and recommend settlement to attend the Settlement Conference set for May 13, 2019. Signed by Magistrate Judge Douglas N. Frazier on 5/9/2019. (HAP) (Entered: 05/09/2019)
263 ENDORSED ORDER granting 261 Plaintiff's Motion to Excuse Ingrid Alonzo from Participation in Settlement Conference. Plaintiff Ingrid Alonzo is not required to attend the settlement conference set for May 13, 2019. Signed by Magistrate Judge Douglas N. Frazier on 5/9/2019. (HAP) (Entered: 05/09/2019)
264 Minute Entry. Proceedings held before Magistrate Judge Douglas N. Frazier: SETTLEMENT CONFERENCE held on 5/13/2019. (MLJ) (Entered: 05/13/2019)
265 ENDORSED ORDER extending the deadline for dispositive and Daubert motions to May 23, 2019. Signed by Judge Sheri Polster Chappell on 5/13/2019. (CMC) (Entered: 05/13/2019)
266 NOTICE of settlement and Motion to Suspend Deadlines by Nehemy Antoine (Attachments: # 1 Exhibit Administrative Procedure for Policy 5112.01, dated 5/20/19)(Bonilla Lopez, Viviana) (Entered: 05/23/2019)
267 ORDER directing administrative closure. The Clerk is DIRECTED to administratively close the case and terminate all pending deadlines. The parties are DIRECTED to file their settlement agreement as to Count IV per Federal Rule of Civil Procedure 23(e) on or before June 10, 2019, for the Court's approval. The parties are DIRECTED to file a joint status update on or before July 23, 2019, regarding the status of the case. Signed by Judge Sheri Polster Chappell on 5/24/2019. (LMF) (Entered: 05/24/2019)
268 NOTICE of settlement by Nehemy Antoine (Attachments: # 1 Exhibit Due Process Settlement Agreement & Administrative Procedure)(Bonilla Lopez, Viviana) (Entered: 06/10/2019)

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269 NOTICE of compliance re 268 Notice of settlement by Kamela Patton, The School Board Of Collier County, Florida (Attachments: # 1 Exhibit Correspondence, # 2 Exhibit Correspondence)(Fox, James) (Entered: 06/25/2019)
270 Joint STATUS report filed re 267 Order by Nehemy Antoine. (Bonilla Lopez, Viviana) (Entered: 07/23/2019)
271 Unopposed MOTION for Approval of Class Action Settlement by Nehemy Antoine. (Attachments: # 1 Exhibit Due Process Settlement Agreement & Administrative Procedure)(Bonilla Lopez, Viviana) (Entered: 07/23/2019)
272 ORDER referring Plaintiffs' Unopposed Motion for Approval of Class Action Settlement (Doc. 271) to United States Magistrate Judge Douglas N. Frazier for a report and recommendation. Signed by Judge Sheri Polster Chappell on 7/26/2019. (CMC) (Entered: 07/26/2019)
273 NOTICE of hearing: Telephone Conference set for 7/31/2019 at 11:00 AM in Ft. Myers before Magistrate Judge Douglas N. Frazier. The call in number is 888−684−8852, access code: 1982804 followed by security code: 16379.(WRW) (Entered: 07/26/2019)
274 NOTICE OF RESCHEDULING HEARING (AS TO TIME ONLY): The Telephonic Conference hearing previously scheduled for 7/31/2019 at 11:00 AM is rescheduled. New hearing time: Telephone Conference set for 7/31/2019 at 12:00 PM before Magistrate Judge Douglas N. Frazier. (WRW) (Entered: 07/31/2019)
275 Minute Entry. Proceedings held before Magistrate Judge Douglas N. Frazier: Preliminary Fairness Determination Hearing held by telephone conference on 7/31/2019. (MLJ) (Entered: 07/31/2019)
276 CONSENT to trial by U.S. Magistrate Judge by Nehemy Antoine. (Bonilla Lopez, Viviana) (Entered: 08/02/2019)
277 ORDER granting the parties' consent to a United States Magistrate Judge. Signed by Judge Sheri Polster Chappell on 8/2/2019. (CMC) (Entered: 08/02/2019)
278 ORDER directing the Clerk to reassign this case to United States Magistrate Judge Douglas N. Frazier per the parties' express consent and because of Judge Frazier's familiarity with the case. Signed by Judge Sheri Polster Chappell on 8/2/2019. (CMC) (Entered: 08/02/2019)
