IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KHADIDJA ISSA, Q.M.H., a minor,

:

individually, by and through his parent, Faisa :

Ahmed Abdalla, ALEMBE DUNIA,

:

ANYEMU DUNIA, V.N.L., a minor,

:

individually, by and through her parent, Mar Ki, :

SUI HNEM SUNG, AND ALL OTHERS

:

SIMILARLY SITUATED,

:

:

Plaintiffs,

:

:

v.

:

:

THE SCHOOL DISTRICT OF LANCASTER, :

:

Defendant.

:

CIVIL ACTION NO. 16-3881

MEMORANDUM OPINION

Smith, J.

August 26, 2016

State law guarantees all individuals a “free and full education” until they graduate or turn

21. Federal law requires that schools take “appropriate action to overcome language barriers” so

that education is not rendered meaningless. The plaintiffs are six current or prospective students,

living within a school district administered by the defendant. The plaintiffs seek a preliminary

injunction, allowing them to attend an International School at a regular high school that meets

those state and federal requirements, rather than an alternative school that they claim does not, if

the defendant chooses to enroll them at all. The defendant maintains that both schools, as well as

its enrollment procedures, comply with state and federal law.

The plaintiffs advance numerous legal theories in support of their motion, but the court

resolves this motion by answering two questions: (1) can a school district deny an eligible

individual enrollment because the district determines the individual will likely not graduate

before turning 21; and (2) has a school district taken appropriate action to overcome language

barriers when it diverts a student away from its International School to an alternative school
where virtually all of a student’s courses are taught in a language and manner that the student
cannot comprehend? The answer to both questions is no and accordingly, the court will grant the
plaintiffs’ motion.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Pennsylvania law guarantees a free and full education to all individuals from the age 6 to
21, who have not yet graduated. 24 P.S. § 13-1301. After a new student seeking enrollment
submits all requisite paperwork, the school district must enroll the student within five days. 22
Pa. Code § 11.11(b). The Equal Education Opportunity Act is a federal statute. It requires
“educational agenc[ies],” such as city school districts, to “take appropriate action to overcome language barriers that impede equal participation by its students in instructional programs.”1 20
U.S.C. § 1703(f).
The named plaintiffs are all refugees, ages 17-20, who speak little or no English. See
Compl. at ¶¶ 1, 2, Doc. No. 1; Answer at ¶¶ 1, 2, Doc. No. 23. They all escaped violence and
tumult in their home and other lands. Now in America, all earnestly seek to learn English,
advance their education, and contribute to society. Compl. at ¶ 2; Answer at ¶ 2.
1 The definition section of the Act defines “educational agency” as “a local educational agency or a ‘State educational agency’ as defined by section 801(k) of the Elementary and Secondary Education Act of 1965.” 20 U.S.C. § 1720(a). The Act then defines a “local educational agency” as “a local educational agency as defined by section 801(f) of the Elementary and Secondary Education Act of 1965.” 20 U.S.C. § 1720(b). On December 10, 2015, President Obama signed into the law the Every Student Succeeds Act, which reauthorized the Elementary and Secondary Education Act of 1965. This Act defines a “local educational agency” as
a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary schools or secondary schools in a city, county, township, school district, or other political subdivision of a State, or of or for a combination of school districts or counties that is recognized in a State as an administrative agency for its public elementary schools or secondary schools. 20 U.S.C. § 7801(30).
2

The defendant is the School District of Lancaster (“District”), which administers several schools subject to the laws referenced above. Compl. at ¶ 43; Answer at ¶ 43. Two of the schools are relevant to this case: McCaskey High School (“McCaskey”), which is operated by the District, and Phoenix Academy (“Phoenix”), which is operated by a private, for-profit corporation pursuant to a contract with the District.
McCaskey is a credit to the state. Its campus consists of two smaller schools. One is J.P. McCaskey, which is a traditional public high school with all of the standard and extracurricular programs one might reasonably expect. Compl. at ¶ 45; Answer at ¶ 45. The other is McCaskey East, also known as the International School, which operates a program essentially designed to teach English to those students who speak little English, if any at all. Compl. at ¶ 59; Answer at ¶ 59; Ex. 8. Those students generally attend the International School for one year, receiving focused instruction in the English language and American culture, after which time they attend regular classes with the general population of students. Compl. at ¶ 59; Answer at ¶ 59. New students are enrolled in the International School depending primarily on their ability (or lack thereof) to speak English, so long as they are not also over 17 with no academic credits. Compare Exs. 8, 25 with Notes of Testimony (“N.T.”), Jacques Blackman, Aug. 22, 2016, 9:27 AM-12:34 PM, 55:20-56:18.
Phoenix is a little different. It focuses primarily on credit recovery for those students who are overage and under-credit. Ex. 84; Compl. ¶ 47; Answer ¶ 47. Phoenix offers students the opportunity to take an accelerated curriculum, and earn a high school diploma in roughly half the time of a traditional high school. Ex. 84. In Phoenix, a significant portion of a student’s grade is based on behavior and attendance, also known as “seat time.” See, e.g., N.T., Jandy Rivera, Aug. 18, 2016, 9:42 AM-2:11 PM, 53:18-25, 54:1-8. Phoenix offers some
3

accommodations for those with limited English proficiency. N.T., Aura Heisey, Aug. 22, 2016, 4:13 PM-5:45 PM, 10:1-14. For those students, they may take a daily English as a Second Language (“ESL”) class. Id. All other courses are with the general student population and taught in English. N.T., Khadidja Issa, Aug. 16, 2016, 1:29 PM-5:27 PM, 44:1-21.
Enrollment in Phoenix, rather than McCaskey, is generally a choice offered to students and their families. N.T., Jacques Blackman, Aug. 22, 2016, 9:27 AM-12:34 PM, 19:11-23. But one group of prospective students is not offered that choice: new-to-the-district students who are over 17 years old and under-credit. Id. at 19:20-20:8. For these students, the choice is made for them, and the District unilaterally assigns them to Phoenix. See, e.g., id. The District adopted this practice primarily due to concerns that those students represent a higher risk of dropping out or “aging out” before earning a high school diploma. See N.T., Damaris Rau, Aug. 19, 2016, 1:29 PM-4:07PM, 39:1-13, 78:5-7; 81:18-22. For a student, a high school diploma is often a prerequisite for future advancement. Moreover, if a student is enrolled in a school, but does not graduate, either because they drop out or they age out, that school’s graduation rate drops. Id. at 72:3-15. School funding and evaluations are in part based upon graduation rates, and the reputation of a school with a low graduation rate can suffer in the community. See generally id.
The District’s practice of mandatory enrollment in Phoenix applies regardless of a student’s proficiency in English. Deposition of Jacques Blackman, 43:2-44:19. When a student with no ability to speak or understand English, such as the plaintiffs, is placed in accelerated classes, the student will cover material twice as fast as a normal school, but that material is also taught in a language that student does not understand. On its face, this practice appears to be counterintuitive; expert testimony confirmed that the practice was unsound. See N.T., Helaine Marshall, Aug. 18, 2016, 9:42AM-2:11PM, 119:1-3 (“[A]n accelerated recovery program is
4

totally inappropriate for this population.”). Although the student earns (or at least is issued) a diploma and all of the attendant benefits, the student will likely graduate with limited ability, if any, to converse in English—also often a prerequisite to future advancement—and limited understanding of the content of the courses he actually took.
The practice also runs counter to the District’s prior representations on how the International School would be used. Ex. 25. Previously, the District maintained that new students who cannot speak English will be enrolled in the International School for the first year, and, with that baseline education in the English language, would then be placed in McCaskey or, if over 19, placed in Phoenix. Id.
The District also does not evaluate the efficacy of the Phoenix ESL program. N.T., Damaris Rau, Aug. 19, 2016, 1:29 PM-4:07PM, 84:16-85:4, 88:12-89:1. Although the raw data is available, the District does not analyze the Phoenix data on its own. N.T., Amber Hilt, Aug. 19, 2016, 1:29 PM-4:07 PM, 10:7-19. Instead, it combines that data with data from the International School, which uses an entirely different ESL instructional model. See id. at 9:2010:19. The practical result of commingling the data is that the District cannot quantify whether the ESL program operating at Phoenix is successful. See id.
In addition to the language barriers, enrollment itself has not been a smooth process for the plaintiffs. One plaintiff, Alembe Dunia, 20, today is still not enrolled, despite repeated attempts to enroll dating back to at least January 2015. See N.T., Alembe Dunia, Aug. 17, 2016, 2:06 PM-3:56 PM, 9:16-17, 13:18-23. Because Alembe will age out after the upcoming school year, this delay has greatly prejudiced his ability to receive the education the state promises him. Others experienced significant delays, upwards of five months. See N.T., Q.M.H., Aug. 16, 2016, 1:29PM-5:27PM, 37:23-25. One, Q.M.H., was initially denied enrollment, and only later
5

enrolled after the District learned that he was 17, not 19, a factor that has no legal significance as to the District’s obligations. See N.T., Jacques Blackman, Aug. 22, 2016, 9:27 AM-12:34 PM, 33:24-25, 34:1. And in no case did the District accomplish the enrollment of the plaintiffs within the five-day period mandated by state law.
For those plaintiffs ultimately enrolled in Phoenix, a common complaint is that they did not understand the vast majority of content taught in the non-ESL classes. See, e.g., N.T., Khadidja Issa, Aug. 16, 2016, 1:29 PM-5:27 PM, 25:12-14. Some formally requested transfer to the International School, in order to build a foundation in the English language prior to taking general classes. E.g., Ex. 26. The District did not grant any such request.
One plaintiff, Anyemu Dunia, 18, graduated from Phoenix in the midst of the evidentiary hearing, earning a diploma in just 16 months, despite arriving with no academic credits and littleto-no ability to speak or understand English, all while recording 47 absences during those 16 months.2 Exs. 17, 50. He testified that he did not know when he advanced through grade levels and required an interpreter to testify in court. N.T., Anyemu Dunia, Aug. 17, 2016, 2:06 PM3:56 PM, 34:13-17.
In late July, dissatisfied with the District’s refusal to allow the plaintiffs to enroll in the International School, the plaintiffs filed a complaint in this court and a motion for preliminary injunction.3 See Doc. Nos. 1, 7. The parties engaged, admirably, in expedited discovery, and the court held a five-day evidentiary hearing, during which the court heard testimony from numerous witnesses, including an expert. See Doc. Nos. 26-30. Subsequent to the hearing, the parties provided the court with proposed findings of fact and conclusions of law. Doc. Nos. 32-34.
2 Anyemu appears to have ranked 6th out of a class of 107 despite his readily apparent difficulties conversing in English. See Ex. 50. 3 The plaintiffs also filed a motion for class certification, which is pending. Although the plaintiffs have requested interim relief for the proposed class, the court finds that any such relief is best addressed as the case progresses to avoid any unintended harm to unnamed class members.
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II. DISCUSSION Before going any further, it is useful to identify what this case is not about. The plaintiffs are not seeking the creation of a new entitlement, or new and better schools. The plaintiffs are seeking admittance into a program that currently exists, and that is specifically designed for students with their unique language needs. The plaintiffs want to learn English, and the District operates a school that meets that purpose, admitting students that are identical to the plaintiffs in every way, but for their age. In official, public documents, the District promised to admit students, such as the plaintiffs, to that program. Nor is this a case where the court is substituting its policy judgment for the District’s. The court cannot—and should not—design curricula. Those judgments are properly left to the “educators rather than courts, who are in a better position ultimately to resolve the question [of] whether” one practice or another “is, on the whole, more beneficial than detrimental to the students involved.” Castaneda v. Pickard, 648 F.2d 989, 996 (5th Cir. 1981). Still, the discretion allocated to the educators is subject to the direction of state and federal legislatures. As it happens, both of those legislatures have passed laws relevant here, and the court is bound to apply those laws. In short, the court has no discretion to decline to apply clear law to clear facts.
A. Legal Standard This court must weigh four factors to determine whether to issue a preliminary injunction: (1) the likelihood that the moving party will succeed on the merits; (2) the extent to which the moving party will suffer irreparable harm without injunctive relief; (3) the extent to which the non-moving party will suffer irreparable harm if the injunction is issued; and (4) the public interest. Liberty Lincoln-Mercury Inc. v. Ford Motor Co., 562 F.3d 553, 556 (3d Cir. 2009); McNeil Nutritionals LLC v. Heartland Sweeteners, LLC, 511 F.3d 350, 356-57 (3d Cir.
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2007). An injunction is an “extraordinary remedy” not to be awarded lightly. Winter v. Nat.

Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). When injunctive relief is appropriate, courts

should still be “reluctant to grant an injunction any greater in scope than is absolutely

necessary[.]” Brennan by Brennan v. Sch. Dist. of Philadelphia, No. 88-6869, 1988 WL 96798,

at *6 (E.D. Pa. Sept. 16, 1988).

B. Analysis

1.

Likelihood of Success on the Merits

After the conclusion of the evidentiary hearing, and consideration of all of the parties’

respective submissions, the court holds that the plaintiffs are likely to succeed on the merits of

their claims arising under state law and the Equal Education Opportunity Act (“EEOA”). One

student who wants to go to school, and has provided sufficient documentation to obtain

enrollment, is still not enrolled. That violates Pennsylvania law. And the ESL program at

Phoenix does not sufficiently overcome the plaintiffs’ language barriers, which violates the

EEOA. Because the relief granted on these claims is sufficient to resolve the present motion, it

is unnecessary to address the plaintiffs’ Title VI and constitutional claims at this juncture.

a.

State Law Claims

The District has an obligation to timely enroll all school age children within the school

district. It has not met this obligation as to the plaintiffs.

In Pennsylvania, every child who has not graduated from high school has a right to attend

the public schools in her district until the end of the school year in which she turns 21. See 24

P.S. § 13-1301 (“Every child, being a resident of any school district, between the ages of six (6)

and twenty-one (21) years, may attend the public schools in his district, subject to the provisions

of this act.”); 22 Pa. Code § 11.12 (defining school age); see also 22 Pa. Code § 12.1(a) (“All

8

persons residing in this Commonwealth between the ages of 6 and 21 years are entitled to a free and full education in the Commonwealth’s public schools.”).
Regarding enrollment of school-age children, Pennsylvania regulations require that a “school district or charter school shall normally enroll a child the next business day, but no later than 5 business days of application.” 22 Pa. Code § 11.11(b). None of the plaintiffs were enrolled within the five-day period. One is still not enrolled today. The District’s position on this unenrolled individual is unclear, though the law is not. In formal pleadings and at times during the evidentiary hearing, the District took the position that it could deny enrollment to individuals, such as Alembe, who could not graduate before aging out. In later testimony, and in a motion to amend, the District abandoned this position, admitting that would be an impermissible reason to deny enrollment. But for some reason, Alembe remains unenrolled, and the District in its request for relief asks the court to deny Alembe’s enrollment.4
To be clear, Pennsylvania law establishes a right to an education until an individual graduates or turns 21. Alembe has not graduated and has not turned 21. If he wants to go to school, the law requires the District enroll him within five days of his completed application.
The enrollment delays for the other students concern the court, but the District acknowledges that it is concerned by these delays as well, and is currently in the process of reviewing its enrollment procedures. The remaining defendants are all currently enrolled, which largely moots the issue as to them, and the court credits the District’s representations that, going forward, it will comply with the legal requirements for enrollment imposed by Pennsylvania law.
4 The court did not credit the District’s explanation that Alembe was not enrolled because he missed an enrollment meeting, because Alembe’s younger brother apparently missed the same meeting but was nonetheless enrolled, and in fact has since graduated. See Exs. 50, 51.
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b.

Equal Education Opportunity Act

The plaintiffs are also likely to succeed on the merits of their EEOA claim. The EEOA

provides that “[n]o State shall deny equal educational opportunity to an individual on account of

his race, color, sex, or national origin, by . . . the failure by an educational agency to take

appropriate action to overcome language barriers that impede equal participation by its students

in instructional programs.” 20 U.S.C. § 1703(f). To prevail under the EEOA, the plaintiffs must

demonstrate the following: “(1) language barriers; (2) 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).

Most of the analysis in an EEOA claim concerns the second prong: whether the school

has taken “appropriate action.” The leading case for assessing that determination is Castaneda v.

Pickard, 648 F.2d 989 (5th Cir. 1981), and multiple district courts have applied Castaneda to

address the second prong. See C.G., 888 F. Supp. 2d at 575 (applying Castaneda to determine

whether language program constitutes “appropriate action” under the EEOA); see also Valeria

G. v. Wilson, 12 F. Supp. 2d 1007, 1017-18 (N.D. Cal. 1998) (same).

Castenada requires the court to carefully review the record to determine: (1) whether a

school system is pursuing a program “informed by an educational theory recognized as sound by

some experts in the field or, at least, deemed a legitimate experimental strategy”; (2) whether the

programs and practices actually used by a school system are reasonably calculated to implement

effectively the educational theory adopted by the school; and (3) whether the program, once

employed for a sufficient time period to give the plan a legitimate trial, produces “results

indicating that the language barriers confronting students are actually being overcome.”

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Castaneda, 648 F.2d at 1009-10. The test is conjunctive. All three requirements must be fulfilled for the District’s policy to comply with EEOA. Here, the plaintiffs have demonstrated that the accelerated program at Phoenix does not meet the first and third prongs.
To meet the first prong, the District must show that the program at Phoenix is based on a sound educational theory for overcoming language barriers recognized by some experts in the field. The court should not attempt to weigh “the relative merits of sound but competing bodies of expert educational opinion[.]” Id. at 1009. Instead “the court’s responsibility, insofar as education theory is concerned, is only to ascertain” whether the school is pursuing a program informed by some sound theory. Id.
The plaintiffs’ expert, Dr. Helaine Marshall, testified convincingly that the “accelerated recovery program is totally inappropriate for [the plaintiffs]” and that there is “absolutely no[ contrary research.]” The District did not offer any expert to the contrary. Instead, the District offered its ESL Coordinator, who testified that the “structured immersion” technique is a sound theory generally for overcoming language barriers, but nothing persuasive to the court to contradict Dr. Marshall’s testimony that this technique was not recognized as sound for an accelerated, credit-recovery program. The Phoenix model of accelerated learning presents different language barriers than a traditional education program, and is particularly imposing for students who cannot yet understand the language in which the courses are taught.
And the District has even greater difficulty meeting the third prong. Undisputed testimony offered in court shows that the District does not evaluate whether the “language barriers confronting students are actually being overcome” at Phoenix. The ESL Coordinator acknowledged that “there is no data at this level that would allow us to determine whether the educational program, the ESL delivered to these students in with the Phoenix accelerated model
11

is working or not.” Because the District did not disaggregate the Phoenix data to make this

assessment, it could not demonstrate the effectiveness of the program to the court. Through her

own efforts, Dr. Marshall was able to discern from limited data provided by the District that

Phoenix’s performance on literacy measures—the core measure of “overcoming language

barriers”—was far worse than McCaskey’s.

The plaintiffs have demonstrated that the District has not met two of the three Castaneda factors and, thus, that Plaintiffs are likely to succeed on the merits of its EEOA claim.5

2.

Irreparable Harm to the Plaintiffs

Irreparable harm is shown where the movant suffers “potential harm which cannot be

redressed by a legal or an equitable remedy following trial.” Acierno v. New Castle County, 40

F.3d 645, 653 (3d Cir. 1994). “Compensation in money can never atone for deprivation of a

meaningful education in an appropriate manner at the appropriate time.” John T. ex rel. Paul T.

v. Commonwealth, Civ. No. 98-5781, 2000 WL 558582, at *8 (E.D. Pa. May 8, 2000).

Denial of a free public education, either by refusing or delaying enrollment, is irreparable

harm. See, e.g., N.J. v. New York, 872 F. Supp. 2d 204, 214 (E.D.N.Y. 2011) (observing that the

“interruption of a child’s schooling causing a hiatus not only in the student’s education but also

in other social and psychological developmental processes that take place during the child’s

schooling, raises a strong possibility of irreparable injury”); L.R. ex rel. G.R. v. Steelton-

Highspire Sch. Dist., No. 1:10-CV-00468, 2010 WL 1433146, at *3-4 (M.D. Pa. Apr. 7, 2010)

(holding that homeless student would be irreparably harmed “if he is not re-enrolled in the

District”); Oravetz v. W. Allegheny Sch. Dist., 74 Pa. D. & C.2d 733, 737-38 (Pa. Ct. Com. Pl.

5 The other two factors in an EEOA claim, in addition to appropriate action, are plainly present here. The parties do not dispute that the plaintiffs have language barriers. Compl. at ¶¶ 1, 2; Answer at ¶¶ 1, 2. And after reviewing the students’ educational records, and the five days of sworn testimony, the court credits the students’ testimony that their participation was impeded.
12

1975) (recognizing that the “deprivation of educational rights can produce irreparable harm and

establishes a need for prompt and immediate relief”); Minnicks v. McKeesport Area Sch.

Dist., 74 Pa. D. & C.2d 744, 749-50 (Pa. Ct. Com. Pl. 1975) (“Absence from school cannot be

repaired by money damages or even by a subsequent reinstatement at a future period.”).

Plaintiffs have been or are being denied a meaningful education through denial or delays

in enrollment, and by placement at a school that fails to overcome their language barriers in

violation of the EEOA.

3.

Irreparable Harm to the Defendant

Placing the plaintiffs at McCaskey will not result in “greater harm” to the District that

outweighs the ongoing harm to the plaintiffs in being excluded from equal educational

opportunities. See Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 167 (3d Cir. 1999)

(explaining that the relevant question is not whether the defendant “would suffer some harm” but

which of the two potential harms is greater). In balancing those potential harms, the court should

be “unwilling to gamble with a child’s education.” New Jersey v. New York, 872 F. Supp. 2d 204, 214 (E.D.N.Y. 2011).6

The District has no interest in continuing practices that violate federal and state law. Cf.

Child Evangelism Fellowship of New Jersey, Inc. v. Stafford Twp. Sch. Dist., 233 F. Supp. 2d

647, 667-68 (D.N.J. 2002), aff’d on appeal by Child Evangelism Fellowship of New Jersey, Inc.

v. Stafford Twp. Sch. Dist., 386 F.3d 514 (3d Cir. 2004). “Providing statutorily granted services

6 Education is not merely a “‘benefit’ indistinguishable from other forms of social welfare legislation.” Plyer v. Doe, 457 U.S. 202, 221 (1982). “Both the importance of education in maintaining our basic institutions, and its lasting impact of its deprivation on the life of the child, mark the distinction.” Id. With that in mind, it is no surprise that when balancing the relative harms between students and schools, it is not uncommon for courts to side with the students. See, e.g., Abington Heights Sch. Dist. v. A.C., No. 14-00368, 2014 WL 1767193, at *11 (M.D. Pa. May 2, 2014) (finding balance of harms favored student seeking special education and that “any harm to the school district presents only solvable issues of a financial, staffing, and administrative nature”).
13

to a child does not harm the school district; doing so is its function under state and federal law.”

See John T., 2000 WL 558582, at *8.

Moreover, the District already has in place the International School, a program that can

satisfy its legal duties to the plaintiffs. It also, according to official documents, appears to have

designed a plan so that older students, like the plaintiffs, receive the benefit of the International

School before entering the general school population, be it at McCaskey or at Phoenix if they are

over 19. To its credit, the District knows what to do for children with language barriers—all that

is required is that it do what it said it would do.

4.

The Public Interest

“As a practical matter, if a plaintiff demonstrates both a likelihood of success on the

merits and irreparable injury, it almost always will be the case that the public interest will favor

the plaintiff.” American Tel. and Tel. Co. v. Winback and Conserve, Inc., 42 F.3d 1421, 1427

n.8 (3d Cir. 1994); L.R., 2010 WL 1433146, at *5. It is “undeniably in the public interest for

providers of public education to comply with the requirements [of federal education law].” L.J.,

2007 WL 3252240, at *9; see also Grube v. Bethlehem Area Sch. Dist., 550 F. Supp. 418, 424-25

(E.D. Pa. 1982).

The public interest clearly weighs in favor of granting a preliminary injunction to ensure

the plaintiffs immediate enrollment in McCaskey and access to the meaningful education to

which they are legally entitled.

III. CONCLUSION

The plaintiffs’ motion presents straightforward legal issues that were ultimately easy to

resolve. As to those issues, the law is clear: eligible students must be timely enrolled, and efforts

to overcome language barriers must be sound and effective. The defendant has already

14

developed a program that meets these requirements and is operating it to great success. While there may be other means to comply with the law, the defendant does not currently offer one. Accordingly, and as detailed in a separate order, the court will grant the plaintiffs’ motion for preliminary injunction.
BY THE COURT: /s/ Edward G. Smith EDWARD G. SMITH, J.
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 Case 5:16-cv-03881-EGS Document 1 Filed 07/19/16 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Khadidja Issa; Q.M.H., a minor, individually, by and through his parent, Faisa Ahmed Abdalla; Alembe Donia; Anyemu Donia; V.N.L.t a minor, individually by and through her parent, Mar Ki; Sui Hnem Sung; and all others similarly situated,

Civil Action No. _ _ __

Plaintiffs, CLASS ACTION COMPLAINT
v.

The School District of Lancaster,

Defendant.

I. PRELIMINARY STATEMENT 1. Plaintiffs in this class action lawsuit are limited-English-proficient
("LEP") immigrants who, while aged 17-21, were, are, or may be in the future denied their right to equal educational opportunities and meaningful public education by Defendant School District of Lancaster ("SDOL" or the "District") in violation of the U.S. Constitution, federal civil rights statutes, and Pennsylvania education law.
2. The Named Plaintiffs are refugees who have fled war, violence, and persecution from their native countries of Somalia, Sudan, Democratic Republic of Congo, and Burma. Having finally escaped their turbulent environment to resettle in America, these young immigrants yearn to learn English and get an education so they can make a life for themselves.
3. SDOL has a custom, practice, and policy of refusing to admit older immigrant LEP students into the District's regular high school, McCaskey. SDOL either refuses to enroll them altogether or assigns them to an "alternative" school, Phoenix Academy.

Case 5:16-cv-03881-EGS Document 1 Filed 07/19/16 Page 2 of 16
4. Phoenix Academy is an alternative high school for "underachieving" students operated for SDOL on a contract basis by Camelot Education, a private company that is known for operating disciplinary schools. With its highly restrictive and overtly confrontational environment, Phoenix is run more like a disciplinary school than a traditional public high school. Students are subject to pat-down searches, prohibited from bringing belongings into or out of the school, forced to wear colored shirts that correspond with behavior and not allowed to wear watches or jewelry, expected to "confront" peers ~~exhibiting negative behavior," and can be subjected to physical and even violent restraint, as part of the school's disciplinary policy. Phoenix lacks adequate and appropriate supports for immigrant LEP students, including any transition program like the International School at McCaskey, which is a "one-year transition program designed to address the needs ofstudents who are new to the country or the district and who have limited English proficiency." Phoenix is academically inferior by all measures and offers no extra-curricular opportunities. Many immigrant LEP students placed at Phoenix drop out because they are not provided sufficient supports to overcome language barriers to enable them to learn the core curriculum, and because of unchecked, persistent bullying in a severe, authoritarian environment that is particularly ill-suited for refugees.
5. SDOL's refusal to admit older immigrant LEP students into the McCaskey High School Campus ("McCaskey")-with its superior academic program, International School specially tailored to their academic needs as newcomers entering the school system, and superior language supports and accommodations- results in denial of a meaningful and equal education to Plaintiffs and Class Members that violates the Equal Education Opportunity Act ("EEOA"), 20 U.S.C. § 1703(t); Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d,
et seq. ("Title VI"); the Due Process Clause of the Fourteenth Amendment to the U.S.

Case 5:16-cv-03881-EGS Document 1 Filed 07/19/16 Page 3 of 16
Constitution, U.S. Const., amend XIV,§ 1; the Equal Protection Clause ofthe Fourteenth Amendment to the U.S. Constitution, U.S. Const., amend XIV,§ 1; and various provisions of the Pennsylvania Public School Code of 1949, 24 Pa. Stat. § 13-1301, et seq.
6. Plaintiffs seek declaratory and injunctive relief, including a preliminary injunction, directing SDOL to admit Plaintiffs and Class Members to McCaskey and to make available the full range ofcurricular and extra-curricular programs and activities, including access to the International School and all appropriate accommodations and modifications to overcome language barriers, in time to begin the fall semester on August 30, 2016.
II. JURISDICTION AND VENUE
7. The claims in this action arise under the Equal Education Opportunities Act ("EEOA"), 20 U.S.C. § 1703(t); Title VI of the Civil Rights Act of 1964,42 U.S.C. § 2000d; the Due Process Clause of the Fourteenth Amendment to the United States Constitution; the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; 42 U.S.C. § 1983; and 24 Pa. Stat.§ 13-1301 and 22 Pa. Code, Chapter 11.
8. This Court has subject matter jurisdiction over the federal law claims pursuant to 28 U.S.C. §§ 1331 and 1343. In addition, this Court has jurisdiction to grant declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202. This Court may exercise supplemental jurisdiction over the pendent state law claims pursuant to 28 U.S.C. § 1367.
9. Venue in this district is proper under 28 U.S.C. § 1391(b) because the defendant is subject to personal jurisdiction within the Eastern District of Pennsylvania and the events that give rise to this action occurred within the Eastern District of Pennsylvania.
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Case 5:16-cv-03881-EGS Document 1 Filed 07/19/16 Page 4 of 16
III. THE PARTIES ' A. Named Plaintiffs
Khadidja lssa1 I 0. Plaintiff Khadidja Issa is an I8-year~old refugee from Sudan. II. Refugee status is governed by the 195I Convention relating to the Status
of Refugees {"Refugee Convention"), a United Nations multilateral treaty, to which the United States is a signatory, that defines who is a refugee, and sets out the rights of individuals who are granted asylum and the corresponding responsibilities of nations that grant asylum. Article I of the Refugee Convention, as amended by the I967 Protocol, defines a refugee as:
A person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection ofthat country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
I2. The screening process to admit refugees is rigorous, and typically takes I8~24 months. See, e.g., Refugees, U.S. Citizenship & Immigration Services, https://www.uscis.gov/humanitarian/refugees~asylum/refugees {last visited July 12, 20I6); U.S. Refugee Admissions Program, U.S. Department of State, http://www.state.gov/j/prrn/ra/admissions/ (last visited July I2, 2016).
I3. In September 20I5, Khadidja, her mother, and her siblings came to the U.S. as refugees. Lutheran Immigration Refugee Services {"LIRS"), a refugee resettlement agency, helped them resettle in Lancaster, Pennsylvania, where they still live.
1 Each of the Named Plaintiffs have verified the allegations ofthe Complaint specifically pertaining to them. Those verifications are attached hereto as Exhibit A.
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Case 5:16-cv-03881-EGS Document 1 Filed 07/19/16 Page 5 of 16

14. Khadidja's first language is Fur, an indigenous language of Darfur, Sudan.

She also speaks Arabic. Neither she nor her mother spoke, read, wrote or understood English

when they arrived in the U.S.

15. SDOL initially refused to enroll Khadidja in any District school. After

several months SDOL relented, but made Khadidja attend Phoenix Academy. She was not given

the option of attending McCaskey.

Q.M.H.

16. Plaintiff Q.M.H. is a seventeen-year-old refugee from Somalia. Q.M.H. is

a pseudonym that is being used because he is a minor. As a minor, he brings this lawsuit by and

through his mother, Faisa Ahmed Abdalla. Q.M.H., his mother, and his four siblings escaped the

conflict in Somalia and took refuge in Egypt, where they lived for five years in a refugee camp.

17. Q.M.H. and his mother speak and understand only Somali and Arabic.

They had no experience speaking or learning English before their arrival in the United States.

18. Q.M.H. and his family came to the United States as refugees in September

2015. LIRS helped them resettle in Lancaster, Pennsylvania, where they still live.

19. Defendant SDOL refused initially to admit Q.M.H. into any District

school. After months of persistence by LIRS case workers, SDOL relented in January 2016, but

admitted Q.M.H only to Phoenix. He was not given the option of attending McCaskey. Q.M.H.

left Phoenix in April due to SDOL's failure to provide a program that meets his language and

learning needs and its failure to check persistent and serious bullying of Q.M.H.

Alembe Dunia and Anyemu Dunia 20. Plaintiffs Alembe Dunia and Anyemu Dunia are brothers, aged 20 and 18,

respectively. Alembe and Anyemu are refugees from the Democratic Republic of Congo. They

spent twelve years in a refugee camp in Mozambique after fleeing the war in Congo. Their

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Case 5:16-cv-03881-EGS Document 1 Filed 07/19/16 Page 6 of 16
father died in the camp. Alembe and Anyemu are native Swahili speakers, who also speak some Portuguese. Neither they nor their mother spoke, read, wrote or understood English when they arrived in the U.S.
21. In November 2014, Alembe and Anyemu, along with their mother and siblings, came to the United States as refugees. LIRS helped resettle them in Lancaster, where they still live.
22. In December 2014 and thereafter, SDOL refused to admit Alembe, who was 19 years old at the time, into any District school. SDOL refused to enroll then-17-year-old Anyemu in McCaskey, only allowing him to attend Phoenix, where he has not been provided sufficient language and other supports to learn and where the restrictive, hostile environment makes him uncomfortable. Despite the deficient language supports and educational instruction, SDOL recently advised Anyemu that he has managed to accrue four years of credits at Phoenix in twenty months and would be graduated later this summer. Sui Hnem Sung and V.N.L.
23. Plaintiffs Sui Hnem Sung and V.N.L. are sisters, 19 and 17 years old, respectively. V.N.L is a pseudonym that is being used because she is a minor. As a minor, she brings this lawsuit by and through her mother, Mar Ki. They are refugees from Burma. Sui Hnem Sung and V.N.L. are native Hakha Chin speakers. Neither they nor their parents spoke, read, wrote or understood English when they first arrived in the United States.
24. In November 2015, Sui Hnem Sung, V.N.L., their mother, and younger brother and sister came to the U.S. as refugees, joining their father who had arrived in 2013. Church World Services ("CWS"), a refugee settlement agency, helped them settle in Lancaster, where they still live.
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Case 5:16-cv-03881-EGS Document 1 Filed 07/19/16 Page 7 of 16
25. SDOL refused to admit Sui Hnem Sung and V.N.L. to McCaskey, instead admitting them only to Phoenix Academy, where they are not given sufficient language and other supports to access the curriculum.
B. Defendant 26. Defendant, SDOL, is a school district within the Commonwealth of
Pennsylvania organized pursuant to the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 Pa. Stat. §§ 1~101, et seq. The District's headquarters and principal place of business is located at 251 S. Prince Street, Lancaster, Pennsylvania 17603. The District is a Local Educational Agency ("LEA") responsible for ensuring that Plaintiffs receive an education consistent with federal and state law. The District, as a public entity, receives federal funds and is subject to the EEOA and Title VI of the Civil Rights Act of 1964. The District is also required to comply with state education laws pursuant to the Pennsylvania Code.
IV. LEGAL FRAMEWORK
27. Education is a fundamental right under the Pennsylvania Constitution and the Pennsylvania Public School Code of 1949, giving every child aged 6 through 21 the right to a free public education in that child's school district of residence. See Pa. Const. Art. III,§ 14; 24
Pa. Cons. Stat. Ann.§ 13~1301; Sch. Dist. ofWilkinsburg v. Wilkinsburg Educ. Ass 'n, 667 A.2d 5, 9 (Pa. 1995) (interpreting Article III, Section 14 of the Pennsylvania Constitution to make
public education a fundamental right in the Commonwealth). A child who turns 21 during the school term and who has not graduated from high school has the right to continue to attend the public schools in his district free of charge until the end of the school term. 24 Pa. Cons. Stat.
Ann.§ 13~1301; see also 22 Pa. Code§ 12.l(a).

Case 5:16-cv-03881-EGS Document 1 Filed 07/19/16 Page 8 of 16

28. The right to a free public education extends equally to immigrant students
who do not speak English as their primary language and who have a limited ability to read,
speak, write, or understand English.
29. Such students are referred to in the law as ''LEP students," which stands for limited-English-proficiency students,2 or as "ELLs," which denotes English Language Learners, or simply "ELs," English Leamers.3 These terms are used interchangeably in this
Complaint.
30. A school district does not satisfy its obligations under federal and state law
by merely providing LEP students the exact same services and programs as native speakers:
there 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 these public schools teach. Imposition ofa 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.
Lau v. Nichols, 414 U.S. 563, 566 (1974).
31. Title VI of the Civil Rights Act of 1964 prohibits recipients of federal
financial assistance from engaging in national origin discrimination, which has been interpreted
to require school districts to take affirmative steps to address language barriers so that LEP
students can participate meaningfully in schools' educational programs, both curricular and

2

See, e.g., No Child Left Behind Act of2001, Pub. L. No. 107-110, 115 Stat. 1961

(defining the term "limited English proficient.").

3

See, e.g., Glossary, National Center for Education Statistics,

https://nces.ed.gov/programs/coe/glossary.asp#ell (last visited July 12, 2016) (defining term

English Language Learner).

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extra-curricular. See 42 U.S.C. § 2000d (prohibiting raceJ color, and national origin
discrimination in any program or activity receiving federal financial assistance); Lau, 414 U.S.
563; 34 C.F.R. § 100.3(b)(l), {2).
32. Another federal statute, the EEOA provides that "[n]o State shall deny
equal educational opportunity to an individual on account of his or her race, color, sex, or
national origin, by ... 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).
33. More specifically, these federal laws have been interpreted and applied to
require that school districts do the following:
a. Identify and assess ELL students in need of language assistance in a timely, valid, and reliable manner;
b. Provide ELL students with a language assistance program that is educationally sound and proven successful;
c. Provide sufficient staff and support for the language assistance programs for ELL students;
d. Ensure that all ELL students have equal opportunities to meaningfully participate in all curricular and extracurricular activities, including the core curriculum, graduation requirements, specialized and advanced courses and programs, sports, and clubs;
e. Ensure that students with disabilities, as defined by federal law, are evaluated in a timely and appropriate manner for special education and disability-related services and their language needs are considered in evaluations and delivery ofservices;
f. Monitor and evaluate ELL students in language assistance programs to ensure their progress with respect to acquiring English proficiency and grade level core content, exit ELL students from language assistance programs when they are proficient in English, and monitor exited students to ensure they were not prematurely exited and that any academic deficits incurred in the language assistance program have been remedied;
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g. Evaluate the effectiveness of a school district's language assistance program(s) to ensure that ELL students in each program acquire English proficiency and that each program was reasonably calculated to allow ELL students to attain parity ofparticipation in the standard instructional program within a reasonable period of time; and
h. Ensure meaningful communication with ELL parents. Catherine E. Lhamon & Vanita Gupta, U.S. Dep't of Justice & U.S. Dep't of
Educ., Dear Colleague Letter: English Learner Students and Limited English Projicient Parents, 8-9 (Jan. 7, 2015),
http://www2.ed.gov/about/officesll ist/ocr1Ietters/colleague-el20150l.pdf. 34. Pennsylvania law tracks federal law, but provides additional specificity.
For instance, state law provides that a "child's right to be admitted to school may not be
conditioned on the child's immigration status ... [and, thus, a] school may not inquire regarding
the immigration status of a student as part ofthe admission process." 22 Pa. Code § 11.11 (d).
35. Pennsylvania law clarifies that "every school district shall provide a
program for each student whose dominant language is not English for the purpose of facilitating
the student's achievement ofEnglish proficiency and the academic standards under§ 4.12 ...." 22 Pa. Code§ 4.26. It also specifies that "[p]rograms under this section shall include appropriate
bilingual-bicultural or English as a second language (ESL) instruction." /d.
36. Guidance issued by the Pennsylvania Department of Education to
implement federal and state laws delineates how students should be identified, evaluated,
monitored, and exited from a language program; recommends a specific number of instruction
hours for ELL students based on their level of proficiency; and expressly states that language
program administrators consider "LEA demographics, and student characteristics" in planning
their instructional model. See Educating Students with Limited English Proficiency (LEP) and English Language Learners (ELL}, Pennsylvania Department of Education Basic Education
Circulars (last modified Apr. 14, 2009),
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Case 5:16-cv-03881-EGS Document 1 Filed 07/19/16 Page 11 of 16
http://www.education.pa.gov/Documents/Codes%20and%20Regulations/Basic%20Education%2 0Circulars/PA%20Code/Educating%20Students%20with%20Limited%20English%20Proficienc y%20CLEP)%20and%20English%20Language%20Leamers%20CELL).pdf.
37. Pennsylvania also requires all teachers in language instructional programs to hold a Program Specialist ESL Certificate. Jd at 7 ("All teachers in language instructional programs must hold the certification and endorsements required by [the Pennsylvania Department of Education]."); 24 Pa. Stat.§ 15-1511 ("[T]he teaching ofsubjects in a language other than English may be permitted as part of a sequence in foreign language study or as part of a bilingual education program if the teaching personnel are properly certified in the subject fields."). All school districts with ELLs enrolled must offer staff development related to ESL for all personnel as part of the Professional Development Act 48 Plan.
38. Furthermore, Article 22 of the Refugee Convention, under which the U.S. accepted all of the Named Plaintiffs, also obliges host countries to provide them a free public education equivalent to that offered native students.
39. In sum, federal and Pennsylvania law requires that all school districts provide ELLs with appropriate language programs and assistance to help ensure that they can access the curriculum, attain English proficiency, develop high levels of academic attainment in English, and meet the same academic content and academic achievement standards that all students are expected to meet. V. FACTUAL ALLEGATIONS
A. The School District of Lancaster 40. SDOL has a custom, practice, and policy of refusing to enroll immigrant
LEP students, aged 17-21, in the District's main high school, McCaskey. That school offers a program known as the International School, which is specially designed for newly-arrived
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immigrant LEP students. Instead of placing older immigrant students in McCaskey's International School, SDOL denies them enrollment in the District altogether or discourages or delays their admission, and if it does admit the students, funnels them to a substantially inferior alternative high school called Phoenix Academy. Phoenix operates under an educational theory that predictably denies these students meaningful education; it is neither pedagogically sound for recent immigrant ELLs nor reasonably calculated to overcome their cultural and language barriers.
41. SDOL annually enrolls about II ,300 students with a budget of about $I90 million.
42. SDOL serves a significant immigrant population. Approximately 18% of students are ELLs, and about 4.5% of the students are refugees. (Refugees constitute about onequarter of the ELLs in the District.)
43. The District operates three high schools: the McCaskey High School Campus (referred to herein as "McCaskey"), which has two buildings, JP McCaskey and McCaskey East; Phoenix Academy; and Buehrle Academy.
44. McCaskey enrolls the vast majority of the District's high-school-age students, about 2,600 students each year.
45. SDOL operates McCaskey like a traditional public high school, with a large array of curricular and extra-curricular offerings and a fairly typical degree of student freedom in movement and expression.
46. SDOL contracts with a private company, Camelot Education, to operate the District's two alternative high schools, Buehrle Academy and Phoenix Academy.
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47. Camelot Education is a private company that specializes in alternative schools. Camelot holds itself out as running two types ofschools relevant to this case. Camelot describes its "Transitional Schools" as "serv[ing] students in need of a temporary placement due to behavioral or disciplinary infractions." Camelot considers Buehrle a "transitional school." Camelot describes "accelerated Schools" as "offer[ing] students a highly structured, engaging, direct instruction pathway to graduation," and an "opportunity for students from the ages 16-21 who are overage and under-credited to graduate in 2.5 years or less."
48. Camelot characterizes Phoenix Academy as both an accelerated school and a transitional school. The Curriculum Guide for Phoenix lists "three basic goals" for "all students" at Phoenix: 1) "To recover credits needed for graduation," 2) "To change behavior from anti-social to pro-social," and 3) "To develop life skills that will help sustain this change."
49. Buehrle Academy operates under Pennsylvania law as an "Alternative Education for Disruptive Youth" ("AEDY") program, which is "designed for seriously and persistently disruptive students" in grades 6-12. Under state law, students can only be assigned to an AEDY school following an informal hearing. See 24 Pa. Stat. § 19-1902-C(2) (AEDY applicants must comply with informal hearing procedures set forth in 22 Pa. Code § 12.8(c), relating to hearings). The purpose of such a hearing is to determine whether the student meets the criteria for referral to an AEDY program, i.e., that at the time of the recommended transfer the student demonstrates, to marked degree, specific disruptive conduct. See id. The maximum enrollment in Buehrle is 135 students.
50. Camelot began operating Phoenix Academy under contract with the District in 2011. Then-Superintendent ofthe District, Pedro Rivera, announced that transferring
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operation of Phoenix to Camelot Education would save the District more than $1 million a year,
or $3.6 million over the term of the initial 3-year contract.
51. Camelot has described Phoenix Academy publicly as a high school for
"students with academic and attendance problems," "second-chance students," and "students
who have lost their way."
52. Because Phoenix is an "accelerated" or "credit recovery" program,
Phoenix students earn credits at a much faster rate than they could at a regular school, even
though they receive comparable instruction time.
53. The maximum enrollment at Phoenix Academy is 350 students. Last year,
Phoenix enrolled 323 students, approximately 95% of whom were students of color.
B. McCaskey Versus Phoenix 54. SDOL's refusal to enroll immigrant LEP students, like Plaintiffs, in
McCaskey deprives them of an equal and meaningful education. In comparison to McCaskey,
Phoenix is substantially inferior by every measure.
55. Academically, McCaskey is clearly superior to Phoenix.
a. The students-to-teacher ratio at McCaskey is 14:1, whereas at Phoenix it is 42:1;
b. The percentage of classes taught by "highly qualified teachers," as defined by the Pennsylvania Department of Education, at McCaskey is 92% whereas 0% of the classes at Phoenix are taught by "highly qualified teachers";
c. The Pennsylvania Department of Education's School Performance Profile4 for the 2014-15 school ranked McCaskey twice as high as Phoenix with scores of60.4 and 30.3, respectively;

4

The Pennsylvania Department of Education's School Performance Profile provides the

public with a comprehensive overview of student academic performance in every public school

(including charter and alternative schools) and measures academic outcomes.

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d. For advanced academic courses, which the District characterizes as "highly recommended for every student planning to attend college," McCaskey offers 10 Advanced Placement ("AP") courses and an International Baccalaureate ("IB") program-one of only 15 Pennsylvania high schools to offer such a program-whereas Phoenix offers no AP courses and no IB program;
e. For Advanced-Placement testing, 32% ofstudents at McCaskey take AP tests, whereas 0% of Phoenix students take AP tests;
f. According to the Pennsylvania Department of Education, "college ready" students comprise 83% of McCaskey students whereas 0% of Phoenix students are deemed "college ready";
g. There are many extra-curricular activities, clubs, and opportunities, including interscholastic and other athletic teams, at McCaskey, whereas Phoenix offers no sports teams or extra-curricular activities on campus.
56. Beyond the stark differences in academic opportunities and quality, Phoenix provides more limited and less tailored ESL instruction and few modifications to instruction and testing in regular education classes.
57. At McCaskey, 19.46% of the students are ELLs whereas at Phoenix, 28.17% of students (90 students) are ELLs.
58. SDOL recognizes the unique challenges that newly-arriving immigrant ELLs face, and provides a one-year (sometimes longer) transitional program (the "International School") for such students at McCaskey.
59. The International School program at McCaskey for students in grades 9-12 is designed to provide intensive ESL support and content-based ESL instruction in a one-year program (with exceptions) primarily for entering students.
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60. Students in the International School program participate in ESL classes and "sheltered instruction" science, math, and social studies courses,5 as well as "enrichment subjects."
61. Other key features of the International School program, according to SDOL documents, include close communication with families, access to appropriate translation services[,] and assistance in connecting to community resources.
62. The goal of the program is for students to develop a beginning level of English proficiency and prepare to enter mainstream classes. At the end of each marking period, International School students are supposed to have the opportunity to transfer to the next ESL level within the International School or leave the International School, depending on their English language proficiency score.
63. Phoenix has no International School and no comparable transitional program for newcomers.
64. Phoenix also offers no "sheltered instruction" for ELL students. 65. Upon information and belief, Phoenix does not have any certified ESL teachers on staff. 66. According to SDOL documents describing the schools' operations, there are other significant differences, beyond the International School, between the ESL instructional approaches taken at McCaskey and Phoenix:

5

"Sheltered instruction" is ''adapted to the students' English proficiency levels and

provides modified curriculum-based content. Teachers enhance context by providing visual

props, hands-on learning experiences, drawings, pictures, graphic organizers, and small group

learning opportunities." Sch. Dist. of Lancaster, ESL Instructional Services Matrix (on file with

Plaintiffs' counsel). "Sheltered English instruction programs offer instruction to ELLs at lower

English proficiency levels, who are often newcomers to the United States." /d.

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 Case 5:16-cv-03881-EGS Document 2 Filed 07/19/16 Page 1 of 29

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Khadidja Issa; Q.M.H., a minor, individually, by and through his parent, Faisa Ahmed Abdalla; Alembe Dunia; Anyemu Dunia; V.N.L., a minor, individually by and through her parent Mar Ki; Sui Hnem Sung; and all others similarly situated,

Civil Action No. 16-cv-3881 HON. EDWARD G. SMITH

Plaintiffs,

CLASS ACTION

v.

The School District of Lancaster,

Defendant.

ORDER

AND NOW, this ____ day of ______________ 2016, upon consideration of

Plaintiffs’ Motion for Class Certification, it is hereby ORDERED that Plaintiffs’ Motion is

GRANTED. The following Class is certified:

All limited English proficient (“LEP”) immigrants, who, at any time after August 1, 2013, while aged 17-21, were, are, or will be in the future, excluded from Defendant School District of Lancaster’s main high school, McCaskey—either as a result of being refused enrollment altogether, or through involuntary placement at Phoenix.

It is further ORDERED that Plaintiffs Khadidja Issa; Q.M.H., by and through his

parent, Faisa Ahmed Abdalla; Alembe Dunia; Anyemu Dunia; V.N.L., by and through her parent

Mar Ki; and Sui Hnem Sung are appointed Class Representatives, and their counsel, the

American Civil Liberties Union of Pennsylvania, the Education Law Center, and Pepper

Hamilton LLP are appointed Class Counsel. Based upon the evidence offered in support of this

Motion, the Court FINDS that:

Case 5:16-cv-03881-EGS Document 2 Filed 07/19/16 Page 2 of 29
1. Each of the prerequisites for class certification under Fed. R. Civ. P. 23(a) is satisfied because:
a. The Class is so numerous that joinder would be impracticable; b. There are questions of law or fact common to all members of the Class; c. The claims of Khadidja Issa; Q.M.H., by and through his parent, Faisa Ahmed Abdalla; Alembe Dunia; Anyemu Dunia; V.N.L., by and through her parent Mar Ki; and Sui Hnem Sung are typical of the claims and defenses of the Class; and d. Khadidja Issa; Q.M.H., by and through his parent, Faisa Ahmed Abdalla; Alembe Dunia; Anyemu Dunia; V.N.L., by and through her parent Mar Ki; and Sui Hnem Sung and their counsel will fairly and adequately protect the interests of the Class. 2. Class treatment is appropriate under Fed. R. Civ. P. 23(b)(2) because the District 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. 3. Class Counsel satisfies the requirements of Fed. R. Civ. P. 23(g), considering: a. The work Class Counsel has done in identifying or investigating potential claims in the action; b. Class Counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in this action; c. Class Counsel’s knowledge of the applicable law; and
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Case 5:16-cv-03881-EGS Document 2 Filed 07/19/16 Page 3 of 29

Class.

d. The resources that Class Counsel will commit to representing the
BY THE COURT.
______________________________ Hon. Edward G. Smith United States District Judge

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Case 5:16-cv-03881-EGS Document 2 Filed 07/19/16 Page 4 of 29

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Khadidja Issa; Q.M.H., a minor, individually, by and through his parent, Faisa Ahmed Abdalla; Alembe Dunia; Anyemu Dunia; V.N.L., a minor, individually by and through her parent Mar Ki; Sui Hnem Sung; and all others similarly situated,

Civil Action No. 16-cv-3881 HON. EDWARD G. SMITH

Plaintiffs,

CLASS ACTION

v.

The School District of Lancaster,

Defendant.

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Khadidja Issa; Q.M.H., by and through his parent, Faisa Ahmed Abdalla; Alembe

Dunia; Anyemu Dunia; V.N.L., by and through her parent Mar Ki; and Sui Hnem Sung, by their

attorneys, hereby move this Court, pursuant to Rules 23(a), (b)(2), and (g) of the Federal Rules

of Civil Procedure, for an Order certifying the Class defined below, appointing Plaintiffs as Class

Representatives, and appointing Plaintiffs’ Counsel, the American Civil Liberties Union of

Pennsylvania, the Education Law Center, and Pepper Hamilton LLP, as Class Counsel. In

support of this Motion, and as more fully set forth in the accompanying Memorandum of Law,

Plaintiffs state as follows:

1. Certification of the following Class is appropriate under Rule 23:

All limited English proficient (“LEP”) immigrants, who, at any time after August 1, 2013, while aged 17-21, were, are, or will be in the future, excluded from Defendant School District of Lancaster’s main high school, McCaskey—either as a result of being refused enrollment altogether, or through involuntary placement at Phoenix.

Case 5:16-cv-03881-EGS Document 2 Filed 07/19/16 Page 5 of 29
2. The proposed Class meets each of the requirements of Rule 23(a). The Class is so numerous that joinder of all members would be impracticable. Adjudication of Class claims will not only involve, but will focus on, common issues of fact and law. The claims of the proposed Class Representatives are typical of the Class, and the proposed Class Representatives will adequately protect the interests of absent Class Members.
3. The proposed Class also satisfies the requirements of Rule 23(b)(2) because 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.
4. Proposed Class Counsel satisfies the requirements of Rule 23(g) and will continue to diligently represent the interests of the Class.
WHEREFORE, Plaintiffs respectfully request that the Court certify the proposed Class, appoint Plaintiffs Khadidja Issa; Q.M.H., by and through his parent, Faisa Ahmed Abdalla; Alembe Dunia; Anyemu Dunia; V.N.L., by and through her parent Mar Ki; and Sui Hnem Sung, as Class Representatives, and appoint the American Civil Liberties Union of Pennsylvania, the Education Law Center, and Pepper Hamilton, LLP as Class Counsel.
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Case 5:16-cv-03881-EGS Document 2 Filed 07/19/16 Page 6 of 29

Dated: July 19, 2016

Respectfully submitted,
/s/ Eric Rothschild Eric Rothschild, Esquire (PA71746) Kathleen A. Mullen, Esquire (PA84604) Kaitlin M. Gurney, Esquire (PA309581) Megan Morley, Esquire (PA321706) PEPPER HAMILTON LLP 3000 Two Logan Square Eighteenth & Arch Streets Philadelphia, PA 19103-2799 Telephone: (215) 981-4000 Fax: (215) 981-4750 rothschilde@pepperlaw.com mullenk@pepperlaw.com gurneyk@pepperlaw.com morleym@pepperlaw.com
/s/ Witold J. Walczak Witold J. Walczak, Esquire (PA62976) American Civil Liberties Union of Pennsylvania Fort Pitt Blvd. Pittsburg, PA 15222 Telephone: (412) 681-7736 Fax: (412) 681-8707 VWalczak@aclupa.org
Molly Tack-Hooper, Esquire (PA307828) American Civil Liberties Union of Pennsylvania PO Box 60173 Philadelphia, PA 19102 Telephone: (215) 592-1513 Fax: (215) 592-1343 MTack-Hooper@aclupa.org

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/s/ Maura McInerney Maura McInerney, Esquire (PA71468) Kristina Moon, Esquire (PA306974) Alex Dutton, Esquire (PA267321) Education Law Center 1315 Walnut Street Suite 400 Philadelphia, PA 19107 Telephone: (215) 238-6907 Fax: (215) 772-3125 mmcinerney@elc-pa.org kmoon@elc-pa.org adutton@elc-pa.org
/s/ Seth F. Kreimer Seth F. Kreimer, Esquire (PA26102) 3501 Sansom Street Philadelphia, PA 19104 Telephone: (215) 898-7447 skreimer@law.upenn.edu
Attorneys for Plaintiffs Khadidja Issa; Q.M.H., a minor, individually, by and through his parent, Faisa Ahmed Abdalla; Alembe Dunia; Anyemu Dunia, V.N.L., a minor, individually by and through her parent Mar Ki; and Sui Hnem Sung.
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Khadidja Issa; Q.M.H., a minor, individually, by and through his parent, Faisa Ahmed Abdalla; Alembe Dunia; Anyemu Dunia; V.N.L., a minor, individually by and through her parent Mar Ki; Sui Hnem Sung; and all others similarly situated,

Civil Action No. 16-cv-3881 HON. EDWARD G. SMITH

Plaintiffs,

CLASS ACTION

v.