279 Case Reassigned to Magistrate Judge Douglas N. Frazier. New case number: 2:16−cv−379−FtM−DNF. Magistrate Judge Mac R. McCoy no longer assigned to the case. Motion(s) REFERRED: 271 Unopposed MOTION for Settlement Approval. Motion(s) referred to Magistrate Judge Douglas N. Frazier. (laf) (Entered: 08/05/2019)
280 Unopposed MOTION for Viviana Bonilla Lopez to withdraw as attorney for Plaintiffs by Ingrid Alonzo, Nehemy Antoine. (Bonilla Lopez, Viviana) Motions referred to Magistrate Judge Douglas N. Frazier. (Entered: 08/30/2019)
281 ENDORSED ORDER granting 280 Unopposed Motion to Withdraw Viviana Bonilla Lopez as Counsel. Attorney Viviana Bonilla Lopez is permitted to withdraw and shall have no further responsibility in this case. The Clerk is directed to remove her from receiving electronic notification. Signed by Magistrate Judge Douglas N. Frazier on 8/30/2019. (brh) (Entered: 08/30/2019)
282 Case Reassigned to Magistrate Judge Douglas N. Frazier. New case number: 2:16−cv−379−FtM−DNF. Judge Sheri Polster Chappell no longer assigned to the case. (laf) (Entered: 09/12/2019)
283 ORDER setting a Final Fairness and Approval of Settlement hearing on Wednesday, October 2, 2019, at 2:00 p.m. The Clerk of Court is directed to enter a separate Notice of Hearing. On or before Wednesday, September 25, 2019, the parties shall jointly prepare, file in CM/ECF with a notice of filing, and email in Word format a proposed Order granting 271 Unopposed Motion for Approval of Class Action Settlement and include language approving the class action settlement. See Order for further details. Signed by Magistrate Judge Douglas N. Frazier on 9/12/2019. (brh) (brh). (Entered: 09/12/2019)

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284 NOTICE of hearing: Final Fairness and Approval of Settlement Hearing set for 10/2/2019 at 02:00 PM in Ft. Myers Courtroom 4 E before Magistrate Judge Douglas N. Frazier. For parties using the telephonic option: The Toll free number is: 888−684−8852, you will then be prompted to enter an access code: 1982804, followed by the security code: 16379.(WRW) (Entered: 09/16/2019)
285 MOTION to reschedule final fairness and approval settlement hearing re 284 Notice by All Defendants. (Fox, James) (Entered: 09/23/2019)
286 ENDORSED ORDER granting 285 Agreed Motion to Reschedule Final Fairness and Approval of Settlement Hearing. The hearing will be rescheduled for Tuesday, October 8, 2019 at 2:00 p.m. The Clerk of Court is directed to enter a separate Notice of Hearing. Signed by Magistrate Judge Douglas N. Frazier on 9/23/2019. (brh) (Entered: 09/23/2019)
287 NOTICE OF RESCHEDULING HEARING: The Final Fairness and Approval Settlement Hearing previously scheduled for 10/2/2019 is rescheduled. New scheduling date and time:The Final Fairness and Approval Settlement Hearing set for 10/8/2019 at 02:00 PM in Ft. Myers Courtroom 6 A before Magistrate Judge Douglas N. Frazier. (WRW) (Entered: 09/23/2019)
288 Joint NOTICE re 271 Unopposed MOTION for Settlement by Ingrid Alonzo, Nehemy Antoine (Attachments: # 1 Text of Proposed Order Proposed Order)(Gillers, Gillian) (Entered: 09/25/2019)
289 NOTICE OF RESCHEDULING HEARING (AS TO COURTROOM ONLY): The Final Fairness and Approval Settlement Hearing set for 10/8/2019 at 2:00 PM in Ft. Myers Courtroom 6 B before Magistrate Judge Douglas N. Frazier. (MLJ) (Entered: 10/08/2019)
290 Minute Entry. Proceedings held before Magistrate Judge Douglas N. Frazier: Final Fairness and Approval Settlement Hearing held on 10/8/2019. Court Reporter: Jeffrey G. Thomas (MLJ) (Entered: 10/08/2019)
291 ORDER granting 271 Unopposed Motion for Approval of Class Action Settlement. The Court hereby approves the class action settlement proposed by the parties. This action is dismissed with prejudice. The Clerk of Court is directed to terminate any pending motions and deadlines and close this case. Signed by Magistrate Judge Douglas N. Frazier on 10/8/2019. (brh) (Entered: 10/08/2019)