The School District of Lancaster,

Defendant.

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR CLASS CERTIFICATION
II. INTRODUCTION
Plaintiffs are foreign-born limited English proficient (“LEP”) immigrants who,

while they were ages 17 to 21, are being unlawfully denied equal educational opportunities by

the Defendant School District of Lancaster (“SDOL” or the “District”) as a result of Defendant’s

custom, practice, or policy of denying them enrollment in public high school in violation of state

and federal law, or placing them in an inferior alternative school characterized by a highly

restrictive and confrontational environment that undermines their ability to learn, rather than the

main high school that offers them better access to the language services and programs they need

and broader educational opportunities.

By their Motion, Plaintiffs seek certification of a class of all limited English proficient (“LEP”) immigrants,1 who, at any time after August 1, 2013, while aged 17-21, were,

1

Students who do not speak English as their primary language and who have a limited

ability to read, speak, write, or understand English are referred to in the law as “LEP students,”

which stands for limited-English-proficiency students, or as “ELLs,” which denotes English

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are, or will be in the future, excluded from Defendant School District of Lancaster’s main high school, McCaskey—either as a result of being refused enrollment altogether, or through involuntary placement at Phoenix. Class certification on behalf of this Class of individuals is needed so that the District does not persist in its unlawful practice of denying older refugee and immigrant students the education they are entitled to under state and federal law. Certification of this Class will prevent these issues from being determined in a piecemeal fashion in cases brought by individual students and their families, and eliminates the potential for conflicting results, and will ensure that every harmed Class Member—many of whom have limited resources and lack a sophisticated understanding of the American legal system—can get relief without having to file his or her own lawsuit.
The Class satisfies the requirements of Federal Rule of Civil Procedure 23(a). Class Members are sufficiently numerous that joinder of their claims is impracticable. There are questions of law and fact common to the class, and Plaintiffs’ claims are typical of the claims of the Class Members. Plaintiffs will adequately represent claims of the Class. The requirements of Federal Rule 23(b)(2) are satisfied because the District has acted or refused to act on grounds generally applicable to the Class, by denying them access to the regular high school that is best equipped to meet their educational needs. II. STATEMENT OF FACTS
A. Enrollment of Immigrant Students by SDOL There are three public high schools in the District. Compl. ¶ 43. Most students
over the age of 14 attend the McCaskey High School Campus (“McCaskey”), which is run by the District, and offers the full range of academic and extracurricular opportunities expected of an Language Learners, or simply “ELs,” English Learners. These terms are used interchangeably in this Motion.
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American public high school, with a fairly typical degree of student freedom in movement and expression. Id. ¶ 45. McCaskey also includes a one-year transition program called the “International School,” designed to address the needs of students who are new to the country or the District and who have limited English proficiency. Id. ¶¶ 58-62.
There are two alternative public high schools in the district, Phoenix Academy and Buehrle Academy, both run by the private company Camelot Education. Id. ¶¶ 46. Camelot runs two kinds of programs relevant to this lawsuit. “Transitional Programs” are described as “serv[ing] students in need of a temporary placement due to behavioral or disciplinary infractions.” See Camelot Transitional Schools, available at http://cameloteducation.org/transitional-schools-2/ (last visited July 14, 2016). “Accelerated Programs” are described as “offer[ing] students a highly structured, engaging, direct instruction pathway to graduation,” and an “opportunity for students from the ages 16-21 who are overage and under-credited to graduate in 2.5 years or less.” See Camelot Accelerated Schools, available at http://cameloteducation.org/accelerated-schools (last visited July 14, 2016). Buehrle is listed among Camelot’s Transitional Schools, while Phoenix is listed as both an Accelerated School and a Transitional School. Compl. ¶¶ 47-48. Buehrle Academy operates under Pennsylvania law as an “Alternative Education for Disruptive Youth” (“AEDY”) program, which is “designed for seriously and persistently disruptive students.” Id. ¶ 49.
Phoenix is not an AEDY program like Buehrle, but Camelot runs it like one: students are subjected to pat-down searches, prohibited from bringing books, papers, or other articles to or from school, and are subject to harsh physical interventions. Id. ¶¶ 69-79. Phoenix’s Student Handbook requires students to “confront[] the negative behavior of their peers,” and identifies confrontation of one’s peers as the number one “step to success” at
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Phoenix. Id. ¶ 77. Only students who are consistently documented “confronting and enforcing the normative culture at Phoenix” can earn the highest behavioral ranking. Id.
Enrollment and placement decisions in the District are made by Jacques “Jack” Blackman, the Coordinator of Counseling & Dropout Prevention Programs at McCaskey East, a branch of McCaskey. Compl. ¶ 91. Older immigrant students (aged 17-21) are sometimes told after meeting with Mr. Blackman that they will not be permitted to enroll in any District school. Id. ¶ 95. The District does not provide any documentation of enrollment denials, nor advise these students of any appeal rights. Id. ¶ 98. Refugee resettlement case workers have met on several occasions over the past year with School District officials to discuss the troubling exclusion of refugee children from the District and their placement at Phoenix. Id. ¶ 103. Advocates for immigrant students have asked the District to formalize the enrollment process and provide documentation of the reason for the denials, but the District has not done so. Id. ¶ 104.
Older immigrant students that are enrolled by SDOL—often only after advocacy by refugee resettlement caseworkers—are typically placed at Phoenix Academy, one of the two privately run, alternative high schools, rather than the regular public high school, McCaskey. Id. ¶ 102. Immigrant students placed at Phoenix Academy are not given the option of attending McCaskey. Id. ¶ 100. Indeed, Plaintiffs who have expressly requested enrollment in McCaskey have been refused. Id. ¶ 101. Documents produced by the District in response to Right to Know Requests filed by Plaintiffs’ counsel strongly suggest that it is District policy to place all older refugee students who are not on schedule to graduate by age 18 at Phoenix, regardless of their educational needs. See School District of Lancaster 2015 Extended Day Program Abstract at 15, attached as Exhibit 1) (“Phoenix Academy [is] a credit recovery facility for students who, due to
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multiple risk factors including refugee status, pregnant and parenting youths, homelessness and other poverty-related issues, may not graduate on time”).
Phoenix lacks adequate supports for English Language Learners (“ELLs”) and fails to offer a full course curriculum, highly qualified teachers, extra-curricular activities and an equal educational experience, as required by Pennsylvania and federal law. See 22 Pa. Code § 12.4; 20 U.S.C. § 1703(f). There is no transitional program for ELLs at Phoenix equivalent to the International School at McCaskey. Compl. ¶ 63. Phoenix provides more limited and less tailored ESL instruction than at McCaskey, and few modifications to instruction and testing in regular education classes. Id. ¶ 56. And Phoenix lacks many of the other attributes and opportunities available to students at McCaskey. Id. ¶ 55.
B. Plaintiffs and Proposed Class 1. Named Plaintiffs a. Khadidja Issa Plaintiff Khadidja Issa is an 18-year-old refugee from Sudan. Compl. ¶ 10. She
and her family arrived in the United States in September 2015, and Lutheran Immigration Refugee Services (“LIRS”), a refugee resettlement agency, helped her family resettle in Lancaster, Pennsylvania. Id. ¶ 13. Khadidja speaks Fur—an indigenous language of Darfur, Sudan—and Arabic. Id. ¶ 14. When she arrived in the United States, she could not speak, read, write, or understand English. Id.
The SDOL initially refused to enroll Khadidja in any District school. Id. ¶ 15. When she sought enrollment again several months later, the District assigned her to Phoenix. Id. She was not offered the option of attending McCaskey. Id.
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b. Q.M.H., a minor, by and through his mother, Faisa Ahmed Abdalla
Plaintiff Q.M.H. is a seventeen-year-old refugee from Somalia who brings this lawsuit by and through his mother because he is a minor. Compl. ¶ 16. Before coming to the United States, he and his family lived in a refugee camp in Egypt for five years. Id. They came to the United States as refugees in September 2015, and LIRS helped them resettle in Lancaster. Id. ¶ 18. He and his mother speak and understand only Somali and Arabic. Id. ¶ 17. When he arrived in the United States, he could not speak, read, write, or understand English. Id.
The SDOL initially refused to enroll Q.M.H. in any District school. Id. ¶ 19. After further efforts by his resettlement case worker, the District placed him at Phoenix in January 2016. Id. He was not given the option of attending McCaskey. Id.
c. Alembe and Anyemu Dunia Plaintiffs Alembe Dunia and Anyemu Dunia are brothers, aged 20 and 18, respectively. Compl. ¶ 20. They are refugees from the Democratic Republic of Congo who spent 12 years in a refugee camp in Mozambique after fleeing the war in Congo. Id. Alembe and Anyemu, along with their mother and siblings, arrived in the United States as refugees in November 2014, and LIRS helped them resettle in Lancaster. Id. ¶ 21. They are native Swahili speakers, and also speak Portuguese. Id. ¶ 20. When they arrived in the United States, they could not speak, read, write, or understand English. Id. ¶ 20. The SDOL has refused to admit Alembe into any District school. Id. ¶ 22. The District placed Anyemu at Phoenix and did not give him the option to attend McCaskey. Id.
d. Sui Hnem Sung and V.N.L. by and through her mother, Mar Ki
Plaintiffs Sui Hnem Sung and V.N.L. are sisters, aged 19 and 17, respectively. Compl. ¶ 23. V.N.L brings this lawsuit by and through her mother because she is a minor. Id.
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The sisters are refugees from Burma and are native Hakha Chin speakers. Id. Sui Hnem Sung, V.N.L., along with their mother, and younger brother and sister, arrived in the United States as refugees in November 2015, joining their father who had arrived in 2013. Id. ¶ 24. When they arrived in the United States, they could not speak, read, write, or understand English. Id. ¶ 23.
The District placed Sui Hnem Sung and V.N.L. at Phoenix and did not give them the option of attending McCaskey. Id. ¶ 25.
2. Proposed Class Plaintiffs are among dozens, and possibly more, of limited English proficient (“LEP”) immigrants who, in the past three years, while ages 17 to 21, were excluded from McCaskey—either by being denied enrollment in SDOL entirely or by being required to go to Phoenix Academy rather than McCaskey—and thereby were denied equal educational opportunities in violation of state and federal law. Plaintiffs bring this action on behalf of themselves and all other similarly situated persons pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2). Plaintiffs seek declaratory and injunctive relief on behalf of themselves, and those who currently are, or will in the future be, subject to such unlawful denial of educational opportunities. The Named Plaintiffs bring this action to ensure equal educational opportunities under the Equal Educational Opportunities Act (“EEOA”), 20 U.S.C. § 1703; Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.; the Equal Protection and Due Process clauses of the U.S. Constitution, U.S. Const. amend. XIV, § 1; and the Public School Code of 1949, 24 P.S. § 13-1301, et seq.
III. ARGUMENT A. The Standard for Class Certification
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1. Rule 23 Federal Rule of Civil Procedure 23 governs class certification. “To obtain class action certification, plaintiffs must establish that all four requisites of Rule 23(a) and at least one part of Rule 23(b) are met.” Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir. 1994); see also Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613 (1997). Members of a class seeking certification must demonstrate pursuant to Rule 23(a) 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). Under Rule 23(b)(2), members of a putative class must further show 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 appropriate respecting the class as a whole[.]” Fed. R. Civ. P. 23(b)(2). Here, because Plaintiffs satisfy the criteria of Rule 23(a) and 23(b)(2), class certification is warranted. B. The Proposed Class Meets All of the Requirements of Rule 23(a) 1. The Class Is So Numerous That Joinder Is Impracticable Rule 23(a)(1) requires that the class be so numerous that joinder of all Class Members would be impracticable. “The numerosity prerequisite is satisfied as long as the class representatives can show impracticability of joinder, even if the exact size of the class is unknown.” Santiago v. City of Philadelphia, 72 F.R.D. 619, 624 (E.D. Pa. 1980), see also In re K-Dur Antitrust Litig., No. 01-1652, 2008 U.S. Dist. LEXIS 118396, at *3 (D.N.J. Apr. 14, 2008), at *3 (“No threshold number is required to satisfy the numerosity requirement, and the
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most important factor is whether joinder of all parties would be impracticable for any reason.”). At a minimum, plaintiffs must “define the class in a way that enables the court to determine whether a particular individual is a class member.” Forman v. Data Transfer, Inc., 164 F.R.D. 400, 403 (E.D. Pa. 1995). The numerosity requirement is relaxed where injunctive and declaratory relief is sought. See Weiss v. York Hospital, 745 F.2d 786, 808 (3d. Cir. 1984) (declining to apply a strict application of the numerosity requirement after concluding “that the interests of the plaintiff class and the interests of the defendants will not be affected significantly by permitting [Representative Plaintiff] Weiss to maintain this class action. . . .”).
Courts in this Circuit have incorporated the proposition that common-sense assumptions about the number of Class Members can support a finding of numerosity. Inmates of the Northumberland Cty. Prison v. Reisch, No. 08-cv-345, 2009 U.S. Dist. LEXIS 126479 (M.D. Pa. Mar. 17, 2009) (citing Peil v. Speiser, 97 F.R.D. 657, 658 (E.D. Pa. 1983)) (“Since courts are willing to accept common sense assumptions as to numerosity in securities cases . . . we believe that the relaxed numerosity standard in cases seeking injunctive and declaratory relief would permit us to employ the same common sense assumption in the case at bar.”); see also T.B. v. Sch. Dist. of Philadelphia, No. 97-5453, 1997 U.S. Dist. LEXIS 19300, at *8 (E.D. Pa. Nov. 21, 1997) (“For a [] class such as the one proposed here, there is no requirement that the class members be identified or counted with exact certainty, and indeed the fact that the membership and size of a class may vary over time enhances the desirability of using a plaintiff class.”).
Populations under 20 can satisfy the numerosity requirement of Rule 23(a). See, e.g., Jackson v. Danberg, 240 F.R.D. 145, 147 (D. Del. 2007) (concluding that a putative class of 16 prisoners who had been sentenced to death was sufficiently numerous); Grant v. Sullivan, 131
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F.R.D. 436, 446 (M.D. Pa. 1990) (noting that a court “may certify a class even if it is composed of as few as 14 members”); see also Manning v. Princeton Consumer Discount Co., 390 F. Supp. 320, 324 (E.D. Pa. 1975) (certifying a class of 15 persons who purchased cars at Springfield Dodge between June 1973 and June 1974 with similar financing conditions), aff’d, 533 F.2d 102 (3d Cir. 1976); see also Kazarov v. Achim, No. 02 C 5097, 2003 U.S. Dist. LEXIS 22407, at *4 (N.D. Ill. Dec. 12, 2003) (certifying class of 10-17 immigrants who were likely indigent and unable to speak English).
Here, because the Class proposed would include both present and future students, the number of Class Members will invariably increase and their joinder to this litigation is therefore impracticable. See Stewart v. Abraham, 275 F.3d 220, 227 (3d Cir. 2001); see also Gomez v. Ill. State Bd. of Educ., 117 F.R.D. 394, 399 (N.D. Ill. 1987) (“[N]umerosity is met where, as here, the class includes individuals who will become members in the future. As members in futuro, they are necessarily unidentifiable, and therefore joinder is clearly impracticable.”)
Precise records of the number of students fitting the class definition, who have attempted to enroll or are enrolled in SDOL, are in the control of Defendant, which has failed to provide the requested information in response to a Right to Know Request served on it by counsel for Plaintiffs that sought “a record or records that reflect the ages of all students enrolled in ESL programs between the years 2011 to 2016 at (a) Phoenix Academy and (b) the McCaskey Campuses.” See Right to Know Request No. 9, Pepper Hamilton LLP, to the School District of Lancaster (May 23, 2016) (attached as Exhibit 2).2 Nevertheless, publicly available information

2

Defendant purported to provide a spreadsheet responsive to this specific request, but no

responsive information was contained in the spreadsheet. An appeal of Defendant’s failure to

provide responsive information is pending before the Office of Open Records. See Appeal of

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about the composition of the District provides a basis for the Court to make the common sense assumption that there are sufficient numbers of unidentified, older LEP students (1) currently enrolled at Phoenix Academy, who should be enrolled at McCaskey; (2) who were denied enrollment altogether; or (3) who will be subject to the District’s unlawful placement policies in the future, to render the joinder of individual claimants impracticable.
Over the past three years, Lancaster County has helped to resettle 1,630 refugees from Somalia, Burma, Bhutan, and other nations, according to the Pennsylvania Refugee Resettlement Program. Tim Buckwalter, Lancaster County Ranks 3rd in Pennsylvania for Refugee Resettlement in Past 3 Years, Lancaster Online, Sept. 16, 2015, available at http://lancasteronline.com/news/local/lancaster-county-ranks-rd-in-pennsylvania-for-refugeeresettlement-in/article_22003e76-5bbe-11e5-8c93-0bdbca2e5b6c.html (last visited July 14, 2016). And the number of refugees resettled in Lancaster has increased recently. Dan Nephin, Reynolds Middle School Refugee Center Getting Ready for Opening, Lancaster Online, Sept. 21, 2015, available at http://lancasteronline.com/news/local/reynolds-middle-school-refugee-centergetting-ready-for-opening/article_52126436-5ca9-11e5-84d0-ff227497033f.html (last visited July 14, 2016) (“Church World Service’s Lancaster County chapter expects to resettle 200 refugees this year, 50 more than last year, and Lutheran Refugee Services, which is based here, expects 150, 30 more than last year.”).
Seventeen percent of K-12 students in the District—1,872 students—are English language learners. See School District of Lancaster Comprehensive Annual Financial Report, June 30, 2015, available at http://www.lancaster.k12.pa.us/download/district_documents/financial/2015May 23, 2016 Right to Know Law Response, Pepper Hamilton LLP (July 18, 2016) (attached as Exhibit 3).
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2016/20151210_comprehensive_annual_fin_report.pdf; School District of Lancaster, Fast Facts, http://www.lancaster.k12.pa.us/download/district_documents/20160520_fast_facts.pdf. That rate is even higher at the high school level. At McCaskey, 19.46% of the school’s 2,648 students are English Language Learners—approximately 515 students. See Pa. Dep’t of Educ., McCaskey Campus School Fast Facts, available at www.paschoolperformance.org (using query tool). At Phoenix, 28.17% of the school’s 323 students are ELLs—approximately 91 students. See Pa. Dep’t of Educ., Phoenix Academy Fast Facts, available at www.paschoolperformance.org (using query tool). There are 517 refugee students in the District. School District of Lancaster, Fast Facts, http://www.lancaster.k12.pa.us/download/district_documents/20160520_fast_facts.pdf. As of 2014, there were 20 known refugee students enrolled at Phoenix Academy. See ACF Performance Progress Report to the Administration for Children and Families, U.S. Department of Health and Human Services (Reporting Period: Aug. 15, 2013 – Feb. 15, 2014) (attached as Exhibit 4).
When considering the number of known refugees and ELLs currently at Phoenix, as well as the additional refugees who were denied enrollment in the District altogether, and nonrefugee immigrant ELLs who were denied enrollment or placed at Phoenix, plus all future students fitting the class definition, common sense suggests that the proposed class satisfies the numerosity requirement of Rule 23(a)(1).
In addition to class size, other factors relevant to evaluating the impracticability of joinder include “judicial economy, the geographic diversity of class members, the financial resources of class members, the relative ease or difficulty in identifying members of the class for joinder, and the ability of class members to institute individual lawsuits.” Anderson v. Dep’t of
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Public Welfare, 1 F. Supp. 2d 456, 461 (E.D. Pa. 1998). The obvious and inherent difficulties confronting unsophisticated plaintiffs with limited English proficiency, limited resources, and limited knowledge of the American legal system factor heavily in the assessment of impracticability in this case. It is highly unlikely that Class Members in this matter would be able to bring individual cases to assert their rights. See Ray M. v. Bd. of Educ., 884 F. Supp. 696, 705 (E.D.N.Y 1995) (finding sufficient numerosity because joinder of individuals was impracticable for plaintiff preschool children denied special education services who lacked the capacity to bring legal action on their own, had few financial resources, limited proficiency in English, and no facility with American legal system); see also Rodriguez v. Berrybrook Farms, Inc., 672 F. Supp. 1009, 1013 (W.D. Mich. 1987) (finding impracticability because class of migrant labor workers lacked formal education, facility with English language, and knowledge of legal system); see also Sherman v. Griepentrog, 775 F. Supp. 1383, 1389 (D. Nev. 1991) (finding joinder impracticable in action brought for injunctive and declaratory relief challenging Medicaid policy because class consisted of poor and elderly or disabled people who could not bring individual lawsuits without great hardship).
2. Members of the Proposed Class Have Questions of Law and Fact in Common
The commonality requirement of Rule 23(a)(2) is satisfied if the named plaintiffs “share at least one question of fact or law with the grievances of the prospective class.” Baby Neal, 43 F.3d at 56; see also Stewart, 275 F.3d at 227. Common questions “need only exist, not predominate.” Baby Neal, 43 F. 3d at 60. In Baby Neal, the court was reviewing the denial of class certification on commonality grounds in a case involving a far-ranging challenge to Pennsylvania’s foster care system. The district court had denied class certification because the named plaintiffs all presented individual fact patterns and were affected by a multitude of
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different policies. Despite these differences, the Third Circuit held that the plaintiffs presented common questions of law and fact regarding the overall legality of Pennsylvania’s foster care system. As the Baby Neal Court recognized, “because the requirement may be satisfied by a single common issue, it is easily met.” Id. “A finding of commonality does not require that all class members share identical claims, and indeed factual differences among the claims of the putative class members do not defeat certification.” In re Prudential Ins. Co. America Sales Practice Lit. Agent Actions, 148 F.3d 283, 310 (3d Cir. 1998).
Further, the Third Circuit has held that “Rule 23 does not require that the representative plaintiff have endured precisely the same injuries that have been sustained by the class members, only that the harm complained of be common to the class.” Hassine v. Jeffes, 846 F.2d 169, 177 (3d Cir. 1988) (emphasis in original). As the Third Circuit has recognized with respect to class actions seeking only injunctive or declaratory relief, “because they do not also involve an individualized inquiry for the determination of damage awards, [such actions] by their very nature often present common questions satisfying Rule 23(a)(2).” Baby Neal, 43 F.3d at 57.
In factually similar cases, plaintiffs have satisfied the commonality requirement without needing to demonstrate that all plaintiffs are harmed in identical ways. See Doe v. Los Angeles Unified Sch. Dist., 48 F. Supp. 2d 1233, 1242 (C.D. Cal. 1999) (certifying an ELL class challenging a state initiative restricting the use of bilingual education to teach LEP students, brought under common claims of Title VI of the Civil Rights Act of 1964 and § 1703(f) of the EEOA and noting that when “class members share a general, common violation . . . a court may employ a liberal definition of commonality”); Gomez, 117 F.R.D. 394 (certifying class of all Spanish-speaking children who have been, are, or will be enrolled in Illinois public schools, and
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who have been, should have been, or should be assessed as limited English proficient); Keyes v. Sch. Dist. No. 1, Denver, Colo., 576 F. Supp. 1503 (D. Colo. 1983) (finding commonality on the issue of whether the school district had denied the class equal protection of the laws, and whether defendant had failed to follow requirements of Title VI of the Civil Rights Act of 1964 and § 1703(f) of the EEOA); c.f., also P.V. v. Sch. Dist. of Philadelphia, 289 F.R.D. 227 (E.D. Pa. 2013) (certifying class of plaintiffs alleging that the Pennsylvania Department of Education violated the Individuals with Disabilities Education Act (“IDEA”) by failing to tailor educational placements to the child’s individual needs).
In this case, the claims brought by Plaintiffs implicate several questions of law and fact common to the proposed Class. All Plaintiffs, along with the proposed Class, are LEP immigrants who in the past three years and continuing to the present were, while ages 17-21, excluded from McCaskey—either as a result of being refused enrollment altogether, or by involuntary placement at Phoenix. Documents produced by the District in response to Right to Know Requests suggest that the District has a common policy of excluding older LEP immigrants from McCaskey. See e.g., SDOL Refugee Student Initiative Abstract at 14 (attached as Exhibit 5) (“Older refugee students (19+) will be enrolled in Phoenix Academy, a small learning environment for students with specific needs related to credit recovery.”). Each member of the proposed Class raises the same basic questions of law: whether the District’s refusal to enroll older LEP immigrant students in the regular high school in the District, which is better equipped to address their language needs, is a violation of the Equal Protection Clause of the U.S. Constitution, Title VI, the Equal Educational Opportunities Act, and Pennsylvania law. The Class is defined by the common experience of having been denied this educational opportunity, either by being refused enrollment in the District entirely, or being admitted only to
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Phoenix. The rights of the Named Plaintiffs and the proposed Class Members to relief turn on this Court’s determination of these statutory and constitutional provisions.
3. The Claims of the Named Plaintiffs Are Typical of Those of the Class
Rule 23(a)’s typicality requirement asks “whether the named plaintiffs’ claims are typical, in common-sense terms, of the class, thus suggesting that the incentives of the plaintiffs are aligned with those of the class.” Baby Neal, 43 F.3d at 55. Factual differences do not defeat typicality “if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the absent class members, and if it is based on the same legal theory.” Stewart, 275 F.3d at 227-28; see also Hassine, 846 F.2d at 177-78 (stating that like commonality, the typicality requirement “mandates only that complainants’ claims be common, and not in conflict.”). As the Third Circuit has noted: “even relatively pronounced factual differences will generally not preclude a finding of typicality where there is strong similarity of legal theories.” Baby Neal, 43 F.3d at 58. “Where an action challenges a policy or practice, the named plaintiffs suffering one specific injury from the practice can represent a class suffering other injuries, so long as all the injuries are shown to result from the practice.” Id.; see also Kerrigan v. Phila. Bd. of Election, 248 F.R.D. 470, 476 (E.D. Pa. 2008) (quoting New Directions Treatment Servs v. City of Reading, 490 F.3d 293, 313 (3d Cir. 2007)) (“Conflicts of interest are rare in Rule 23(b)(2) class actions seeking only declaratory and injunctive relief.”).
The basic issue concerning typicality is whether all class members would benefit in some way from a favorable judgment. See Eisen v. Carlisle & Jacqueline, 391 F.2d 555, 559 (2d Cir. 1968), aff’d in part, 417 U.S. 156 (1974). It is indisputable that a favorable judgment in this action would grant the Named Plaintiffs and the potential Class Members the type of relief from which they would all benefit: namely, the opportunity to attend the school that better meets
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the educational and language needs of ELLs who are new to the country, and affords them equal access to educational opportunities. Plaintiffs’ request for declaratory and injunctive relief would benefit all Class Members, and there is no danger that the Named Plaintiffs would seek or be afforded relief prejudicial to unnamed Class Members. For these reasons, the typicality requirement of Rule 23(a)(3) is satisfied.
4. The Named Plaintiffs Will Protect the Interests of the Class The final requirement of Rule 23(a) is that the named class representatives must fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a)(4). “Adequacy of representation assures that the named plaintiffs’ claims are not antagonistic to the class and that the attorneys for the class representatives are experienced and qualified to prosecute the claims on behalf of the entire class.” Baby Neal, 43 F.3d at 55. To satisfy this requirement, the proponent of certification must show: (1) that no conflicts of interest exist between the proposed class representative and the proposed class; and (2) that counsel is qualified to represent the class. See In re Prudential, 148 F.3d at 312-313; see also Hassine, 846 F.2d at 179. In addition, Rule 23(g) outlines the factors that a court must consider in appointing class counsel, including “the work counsel has done in identifying or investigating” the claims, “counsel’s experience in handling class actions,” “counsel’s knowledge of the applicable law,” and “the resources that counsel will commit” in its representation. Fed. R. Civ. P. 23(g)(1)(A). These standards are met in the instant case. Plaintiffs have no interests antagonistic to those of any other members of the putative class. Antagonism between named plaintiffs and the other class members may arise when a unique defense is asserted against the named plaintiff or against the other class members or when a named plaintiff’s situation is unique. Lerch v. Citizen’s First Bancorp, Inc., 144 F.R.D. 247, 251 (D.N.J. 1992) (citing Zenith Labs., Inc. v. Carter-Wallace, Inc., 530 F.2d 508, 512 (3d Cir. 1976)). No such circumstances
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are present here. To the contrary, the interests of the Named Plaintiffs coincide with those of the class. The declaratory and injunctive relief requested by Plaintiffs will benefit all Class Members.
Finally, Plaintiffs’ counsel—attorneys from the Education Law Center (“ELC”), the American Civil Liberties Union of Pennsylvania (“ACLU-PA”), and the law firm of Pepper Hamilton LLP (“Pepper”) — have the expertise, experience, and resources to vigorously pursue the interests of the Class. The ELC’s lawyers have vast experience dealing with education issues, including in class action litigation. The ACLU-PA has litigated many federal cases, including class actions, to protect the civil rights of individuals. Pepper is a national law firm with 13 offices located throughout the United States. Pepper is highly experienced in handling complex litigation and class actions. Moreover, the ELC, ACLU-PA, and Pepper have already invested significant time and resources on this matter. The legal team has interviewed clients and other witnesses, gathered and reviewed publicly available documents, and developed pleadings and motion papers.
For all of these reasons, the requirements of Rule 23(a)(4) and (g) are satisfied. C. The Proposed Class Meets the Requirements of Rule 23(b)(2)
“In addition to satisfying the requirements of Rule 23(a), a putative class must also comply with one of the parts of subsection (b).” Baby Neal, 43 F.3d at 55-56. Plaintiffs here seek class certification pursuant to Rule 23(b)(2), which provides that a class action is appropriate 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). This requirement has been interpreted by the Third Circuit to mean that “the interests of class members are so like those of the individual representatives that injustice will not result from their being bound by
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such judgment in the subsequent application of principles of res judicata.” Hassine, 846 F.2d at 179.
As the Third Circuit has explained, this requirement is “almost automatically satisfied” in actions primarily seeking injunctive or declaratory relief. See Baby Neal, 43 F.3d at 58; Weiss v. York Hosp., 745 F.2d 786, 811 (3d Cir. 1984). “In fact, the [Rule 23(b)(2)] provision was designed specifically for civil rights cases seeking declaratory or injunctive relief for a numerous and often unascertainable or amorphous class of persons.” Baby Neal, 43 F.3d at 58-59 (internal citations omitted); Hassine, 846 F.2d at 179 (“[W]hen a suit seeks to define the relationship between the defendant(s) and the world at large, as in this case, (b)(2) certification is appropriate.”) (internal citations omitted)). “What is important is that the relief sought by the named plaintiffs should benefit the entire class.” Baby Neal, 43 F.3d at 59.
The Named Plaintiffs challenge a policy and practice by Defendant that is generally applicable to the Class as a whole. That policy operates to exclude Class Members from being educated at their main local high school, by either excluding them from the school system altogether, or funneling them into a school that is defined by a restrictive and confrontational atmosphere that undermines their ability to learn, and deprives them of the educational programs—including adequate language support—that they need in order to learn. Each Class Member will benefit from the relief sought in this suit. Plaintiffs’ class-wide claim for injunctive and declaratory relief thus fits squarely within the requirements of Rule 23(b)(2).
IV. CONCLUSION For all of the foregoing reasons, the Court should grant Plaintiffs’ Motion and
certify the proposed Class for purposes of Plaintiffs’ claims for declaratory and injunctive relief.
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Dated: July 19, 2016

Respectfully submitted,
/s/ Eric Rothschild Eric Rothschild, Esquire (PA71746) Kathleen A. Mullen, Esquire (PA84604) Kaitlin M. Gurney, Esquire (PA309581) Megan Morley, Esquire (PA321706) PEPPER HAMILTON LLP 3000 Two Logan Square Eighteenth & Arch Streets Philadelphia, PA 19103-2799 Telephone: (215) 981-4000 Fax: (215) 981-4750 rothschilde@pepperlaw.com mullenk@pepperlaw.com gurneyk@pepperlaw.com morleym@pepperlaw.com
/s/ Witold J. Walczak Witold J. Walczak, Esquire (PA62976) American Civil Liberties Union of Pennsylvania Fort Pitt Blvd. Pittsburg, PA 15222 Telephone: (412) 681-7736 Fax: (412) 681-8707 VWalczak@aclupa.org
Molly Tack-Hooper, Esquire (PA307828) American Civil Liberties Union of Pennsylvania PO Box 60173 Philadelphia, PA 19102 Telephone: (215) 592-1513 Fax: (215) 592-1343 MTack-Hooper@aclupa.org

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/s/ Maura McInerney Maura McInerney, Esquire (PA71468) Kristina Moon, Esquire (PA306974) Alex Dutton, Esquire (PA267321) Education Law Center 1315 Walnut Street Suite 400 Philadelphia, PA 19107 Telephone: (215) 238-6907 Fax: (215) 772-3125 mmcinerney@elc-pa.org kmoon@elc-pa.org adutton@elc-pa.org
/s/ Seth F. Kreimer Seth F. Kreimer, Esquire (PA26102) 3501 Sansom Street Philadelphia, PA 19104 Telephone: (215) 898-7447 skreimer@law.upenn.edu
Attorneys for Plaintiffs Khadidja Issa; Q.M.H., a minor, individually, by and through his parent, Faisa Ahmed Abdalla; Alembe Dunia; Anyemu Dunia, V.N.L., a minor, individually by and through her parent Mar Ki; and Sui Hnem Sung.
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CERTIFICATE OF SERVICE I certify that on July 19, 2016, I caused a copy of the foregoing Motion for Class Certification and Memorandum of Law in Support to be served upon the individuals below via electronic and first class mail:
David M. Walker, Esquire Barley Snyder Attorneys at Law 126 East King Street Lancaster, PA 17602 T: 717-553-1062 | F: 717-291-4660 Sharon M. O’Donnell Marshall Dennehey 100 Corporate Center Drive Suite 201 Camp Hill, PA 17011
Kaitlin M. Gurney, Esquire
#39734726 v19

 
 Case 5:16-cv-03881-EGS Document 7 Filed 07/22/16 Page 1 of 57

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Khadidja Issa; Q.M.H., a minor, individually, by and through his parent, Faisa Ahmed Abdalla; Alembe Dunia; Anyemu Dunia; V.N.L., a minor, individually by and through her parent Mar Ki; Sui Hnem Sung; and all others similarly situated,

Civil Action No. 16-cv-3881 HON. EDWARD G. SMITH

Plaintiffs,

CLASS ACTION

v.

ELECTRONICALLY FILED

The School District of Lancaster,

Defendant.

PROPOSED ORDER AND NOW, this ____ day of August, 2016, upon consideration of Plaintiffs’ Motion for a Preliminary Injunction and any response thereto and hearing conducted by the Court, it is hereby ORDERED pursuant to Fed. R. Civ. P. 65(a) that Defendant School District of Lancaster (“District”) shall by August 30, 2016: (1) enroll and permit all school-age Plaintiffs and Class Members to attend the
main high school, McCaskey, beginning on August 30, 2016, the first day of the upcoming school year; (2) by that same date, ensure all Plaintiffs and Class Members are properly assessed for language proficiency and receive an appropriate and adequate program of language instruction, including assignment to the International School if appropriate, ESL instruction, modifications in the delivery of instruction and testing to facilitate their achievement of English proficiency and state academic standards, and interpretation and

Case 5:16-cv-03881-EGS Document 7 Filed 07/22/16 Page 2 of 57
translation services to enable Plaintiffs and their parents to meaningfully participate in education decisions; (3) ensure Plaintiffs and Class Members have equal access to the full range of educational opportunities provided to their peers, including curricular and non-curricular programs and activities; and (4) cease excluding Class Members from enrollment at McCaskey. Plaintiff shall post a nominal bond of $1.00.
BY THE COURT:
Edward G. Smith, J.

Case 5:16-cv-03881-EGS Document 7 Filed 07/22/16 Page 3 of 57

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Khadidja Issa; Q.M.H., a minor, individually, by and through his parent, Faisa Ahmed Abdalla; Alembe Dunia; Anyemu Dunia; V.N.L., a minor, individually by and through her parent Mar Ki; Sui Hnem Sung; and all others similarly situated,

Civil Action No. 16-cv-3881 HON. EDWARD G. SMITH

Plaintiffs,

CLASS ACTION

v.

ELECTRONICALLY FILED

The School District of Lancaster,

Defendant.

MOTION FOR PRELIMINARY INJUNCTION Khadidja Issa; Q.M.H., a minor, individually, by and through his parent, Faisa Ahmed Abdalla; Alembe Dunia; Anyemu Dunia; V.N.L., a minor, individually by and through her parent Mar Ki; Sui Hnem Sung and all others similarly situated, now move for a preliminary injunction pursuant to Fed. R. Civ. P. 65(a) to require Defendant School District of Lancaster (“SDOL” or “District”) to (1) enroll and permit all school-age Plaintiffs and Class Members to attend the main high school, McCaskey High School (“McCaskey”), beginning on August 30, 2016; and, by that same date, (2) ensure all Plaintiffs and Class Members are properly assessed for language proficiency and receive an appropriate and adequate program of language instruction, including assignment to the International School if appropriate, ESL instruction, modifications in the delivery of instruction and testing to facilitate their achievement of English proficiency and state academic standards, and interpretation and translation services to enable Plaintiffs and their parents to meaningfully participate in education decisions; (3) ensure Plaintiffs and Class Members have equal access to the full range of educational opportunities

Case 5:16-cv-03881-EGS Document 7 Filed 07/22/16 Page 4 of 57
provided to their peers, including curricular and non-curricular programs and activities; and (4) cease excluding future refugee applicants from enrollment at McCaskey. As grounds therefore, Plaintiffs aver as follows:
1. A party seeking a preliminary injunction must show: 1) a probability that movant will suffer irreparable harm in the absence of preliminary relief; 2) movant is likely to be successful on the merits ultimately; 3) granting preliminary relief will not result in even greater harm to the adverse party; and 4) a preliminary injunction is in the public interest. Geneva College v. Secretary U.S. Dep’t of Health and Human Services, 778 F.3d 442, 435 n.9 (3d Cir. 2015).
2. In this case, Plaintiffs satisfy all four factors supporting issuance of a preliminary injunction for the reasons stated in Plaintiffs’ Memorandum of Law in Support of Motion for Preliminary Injunction, which accompanies this motion and is being incorporated herein by reference.
3. Plaintiffs seek expedited, but limited, discovery on their claims in order to prepare for a preliminary injunction hearing and to uncover the full extent of the District’s violations of Plaintiffs’ rights.
4. Plaintiffs also seek an immediate status conference to discuss an expedited, but limited, discovery schedule, a preliminary injunction hearing date, and a schedule for filing of attendant motions, expert statements, briefs, and any other materials the Court should request.
WHEREFORE, in light of the foregoing and for reasons set forth in the accompanying Memorandum of Law, Plaintiffs respectfully request that the Court issue an order directing the following:
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a) A status conference as soon as practicable to set a schedule for the orderly resolution of a preliminary injunction motion, including the taking of expedited, but limited, discovery, an evidentiary hearing, and the filing of attendant motions and briefs;
b) A preliminary injunction under Fed. R. Civ. P. 65(a) directing Defendant School District of Lancaster to
i. enroll and permit all school-age Plaintiffs and Class Members to attend the main high school, McCaskey, beginning on August 30, 2016, the first day of the upcoming school year;
ii. by that same date, ensure all Plaintiffs and Class Members are properly assessed for language proficiency and receive an appropriate and adequate program of language instruction, including assignment to the International School if appropriate, ESL instruction, modifications in the delivery of instruction and testing to facilitate their achievement of English proficiency and state academic standards, and interpretation and translation services to enable Plaintiffs and their parents to meaningfully participate in education decisions;
iii. ensure Plaintiffs and Class Members have equal access to the full range of educational opportunities provided to their peers, including curricular and noncurricular programs and activities;
iv. cease excluding Class Members from enrollment at McCaskey.
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Case 5:16-cv-03881-EGS Document 7 Filed 07/22/16 Page 6 of 57

Dated: July 22, 2016

Respectfully submitted,
/s/ Eric Rothschild Eric Rothschild, Esquire (PA71746) Kathleen A. Mullen, Esquire (PA84604) Kaitlin M. Gurney, Esquire (PA309581) Megan Morley, Esquire (PA321706) PEPPER HAMILTON LLP 3000 Two Logan Square Eighteenth & Arch Streets Philadelphia, PA 19103-2799 Telephone: (215) 981-4000 Fax: (215) 981-4750 rothschilde@pepperlaw.com mullenk@pepperlaw.com gurneyk@pepperlaw.com morleym@pepperlaw.com
/s/ Witold J. Walczak Witold J. Walczak, Esquire (PA62976) American Civil Liberties Union of Pennsylvania Fort Pitt Blvd. Pittsburg, PA 15222 Telephone: (412) 681-7736 Fax: (412) 681-8707 VWalczak@aclupa.org
Molly Tack-Hooper, Esquire (PA307828) Michelin Cahill, Esquire (PA 314553) American Civil Liberties Union of Pennsylvania PO Box 60173 Philadelphia, PA 19102 Telephone: (215) 592-1513 Fax: (215) 592-1343 MTack-Hooper@aclupa.org MCahill@aclupa.org

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Case 5:16-cv-03881-EGS Document 7 Filed 07/22/16 Page 7 of 57
/s/ Maura McInerney Maura McInerney, Esquire (PA71468) Kristina Moon, Esquire (PA306974) Alex Dutton, Esquire (PA267321) Education Law Center 1315 Walnut Street Suite 400 Philadelphia, PA 19107 Telephone: (215) 238-6907 Fax: (215) 772-3125 mmcinerney@elc-pa.org kmoon@elc-pa.org adutton@elc-pa.org
/s/ Seth F. Kreimer Seth F. Kreimer, Esquire (PA26102) 3501 Sansom Street Philadelphia, PA 19104 Telephone: (215) 898-7447 skreimer@law.upenn.edu
Attorneys for Plaintiffs Khadidja Issa; Q.M.H., a minor, individually, by and through his parent, Faisa Ahmed Abdalla; Alembe Dunia; Anyemu Dunia, V.N.L., a minor, individually by and through her parent Mar Ki; and Sui Hnem Sung.
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Case 5:16-cv-03881-EGS Document 7 Filed 07/22/16 Page 8 of 57

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Khadidja Issa; Q.M.H., a minor, individually, by and through his parent, Faisa Ahmed Abdalla; Alembe Dunia; Anyemu Dunia; V.N.L., a minor, individually by and through her parent Mar Ki; Sui Hnem Sung; and all others similarly situated,

Civil Action No. 16-cv-3881 HON. EDWARD G. SMITH

Plaintiffs,

CLASS ACTION

v.

ELECTRONICALLY FILED

The School District of Lancaster,

Defendant.

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Case 5:16-cv-03881-EGS Document 7 Filed 07/22/16 Page 9 of 57
TABLE OF CONTENTS
Page
I. INTRODUCTION .............................................................................................................. 1
II. STATEMENT OF FACTS ................................................................................................. 2 A. Phoenix Is Substantially Inferior to McCaskey ...................................................... 4 B. SDOL’s Enrollment Decisions ............................................................................... 9
III. LEGAL ARGUMENT...................................................................................................... 11 A. Legal Standard ...................................................................................................... 11 B. Plaintiffs Will Suffer Irreparable Harm Unless the Court Issues the Requested Injunction ............................................................................................ 11 C. Plaintiffs Are Likely to Succeed on the Merits of Their Claims .......................... 14 1. Plaintiffs Who Were Denied Enrollment in the District Altogether Are Likely to Succeed on their State Law Claims.................................... 14 2. Plaintiffs Who Were Placed at Phoenix Are Likely to Succeed On Their Claims That The District Violated the EEOA................................. 16 a. Equal Educational Opportunities Act ........................................... 16 b. Castaneda Analysis ....................................................................... 17 i. The District’s Placement of LEP Immigrants at Phoenix Is Not Based on Any Educational Theory Recognized as Sound by Experts...................................... 18 ii. Phoenix’s Practices Are Not Reasonably Calculated to Implement any Educational Theory.............................. 20 iii. There Is No Evidence that Phoenix’s ESL Program Is Effective. ....................................................................... 25 3. Plaintiffs Who Were Placed at Phoenix Are Likely to Succeed On Their Claims That The District Violated Title VI. ................................... 27 4. Plaintiffs Are Likely to Prevail on Their Procedural Due Process Claims. ...................................................................................................... 30 5. Plaintiffs Are Likely to Prevail on Their Equal Protection Claims. ......... 34 a. SDOL Applies a Different Standard to Enroll Older Immigrant LEP Students at Phoenix than it does to Enroll American Students. ....................................................................... 35 b. Excluding Older, but not Younger, Refugee Students from McCaskey and the International School is Irrational.................... 37 D. The Balance of Equities Weighs in Favor of Granting the Injunction ................. 39 E. Granting the Requested Preliminary Injunction Is in the Public Interest ............. 41
IV. CONCLUSION................................................................................................................. 42
-i-#40165096 v1

Case 5:16-cv-03881-EGS Document 7 Filed 07/22/16 Page 10 of 57

TABLE OF AUTHORITIES

CASES

Page(s)

Abington Heights Sch. Dist. v. A.C., No. 3:14-CV-00368, 2014 WL 1767193 (M.D. Pa. May 2, 2014) ............................................................................................................................38

Acierno v. New Castle County, 40 F.3d 645 (3d Cir. 1994) ..........................................................10

Alexander v. Sandoval, 532 U.S. 275 (2001)...................................................................................2

Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153 (3d Cir. 1999)...............................................38

Alvin v. Suzuki, 227 F.3d 107 (3d Cir. 2000) .................................................................................30

Am. Freedom Def. Initiative v. SEPTA, 92 F. Supp. 3d 314 (E.D. Pa. 2015)................................13

American Civil Liberties Union v. Reno, 217 F.3d 162 (3d Cir. 2000) .........................................39

American Tel. and Tel. Co. v. Winback and Conserve, Inc., 42 F.3d 1421 (3d Cir. 1994) ...........39

Ariz. Dream Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014)...........................................36

In re Arthur Treacher’s Franchisee Litig., 689 F.2d 1137 (3d Cir. 1982) ....................................10

Asllani v. Board of Educ., 845 F.Supp. 1209 (N.D.Ill. 1993)........................................................28

Bell v. Pennsbury Sch. Dist., Civ. No. 09-5967, 2011 WL 292241 (E.D. Pa. Jan. 31, 2011) ........................................................................................................................................30

Blackman v. Dist. of Columbia, 185 F.R.D. 4 (D.D.C. 1999) .......................................................11

Blunt v. Lower Merion Sch. Dist., 767 F.3d 247 (3d Cir. 2014)..............................................26, 29

C.G. v. Pa. Dep’t of Educ., 888 F. Supp. 2d 534 (M.D. Pa. 2012)..........................................15, 16

Carey v. Piphus, 435 U.S. 247 (1978) ...........................................................................................29

Castaneda v. Pickard, 648 F.2d 989 (5th Cir. 1981)............................................................. passim

Child Evangelism Fellowship of New Jersey, Inc. v. Stafford Twp. Sch. Dist., 233 F. Supp. 2d 647 (D.N.J. 2002) ...............................................................................................39, 40

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (U.S. 1985)............................................33

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) .........................................................30

Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999)............................................................26

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Case 5:16-cv-03881-EGS Document 7 Filed 07/22/16 Page 11 of 57
Doe v. Pennsylvania Bd. of Probation & Parole, 513 F.3d 95 (3d Cir. 2008)........................33, 38 E.B. v. Verniero, 119 F.3d 1077 (3d Cir. 1997).............................................................................31 Exodus Refugee Immigration, Inc. v. Pence, 2016 WL 772897 (S.D. Ind. Feb. 29, 2016) ...........35 Favia v. Indiana Univ. of Pennsylvania, 812 F. Supp. 578 (W.D. Pa. 1993)................................28 Goss v. Lopez, 419 U.S. 565 (1975) ........................................................................................30, 31 Grube v. Bethlehem Area Sch. Dist., 550 F. Supp. 418 (E.D. Pa. 1982) .......................................40 Hernandez v. Texas, 347 U.S. 475 (1954) .....................................................................................34 John T. ex rel. Paul T. v. Commonwealth, Civ. No. 98-5781, 2000 WL 558582 (E.D. Pa.
May 8, 2000) ....................................................................................................11, 12, 38, 39, 40 Karakozova v. University of Pittsburgh, 2009 WL 1652469 (W.D. Pa. Jun. 11, 2009)................39 Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454 (1989) ..............................................30 Keyes v. Sch. Dist. No. 1, 576 F. Supp. 1503 (D. Colo. 1983) ......................................................24 L.J. ex rel. V.J. v. Audubon Bd. of Educ., Civ. No. 06-5350, 2007 WL 3252240 (D.N.J.
Nov. 5, 2007) .....................................................................................................................12, 40 L.R. ex rel. G.R. v. Steelton-Highspire Sch. Dist., No. 1:10-CV-00468, 2010 WL 1433146
(M.D. Pa. Apr. 7, 2010) .....................................................................................................11, 39 Lau v. Nichols, 414 U.S. 563 (1974)..........................................................................................1, 17 Ledezma-Cosino v. Lynch, 819 F.3d 1070 (9th Cir. 2016) ............................................................36 Liberty Lincoln-Mercury Inc. v. Ford Motor Co., 562 F.3d 553 (3d Cir. 2009) ...........................10 Mathews v. Eldridge, 424 U.S. 319 (1976)..............................................................................30, 31 McNeil Nutritionals LLC v. Heartland Sweeteners, LLC, 511 F.3d 350 (3d Cir. 2007) ...............10 Minnicks v. McKeesport Area Sch. Dist., 74 Pa. D. & C.2d 744 (Pa. C.P. 1975) .........................11 N.J. v. New York, 872 F. Supp. 2d 204 (E.D.N.Y. 2011) ........................................................11, 38 New York v. Utica City Sch. Dist., No. 15-cv-1364, -- F. Supp. 3d --, 2016 WL 1555399
(N.D.N.Y. Apr. 18, 2016) ..............................................................................................2, 23, 32 Newsome v. Batavia Local Sch. Dist., 842 F.2d 920 (6th Cir. 1988) ............................................31 Nieves-Marquez v. Puerto Rico, 353 F.3d 108 (1st Cir. 2003)......................................................12
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Case 5:16-cv-03881-EGS Document 7 Filed 07/22/16 Page 12 of 57
Nyquist v. Mauclet, 432 U.S. 1 (1977).....................................................................................34, 35 Oburn v. Shapp, 521 F.2d 142 (3d Cir. 1975) ...............................................................................13 Oravetz v. W. Allegheny Sch. Dist., 74 Pa. D. & C.2d 733 (Pa. C.P. 1975) ..................................11 Orozco by Arroyo v. Sobol, 703 F. Supp. 1113 (S.D.N.Y. 1989)..................................................31 Oyama v. California, 332 U.S. 633 (1948)....................................................................................34 Palmore v. Sidoti, 466 U.S. 429 (1984) .........................................................................................35 Plyler v. Doe, 457 U.S. 202 (1982)........................................................................12, 33, 35, 37, 38 Reach Acad. for Boys & Girls, Inc. v. Del. Dep’t of Educ., 46 F. Supp. 3d 455 (D. Del.
2014) ........................................................................................................................................40 Romer v. Evans, 517 U.S. 620 (1996)............................................................................................35 Ross v. Disare, 500 F. Supp. 928 (S.D.N.Y. 1977) .......................................................................11 Sch. Dist. of Wilkinsburg v. Wilkinsburg Educ. Ass’n, 667 A.2d 5 (Pa. 1995) .............................14 Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141 (3d Cir. 2005) ...................30, 31 Valeria G. v. Wilson, 12 F. Supp. 2d 1007 (N.D. Cal. 1998) ........................................................16 Zinermon v. Burch, 494 U.S. 113 (1990).......................................................................................29
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Khadidja Issa; Q.M.H., a minor, individually, by and through his parent, Faisa Ahmed Abdalla; Alembe Dunia; Anyemu Dunia; V.N.L., a minor, individually by and through her parent Mar Ki; Sui Hnem Sung; and all others similarly situated,

Civil Action No. 16-cv-3881 HON. EDWARD G. SMITH

Plaintiffs,

CLASS ACTION

v.

ELECTRONICALLY FILED

The School District of Lancaster,

Defendant.

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION I. INTRODUCTION The Named Plaintiffs—Khadidja Issa, Q.M.H. (through his parent, Faisa Ahmed Abdalla), Alembe Dunia, Anyemu Dunia, V.N.L. (through her parent Mar Ki), and Sui Hnem Sung—are refugees who have fled their home countries due to war, violence, or persecution in countries like Somalia, Sudan, Democratic Republic of Congo, and Burma. They seek to represent a class of similarly situated older school-age immigrants with limited English proficiency (“LEP”) who are facing irreparable harm from the denial of their right to a meaningful and equal education by Defendant, the School District of Lancaster (the “District” or “SDOL”). See generally Plaintiffs’ Motion for Class Certification, ECF No. 2 (July 19, 2016). This suit challenges the District’s custom, practice, and policy of denying Plaintiffs enrollment in their assigned high school, the McCaskey High School Campus, by either excluding them from SDOL altogether or admitting them only to Phoenix Academy, a school best characterized as an “educational dead-end.” See Lau v. Nichols, 414 U.S. 563, 566 (1974), abrogated on other

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grounds by Alexander v. Sandoval, 532 U.S. 275 (2001); New York v. Utica City Sch. Dist., No. 15-cv-1364, -- F. Supp. 3d --, 2016 WL 1555399, at *11 (N.D.N.Y. Apr. 18, 2016) (holding that complaint sufficiently alleged that district deliberately diverted older immigrant students to “educational dead-ends” in violation of various state and federal laws).
Plaintiffs seek a preliminary injunction directing the District to: (1) admit all school-age eligible Named Plaintiffs and Class Members to McCaskey; (2) ensure Plaintiffs’ and Class Members’ equal access to the full range of educational opportunities at McCaskey, including curricular and extra-curricular programs and activities, and access to the International School; (3) provide Plaintiffs and Class Members with an appropriate and effective language program, as described in greater detail below, in time for the fall semester on August 30, 2016; and (4) cease excluding future LEP immigrant applicants from enrollment at McCaskey.
For the reasons discussed herein, the Court should grant Plaintiffs’ motion for preliminary injunction. II. STATEMENT OF FACTS
There are three public high schools in the District. Most students over the age of 14 attend the McCaskey High School Campus (“McCaskey”), which is run by SDOL and offers the full range of academic and extracurricular opportunities expected of an American public high school, with a fairly typical degree of student freedom in movement and expression.1
1 See generally McCaskey High School Campus 2015/2016 Curriculum Guide, available at http://www.lancaster.k12.pa.us/wp-content/uploads/2015/01/2015-16-Curriculum-Guide-Rev-11-18-14Final-PDF.pdf; Compl. ¶ 45.
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There are two alternative public high schools in the District, Phoenix Academy and Buehrle Academy, both run by the private company Camelot Education.2 Camelot runs two kinds of programs relevant to this lawsuit. “Transitional Programs” are described as “serv[ing] students in need of a temporary placement due to behavioral or disciplinary infractions.” See Camelot Transitional Schools, available at http://cameloteducation.org/transitional-schools-2/ (last visited July 14, 2016). “Accelerated Programs” are described as “offer[ing] students a highly structured, engaging, direct instruction pathway to graduation,” and an “opportunity for students from the ages 16-21 who are overage and under-credited to graduate in 2.5 years or less.” See Camelot Accelerated Schools, available at http://cameloteducation.org/acceleratedschools (last visited July 14, 2016). Camelot lists Buehrle among its “Transitional Schools,” and lists Phoenix as both an “Accelerated School” and a “Transitional School.”3 Buehrle Academy operates under Pennsylvania law as an “Alternative Education for Disruptive Youth” (“AEDY”) program, which is “designed for seriously and persistently disruptive students.”4 Phoenix is not
2 Camelot Education, Camelot awarded contract to operate alternative education programs for Lancaster School District, May 17, 2011, available at http://cameloteducation.org/camelot-awardedcontract-to-operate-alternative-education-programs-for-lancaster-school-district/; see also Compl. ¶ 46.
3 Camelot Education, Phoenix Academy Accelerated/Transitional Program, http://cameloteducation.org/phoenix-academy/; Camelot Education, Buehrle Academy Transitional Program, http://cameloteducation.org/buehrle-academy/; see also Compl. ¶¶ 47-48.
4 Approved Private Alternative Education Institutions, Pa. Dep’t of Educ., http://www.education.pa.gov/K-12/Alternative%20Education%20for%20Disruptive %20Youth/Pages/List-of-Approved-Private-Alternative-Education-InstitutionsDetails.aspx?aedy=105#tab-1 (listing Camelot-run AEDY schools); Alternative Education for Disruptive Youth, Pennsylvania Department of Education Basic Education Circular 1, available at http://www.education.pa.gov/Documents/Codes%20and%20Regulations/Basic%20 Education%20Circulars/Purdons%20Statutes/Alternative%20Education%20for%20Disruptive%20Youth. pdf (AEDY schools are “designed for seriously and persistently disruptive students”); see also Compl. ¶ 49.
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an officially designated AEDY program like Buehrle,5 but Camelot implements many of the
same disciplinary and control tactics at both institutions.
A. Phoenix Is Substantially Inferior to McCaskey
McCaskey and Phoenix are worlds apart with regard to language instruction,
academics, and school environment.
The students-to-teacher ratio at McCaskey is 14:1, whereas at Phoenix it is 42:1.6
The percentage of classes taught by “highly qualified teachers,” as defined by the Pennsylvania
Department of Education, at McCaskey is 92% whereas 0% of the classes at Phoenix are taught
by “highly qualified teachers.”7 The Pennsylvania Department of Education’s School
Performance Profile for the 2014-15 school year ranked McCaskey twice as high as Phoenix
with scores of 60.4 and 30.3, respectively.8 In terms of advanced academic courses, which the
District characterizes as “highly recommended for every student planning to attend college,”9
5 Approved Private Alternative Education Institutions, Pa. Dep’t of Educ., http://www.education.pa.gov/K-12/Alternative%20Education%20for%20Disruptive%20 Youth/Pages/List-of-Approved-Private-Alternative-Education-Institutions-Details.aspx?aedy=105#tab-1 (listing Camelot-run AEDY schools).
6 Compare McCaskey Campus, 2016 Rankings, http://www.usnews.com/education/best-highschools/pennsylvania/districts/lancaster-sd/mccaskey-campus-17054 with Phoenix Academy, 2016 Rankings, http://www.usnews.com/education/best-high-schools/pennsylvania/districts/lancastersd/phoenix-academy-17055; see also Compl. ¶ 55(a).
7 Compare Pa. Dep’t of Educ., McCaskey Campus School Fast Facts, available at www.paschoolperformance.org (using query tool) with Pa. Dep’t of Educ., Phoenix Academy School Fast Facts, available at www.paschoolperformance.org (using query tool); see also Compl. ¶ 55(b).
8 Compare Pa. Dep’t of Educ., McCaskey Campus School Fast Facts, available at www.paschoolperformance.org (using query tool) with Pa. Dep’t of Educ., Phoenix Academy School Fast Facts, available at www.paschoolperformance.org (using query tool); see also Compl. ¶ 55(c). The Pennsylvania Department of Education’s School Performance Profile provides the public with a comprehensive overview of student academic performance in every public school (including charter and alternative schools) and measures academic outcomes.
9 McCaskey High School Campus 2015/2016 Curriculum Guide 4, available at http://www.lancaster.k12.pa.us/wp-content/uploads/2015/01/2015-16-Curriculum-Guide-Rev-11-18-14Final-PDF.pdf (emphasis in original).
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McCaskey offers 10 Advanced Placement (“AP”) courses and an International Baccalaureate
(“IB”) program—one of only 15 Pennsylvania high schools to offer such a program—whereas Phoenix offers no AP courses and no IB program.10 Thirty-two percent of students at McCaskey take AP tests, whereas 0% of Phoenix students take AP tests.11 According to the Pennsylvania
Department of Education, “college ready” students comprise 83% of the McCaskey student body whereas 0% of Phoenix students are deemed “college ready.”12 There are many extra-curricular
activities, clubs, and opportunities, including interscholastic and other athletic teams, at McCaskey, whereas Phoenix offers no sports teams or extra-curricular activities on campus.13
Beyond the stark differences in academic opportunities and quality, Phoenix
provides more limited and less tailored ESL instruction and few modifications to instruction and
testing in regular education classes.
SDOL recognizes the unique challenges that newly-arriving LEP youth face, and
McCaskey therefore offers a one-year (sometimes longer) transitional program (the
10 McCaskey High School Campus 2015/2016 Curriculum Guide 22, available at http://www.lancaster.k12.pa.us/wp-content/uploads/2015/01/2015-16-Curriculum-Guide-Rev-11-18-14Final-PDF.pdf; compare Pa. Dep’t of Educ., McCaskey Campus School Fast Facts, available at www.paschoolperformance.org (using query tool) with Pa. Dep’t of Educ., Phoenix Academy School Fast Facts, available at www.paschoolperformance.org (using query tool); see also Compl. ¶ 55(d).
11 Compare McCaskey Campus, 2016 Rankings, http://www.usnews.com/education/best-highschools/pennsylvania/districts/lancaster-sd/mccaskey-campus-17054 with Phoenix Academy, 2016 Rankings, http://www.usnews.com/education/best-high-schools/pennsylvania/districts/lancastersd/phoenix-academy-17055; see also Compl. ¶ 55(e).
12 Pa. Dep’t of Educ., Phoenix Academy School Performance Profile – Comparison to McCaskey, available at www.paschoolperformance.org (using query tool); see also Compl. ¶ 55(f).
13 Compare McCaskey Campus, Interscholastic Athletic Opportunities Disclosure Form 15.6, 2014-2015 School Year, available at http://www.lancaster.k12.pa.us/download/ district_documents/athletics/2015_athletics_disclosures/McCaskey_Combined.pdf (showing that the District sponsors 45 athletic teams at the McCaskey Campus) with Phoenix Academy, Interscholastic Athletic Opportunities Disclosure Form 15.6, 2014-2015 School Year, available at http://www.lancaster.k12.pa.us/download/district_documents/athletics/ 2015_athletics_disclosures/Phoenix_Combined.pdf; see also Compl. ¶ 55(g).
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“International School”) designed to address the needs of such students through intensive ESL support and “sheltered instruction”14 in science, math, and social studies.15 English Language Learners (“ELLs”)16 at McCaskey who are not part of the “International School” program
receive either one or two periods daily of English language skill development and support based on ELLs’ assessed English proficiency.17 McCaskey also has systems in place to offer ELLs
additional language supports and accommodations in instruction and testing during their core classes and other times of the day beyond ESL classes.18
Plaintiffs intend to prove that there is no transitional program for ELLs at Phoenix
equivalent to the International School at McCaskey. Phoenix provides more limited and less
tailored ESL instruction than at McCaskey, and few modifications to instruction and testing in
regular education classes. Phoenix’s ELLs receive only one 80-minute ESL class with the same
one-size-fits-all instruction regardless of the student’s proficiency level. Most ELLs also do not
14 “Sheltered instruction” is “adapted to the students’ English proficiency levels and provides modified curriculum-based content. Teachers enhance context by providing visual props, hands-on learning experiences, drawings, pictures, graphic organizers, and small group learning opportunities.” See Services for English Language Learners, Sch. Dist. of Lancaster (attached as Exhibit 1) (produced by Defendant as part of collection of documents labeled “5.pdf” on June 24, 2016, in response to request for public records filed by Plaintiffs’ counsel on May 20, 2016). “Sheltered English instruction programs offer instruction to ELLs at lower English proficiency levels, who are often newcomers to the United States.” Id.
15 See Services for English Language Learners, Sch. Dist. of Lancaster (Exhibit 1); Compl. ¶¶ 5860.
16 The terms “LEP” students (denoting students with limited English proficiency) and “ELLs” (denoting English Language Learners) are used interchangeably in this brief.
17 McCaskey High School Campus 2015/2016 Curriculum Guide 11, available at http://www.lancaster.k12.pa.us/wp-content/uploads/2015/01/2015-16-Curriculum-Guide-Rev-11-18-14Final-PDF.pdf; see also Compl. ¶ 66(a).
18 McCaskey High School Campus 2015/2016 Curriculum Guide 2, available at http://www.lancaster.k12.pa.us/wp-content/uploads/2015/01/2015-16-Curriculum-Guide-Rev-11-18-14Final-PDF.pdf; Services for English Language Learners, Sch. Dist. of Lancaster (Exhibit 1); see also Compl. ¶ 66(b).
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receive any in-class language supports during non-ESL classes or testing accommodations.19 Phoenix also currently lacks sufficient certified staff to teach the 90 enrolled ELLs.20
Besides the major differences in academic quality and opportunities, curriculum, and essential language supports, Phoenix’s environment and culture differ markedly from McCaskey and, indeed, from typical American high schools. Phoenix does not comply with SDOL policy regarding searches, which allows for pat-downs only if a student sets off a metal detector or there is other reason to suspect the individual student is concealing contraband, and prescribes certain privacy-guarding procedures that must be followed during pat-downs.21 At Phoenix, students are subjected to pat-down searches and searches of their shoes every time they enter the building and remain subject to searches throughout the school day.22
SDOL policy protects students’ right to freedom of expression and expressly permits students to use publications, handbills, buttons, armbands, and technology to express
19 See Compl. ¶¶ 56, 66(a)-(c), 110-11, 122, 141-43; Verification of Khadidja Issa, Ex. A to Compl.; Verification of Q.M.H., Ex. A to Compl.; Verification of Anyemu Dunia, Ex. A to Compl.
20 See Pa. Dep’t of Educ., Phoenix Academy School Fast Facts, available at www.paschoolperformance.org (using query tool) (showing that at Phoenix Academy, 28.17% of students—90 students—are ELLs); Sch. Dist. of Lancaster Staff Directory, http://www.lancaster.k12.pa.us/staff-directory/ (last visited July 20, 2016); Teacher Information Mgmt. Sys., Pa. Dep’t of Educ., http://www.teachercertification.pa.gov/Screens/wfSearchEducators.aspx; see also Compl. ¶ 65.
21 See School District of Lancaster Standards and Expectations of Behavior for Students, 2013/2014 Revision 13, available at http://www.lancaster.k12.pa.us/download/ district_documents/district_information/standards_of_conduct/standards_conduct_eng.pdf (Section entitled “Rights Regarding Searches”).
22 Phoenix Academy 2015-2016 Student Handbook at 3 (attached as Exhibit 2) (“All students will be searched every morning upon entrance to the school. . . . All students are subject to search in an appropriate manner by authorized personnel, at any time.”); see also Compl. ¶ 71.
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themselves at school.23 But Phoenix students are prohibited from bringing belongings— including bags, books, papers, and other articles—to or from school.24 SDOL policy states that ninth through twelfth graders may make their own choices regarding dress and grooming, so long as their choices do not affect the educational program of the school or the health and safety of others.25 Phoenix students do not enjoy this right. Instead, Camelot assigns shirt colors based on student behavior.26
Phoenix students are subject to harsh and physical disciplinary interventions. Phoenix, like many Camelot-operated schools, uses a multi-tiered behavioral correction system called “Handle with Care” that employs both “verbal intervention” and “physical intervention.”27 Consistent with the “Handle with Care” model, Phoenix policy encourages “confrontations” between students: Phoenix requires students to “confront[] the negative behavior of their peers,” and identifies confrontation of one’s peers as the number one “step to success” at Phoenix.28 To advance further in the behavioral rankings, a Phoenix student must fill out a “Pledge Log” so that school personnel can review “who they have been confronting, [and] the reason for the
23 School District of Lancaster Standards and Expectations of Behavior for Students, 2013/2014 Revision 11, available at http://www.lancaster.k12.pa.us/download/ district_documents/district_information/standards_of_conduct/standards_conduct_eng.pdf.
24 Phoenix Academy 2015-2016 Student Handbook at 3 (Exhibit 2) (listing prohibited items); see also Compl. ¶ 78.
25 School District of Lancaster Standards and Expectations of Behavior for Students, 2013/2014 Revision 17, available at http://www.lancaster.k12.pa.us/download/ district_documents/district_information/standards_of_conduct/standards_conduct_eng.pdf.
26 See Compl. ¶ 80. 27 Compl. ¶ 73; see also Handle with Care Behavior Management System, http://handlewithcare.com/ (last visited July 12, 2016). 28 Phoenix Academy 2015-2016 Student Handbook at 7, 11 (Exhibit 2); see also Compl. ¶ 77.
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confrontation[.]”29 Only students who are consistently documented “confronting and enforcing the normative culture at Phoenix” can earn the highest behavioral ranking.30
B. SDOL’s Enrollment Decisions Enrollment and placement decisions in the District are made by Jacques “Jack”
Blackman, the Coordinator of Counseling and Dropout Prevention Programs at McCaskey East, one of the buildings on the McCaskey Campus. See Compl. ¶ 91. Older immigrant students (aged 17-21) are sometimes told after meeting with Mr. Blackman that they will not be permitted to enroll in any District school. Compl. ¶ 95. The District does not provide any documentation of enrollment denials, nor advise these students of any appeal rights. Compl. ¶ 98. Refugee resettlement case workers have met on several occasions over the past year with SDOL officials to discuss the troubling exclusion of refugee children from the District and their placement at Phoenix. Compl. ¶ 103. Advocates for immigrant students have also asked the District to formalize the enrollment process and provide documentation of the reason for the denials, but the District has not done so. Compl. ¶ 104.
Older immigrant students who are enrolled by SDOL—often only after advocacy by refugee resettlement case workers—are typically placed at Phoenix rather than their geographically assigned public high school, McCaskey.31 Immigrant students placed at Phoenix are not given the option of attending McCaskey. Compl. ¶ 100. Indeed, Plaintiffs who have expressly requested enrollment in McCaskey have been refused. Compl. ¶ 101. Documents
29 Phoenix Academy 2015-2016 Student Handbook at 13 (Exhibit 2); see also Compl. ¶ 77. 30 Phoenix Academy 2015-2016 Student Handbook at 13, 15 (Exhibit 2); see also Compl. ¶ 77. 31 Compl. ¶ 102. The District maintains an online tool that allows students new to the District to look up their assigned elementary, middle, and high schools based on their address. School Boundaries, Sch. Dist. of Lancaster, http://www.lancaster.k12.pa.us/school_boundaries/. McCaskey is the high school assigned to all students who live within the District’s attendance area. No one is assigned to Phoenix based solely on their address.
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Case 5:16-cv-03881-EGS Document 7 Filed 07/22/16 Page 22 of 57 produced by the District in response to Right to Know Requests filed by Plaintiffs’ counsel strongly suggest that it is District policy to place at Phoenix all older immigrant students who have fewer credits than other students their age, regardless of their educational needs.32
32 See 2015 Extended Day Program Abstract, Sch. Dist. of Lancaster at 15 (attached as Exhibit 3) (“Phoenix Academy [is] a credit recovery facility for students who, due to multiple risk factors including refugee status, pregnant and parenting youths, homelessness and other poverty-related issues, may not graduate on time”).
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III. LEGAL ARGUMENT A. Legal Standard This Court must weigh four factors to determine whether to issue a preliminary
injunction: (1) the likelihood that the moving party will succeed on the merits; (2) the extent to which the moving party will suffer irreparable harm without injunction relief; (3) the extent to which the moving party will suffer irreparable harm if the injunction is issued; and (4) the public interest.
Liberty Lincoln-Mercury Inc. v. Ford Motor Co., 562 F.3d 553, 556 (3d Cir. 2009); McNeil Nutritionals LLC v. Heartland Sweeteners, LLC, 511 F.3d 350, 356-57 (3d Cir. 2007). The balance of factors in this case regarding the education of vulnerable LEP immigrant youth clearly weighs in favor of granting the requested relief.
B. Plaintiffs Will Suffer Irreparable Harm Unless the Court Issues the Requested Injunction Irreparable harm is shown where the movant suffers “potential harm which cannot
be redressed by a legal or an equitable remedy following trial.” Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir. 1994). Stated another way, irreparable harm occurs where monetary damages are difficult to ascertain or are inadequate. In re Arthur Treacher’s Franchisee Litig., 689 F.2d 1137, 1146 (3d Cir. 1982).
Both refusing to enroll school-aged youth entirely and denying them legallymandated educational services needed to access the curriculum plainly constitute irreparable harm. “Compensation in money can never atone for deprivation of a meaningful education in an
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appropriate manner at the appropriate time.” John T. ex rel. Paul T. v. Commonwealth, Civ. No. 98-5781, 2000 WL 558582, at *8 (E.D. Pa. May 8, 2000).
Denial of a free public education, either by refusing or delaying enrollment, is irreparable harm.33 SDOL’s custom, practice, and policy of denying enrollment outright, or refusing to enroll students until and unless their resettlement case workers convince the District they must enroll the student, excludes immigrant LEP youth from access to vitally important educational services necessary to help them survive and thrive in a new country and new culture. Alembe Dunia first tried to enroll in December 2014, and once again in October 2015, but to this day SDOL has refused to admit him and he has not had access to any public education. Compl. ¶¶ 136-39; Verification of Alembe Dunia, Ex. A to Compl.; Decl. of Alembe Dunia, July 14, 2016, ¶ 5 (attached as Exhibit 4). The District initially refused to enroll Khadidja Issa and Q.M.H., allowing months to pass during which time the students were deprived entirely of a free public education. Compl. ¶¶ 106-09, 116-21; Verification of Khadidja Issa, Ex. A to Compl.; Decl. of Khadidja Issa, July 14, 2016, ¶ 5 (attached as Exhibit 5); Verification of Q.M.H., Ex A to Compl.; Decl. of Q.M.H., July 14, 2016, ¶ 5 (attached as Exhibit 6). The District’s denial of enrollment, or delay in enrolling school-age young people who are new to this country, speak little or no English, desperately need to resume what is typically an interrupted educational
33 See, e.g., N.J. v. New York, 872 F. Supp. 2d 204, 214 (E.D.N.Y. 2011) (“interruption of a child’s schooling causing a hiatus not only in the student’s education but also in other social and psychological developmental processes that take place during the child’s schooling, raises a strong possibility of irreparable injury”); L.R. ex rel. G.R. v. Steelton-Highspire Sch. Dist., No. 1:10-CV-00468, 2010 WL 1433146, at *3-4 (M.D. Pa. Apr. 7, 2010) (holding that homeless student would be irreparably harmed “if he is not immediately re-enrolled in the District”); Ross v. Disare, 500 F. Supp. 928, 934 (S.D.N.Y. 1977); Blackman v. Dist. of Columbia, 185 F.R.D. 4, 7 (D.D.C. 1999); Oravetz v. W. Allegheny Sch. Dist., 74 Pa. D. & C.2d 733, 737-38 (Pa. Ct. Common Pleas 1975) (“deprivation of educational rights can produce irreparable harm and establishes a need for prompt and immediate relief”); Minnicks v. McKeesport Area Sch. Dist., 74 Pa. D. & C.2d 744, 749-50 (Pa. Ct. Common Pleas 1975) (“Absence from school cannot be repaired by money damages or even by a subsequent reinstatement at a future period”).
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history, and need to begin socializing with peers unquestionably causes irreparable harm. “By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.” Plyler v. Doe, 457 U.S. 202, 223 (1982). Even if damages were available, they could not adequately compensate these young people for timely access to these important services.
SDOL’s practice of placing older immigrant LEP students at Phoenix also constitutes irreparable harm. Phoenix operates on an educational model—accelerated credit recovery without special language support services—that does not and cannot enable immigrant LEP students to overcome their language barriers. Enrollment in an educational program that fails to provide legally mandated language services necessary to enable students to access instruction constitutes irreparable harm on par with the failure to provide sign language interpreters to deaf students,34 or special education services to autistic students or students with Down’s Syndrome.35
None of these students can learn without the necessary supports. The District’s placement of Named Plaintiffs and Class Members at Phoenix—a school that fails to provide them with language and other support services necessary to overcome language barriers and allow them to participate equally in the core curriculum—constitutes clear irreparable harm that cannot be remedied by money damages.
34 See Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 121-22 (1st Cir. 2003) (failure to provide sign language interpreter constitutes harm that cannot be adequately redressed post-trial because “at the rate at which a child develops and changes . . . a few months can make a world of difference in harm to a child’s educational development”) (internal quotations and citations omitted).
35 L.J. ex rel. V.J. v. Audubon Bd. of Educ., Civ. No. 06-5350, 2007 WL 3252240, at *8 (D.N.J. Nov. 5, 2007) (denial of special services for autism constitutes irreparable harm); John T, 2000 WL 558582, at *8 (denial of special services for Down’s Syndrome student constitutes irreparable harm).
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C. Plaintiffs Are Likely to Succeed on the Merits of Their Claims To show a likelihood of success on the merits, it is “not necessary” that the
moving party’s entitlement to relief on the merits be “wholly without doubt.” Am. Freedom Def. Initiative v. SEPTA, 92 F. Supp. 3d 314, 322 (E.D. Pa. 2015) (quoting Oburn v. Shapp, 521 F.2d 142, 148 (3d Cir. 1975)). Rather, the applicable standard is whether the moving party has made out a prima facie case showing a “reasonable probability” that the plaintiff will prevail on the merits. Id. The detailed allegations in the complaint, which Plaintiffs will prove at a preliminary injunction hearing, more than suffice to demonstrate a “reasonable probability” that Plaintiffs will succeed on the merits of their claims for violations of the Pennsylvania statute ensuring the right to enroll in public school, 24 Pa. Stat. § 13-1301 et seq.; the Equal Educational Opportunity Act (“EEOA”), 20 U.S.C. § 1703(f); Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; and the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution, U.S. Const., amend XIV, § 1.
1. Plaintiffs Who Were Denied Enrollment in the District Altogether Are Likely to Succeed on their State Law Claims.
The Named Plaintiffs and Class Members who have been denied enrollment in any District school are plainly likely to prevail on the merits of their state law claims related to their exclusion from school.
Plaintiffs will be able to prove at a preliminary injunction hearing that the District has a custom, practice, and policy of refusing to enroll in the District older LEP immigrants who are qualified for enrollment. The experiences of several of the Named Plaintiffs provide evidence of this pattern. When Plaintiff Khadidja Issa first attempted to enroll in school in November 2015, she was 17 years old, and the District refused her. Compl. ¶ 107; Verification of Khadidja Issa, Ex. A to Compl.; Decl. of Khadidja Issa, July 14, 2016, ¶ 5 (Exhibit 5). Only
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after sustained advocacy by Khadidja’s refugee resettlement case workers did the District relent and agree to place her in Phoenix Academy for the spring semester of the 2015-2016 school year. Compl. ¶ 108; Verification of Khadidja Issa, Ex. A to Compl.; Decl. of Khadidja Issa, July 14, 2016, ¶ 5 (Exhibit 5). When Plaintiff Q.M.H. first attempted to enroll in the school in September 2015, he was 17 years old, and the District refused him. Compl. ¶ 116; Verification of Q.M.H., Ex. A to Compl.; Decl. of Q.M.H., July 14, 2016, ¶ 5 (Exhibit 6). The District again refused to admit him in December 2015. Compl. ¶ 117; Verification of Q.M.H., Ex. A to Compl. Only after sustained advocacy by his refugee resettlement case workers did the District finally relent in late January 2016 and agree to place him in Phoenix Academy. Compl. ¶ 120; Verification of Q.M.H., Ex. A to Compl.; Decl. of Q.M.H., July 14, 2016, ¶ 5 (Exhibit 6). When Plaintiff Alembe Dunia first attempted to enroll in school in December 2014, he was 19 years old, and the District refused him. Compl. ¶¶ 136-37; Verification of Alembe Dunia, Ex. A to Compl.; Decl. of Alembe Dunia, July 14, 2016, ¶ 5 (Exhibit 4). He attempted to enroll again in November 2015, when he was still under age 21, and still the District refused to enroll him. Compl. ¶ 138; Verification of Alembe Dunia, Ex. A to Compl. He has still not been enrolled in school. Decl. of Alembe Dunia, July 14, 2016, ¶ 5 (Exhibit 4).
The right of older immigrant students to be educated in the district where they live is clear and unequivocal. In Pennsylvania, every child who has not graduated from high school has a right to attend the public schools in her district until the end of the school year in which she turns 21.36 A child who turns 21 during the school term and who has not graduated from high
36 24 Pa. Stat. § 13-1301; 22 Pa. Code § 11.12; Sch. Dist. of Wilkinsburg v. Wilkinsburg Educ. Ass’n, 667 A.2d 5, 9 (Pa. 1995) (interpreting Article III, Section 14 of the Pennsylvania Constitution to make public education a fundamental right in the Commonwealth).
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school has the right to continue to attend the public schools in his district free of charge until the end of the school term. 24 Pa. Cons. Stat. Ann. § 13-1301; see also 22 Pa. Code § 12.1(a).
Pennsylvania regulations require that a “school district or charter school shall normally enroll a child the next business day, but no later than 5 business days of application.” 22 Pa. Code § 11.11(b). They also explicitly state that a “child’s right to be admitted to school may not be conditioned on the child’s immigration status . . . [and, thus, a] school may not inquire regarding the immigration status of a student as part of the admission process.” 22 Pa. Code § 11.11(d). Denying school-age immigrants admission to the District based on their national origin plainly violates state law.
2. Plaintiffs Who Were Placed at Phoenix Are Likely to Succeed On Their Claims That The District Violated the EEOA.
Plaintiffs placed at Phoenix and denied the opportunity to attend McCaskey are likely to succeed on the merits of their claims under the EEOA. After Plaintiffs have had the opportunity to present evidence and expert testimony at a preliminary injunction hearing, the evidence will show that the District has failed to take “appropriate action” to overcome the language barriers of ELLs at Phoenix. Plaintiffs are, thus, likely to succeed on their claims under the EEOA.
a. Equal Educational Opportunities Act The EEOA provides that “[n]o State shall deny equal educational opportunity to an individual on account of his race, color, sex, or national origin, by . . . the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in instructional programs.” 20 U.S.C. § 1703(f). To prevail under the EEOA, a plaintiff need not prove that the district intentionally denied educational opportunity on account of national origin. C.G. v. Pa. Dep’t of Educ., 888 F. Supp. 2d 534, 574-76 (M.D. Pa.
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2012). To state a claim for national origin discrimination under Section 1703(f), plaintiffs need only allege facts showing: “(1) language barriers; (2) defendant’s failure to take appropriate action to overcome these barriers; and (3) a resulting impediment to students’ equal participation in instructional programs.” Id. at 575.
The leading case articulating criteria for assessing programs serving LEP students for illegal discrimination is Castaneda v. Pickard, 648 F.2d 989 (5th Cir. 1981). See also C.G., 888 F. Supp. 2d at 575 (applying Castaneda to determine whether language program constitutes “appropriate action” under the EEOA); see also Valeria G. v. Wilson, 12 F. Supp. 2d 1007, 101718 (N.D. Cal. 1998) (same).
b. Castaneda Analysis As the Castaneda Court explained, when evaluating the sufficiency of a particular program addressing language barriers, a reviewing court must determine: (1) whether a school system is pursuing a program “informed by an educational theory recognized as sound by some experts in the field or, at least, deemed a legitimate experimental strategy”; (2) whether the programs and practices actually used by a school system are reasonably calculated to implement effectively the educational theory adopted by the school; and (3) whether the program, once employed for a sufficient time period to give the plan a legitimate trial, produces “results indicating that the language barriers confronting students are actually being overcome.” Castaneda, 648 F.2d at 1009-10. In this case, a Castaneda analysis of the evidence will show that, by placing older LEP immigrant students at Phoenix, the District has failed in its duty to take appropriate action to overcome language barriers, thus denying Plaintiffs an equal educational opportunity based on their national origin in violation of the EEOA.
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i. The District’s Placement of LEP Immigrants at Phoenix Is Not Based on Any Educational Theory Recognized as Sound by Experts.
Plaintiffs are likely to succeed in proving that placing LEP immigrants into the alternative accelerated program at Phoenix is not “informed by an educational theory recognized as sound” by language experts, nor is it even “a legitimate experimental strategy.” See Castaneda, 648 F.2d at 1009. As Plaintiffs will prove through expert testimony, Phoenix’s “accelerated credit recovery” model of instruction, deficient language program, and confrontational policies are fundamentally at odds with any accepted theory of education for newcomer ELLs.
The District’s apparent rationale for placing older LEP immigrant students at Phoenix is that an accelerated program will allow these students to quickly receive enough credits to graduate, thereby divesting the District of the obligation to continue their schooling.37
However, this rationale deliberately ignores the reality that these students’ significant language barriers prevent any meaningful access to instruction—let alone accelerated instruction. As the Supreme Court has observed, “[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 . . . We know that those who do not understand English are certain to find their classroom experiences
37 See Emily Previti, ACLU sues Lancaster school district over education of refugees, NewsWorks, July 19, 2016, available at http://www.newsworks.org/index.php/local/item/95571-aclusues-lancaster-school-district-over-education-of-refugees (Superintendent Rau stating that “What we’re trying to do, what Phoenix does really well is that it gives him an opportunity to accelerate . . . So if a child comes to this country, a child who is 15-16 with no credits, it’s practically impossible for them to graduate. And that’s our goal.”); See 2015 Extended Day Program Abstract, Sch. Dist. of Lancaster at 15 (Exhibit 3) (“Phoenix Academy [is] a credit recovery facility for students who, due to multiple risk factors including refugee status, pregnant and parenting youths, homelessness and other poverty-related issues, may not graduate on time”).
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wholly incomprehensible and in no way meaningful.” Lau, 414 U.S. at 566. This is particularly true given the pronounced deficiencies in the ESL program at Phoenix. See supra Section II(A); infra Section III(C)(2)(c)(ii). Indeed, the District plans to graduate Plaintiff Anyemu Dunia from Phoenix in August—after only one year and eight months of schooling, despite the fact that Anyemu has not yet learned to speak, read, or write English, and has not attained a level of proficiency in the core curricular content to warrant graduation from any American school. Compl. ¶¶ 146-47; Verification of Anyemu Dunia, Ex. A to Compl.
Moreover, in addition to the deficiencies in the language program outlined herein, Plaintiffs will prove through expert testimony that the highly-restrictive and confrontational environment at Phoenix impedes meaningful education for immigrant students who have experienced significant trauma and are new to the country. Compl. ¶ 85. It is not uncommon for refugees and other immigrants to experience great difficulty in adjusting to the most basic expectations of a school setting in the U.S. For immigrants facing not only unfamiliar school routines but debasing and intimidating ones, their struggle is compounded. An educational environment that creates new stressors in their lives by treating them with suspicion or harshness severely undermines their ability to benefit from the educational opportunities afforded to them. Compl. ¶ 86.
The District understands that LEP immigrants who are newly arrived in the country require special supports, as evidenced by the existence of the “International School” newcomer program at McCaskey and the “Refugee Center” at Reynolds Middle School.38 But
38 See, e.g., Services for English Language Learners, Sch. Dist. of Lancaster (attached as Exhibit 1) (describing “International School”); Dan Nephin, Reynolds Middle School refugee center getting ready for opening, LancasterOnline, Sept. 21, 2015, available at http://lancasteronline.com/news/local/reynolds-middle-school-refugee-center-getting-ready-foropening/article_52126436-5ca9-11e5-84d0-ff227497033f.html.
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District officials have been deliberately indifferent to the needs of older immigrant students, whom the District either denies schooling altogether or places at Phoenix in an atmosphere that actually undermines their ability to succeed. The District does not offer Phoenix students any transitional program for ELLs who have recently arrived in the country comparable to what the District has implemented at McCaskey and Reynolds, and Phoenix’s language program is inferior to the program at McCaskey in terms of ESL instruction, staffing, language support in regular classes, and testing accommodations. See supra Section II(A); infra Section III(C)(2)(c)(ii).
Accordingly, Plaintiffs are likely to succeed in proving that the District’s strategy of placing newcomer ELLs at Phoenix is not supported by sound educational theory.
ii. Phoenix’s Practices Are Not Reasonably Calculated to Implement any Educational Theory.
Even if the District could establish that the language program at Phoenix, which is provided through an accelerated learning model, is based on a sound educational theory, the District’s practices would nonetheless fail under Castaneda because “the programs and practices actually used by a school system [are not] reasonably calculated to implement effectively the educational theory adopted by the school.” Castaneda, 648 F.2d at 1010.39 The language program at Phoenix “fails to follow through with practices, resources and personnel necessary to transform the theory into reality.” Castaneda, 648 F.2d at 1010.
39 See also Policy Update on Schools’ Obligations Toward National Origin Minority Students with Limited-English Proficiency, Memorandum from Michael L. Williams U.S. Dep’t of Educ. Assistant Sec’y for Civil Rights to Senior Staff of the U.S. Dep’t of Educ. Office for Civil Rights (Sept. 27, 1991), available at http://www2.ed.gov/about/offices/list/ocr/docs/lau1991.html (hereinafter “1991 Policy Update, U.S. Dep’t of Educ. Office for Civil Rights”) (quoting Castaneda, 648 F.2d at 1010).
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Experts at the United States Department of Education and the Pennsylvania Department of Education have recognized that, in order to effectively assist ELLs in overcoming language barriers and satisfy state and federal law, any language program must contain several basic essential elements. The need for each of these elements is heightened when ELLs are participating in an accelerated curriculum. And yet, at Phoenix, these elements are missing altogether or clearly deficient in each category.
Adequate ESL instruction time tailored to proficiency. Guidance issued by the Pennsylvania Department of Education states that language instruction must be commensurate with an ELL student’s English proficiency level, meaning that ELL students who are less proficient in English require more hours of language instruction. 40 The Department recommends that Beginner Level I ELLs, like the Named Plaintiffs in this case, receive 2-3 hours per day of ESL instruction. Id. However, ELLs at Phoenix receive only one 80-minute ESL class per day, regardless of their level of proficiency.41
Certified ESL teachers. Pennsylvania law and agency guidance require all teachers in language instructional programs to hold a Program Specialist ESL Certificate. 24 Pa. Stat. § 15-1511 (“[T]he teaching of subjects in a language other than English may be permitted as part of a sequence in foreign language study or as part of a bilingual education program if the teaching personnel are properly certified in the subject fields.”); Educating Students with LEP
40 Educating Students with Limited English Proficiency (LEP) and English Language Learners (ELL), Pennsylvania Department of Education Basic Education Circular (last modified Apr. 14, 2009) at 3, available at http://www.education.pa.gov/Documents/Codes%20and%20 Regulations/Basic%20Education%20Circulars/PA%20Code/Educating%20Students%20with%20Limited %20English%20Proficiency%20(LEP)%20and%20English%20Language%20Learners%20(ELL).pdf (hereinafter “Educating Students with LEP and ELLs, Pa. Dep’t of Educ.”).
41 See Compl. ¶ 66(a); Verification of Khadidja Issa, Ex. A to Compl.; Verification of Q.M.H., Ex. A to Compl.; Verification of Anyemu Dunia, Ex. A to Compl.
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and ELLs, Pa. Dep’t of Educ., at 7 (“All teachers in language instructional programs must hold the certification and endorsements required by [the Pennsylvania Department of Education].”). In addition to Pennsylvania’s requirements, OCR has required that schools either hire formally qualified teachers for LEP students or require that teachers already on staff work toward attaining those formal qualifications. 1991 Policy Update, U.S. Dep’t of Educ., Office for Civil Rights (citing Castaneda, 648 F.2d at 1013). Phoenix does not currently have any certified ESL teachers on staff, and appears to lack even sufficient uncertified ESL staff to teach the 90 ELL students at Phoenix.42
Language supports in content classes. Pennsylvania regulations require that every school district provide ELLs with an ESL program that includes “adaptations/modifications in the delivery of content instruction by all teachers” based on the student’s English proficiency and Pennsylvania academic standards. Educating Students with LEP and ELLs, Pa. Dep’t of Educ., at 1 (interpreting 22 Pa. Code § 4.26). The lower the ELL student’s English proficiency level, the greater the amount of adaptations required to instruction and assessment in content classes. Id. at 3. Phoenix, however, does not provide anything resembling the intensive “sheltered instruction” model at McCaskey’s International School.43 Moreover, after limited discovery, Plaintiffs expect to prove at a preliminary injunction hearing
42 See Pa. Dep’t of Educ., Phoenix Academy School Fast Facts, available at www.paschoolperformance.org (using query tool) (showing that at Phoenix Academy, 28.17% of students—90 students—are ELLs). Upon information and belief, the only state-certified ESL staff person listed on the District’s online staff directory for Phoenix (one of only two ESL staff listed at Phoenix) no longer works there. See Compl. ¶ 65; Teacher Information Mgmt. Sys., Pa. Dep’t of Educ., http://www.teachercertification.pa.gov/Screens/wfSearchEducators.aspx (using query tool); School District of Lancaster Staff Directory, http://www.lancaster.k12.pa.us/staff-directory/ (last visited July 20, 2016).
43 Services for English Language Learners, Sch. Dist. of Lancaster (attached as Exhibit 1).
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that Phoenix fails to offer ELLs any meaningful modifications to classroom curriculum or testing—even those students at the most basic level of English proficiency.44
In order to equip teachers to appropriately modify instruction and testing in nonESL classes, all school districts in Pennsylvania with ELLs must, as part of the Professional Development Act 48 Plan, offer staff development related to ESL for all personnel. Educating Students with LEP and ELLs, Pa. Dep’t of Educ., at 7. This professional development training is necessary to give teachers the tools to be able to modify the curriculum and testing in content classes to effectively teach ELLs. Plaintiffs expect to prove at a preliminary injunction hearing that teachers at Phoenix do not receive the professional development training necessary to learn this strategy, and consequently do not modify instruction or testing to meet the needs of ELLs.
Periodic assessment of English proficiency to gauge progress. Federal and state law require annual assessment of ELLs’ proficiency in English language reading, writing, speaking, and listening or understanding. Educating Students with LEP and ELLs, Pa. Dep’t of Educ., at 4 (citing 20 U.S.C. §§ 6311(b(7), (6826(b)(3)(C),(d)(2)). Only with periodic assessments of English proficiency based on objective standards that test reading, writing, speaking, and listening can a school district gauge whether ELLs are able to participate meaningfully in the regular educational program. See 1991 Policy Update, U.S. Dep’t of Educ. Office for Civil Rights. Phoenix, however, does not regularly perform any valid and comprehensive evaluation of its ELLs’ English proficiency.45
44 See Compl. ¶¶ 56, 66(b)-(c), 110-11, 122, 142-43; Verification of Khadidja Issa, Ex. A to Compl.; Verification of Q.M.H., Ex. A to Compl.; Verification of Anyemu Dunia, Ex. A to Compl.
45 See Compl. ¶ 168; Compl. ¶ 111 (Plaintiff Khadidja Issa has not been assessed for language proficiency since beginning at Phoenix); Verification of Khadidja Issa, Ex. A to Compl.; Compl. ¶ 147 (Plaintiff Anyemu Dunia will be graduated next month from Phoenix despite his inability to read, write, speak, and understand English); Verification of Anyemu Dunia, Ex. A to Compl.
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Confrontational environment. The overtly confrontational and restrictive environment at Phoenix provides yet another reason that placement of LEP immigrants at Phoenix is not reasonably calculated to implement effectively a valid educational theory. As Plaintiffs expect to prove through expert testimony at a preliminary injunction hearing, it is not uncommon for refugees to experience great difficulty in adjusting to the most basic expectations of a school setting in the U.S. See Compl. ¶¶ 85-86. That struggle is only compounded by the debasing and intimidating environment and daily routines at Phoenix—characterized by daily pat-down searches, harsh restrictions on personal freedom and expression, and disciplinary and uniform policies that pit students against each other by rewarding regular confrontation with peers “exhibiting negative behavior” and documentation of others’ disciplinary infractions.46 The educational environment at Phoenix creates new stressors in the lives of already-struggling LEP immigrant youth and severely undermines their ability to benefit from any educational opportunities. See Compl. ¶ 86. Thrusting Plaintiffs into an environment that actually undermines their ability to overcome the obstacles to their success is plainly not reasonably calculated to implement any sound educational theory.
For all of these reasons, Phoenix’s ESL program does not meet the second prong of Castaneda. Indeed, Phoenix’s program suffers from many of the same deficiencies as other ESL programs that federal administrative agencies and courts have found to violate the EEOC and Title VI.47 Significantly, in Utica, 2016 WL 1555399, plaintiffs alleged that the school
46 See supra Section II(A); Compl. ¶¶ 67- 86. 47 See Letter from Wendella P. Fox, U.S. Dep’t of Educ. Office for Civil Rights, to Dr. Francis X. Antonelli, Hazleton Area Sch. Dist. (Apr. 10, 2014), available at http://www2.ed.gov/documents/pressreleases/hazleton-area-school-district-letter.doc (finding Title VI violations where students were inappropriately assigned to regular classes without an assessment of their English language proficiency, the district failed to provide sufficient ESL instructional time, failed to identify LEP parents or make interpreters available as needed, and lacked any system to internally evaluate the effectiveness of the ELL
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district had systemically diverted limited English proficient immigrant students aged 17-20 into alternative schools and programs that provided unequal educational opportunities compared to the mainstream high school. Id. at *1-3. The court held that these allegations stated a valid claim under both the EEOA and Title VI. Id. at *9-10. For these reasons, Plaintiffs are likely to succeed in proving that placement of LEP immigrants at Phoenix is not reasonably calculated to implement a sound, expert-backed theory of ESL education.
iii. There Is No Evidence that Phoenix’s ESL Program Is Effective.
Although Castaneda allows school districts flexibility in choosing and implementing a program to address language barriers, districts must modify their programs if they prove to be unsuccessful after a legitimate trial. Castaneda, 648 F.2d at 1010; 1991 Policy Update, U.S. Dep’t of Educ. Office for Civil Rights. Thus, the third Castaneda prong considers whether the ESL program produces “results indicating that the language barriers confronting students are actually being overcome[.]” Castenada, 648 F.2d at 1010.
“As a practical matter, [schools] cannot comply with this requirement without periodically evaluating their programs.” 1991 Policy Update, U.S. Dep’t of Educ. Office for Civil Rights (citing Keyes v. Sch. Dist. No. 1, 576 F. Supp. 1503, 1518 (D. Colo. 1983) (“The defendant’s program is also flawed by the failure to adopt adequate tests to measure the results of what the district is doing.”)). State law requires that every school “periodically evaluate its
programs and rectify deficiencies); Press Release, Dep’t of Educ. Office for Civil Rights, U.S. Department of Education Announces Resolution of Hazleton, Pa., Area School District Civil Rights Investigation (Apr. 11, 2014), available at http://www.ed.gov/news/press-releases/us-departmenteducation-announces-resolution-hazleton-pa-area-school-district-ci (announcing Hazleton findings and settlement agreement); Letter from Arthur Zeidman, U.S. Dep’t of Educ. Office for Civil Rights, to Dr. John Deasy, L.A. Unified Sch. Dist. (Oct. 11, 2011), available at http://www2.ed.gov/about/offices/list/ocr/docs/investigations/09105001-a.html (explaining that Title VI is implicated by school’s failure to adopt consistent standards for evaluating the proficiency level of students and failure to provide intervention services for students who were not progressing in English).
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language instructional program to ensure all components are aligned and working effectively to facilitate the acquisition of the English language and academic achievement defined by the PA academic standards.” Educating Students with LEP and ELLs, Pa. Dep’t of Educ., at 7 (citing 22 Pa. Code § 4.52; Castaneda, 648 F.2d at 989; 20 U.S.C. § 6841). Generally, whether a program can be considered “successful” depends on whether its participants are overcoming their language barriers “sufficiently well and sufficiently promptly” to participate meaningfully in educational programming. 1991 Policy Update, U.S. Dep’t of Educ. Office for Civil Rights.
In this case, after a preliminary injunction hearing, Plaintiffs expect that the evidence will show that SDOL’s language program at Phoenix fails the third prong of Castaneda because the District fails to conduct any ongoing and meaningful assessment of the program’s effectiveness, and because there is no evidence that the program is effective. In response to extensive Right to Know Requests filed by Plaintiffs’ counsel, the District has not produced any documents reflecting evaluation or analysis of the ESL program at Phoenix. Moreover, Plaintiffs expect to prove that Phoenix’s language program fails to help many ELLs, including the Named Plaintiffs, advance in their English language acquisition or meaningfully participate in school.48 Indeed, Plaintiffs expect to prove that ELLs routinely drop out of Phoenix because the environment and ineffective language access program make it impossible for ELLs to participate meaningfully in educational programming.49
For the reasons discussed above, Phoenix’s language program fails to constitute “appropriate action” to assist ELLs to overcome language barriers in the specific ways recognized as essential by experts. While Plaintiffs need to show that the Phoenix program fails
48 Compl. ¶¶ 110, 124, 132, 141, 143, 147; Verification of Khadidja Issa, Ex. A to Compl.; Verification of Q.M.H., Ex. A to Compl.; Verification of Anyemu Dunia, Ex. A to Compl.
49 See, e.g., Compl. ¶ 132; Verification of Q.M.H., Ex. A to Compl..
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only one of the Castaneda prongs, Plaintiffs are likely to prove that it violates all three Castaneda prongs and, thus, prevail on the EEOA claim.
3. Plaintiffs Who Were Placed at Phoenix Are Likely to Succeed On Their Claims That The District Violated 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; see also 34 C.F.R. § 100.3(b)(1)(i)-(vi) (describing specific discriminatory actions prohibited under Title VI).50 Title VI prohibits intentional discrimination, which the Third Circuit has held may be demonstrated through proof of “deliberate indifference.” Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 272-73 (3d Cir. 2014). A plaintiff can establish deliberate indifference by proving that a school district: (1) had actual knowledge of the alleged misconduct; (2) had the power to correct it; and (3) failed to do so. Id. at 273 (citing Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 645-49 (1999) (articulating a deliberate indifference standard in the Title IX context)). Thus, school systems can be found liable under Title VI for discrimination against ELLs not only by their actions but by inaction.
ELLs denied access to school on the basis of their national origin state a clear claim for violation of their rights under Title VI.51 The United States Department of Justice issued a “Dear Colleague” letter in May 2014 to make it clear that recipients of federal funds
50 There is no question that the District is a recipient of federal funding and subject to Title VI’s anti-discrimination mandate.
51 Letter from Jocelyn Samuels, Acting Assistant Att’y Gen., U.S. Dep’t of Justice Civil Rights Div., to Colleague (May 8, 2014) available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague201405.pdf (open “Dear Colleague” letter drafted in response to lawsuit alleging that older immigrants were being denied enrollment, and explaining that barring students from enrolling in school district based on country of birth violates Title VI).
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violate federal law when they deny immigrant students equal access to schools. Letter from Jocelyn Samuels, Acting Assistant Att’y Gen., U.S. Dep’t of Justice, Civil Rights Div., to Colleague (May 8, 2014) available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201405.pdf. For the same reasons that Plaintiffs are likely to prevail on the merits of their state law claims, they are also likely to prevail on their Title VI claims regarding the denial of enrollment. See supra Section III(C)(1).
The Plaintiffs who were placed at Phoenix are also likely to prevail on the merits of their Title VI claims. Plaintiffs expect to prove at a preliminary injunction hearing that the District acted with deliberate indifference toward Plaintiffs in a number of ways, including by placing older LEP immigrant students in Phoenix’s inferior educational setting, without adequate language support to enable their participation, and quickly advancing them through school and prematurely graduating them.
Placement at Phoenix in an inferior educational setting. As detailed in Section II(A) Statement of Facts, supra, Phoenix is substantially inferior to McCaskey in every measurable dimension. McCaskey far surpasses Phoenix in terms of teacher ratios, the percentage of teachers who are “highly qualified,” and school rankings. Phoenix lacks any of the opportunities available at McCaskey to participate in the advanced academic courses that the District acknowledges are “highly recommended” for anyone who plans to attend college, and 0% of Phoenix students qualify as “college ready.” McCaskey offers a range of extracurricular activities and athletics not available to Phoenix students. And students at Phoenix have far less personal freedom than students at McCaskey, in terms of their rights with respect to searches, access to their own personal belongings, dress and grooming choices, and freedom of expression. Students at Phoenix are subject to daily harsh disciplinary “interventions” and a degrading
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behavior-based uniform policy that are not part of the culture at McCaskey. McCaskey students, unlike Phoenix students, are not required to perform interpersonal “confrontations” to correct the “negative behavior” of their peers, and are not evaluated on the frequency and quality of their peer behavioral corrections. District officials are charged with knowing how their schools operate.
Placement at Phoenix without adequate language support to enable participation. The District had notice that the ESL program and environment at Phoenix undermined Plaintiffs’ ability to participate in their education, and failed to take any action to address Plaintiffs’ significant unmet needs. Notably, the United States Department of Education’s Office of Civil Rights (“OCR”), one of the federal agencies charged with enforcing Title VI, uses the analytical framework laid out in Castaneda to analyze whether a language program complies with Title VI. 1991 Policy Update, U.S. Dep’t of Educ. Office for Civil Rights. OCR’s policy standards represent an “attempt to combine the most definitive court guidance with OCR’s practical legal and policy experience in the field” as to what is required under Title VI. Id. As one of the administrative agencies responsible for enforcing the statute, OCR’s interpretation of Title VI is entitled to deference. See, e.g., Favia v. Indiana Univ. of Pennsylvania, 812 F. Supp. 578, 584 (W.D. Pa. 1993), aff’d, 7 F.3d 332 (3d Cir. 1993) (according Chevron deference to OCR’s interpretation of Title VI); Asllani v. Board of Educ., 845 F.Supp. 1209, 1223 (N.D.Ill. 1993) (same). The deficiencies in Phoenix’s language program outlined above under the Castaneda rubric, see supra Section III(C)(2)(b), constitute further evidence that the District has acted with deliberate indifference toward Plaintiffs.
Quickly advancing Plaintiffs through Phoenix to premature graduation. The District’s deliberate indifference to Plaintiffs’ rights is further evidenced by the District’s
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prioritization of their graduation rates over the Plaintiffs’ educational needs. Plaintiffs expect to prove at a preliminary injunction hearing that the District quickly advances older LEP immigrants through Phoenix, whether or not they are sufficiently learning the curriculum, and prematurely graduates them, thus divesting the District of its obligation to educate them. For example, Anyemu Dunia will graduate from Phoenix next month after spending only 1 year and 8 months in high school—and without having acquired English, mastering basic reading and math skills, or meeting state academic proficiency standards. Compl. ¶¶ 149-50. Upon information and belief, many other older immigrant students educated at Phoenix are routinely “prematurely graduated” within one or two years of entry into the District, despite their failure to acquire English, access instruction, or make progress towards meeting state academic standards, including mastery of core academic skills or content knowledge. These students are thereby foreclosed from a free public education in the future.
In this case, all of the District’s conduct in question occurred under circumstances giving rise to an inference of discrimination. See Blunt, 767 F.3d at 275 (plaintiff in Title VI case may establish a prima facie case of discrimination through circumstantial evidence that would support an inference of discrimination). The District not only had notice of the placement and treatment of older LEP immigrant students at Phoenix, but also had ample opportunity to correct the situation and failed to do so. After a preliminary injunction hearing, Plaintiffs expect that the evidence will show that the District has acted with deliberate indifference to the educational needs of LEP immigrant youth placed at Phoenix.
4. Plaintiffs Are Likely to Prevail on Their Procedural Due Process Claims.
Plaintiffs are also likely to prevail on their procedural due process claim. The Fourteenth Amendment provides that “no person shall be deprived of life, liberty, or property
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without due process of law.” U. S. Const. amend. XIV. “In procedural due process claims, the deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.” Zinermon v. Burch, 494 U.S. 113, 125 (1990) (citations omitted). “Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.” Carey v. Piphus, 435 U.S. 247, 259 (1978).
The Supreme Court uses a two-step test for examining procedural due process claims: the first asks whether there exists a liberty or property interest that has been interfered with by the government; the second examines whether the procedures that attend the deprivation are constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989) (citations omitted); accord Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000). Property interests are “created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985) (citations omitted).
The Third Circuit has held that Pennsylvania law creates a protected property interest in attending public school. Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 149 (3d Cir. 2005); Bell v. Pennsbury Sch. Dist., Civ. No. 09-5967, 2011 WL 292241 at *6 (E.D. Pa. Jan. 31, 2011); see also Goss v. Lopez, 419 U.S. 565, 573 (1975) (protected property interest in education created by Ohio law). The right to a free public education is established clearly in Pennsylvania law.52 Accordingly, a student’s legitimate entitlement to a public education cannot be taken away without procedural due process.
52 See supra Section III(C)(1) (authority demonstrating that Plaintiffs are likely to prevail on the merits of their state law claims arising out of the denial of enrollment). Pennsylvania regulations also
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Once a protected liberty or property interest has been identified, the focus shifts to assessing the quality and timing of the process due. Goss, 419 U.S. at 577; Shuman, 422 F.3d at 149. The test, first enunciated in Mathews v. Eldridge, 424 U.S. 319 (1976), requires this Court to balance three factors: (1) “the private interest that will be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards”; and (3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id. at 334-35; accord E.B. v. Verniero, 119 F.3d 1077, 1106 (3d Cir. 1997).
The Goss Court established the minimum process required for brief (i.e., ten days or less) exclusions from school:
[I]n connection with a suspension of 10 days or less . . . the student [must] be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story. . . The Clause requires at least these rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school. Shuman, 422 F.3d at 149-50 (quoting Goss, 419 U.S. at 581). Goss noted that “[l]onger suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures.” Id. at 584. Goss, thus, establishes “the minimum requirements” for exclusions from school. Newsome v. Batavia Local Sch. Dist., 842 F.2d 920, 927 (6th Cir. 1988) (emphasis in original).
posit, in the context of school expulsions for disciplinary reasons, that “education is a statutory right, and students must be afforded all appropriate elements of due process if they are to be excluded from school.” 22 Pa. Code § 12.8(a) (2005).
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Although the process due to students who are denied enrollment may not be the same as that due to students who are expelled from a school they are already attending, see Orozco by Arroyo v. Sobol, 703 F. Supp. 1113, 1120 (S.D.N.Y. 1989) (at least some “notice advising that the system provides for a hearing at which the prospective student’s contrary concerns may be aired” is required when school refuses to enroll students for not meeting residency requirements), in this case the Court need not rule now on the exact contours of what process is due to students denied enrollment because SDOL provides no process whatsoever. Plaintiffs are accordingly likely to prevail on the merits of their due process claims.
In this case, Plaintiff Alembe Dunia has been excluded from school for over a year, and Plaintiffs Issa and Q.M.H. were excluded for many months before their respective case workers convinced SDOL to reverse the decision to deny enrollment. The District did not provide them with written notice of why they were excluded and failed to provide them notice of their appeal rights to the Pennsylvania Department of Education. The District did not even provide an interpreter for the enrollment meeting, leaving the students and their parents truly without notice or knowledge. In a case similar to this one, a U.S. District Court judge recently denied a motion to dismiss a procedural due process claim over the Utica School District’s failure to provide any process before refusing to enroll refugee children in the regular high school, sending them instead to an alternative high school, like Phoenix. See Utica, 2016 WL 1555399, at *9(students “deprived of that property interest by virtue of the deliberate diversionary policies enacted and enforced by senior District officials”).
SDOL’s failure to provide students denied enrollment in McCaskey with any notice of reason for denial, with documents translated into their native language, or an interpreter
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to assist them violates Plaintiffs’ right to procedural due process. Without any due process, the risk that the District’s decisions will be arbitrary or discriminatory is high.
5. Plaintiffs Are Likely to Prevail on Their Equal Protection Claims.
Plaintiffs are likely to prevail on the merits of their Equal Protection claims because of two improper types of discrimination: 1) SDOL applies a different standard, based on alienage and national origin, to enrollment decisions concerning older refugee students than it does to American and non-immigrant students; and 2) SDOL irrationally treats older similarlysituated immigrant LEP students differently from younger ones. Younger refugee students are not systematically denied enrollment or diverted to Phoenix, and are often sent to McCaskey, with its specialized transition program in the International School. But older students are forced to attend the confrontational accelerated program with no specialized transition services at Phoenix, which cannot provide a meaningful education. This treatment serves no legitimate interest.
The Equal Protection Clause directs that “all persons similarly circumstanced shall be treated alike.” Plyler, 457 U.S. at 216 (1982) (citation omitted). Under well-established constitutional law, the level of scrutiny applied to review differences in treatment depends on whether the governmental action involves a “suspect” classification based on race, alienage, or national origin. Doe v. Pennsylvania Bd. of Probation & Parole, 513 F.3d 95, 107 (3d Cir. 2008) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (U.S. 1985)) (“the general rule gives way, however, when a statute classifies by race, alienage, or national origin. These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy”)). If the
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classification involves a suspect class, the strict scrutiny standard applies; if not, the distinction need only be rationally related to a legitimate interest. Doe, 513 F.3d at 107.
a. SDOL Applies a Different Standard to Enroll Older Immigrant LEP Students at Phoenix than it does to Enroll American Students.
The District assigned the Named Plaintiffs to Phoenix Academy because they are over-aged and under-credited refugee students. See generally Compl. ¶¶ 87-104. SDOL did not give them the option of attending McCaskey and outright refused counsel’s request to transfer Q.M.H. from Phoenix—where he was struggling to learn and enduring persistent and serious bullying by other students—to McCaskey. Id. ¶¶ 124-32; Verification of Q.M.H., Ex. A to Compl. This is no fluke. Assigning older refugee students to Phoenix is SDOL policy. An SDOL-submitted request for grant funding states that “if [refugee students] are of a certain age, [they] enroll at Phoenix Academy, our high school for overage students”).53 Elsewhere in the same document, SDOL writes that “[o]lder refugee students (19+) will be enrolled in Phoenix Academy, a small learning environment for students with specific needs related to credit recovery.” Id. at 13-14 (parenthetical in original). While this passage suggests that only refugee students older than 19 are sent to Phoenix, SDOL’s treatment of Named Plaintiffs and other evidence to be presented at an evidentiary hearing demonstrate that, in practice, the age of involuntary enrollment is actually 17 and older.
In sharp contrast with SDOL’s practice and policy of involuntarily forcing older immigrant students into Phoenix, the District treats Phoenix as a “school of choice” for all other students. In a June 2, 2014, letter from Pennsylvania Department of Education’s Acting
53 Refugee Student Initiative, Sch. Dist. of Lancaster, at 2 (attached as Exhibit 8) (produced as “Produc. 11” on July 1, 2016, in response to request for public records filed by Plaintiffs’ counsel on May 25, 2016).
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Secretary, Carolyn C. Dumaresq, to then-SDOL Superintendent Pedro Rivera, she writes that Phoenix may continue to operate as a “magnet” school, which is described as a “public school of choice.”54 Attendance at Phoenix is, thus, voluntary for non-refugee students, unless they are placed there for disciplinary reasons, which occurs only after due process. The disparate treatment of refugees is clear.
It has long been the rule that classifications based on alienage and national origin are “inherently suspect and subject to close judicial scrutiny.” Nyquist v. Mauclet, 432 U.S. 1, 7 (1977) (citations omitted); Hernandez v. Texas, 347 U.S. 475, 479 (1954); Oyama v. California, 332 U.S. 633, 646 (1948). The fact that SDOL may not, as a matter of practice, force all refugees to attend Phoenix does not insulate the District from liability. Even if SDOL admits some younger refugees to McCaskey, so long as the policy is “directed” at a sub-class of people based on alienage and national origin and “only [foreign-born people] are harmed by it,” the classification is subject to strict scrutiny. Nyquist, 432 U.S. at 9 (citations omitted); see also, Exodus Refugee Immigration, Inc. v. Pence, 2016 WL 772897, at *11 (S.D. Ind. Feb. 29, 2016) (excluding only subset of refugees from Syria still triggers strict scrutiny). Under strict scrutiny a policy of discrimination may be sustained only if the disparate treatment is necessary to promote a compelling state interest and it is narrowly tailored to meet that end. Palmore v. Sidoti, 466 U.S. 429, 432 (1984). SDOL cannot meet this exacting standard.
There is no rational reason, much less a compelling one, for SDOL to force immigrant students into Phoenix while giving non-immigrant students and their families a choice to attend, particularly where the placement is not likely to further, but rather to preclude,
54 Letter from Carolyn C. Dumaresq, Acting Secretary of Education, Pennsylvania Department of Education, to Pedro Rivera, Superintendent, Lancaster City School District (June 2, 2014) (attached as Exhibit 7) (produced as “Produc. 13” on July 1, 2016, in response to request for public records filed by Plaintiffs’ counsel on May 25, 2016).
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meaningful education. If non-immigrant students and their families have a choice, immigrant students deserve at least the same level of respect, autonomy, and freedom to make the decision. Since SDOL is unlikely to be able to justify the differential treatment of immigrant students forced into Phoenix, Plaintiffs are likely to prevail on the Equal Protection Claim.
b. Excluding Older, but not Younger, Refugee Students from McCaskey and the International School is Irrational.
A classification that “neither burdens a fundamental right nor targets a suspect class” must still bear a “rational relationship to some legitimate end.” Doe, 515 F.3d at 107 (citation omitted). “Although this is a low threshold, the Supreme Court has nonetheless instructed that ‘even in the ordinary equal protection case calling for the most deferential standards, we insist on knowing the relation between the classification adopted and the object to be obtained.’” Id. at 107-08 (citation omitted); see also Romer v. Evans, 517 U.S. 620, 632 (1996) (invalidating statute because it “lacks a rational relationship to legitimate state interests”); Ledezma-Cosino v. Lynch, 819 F.3d 1070, 1075 (9th Cir. 2016) (“The absence of a rational relationship between a medical disease and bad moral character therefore renders any classification based on that relationship a violation of the Equal Protection Clause.”); Ariz. Dream Act Coalition v. Brewer, 757 F.3d 1053, 1065-67 (9th Cir. 2014) (holding that plaintiffs were likely to prevail on their claim that Arizona’s denial of drivers licenses to DACA recipients was irrational discrimination).
In this case, SDOL discriminates against older LEP refugee students by refusing to enroll them in McCaskey, forcing them instead to attend Phoenix Academy. Many similarlysituated younger immigrant LEP students are sent initially to the International School. SDOL recognizes the importance of providing newly arrived immigrant LEP students with a transition program to help them adjust to life in the United States and learning in an American school:
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Our Refugee Students arrive with unique and varied needs, including: little or no English speaking ability; little or no understanding of the American educational system in general, and the School District of Lancaster in particular; limited formal schooling and/or significant gaps in school attendance; lack of knowledge of the expectations of students and their families regarding school attendance, completion of assignments, appropriate behavior, and more; unawareness of the availability of services and support and how to access them; and limited assimilation and acculturation. Many of these high school students are older, and need specific attention to help them progress toward graduation.
Refugee Student Initiative, Sch. Dist. of Lancaster, at 2 (attached as Exhibit 8) (produced as
“Produc. 11” on July 1, 2016, in response to request for public records filed by Plaintiffs’
counsel on May 25, 2016). This statement accurately describes Plaintiffs. It applies equally to
older refugee students as it does to younger ones. They have the same obstacles to overcome
and the same need for specialized, transition services.
Indeed, SDOL recognizes the importance of sending all newly arrived immigrant
LEP students, regardless of age, to the International School. The same document, which
describes how SDOL allegedly operates, states as follows:
When our high school refugee students first arrive they are enrolled in our International School at McCaskey East, where they receive academic supports to attain English fluency and maintain their grades. The goal is to have these students exit the International School and enter another Small Learning Community on the McCaskey Campus, or, if they are of a certain age, enroll at Phoenix Academy, our high school for overage students.
Id. However, as evidenced by Named Plaintiffs’ experiences, SDOL’s practice does not match
its rhetoric. LEP immigrants over age 17 are routinely denied access to McCaskey, including the
International School, and instead forced into Phoenix, where they receive none of the specialized
benefits of the International School.
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SDOL can point to no rational reason for denying older refugee LEP students enrollment in McCaskey and thereby treating them differently from their younger peers. Older refugee students’ needs, in terms of educational services, are identical to younger students’ needs. The only difference between the two groups is age, and the services SDOL identifies as important for refugee students are needed equally by older students, too. It is completely irrational to expect that students who do not speak English, or know and understand how American schools operate, can access the curriculum without the specialized services of a transition program, like the International School. It is even more irrational to force such unprepared students into an accelerated program like Phoenix. If they have trouble learning the material at a regular pace, accelerating the instruction will make the instruction even more incomprehensible.
Consequently, as in the Third Circuit’s Doe decision, which applied rational basis review to declare unconstitutional the differential treatment of out-of-state versus in-state Megan’s Law offenders, SDOL’s refusal to send older immigrant LEP students to McCaskey, and specifically the International School, “is not rationally related to [the] goal” of helping the older students learn the material so they are able to graduate. 513 F.3d at 112.
D. The Balance of Equities Weighs in Favor of Granting the Injunction A preliminary injunction is appropriate here because placing Plaintiffs in their
assigned high school, McCaskey, simply could not result in “greater harm” to the District that outweighs the indisputable, serious, and ongoing harm to Plaintiffs of being excluded from equal educational opportunities. See Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 167 (3d Cir. 1999) (explaining that the relevant question is not whether the defendant “would suffer some harm” but which of the two potential harms is greater). In balancing those potential harms, the
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court should be “unwilling to gamble with a child’s education.” New Jersey v. New York, 872 F. Supp. 2d 204, 215 (E.D.N.Y. 2011).
Education is not merely a “‘benefit’ indistinguishable from other forms of social welfare legislation.” Plyer, 457 U.S. at 221. Rather, “[b]oth the importance of education in maintaining our basic institutions, and its lasting impact of its deprivation on the life of the child, mark the distinction.” Id. Accordingly, courts routinely find that the balance of harms favors students in education cases, rather than schools. See, e.g., Abington Heights Sch. Dist. v. A.C., No. 3:14-CV-00368, 2014 WL 1767193, at *11 (M.D. Pa. May 2, 2014) (finding balance of harms favored student seeking special education, noting that “any harm to the school district presents only solvable issues of a financial, staffing, and administrative nature”); John T., 2000 WL 558582, at *8 (finding the balance of harms favors plaintiff student when he suffers more harm the longer defendant fails to provide services for which there is a legal entitlement).
In this case, Plaintiffs have a clear legal entitlement to enrollment in school, education services free from discrimination, and meaningful and appropriate English language instruction. The longer the District fails to ensure these services, the greater harm Plaintiffs suffer.
In contrast, the District has no interest in continuing practices that violate the Constitution and federal and state law. See Child Evangelism Fellowship of New Jersey, Inc. v. Stafford Twp. Sch. Dist., 233 F. Supp. 2d 647, 667-68 (D.N.J. 2002), aff’d on appeal by Child Evangelism Fellowship of New Jersey, Inc. v Stafford Tp. School Dist., 386 F.3d 514 (3d Cir. 2004) (citing American Civil Liberties Union v. Reno, 217 F.3d 162, 180-81 (3d Cir. 2000)). “Providing statutorily [and constitutionally] granted services to a child does not harm the school district; doing so is its function under state and federal law.” See John T., 2000 WL 558582, at
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*8. The District’s only potential claim of harm is administrative inconvenience and expense. However, if the District had complied with federal and state law from the Plaintiffs’ first contact with the District, it would have incurred the same educational expenses then that it will incur now, and would have avoided the administrative inconvenience of having to change course. These theoretical harms to Defendant should be “discounted” by virtue of the fact that the Defendant “brought that injury upon itself.” Karakozova v. University of Pittsburgh, 2009 WL 1652469, *3 (W.D.Pa. Jun. 11, 2009) (internal quotations omitted).
E. Granting the Requested Preliminary Injunction Is in the Public Interest The Third Circuit has stated that, “[a]s a practical matter, if a plaintiff
demonstrates both a likelihood of success on the merits and irreparable injury, it almost always will be the case that the public interest will favor the plaintiff.” American Tel. and Tel. Co. v. Winback and Conserve, Inc., 42 F.3d 1421, 1427 n.8 (3d Cir. 1994); L.R., 2010 WL 1433146, at *5(granting preliminary injunction to homeless student denied enrollment in school in violation of the McKinney-Vento Act, observing, “[t]he court can think of no more clear expression of the public interest than statutory language, and no better way to effectuate that interest than by directing the District to immediately re-enroll L.R.”). Moreover, the public interest generally favors constitutional protection even in the face of otherwise important interests. Child Evangelism Fellowship, 233 F. Supp. 2d at 667-68.
It is “undeniably in the public interest for providers of public education to comply with the requirements [of federal education law].” L.J., 2007 WL 3252240, at *9; see also Reach Acad. for Boys & Girls, Inc. v. Del. Dep’t of Educ., 46 F. Supp. 3d 455, 475-76 (D. Del. 2014) (granting preliminary injunction to student plaintiffs because protecting educational opportunities of students and demanding that Defendants comply with state and federal law is in
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Case 5:16-cv-03881-EGS Document 7 Filed 07/22/16 Page 54 of 57 the public interest); John T., 2000 WL 558582, at *8 (observing in case involving student seeking special education services that “[i]t is in the public interest to provide benefits to those entitled to them under the law.”); Grube v. Bethlehem Area Sch. Dist., 550 F. Supp. 418, 424-25 (E.D. Pa. 1982) (granting preliminary injunction to plaintiff student in discrimination case because “the public interest is served when plaintiffs such as these vindicate important federal rights”). The same principle applies here with equal force. The public interest clearly weighs in favor of granting a preliminary injunction to ensure Plaintiffs’ immediate enrollment in McCaskey and access to the meaningful education to which they are legally entitled. IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Preliminary Injunction should be granted. A proposed Order is attached to the Motion.
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Dated: July 22, 2016

Respectfully submitted,
/s/ Eric Rothschild Eric Rothschild, Esquire (PA71746) Kathleen A. Mullen, Esquire (PA84604) Kaitlin M. Gurney, Esquire (PA309581) Megan Morley, Esquire (PA321706) PEPPER HAMILTON LLP 3000 Two Logan Square Eighteenth & Arch Streets Philadelphia, PA 19103-2799 Telephone: (215) 981-4000 Fax: (215) 981-4750 rothschilde@pepperlaw.com mullenk@pepperlaw.com gurneyk@pepperlaw.com morleym@pepperlaw.com
/s/ Witold J. Walczak Witold J. Walczak, Esquire (PA62976) American Civil Liberties Union of Pennsylvania Fort Pitt Blvd. Pittsburg, PA 15222 Telephone: (412) 681-7736 Fax: (412) 681-8707 VWalczak@aclupa.org
Molly Tack-Hooper, Esquire (PA307828) Michelin Cahill, Esquire (PA 314553) American Civil Liberties Union of Pennsylvania PO Box 60173 Philadelphia, PA 19102 Telephone: (215) 592-1513 Fax: (215) 592-1343 MTack-Hooper@aclupa.org MCahill@aclupa.org

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/s/ Maura McInerney Maura McInerney, Esquire (PA71468) Kristina Moon, Esquire (PA306974) Alex Dutton, Esquire (PA267321) Education Law Center 1315 Walnut Street Suite 400 Philadelphia, PA 19107 Telephone: (215) 238-6907 Fax: (215) 772-3125 mmcinerney@elc-pa.org kmoon@elc-pa.org adutton@elc-pa.org
/s/ Seth F. Kreimer Seth F. Kreimer, Esquire (PA26102) 3501 Sansom Street Philadelphia, PA 19104 Telephone: (215) 898-7447 skreimer@law.upenn.edu
Attorneys for Plaintiffs Khadidja Issa; Q.M.H., a minor, individually, by and through his parent, Faisa Ahmed Abdalla; Alembe Dunia; Anyemu Dunia, V.N.L., a minor, individually by and through her parent Mar Ki; and Sui Hnem Sung.
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CERTIFICATE OF SERVICE I hereby certify that on July 22, 2016, a true and correct copy of the foregoing Plaintiffs’ Motion for Preliminary Injunction and supporting Memorandum of Law was electronically filed using the Court’s ECF system and served via email upon the following:
David M. Walker, Esquire Robert M. Frankhouser, Esquire Barley Snyder 126 East King Street Lancaster, PA 17602-2893 Sharon M. O’Donnell, Esquire Marshall Dennehey 100 Corporate Center Drive Suite 201 Camp Hill, PA 17011
/s/ Kaitlin M. Gurney Kaitlin M. Gurney, Esquire

 
 Case 5:16-cv-03881-EGS Document 33 Filed 08/25/16 Page 1 of 72

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Khadidja Issa; Q.M.H., a minor, individually, by and through his parent, Faisa Ahmed Abdalla; Alembe Dunia; Anyemu Dunia; V.N.L., a minor, individually by and through her parent Mar Ki; Sui Hnem Sung; and all others similarly situated,

Civil Action No. 16-cv-3881 HON. EDWARD G. SMITH

Plaintiffs,

CLASS ACTION

v.

The School District of Lancaster,

Defendant.

PLAINTIFFS’ POST-HEARING FINDINGS OF FACT AND CONCLUSIONS OF LAW FINDINGS OF FACT
I. Plaintiffs Are Immigrant ELLs with Limited or Interrupted Formal Education
1. The School District of Lancaster serves a significant immigrant population. Answer, ECF No. 23, ¶ 42.
2. The Named Plaintiffs are all immigrants aged 17-21.
3. Khadidja Issa is 18 years old, born January 1, 1998. Ex. 15 at LSD20 (State Department travel record).
4. Qasin Hassan (Q.M.H.) is 17 years old, born September 9, 1998. Ex. 48 at LSD56. (Department of State document listing Qasin’s date of birth as 9/1/1998).
5. Alembe Dunia is 20 years old, born September 11, 1995. Ex. 51 at LSD79.
6. Anyemu Dunia is 18 years old, born September 18, 1997. Ex. 50 at LSD85.
7. Van Ni Iang is 17 years old, born October 30, 1998. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 76:19-22.

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8. Sui Hnem Sung is 19, born October 19, 1996. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 95:25-96:3.
9. They were all granted official refugee status1 after fleeing home countries of unrest where they experienced trauma and persecution. See Answer, ECF No. 23, ¶ 2.

10. All refugee children have experienced trauma. They have all left their home and culture. Some have been through civil war or breakdown in their country's government; some have lived in refugee camps for all or most of their lives; some have lost their parents. N.T. Aug. 16, 2016, 9:44 AM–12:16 PM, 62:7-62:23 (Mastropietro testifying).

11. Alembe and Anyemu Dunia are brothers born in Tanzania. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 9:15 (Alembe testifying); id. 53:15-18 (Anyemu testifying). The children of a Congolese father and a Tanzanian mother, their parents were forced to leave the Congo because of war. Id. 9:23-10:4 (Alembe testifying); id. 53:19-22(Anyemu testifying). In Tanzania, their father continued to flee persecution, and life was “very bad[.]” Id. 10:5-8 (Alembe testifying). In 2003, the family again fled out of fear for their safety, this time for Mozambique. Id. 10:16-25 (Alembe testifying); id. 54:5-13. They lived in a refugee camp in Mozambique where life was “very difficult[.]” Id. 11:1-11.

12. Qasin’s family is from Somalia, but fled after Qasin’s father was killed by Al-Shabaab terrorists. N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 36:5-9 (Qasin testifying). Before they fled Somalia, life was very unstable and his mother had to hide the children away so they would not be harmed. N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 69:5-11 (Qasin testifying).

13. Khadidja’s family fled their home in Sudan when she was five years old because of insecurity under President Bashir. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 9:10-17 (Khadidja testifying). She lived in refugee camps in Chad until she was 17. Id. at 9:1525.

14. Van Ni’s and Sui Hnem’s father was forced into labor in Burma. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 78:3-9 (Van Ni testifying).

1

See Article 1 of the Refugee Convention of 1951, as amended by the 1967 Protocol,

which defines a refugee as “a person who, owing to a well-founded fear of being persecuted for

reasons of race, religion, nationality, membership of a particular social group or political

opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling

to avail himself of the protection of that country; or who, not having a nationality and being

outside the country of his former habitual residence as a result of such events, is unable or,

owing to such fear, is unwilling to return to it.”

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15. The Named Plaintiffs and putative Class Members also had limited or interrupted formal education before arriving in Lancaster.
16. Refugee children generally have gaps in their formal education. N.T. Aug. 16, 2016, 9:44 AM–12:16 PM, 63:9-21 (Mastropietro testifying).
17. Khadidja Issa’s only prior schooling before coming to the United States was in refugee camps. She learned Arabic while studying in refugee camps. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 10:8-12 (Khadidja testifying).
18. Qasin Hassan was unable to attend school while he was in Egypt after fleeing from his home in Somalia and was only able to have private lessons at home. N.T. Aug. 16, 2016, 1:29 PM–5:27 PM, 36:12-18 (Qasin testifying).
19. Alembe and Anyemu’s schooling prior to coming to the United States was limited to schooling in the refugee camp in Mozambique. In Tanzania, life had been so unstable that Alembe and Anyemu were unable to attend school. N.T. Aug. 17, 2016, 2:06 PM3:56 PM, 10:9-15 (Alembe testifying). They attended school for five or six hours a day in the refugee camp in Mozambique, where they were taught in Portuguese—a new language—which made learning difficult. Id. 11:12-12:2.
20. In Burma, Van Ni completed eighth grade, and her sister Sui Hnem completed ninth grade. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 77:9-12 (Van Ni testifying); id. at 96:8-11 (Sui Hnem testifying).
21. All of the Plaintiffs qualify as students with limited or interrupted formal education (“SLIFE”). According to Plaintiffs’ expert, Dr. Helaine Marshall, SLIFE are a sub-group of ELLs who share the following common characteristics: (1) two years or more behind assigned grade level, N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 95:24-96:10; 97:2598:1(Marshall testifying); (2) limited or no literacy, id. at 98:3-4; (3) limited or interrupted education, id. at 98:9-10; and (4) stressful experiences and acculturation issues, id. at 99:8-15. These students may be refugees or immigrants. Id. at 99:4-7 and 99:16-18. SLIFE is a type of student and is not determined by level of English proficiency. Id. at 161:10-11. A student could “be a level two and be a SLIFE,” as was the case for Plaintiff Anyemu Dunia. Id. at 39:4-14.
22. The Plaintiffs spoke and understood little to no English upon arrival, and qualified as “Entering” level ELLs when they sought to enroll in school.
23. Many refugees enter the United States with limited English ability, and most refugee students in the District are beginner-level ELLs. Hilt Dep., 24:8-24:9.
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24. Khadidja’s first language is Fur. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 8:6-8, 8:23-24 (Khadidja testifying). She learned to speak Arabic in the refugee camps, but could not read, write, or speak English when she arrived in the U.S. Id. at 10:8-10, 10:19-23.
25. Khadidja scored 0 on the speaking, listening and reading portions of her W-APT test and 1 on the writing portion, making her an “Entering” level English Learner. Ex. 15 at LSD26-27, 30-33.
26. Qasin spoke only a few words of English upon arrival. N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 37:3-5 (Qasin testifying).
27. Alembe and Anyemu grew up speaking Swahili. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 54:20-25 (Anyemu testifying). In the refugee camp in Mozambique, Alembe and Anyemu studied only very basic English consisting of simple greetings and nouns. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 12:3-6 (Alembe testifying); id. 55:10-13 (Anyemu testifying). They arrived in Lancaster knowing only the rudimentary English they had both acquired in the refugee camp school. Id. 12:24-13:5 (Alembe testifying); id. 21:1721 (Anyemu testifying).
28. Van Ni and Sui Hnem both scored level 1 (“Entering”) on their W-APT tests. Ex. 46 at LSD178-79 (Van Ni records); Ex. 47 at LSD234-35 (Sui Hnem records).
29. Van Ni and Sui Hnem did not speak or understand English when they arrived in the United States. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 77:17-24 (Van Ni testifying); id. at 97:6-11 (Sui Hnem testifying).
30. All of the Named Plaintiffs arrived in the U.S. with enthusiasm, hope, and dreams. 31. Qasin testified that he was the “happiest person” in the world when he found out he was
coming to America, because America is “number one” in his mind. N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 71:8-14 (Hassan testifying). When he came here, he wanted to pursue his education and help his family. Eventually he wants to be a policeman. N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 57:7-10 (Qasin testifying). See also N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 86:2-3 (Van Ni testifying that she wants to become a doctor); N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 102:12-14 (Sui Hnem testifying that she wants to be a school teacher); N.T. Aug. 17, 2016, 2:06 PM–3:56 PM, 37:24-38:4;(Anyemu testifying he wants to be a biologist); N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 102:12-14 (Sui Hnem testifying that she wants to be a school teacher); N.T. Aug. 17, 2016, 2:06 PM–3:56 PM, 15:13-19 (Alembe testifying his goal is to learn English); N.T. Aug. 16, 2016, 1:29 PM5:27 PM, 11:21-23 (Khadidja testifying that her goal when she came to the United States was to get a better education). 32. More than anything, the Plaintiffs wanted to learn. See Answer, ECF No. 23, ¶ 2;
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See N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 25:17-18 (Khadidja testifying that she recognized, “In America if you don’t get an education you’ll have a very hard life and it’s very important to get an education.”); N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 79:17-19; 79:22-23 (Van Ni testifying that she wanted to go to school in the U.S. because she wants to be educated); N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 98:2-6 (Sui Hnem testifying that she wanted to go to school because without an education, one does not have a good future); N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 13:10-11 (Anyemu testifying that “education would open doors for me”); N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 19:14-17 (Alembe testifying that he would rather get some schooling, even if he couldn’t graduate on time, than no schooling at all); N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 15:13-19 (Alembe testifying that he wanted to learn); N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 68:911 (Qasin testifying that he wanted to learn). 33. Even after Phoenix graduated Anyemu, he still wants to continue his schooling—just not at Phoenix, where he feels he was not learning effectively. N.T. Aug. 17, 2016, 2:06 PM3:56 PM, 50:22-51:1 (Anyemu testifying that “I’d love to continue [in school], but not there . . . Not that school.”); id. 58:22-2 (“It would be good for me to learn more to stay in school [until I’m 21] and learn as much as I can.”); id. 62:23-63:3 (Anyemu testifying that he would like to continue receiving public education because he does not have means to pay for college). 34. An experienced refugee resettlement caseworker testified that refugee children, including older school-age refugees, generally want to go to school. N.T. Aug. 16, 2016, 9:44 AM, 64:9-13, 66:12-67:2 (Mastropietro testifying). 35. In particular, the Plaintiffs wanted to learn English. See Answer, ECF No. 23, ¶ 2. 36. Van Ni’s favorite class is ESL because of her desire to learn English. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 82:21-25. To supplement the inadequate ESL that she receives at Phoenix, Van Ni’s caseworker arranged for her to get English language tutoring at home once a week. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 85:2-8. 37. Other categories of immigrants share similar obstacles and expectations. 38. Ms. Matropietro, manager of Lancaster’s branch of the international resettlement agency, Church World Service, testified that among the 500-700 immigrants they have resettled annually over the past two years are Cuban and Haitian entrants, most of whom speak no or very little English. N.T. Aug. 16, 2016, 9:44 AM, 68:3-25 (Mastropietro testifying). These Cuban and Haitian entrants are not refugees but share characteristics of limited English ability. Id. at 59:6-60:14. Former Phoenix ESL teacher, Mary Ann Ortiz, testified that her entering and emergent level classes included students from Ethiopia, Haiti and Dominican Republic. N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 44:18-45:3 (Ortiz testifying). Many but not all of these students are SLIFE, but they share the most important characteristic with refugee students in that they are at the lower levels of English proficiency and need a “runway” in order to reach a threshold level of proficiency that will enable them to master core subject content. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 119:1-120:25 (Marshall testifying that “students who are behind
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academically and can’t handle grade level and don’t understand English cannot be expected to go faster through content when they haven’t reached a threshold of English. The best way to explain that, I believe is like a plane taking off on a - - a plane needs kind of a runway to take off…”). 39. But when the Plaintiffs arrived in Lancaster, the School District dampened their hopes by denying them enrollment, delaying their enrollment, and placing them at an inferior high school that has not enabled them to overcome their language barriers. 40. Sui Hnem told that Court that she “sometime[s] want[s] to give up.” N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 101:11-17 (Sui Hnem testifying). Qasin testified that learning at Phoenix is “impossible.” N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 57:15-17 (Qasin testifying). E.g., N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 49:24-50:6 (Anyemu testifying “I wasn’t fully happy [at Phoenix], because I felt like I wasn’t getting what I was supposed to get like education-wise, you know. I didn’t get enough education there to prepare me to do what I want to do.”); id. 50:17-20 (Anyemu testifying “So what I meant by saying I get a good education there was that sometimes I ask a teacher for help, come to help you, but the material wasn’t there . . . “); id. 60:4-15 (Anyemu testifying “I think changes need [to be made] in Phoenix School. . . I want to make sure changes happen so people who would come after me, refugees come after me they can be in better shape than me.”); N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 57:24-58:2 (Anyemu Dunia testifying that he and Alembe were both deeply upset when the District denied Alembe the chance to go to school). N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 40:19-20 (Qasin testifying that he was very disappointed after the meeting with Blackman at which he was denied enrollment).
II. SDOL Has a Pattern and Practice of Delaying or Denying Enrollment for Older Immigrant ELLs
A. Enrollment and Placement Process
41. SDOL’s Enrollment Center, headed by Marsha Riddick, is responsible for reviewing the paperwork of students who seek to enroll in the District. Riddick Dep. 5:1-21; Ex. 6 at LSD281 (SDOL Policy 201, “Admission of Students”).
42. Once the student’s paperwork is complete—and only after the paperwork is complete— the student is either referred for ESL testing, if appropriate, or referred to Mr. Blackman for placement. See Riddick Dep. 72:17-73:15.
43. The District enrollment date, and the state and U.S. enrollment dates constitute the record of a student’s official enrollment in the District. Those dates trigger the flow of funds to the District from the state and federal government. N.T. Aug. 19, 2016, 1:29 p.m., 54:2355:7 (Rau testifying); N.T. Aug. 19, 2016 9:32 a.m. – 12:19 p.m., 130:12-131:3 (Hilt); Ex. 48 at LSD 57 (Qasin records).
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44. Mr. Blackman is the District’s coordinator of counseling and dropout prevention. N.T. Aug. 22, 2016, 9:27 AM-12:34 PM, 5:24-6:2 (Blackman testifying).
45. Enrollment Center staff lack the authority to place someone at Phoenix without Mr. Blackman’s approval; the Center can only enroll high school students in McCaskey, the default school. See Riddick Dep. 83:4-21. No one is placed at Phoenix without Mr. Blackman’s involvement. Riddick Dep. 14:20-15:10; Misnik Dep. 18:4-12. Mr. Blackman alone is responsible for the decision as to whether to place someone at Phoenix instead of McCaskey. Riddick Dep. 47:14-48:11.
46. All 17- to 21-year-old students who do not have enough credits to be on grade level with their same-age peers must meet with Mr. Blackman, who makes the decision about whether to place them at Phoenix or McCaskey. Riddick Dep. 44:12-45:4, 81:1-82:5; see also id. 14:12-15:10; 47:14-48:11; N.T. Aug. 22, 2016, 9:27 AM-12:34 PM, 26:17-29:2 (Blackman testifying); Ex. 83 (Email re Khadidja Enrollment); N.T. Aug. 22, 2016, 9:27 AM-12:34 PM, 32:12-15 (Blackman testifying).
B. Delays
47. Pennsylvania regulations require that a “school district . . . shall normally enroll a child the next business day, but no later than 5 business days of application.” 22 Pa. Code § 11.11(b). Official District policy is to enroll eligible school-age students the next business day, or no later than five days after application. Ex. 5 at LSD278 (SDOL Policy 200, “Enrollment of Resident and Nonresident Students”).
48. However, 17- to 21-year-old under-credited students are not enrolled in school as soon as their paperwork is complete, because they must wait for a meeting with Mr. Blackman. Riddick Dep. 61:15-62:5.
49. Appointments with Blackman can be delayed or unavailable for weeks. Ex. 52 at ISSA16 (Q.M.H. Family Case File) (noting that on November 13, 2015, Megan Brown was informed that no meetings with Blackman were available until December 10. 2015).
50. Students whom Blackman places at Phoenix must then also wait for Phoenix to schedule an orientation before beginning school. Riddick Dep. 61:15-62:5.
51. The result is that many older immigrant students experience significant delays between when they apply for enrollment in the District and when they are ultimately placed in school (or denied enrollment) by Blackman.
52. For example, Van Ni enrolled in the District on November 18, 2015; and the District reported her enrollment date to state and federal agencies as November 15, 2015, but she did not actually start at Phoenix until December 22, 2015. Ex. 46 at LSD173, LSD156 (Van Ni student records); N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 80:23-2 (Van Ni testifying).
53. Similarly, her sister, Sui Hnem, went to the District Enrollment Center in November 2015 to enroll, with the assistance of her case worker, but did not start school until February 2016, several months after her sister began at Phoenix. N.T. Aug. 16, 2016, 1:29 PM-
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5:27 PM (Sui Hnem testifying), 98:10-98:25; Ex. 47 at LSD225, LSD207 (Sui Hnem student records). 54. Khadidja’s paperwork was submitted in November 2015 and she met with Mr. Blackman in November 2015, but did not start school until February 2016. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 13:16-18 (Khadidja testifying); Ex. 15 at LSD21 (listing “District Enrollment Date” as 11/18/15); Ex. 15 at LSD5 (showing Khadidja as a “new entry” student at Phoenix on 2/17/16); see also N.T. Aug, 17, 2016, 9:32 AM-12:43 PM, 60:1722, 61:8-18 (Chesson testifying that LRS was trying to get Khadidja into school for months). 55. It took Qasin five months of trying to enroll in school before he was finally placed at Phoenix on January 20, 2016. Ex. 48 at LSD57; 49. 56. The enrollment delays at SDOL have been a problem since 2010. N.T. Aug. 16, 2016, 9:44 AM–12:16 PM, 69:23-73:5 (Mastropietro testifying that immigrants were denied enrollment because of lack of records or disputes about immunizations). Ms. Mastropietro met with District officials to resolve the problems but nothing changed. Id. at 75:17-76:2.
C. Denials
57. Every child who has not graduated from high school has a right to attend the public schools in her district until the end of the school year in which she turns 21. 24 Pa. Stat. § 13-1301; 22 Pa. Code § 11.12. A “child’s right to be admitted to school may not be conditioned on the child’s immigration status.” 22 Pa. Code § 11.11(d).
58. SDOL has denied older immigrant students enrollment in the District based on several illegal considerations.
59. First, SDOL has admitted denying enrollment based on SDOL employees’ subjective impression that the student is not sufficiently motivated, or speculation that the student would rather work.
60. Mr. Blackman has steered many older immigrant ELLs to Literacy Council, GED programs, or Job Corps when they attempted to enroll in school. See, e.g., Brown Dep. 29:2-10 (testifying that Blackman said Qasin should try options other than school like Job Corps or ESL classes at Literacy Council); N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 40:1517 (Qasin testifying that he was referred to the Literacy Council by Mr. Blackman);2 N.T. Aug. 16, 2016, 9:44 AM–12:16 PM, 78:10-80:9 (Mastropietro testifying that District suggested Sui Hnem take GED courses).

2

Literacy Council is a nonprofit ESL organization that caters to adults, and is only

available to adults over the age of 18. Thus, at the time that District officials referred Qasin to

classes at Literacy Council instead of enrolling him in school, he was too young to qualify for

their services. Brown Dep. 32:20-33:1.

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61. Mr. Blackman testified that he initially denied Qasin enrollment because Qasin did not participate in the meeting with Mr. Blackman, and Blackman thus could not “develop an academic graduation plan” for him. N.T. Aug. 22, 2016, 9:27 AM-12:34 PM, 33:24-35:5 (Blackman testifying).
62. Others testified that District officials cited Qasin’s body language during the meeting as a reason for denying him enrollment. N.T. Aug, 17, 2016, 9:32 AM-12:43 PM, 41:12-17 (Chesson testifying); Id. at 9:32-12:43, 40:5-11 (Chesson testifying that during January 4 conference call regarding Qasin’s enrollment, Hilt and Blackman stated that Qasin’s body language at enrollment meeting suggested that he is not eager to go to school).
63. Second, the District denies enrollment to older immigrant students under the age of 21 if District officials believe they would not graduate by the year in which they turn 21.
64. Alembe Dunia is a clear example of this. 65. After arriving in Lancaster in November 2014, the Dunia brothers attempted to enroll in
school. They submitted all the paperwork necessary to verify their eligibility. See N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 13:18-23 (Alembe testifying); Ex. 50 at LSD93LSD114 (Anyemu student records). 66. At the time of application, Alembe Dunia had just turned 19 years old. See N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 9:16-17 (Alembe testifying that he was born November 11, 1995); Ex. 51 at LSD79 (Alembe student records) (Birthdate: 11/11/1995). 67. The District denied Alembe enrollment in the District. Compl., ECF No. 1, ¶¶ 22, 136, 137, 138; Answer, ECF No. 23, ¶¶ 22, 136, 137, 138; N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 14:16-22, 15:24-16:2 (Alembe testifying). 68. District officials stated that Alembe was denied admission because, in light of his limited prior schooling and age, the District did not believe he could graduate high school by age 21. Compl., ECF No. 1, ¶¶ 136, 137; Answer, ECF No. 23, ¶¶ 136, 137.3 69. The District did not provide an interpreter or translate any documents to assist the Dunias during their enrollment process. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 13:24-14:8, 19:10-13 (Alembe testifying).
3 Plaintiffs note that the District belatedly filed a Motion on August 25, 2016 to amend its Answer admitting that Alembe was denied enrollment. See Def.’s Mot. to Amend (ECF No. 31). Such Motion was made after the close of evidence in this hearing thus denying Plaintiffs the opportunity to put on additional evidence in support of this allegation and should be denied for this reason alone. Moreover, the District has admitted elsewhere in its Answer that it denied Alembe enrollment. See Answer (ECF No. 23) P 22 (“It is admitted that Alembe was denied enrollment when he presented for a free public education at the age of 20.”). The District further has admitted both in its answer and through its witnesses that it was the District’s pattern and practice to deny enrollment to persons under the age of 21 whom they deemed unable or unlikely to graduate before reaching the age of 21. See Answer P 34. Alembe has testified that he was denied enrollment as a result of his age, matching the experience of other Plaintiffs. N.T. Aug. 17, 2016, 2:06 p.m. – 3:56 p.m., 14:16-22 (Alembe testifying). Finally, while the records of both Alembe and his brother Anyemu reflect a purported missed meeting with Mr. Blackman on January 6, 2015, see Ex. 50 at LSD87; Ex. 51 at LSD81, Anyemu began attending Phoenix on February 9, 2015, supporting the conclusion that the District did, in fact, deny enrollment to Alembe as a result of his age.
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70. Because the Dunias could understand very little that District officials said to them in English, their refugee resettlement caseworker, Bilal Al-Tememi, accompanied them throughout the enrollment and placement process. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 13:18-14:24, 17:22-18:7, 19:4-13 (Alembe testifying); id. 22:5-11 (Anyemu testifying).
71. Bilal explained to Alembe that a District official had said he was too old to go to school. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 14:16-22, 17:22-18:7, 19:4-13 (Alembe testifying).
72. Similarly, prior to placing Qasin at Phoenix, District officials related to Megan Brown, Qasin’s caseworker, that he would not be enrolled because he was too old. Brown Dep. 28:9-14; N.T. Aug, 17, 2016, 9:32 AM-12:43 PM, 29:20-23 (Chesson testifying). He was only enrolled after his caseworkers challenged the denial. Id. at 39:1-43:10 (Chesson testifying).
73. The District also did not want to enroll Sui Hnem at all because she was too old and wouldn’t have time to graduate. N.T. Aug. 16, 2016, 9:44 AM–12:16 PM, 78:10-80:9 (Mastropietro testifying). See also, N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 99:1-11 (Sui Hnem testifying that the 3-month delay in enrolling her in school—months longer than it took her younger sister—was due to the fact that she was 19 and the District made it difficult for older students to enroll in school).
74. Khadidja was told in her November enrollment meeting that she was too old to go to school. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 14:1-3 (Khadidja testifying). Khadidja’s younger sister was enrolled and started school at McCaskey before Khadidja was allowed to begin at Phoenix. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 15:1-4 (Khadidja testifying).
D. Barriers to Participation in the Enrollment and Placement Process
75. SDOL’s enrollment and placement process is structured in a way that makes it difficult for ELLs to advocate for themselves.
76. SDOL enrollment forms are all in English. See, e.g., Riddick Dep. 35:18-37:17, 87:1988:5, 89:13-90:7, 103:8-12, 105:17-106:3.
77. The District routinely fails to provide interpreters to help LEP families navigate the enrollment and placement process.
78. PDE guidance makes clear that school districts must provide interpretation and translation services to allow LEP students and families to “understand the enrollment process and enroll the student in school promptly.” Ex. 4 at LSD274 (“Enrollment of Students” Basic Education Circular).
79. The District does not provide in-person or over-the-phone interpreters to assist ELLs in understanding what is happening during placement meetings with Mr. Blackman or to assist them in communicating their educational goals. E.g., Blackman Dep. 67:16-68:1; N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 14:6-10 (Khadidja testifying); N.T. Aug. 17,
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2016, 2:06 PM-3:56 PM, 23:22-24:7 (Anyemu testifying). ELLs are routinely unable to participate in these meetings or understand anything that is said. See id. 24:3-7 (Anyemu testifying). Indeed, Qasin testified that at the enrollment meeting with Mr. Blackman, the only thing he understood was when his name was spoken. N.T. Aug. 16, 2016 1:29 PM5:27 PM, 39:17-21. 80. Despite the lack of Swahili speakers on staff, the District did not procure an interpreter or translate any documents to assist the Dunias during their enrollment and placement process. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 13:24-14:8, 19:10-13 (Alembe testifying); id. 22:7-9, 23:22-24:2 (Anyemu testifying). 81. Enrollment and placement decisions are highly discretionary. 82. Applications are evaluated on a case by case basis by one person—Mr. Blackman— without any clear criteria to constrain his exercise of discretion. See, e.g., Ex. 16 (email from Blackman stating that “decisions are made on a case by case basis.”). 83. As a result, Mr. Blackman has made placement decisions based on his mood, or on his perceptions of attitude, which do not account for cultural differences. 84. Sheila Mastropietro testified regarding Mr. Blackman’s flippant attitude and statements such as “I’m feeling good today, I’m going to enroll you.” N.T. Aug. 16, 2016, 9:44 AM–12:16 PM, 79:2-9. 85. Ms. Hilt admitted that one of the reasons Mr. Blackman refused to enroll Qasin was their perception of Qasin’s behavior at the enrollment meeting. N.T. Aug. 19, 2016, 9:32 AM12:19 PM, 127:4-127:8, 128:16-21 (“He was not sitting at the table with us and interacting” and seemed “disinterested”); cf. N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 39:21-40:2 (Qasin testifying that Mr. Blackman was not paying attention to Qasin or his family during the meeting, which only lasted a few minutes before Mr. Blackman referred Qasin to Literacy Council); N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 40:19-20 (Qasin testifying that he was very disappointed after the meeting with Blackman at which he was denied enrollment). 86. Cultural barriers, rather than disinterest, can lead to the body language Qasin expressed during his enrollment meeting. N.T. Aug, 17, 2016, 9:32 AM-12:43 PM, 41:21-42:3 (Chesson testifying); N.T. Aug. 19, 2016, 9:32 AM-12:19 PM, 127:9-128:15 (Hilt admitting that she did not know at the time of the meeting what Qasin’s background, the circumstances of his journey to the U.S., what he had been through, and that his standoffish behavior was not necessarily surprising given what he may have been through). 87. SDOL does not document its enrollment or placement decisions. 88. Mr. Blackman does not complete any paperwork or electronic database entries when he makes a placement decision. Blackman Dep. 84:4-95:16. He might send an email to Phoenix, but does not make an effort to save these and does not do this in all cases. Id.
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89. No Plaintiff received any paperwork reflecting the fact that they had been denied enrollment or placed at Phoenix or explaining the reason for the District’s decision. E.g., Brown Dep. 29:16-18, 35:6-9.
90. There was no consistent practice of recording when placement meetings occurred, or even if they did. Blackman Dep. 77:7-20.
91. The SDOL Enrollment Center has never notified a family about the process for complaining about an enrollment decision to the Pennsylvania Department of Education. Riddick Dep. 108:17-109:13. Mr. Blackman never told students they had a right to appeal his placement decision. Blackman Dep. 45:13-20.
92. Many immigrants must rely on the advocacy of their resettlement caseworkers to overcome the barriers to enrollment in SDOL. E.g., N.T. Aug. 19, 2016, 9:32 AM-12:19 PM, 151:12-151:19 (Hilt admitting that Khadidja was enrolled in Phoenix only as a result of the advocacy by her case worker, Bilal).
93. Refugee agency caseworkers are often involved in the SDOL enrollment process, and are generally familiar with the enrollment process and know what documents are required to enroll. Riddick Dep. 19:7-20:3.
III. SDOL Has a Pattern and Practice of Placing Older Immigrant ELLs at Phoenix Instead of Their Assigned High School, McCaskey.
94. Official policy approved by the school board is to assign students to classes and schools “consistent with the educational needs and abilities of students and the best use of district resources.” Ex. 7 at 1 (SDOL Policy 206, “Assignment Within District”). Officials are directed to assign incoming transfer students “to schools, grades, and classes that afford each student the greatest likelihood of realizing his/her educational potential and academic goals.” Id. Official policy also forbids “discrimination” in school assignment. Id.
95. The McCaskey Campus is the default high school placement for high school students living in the District, and enrolls the vast majority of the District’s high school students. See Answer, ECF No. 23, ¶ 44.
96. Plaintiffs are all geographically assigned to McCaskey. Riddick Dep. 83:4-21. 97. Phoenix is supposed to be a “choice” school that parents and students can opt into. N.T.
Aug. 22, 9:27 AM-12:34 PM, 19:11-23 (Blackman testifying about request and agreement by family). About 85% of the students at Phoenix transfer from McCaskey, a process wherein Mr. Blackman discusses options with the student and parents. N.T. Aug. 22, 9:27 AM-12:34 PM, 18:20-19:23 (Blackman testifying that about 85% are transfers from McCaskey). The student has a choice whether to attend Phoenix. N.T. Aug. 22, 9:27 AM-12:34 PM, 19:11-23 (Blackman testifying). 98. However, older immigrant ELLs are not given a choice about whether to attend McCaskey or Phoenix. E.g. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 14:16-21 (Khadidja testifying that she was told Phoenix was her only option); N.T. Aug. 16, 2016, 1:29 PM-
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5:27 PM, 99:12-14 (Sui Hnem testifying that she had no option to attend McCaskey); Blackman Dep. 95:4-10 (Blackman admitting that Sui Hnem and Van Ni were not given a choice between Phoenix and McCaskey). 99. Indeed, the District has admitted that placement at Phoenix is the only option available to under-credited students who are older than their grade-level peers. Rau Dep. 77:1278:10. 100. This policy applies even to seventeen-year-olds who still have five years of legal schooling remaining in which to complete high school at McCaskey. N.T. Aug. 22, 9:27 AM-12:34 PM, 57:3-58:13 (Blackman testifying that he does not consider this fact). 101. The District’s policy of placing older immigrant ELLs at Phoenix is not based on the language needs or individual educational goals of these students. E.g. N.T. Aug. 19, 2016, 1:29 PM, 94:6-13 (Rau testifying that District does not take language proficiency or whether a student has had interrupted schooling into consideration in deciding to place a student at Phoenix); Abrom Dep. 16:20-17:22 (placement decision depends exclusively on age and credits; English proficiency is not considered); Rau Dep. 77:12-78:10 (placement decisions for older, under-credited students do not take into consideration language proficiency or newcomer status); N.T. Aug. 19, 2016, 9:32 AM-12:19 PM, 86:7-86:14, 132:9-132:16 (Hilt testifying). 102. Mr. Blackman does not consider differences in English language instruction between McCaskey and Phoenix. Blackman Dep. 43:2-44:19. 103. Mr. Blackman also does not take into account a student’s academic potential and capabilities in making placement decisions. Blackman Dep. 47:3-9. 104. The District has offered varying reasons for this policy, but they all fall into one of several categories: 1) prioritization of a diploma above all other educational concerns, 2) stereotypes about older immigrant students, and 3) considerations of the needs of McCaskey students.
A. Prioritization of a Diploma
105. Several District officials testified that under-credited ELLs aged 17-21 would be unlikely to obtain a high school diploma if they went to McCaskey. N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 35:2-13 (Abrom testifying).
106. Rather than give under-credited ELLs a choice between pursuing a faster, easier diploma at Phoenix and studying at McCaskey, the District substitutes its judgment for that of the immigrant families and places them all at Phoenix. N.T. Aug. 22, 2016, 9:27 AM- 12:34 PM, 12:13- 13:14. (Blackman testifying when any older refugee comes in with no credit we assign them to Phoenix. If they ask not to go there, we explain it is the best chance for them to graduate.) Id. at 19:20-20:3. (Blackman testifying that about 85% of student at Phoenix end up there after an agreement is made with the student and their family, and that is not the case students who are older and under-accredited entering the district).
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107. Immigrant ELLs do not all share the District’s view that the chief goal of their education should be attaining a high school diploma.
108. E.g., N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 60:9-15 (Anyemu testifying “I want to make sure changes happen so people who would come after me, refugees come after me they can be in better shape than me. . . I don’t want the school to focus on helping us to get the degrees, but they need to help us learning instead of going fast and to graduate to get the diploma and then they cannot do nothing with the diploma.”); N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 30:7-8 (Khadidja testifying that “I don’t just want to graduat[e], I want to receive an actual education. Now, even if I graduate, I know nothing.”).
109. However, agreement by the family is not a requirement for placement at Phoenix for students 17 or older. Mr. Blackman simply makes the decision for them. N.T. Aug. 22, 2016, 9:27 AM-12:34 PM, 19:20-20:8 (Blackman testifying).
110. The pretextual nature of this purported rationale is highlighted by the fact that the District does not enable older immigrant ELLs to transfer to McCaskey after they acquire sufficient credits at Phoenix to enable them to graduate from McCaskey.
111. Megan Misnik admitted that “very few” students leave Phoenix for McCaskey. N.T. Aug. 22, 2016, 12:27 PM, 117:22-25.
112. She explained that while some middle school Phoenix students are able to get back on track and transfer to McCaskey, high-school age Phoenix students usually graduate from Phoenix and are not eligible to transfer to McCaskey because they are still “overage” and under-credited relative to their age-level peers. Misnik Dep. 84:1-16; N.T. Aug. 22, 2016, 12:27 PM-4:01 PM, 118:9-25 (Misnik testifying).
113. Plaintiffs were not offered the option to transfer to McCaskey. E.g., N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 33:11-13 (Khadidja testifying that no one ever told her that she could transfer to McCaskey); N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 57:18-20 (Qasin testifying that no one told him that he could transfer to McCaskey eventually).
114. Though Anyemu amassed credits rapidly at Phoenix and was only 18 when he graduated, at no point did any District or Phoenix staff ask him if he wanted to transfer to McCaskey. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 37:20-23 (Anyemu testifying). Anyemu at no point expressed a desire to graduate from Phoenix rather than continuing his schooling at McCaskey. Id. 51:13-20.
115. The District has also ignored or flat-out refused requests to transfer from Phoenix to McCaskey from older immigrant ELLs. See Ex. 26 (ACLU letter demanding that Qasin be transferred to McCaskey); N.T. Aug. 19, 2016, 1:29 PM, 76:1-77:3 (Rau testifying that she received ACLU letter regarding problems with Qasin’s enrollment but did not look into his file); Abrom Dep. 32:14-19; 35:7-15 (District did not respond to ACLU letter or enroll Qasin in McCaskey); N.T. Aug. 22, 2016 4:13 PM-5:45 PM, 33:1-7 (Abrom testifying that after receiving ACLU letter, District turned it over to their counsel and did nothing else in response).
B. Stereotypes About Older Immigrant Students
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116. SDOL’s official judgment that all older immigrant ELLs are best served by obtaining a diploma quickly is informed by several stereotypes about immigrant students. Testimony by District officials made plain that District policy is shaped by officials’ beliefs that older immigrant students generally: a. Need to work to support their families. E.g., N.T. Aug. 22, 2016 4:13 PM-5:45 PM, 10:15-22 (Abrom testifying that older immigrant students are frequently the “only breadwinner that’s in the family”). b. Would rather work than be educated. E.g., N.T. Aug, 17, 2016, 9:32 AM-12:43 PM, 86:8-10 (Chesson testifying that Rau and Abrom stated at March 17, 2016 meeting that some refugees come in better suited for employment and ESL classes). c. Want to go to school primarily so that their families can get TANF benefits. N.T. Aug. 19, 2016, 9:32 AM-12:19 PM, 22:10-13 (Hilt testifying that it was the primary concern for Qasin’s enrollment). This perception seems to be based on a misunderstanding about the nature of support provided by refugee resettlement agencies. N.T. Aug. 22, 2016, 9:27 AM- 12:34 PM, 54:23-24 (Blackman testifying that resettlement agencies stop providing services at ninety days). d. Are often in arranged marriages. E.g., N.T. Aug. 22, 2016 4:13 PM-5:45 PM, 10:15-22 (Abrom testifying). e. Are likely to have children before the age of 21. E.g., N.T. Aug. 22, 2016 4:13 PM-5:45 PM, 10:15-22 (Abrom testifying). f. Would be overwhelmed in a large school setting. N.T. Aug. 22, 2016, 9:27 AM12:34 PM, 67:8-14 (Blackman testifying that he wonders how they would do in a larger environment, a smaller environment is better due to the trauma they have experienced). g. Are likely to quit school. N.T. Aug. 22, 2016, 12:27 PM, 64:17-65:9. (Heisey testifying if life gets in the way for refugees at McCaskey they are more likely to quit school because it will take longer to graduate).
C. Considerations of the Needs of McCaskey Students
117. Several District representatives expressed concerns about the older immigrants mixing with younger McCaskey students. E.g. N.T. Aug. 22, 2016 4:13 PM-5:45 PM,37:13-18 (Abrom testifying that mixing older immigrants with 13- or 14-year-olds “can be viewed as just not appropriate . . . would I want that 21 year old [to] go to school every day with a 13 year old? It’s too much of an age disparity.”); N.T. Aug. 22, 2016 4:13 PM-5:45 PM, 37:4-6 (Abrom testifying that “the state law maximum of 21 was really put into place originally for students that had special needs.”).
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118. Impact on the majority students. N.T. Aug. 19, 2016, 1:29 PM, 42:18-43:12 (Rau testifying that she has to think of all the students; If you make changes for small group there’s ripple effect on bigger group).
1. Budgetary Concerns
119. The District saved several million dollars by giving Camelot the contract to run Phoenix. N.T. Aug. 19, 2016, 1:29 PM, 91:15-17 (Rau testifying that is due to no employee pension or health-insurance payment).
120. Phoenix is less expensive to operate than McCaskey. Rau Dep. 74:17-20; N.T. Aug. 19, 2016, 1:29 PM, 91:11-22 (Rau testifying).
121. The District thus spends less money per pupil on Phoenix students than on McCaskey students.
122. In addition, keeping Phoenix enrollment at 100% of capacity (350 students) keeps the District’s costs down. N.T. Aug. 19, 2016, 1:29 PM, 96:19-97:7 (Rau testifying); Ex. 9 at p.11 Section 2.6.5 (Master Operating Agreement for Phoenix).
123. Phoenix is currently under-enrolled. Ex. 94 at 1 (PDE School Performance Profile for Phoenix showing enrollment of 323 students).
2. Concerns About District “Drop-Out” Rates
124. The District’s predominant consideration, however, seems to be a desire to maintain the highest possible graduation rate. N.T. Aug. 19, 2016, 1:29 PM, 39:1-13, (Rau testifying that if graduation rate not high enough that will attracts lots of issues, e.g., state monitoring; phoenix considered separate from McCaskey); N.T. Aug. 19, 2016, 1:29 PM, 78:5-7, (Rau testifying that districts are held accountable by state for graduating students). N.T. Aug. 19, 2016, 1:29 PM, 81:18-22, (Rau testifying that the District did not want to be known as a “dropout factory.”)
125. The Pennsylvania Department of Education counts a student who fails to graduate before the final year of eligibility as a drop out, but by refusing to enroll older students SDOL avoids depressing its graduation rate. N.T. Aug. 19, 2016, 1:29 PM , 74:19-22, (Rau testifying that if a student doesn’t enroll, there is no dropout noted when ages out.)
126. The Superintendent has candidly expressed that its enrollment and placement practices with respect to older immigrant ELLs are based in part on a desire to safeguard the District’s graduation rates. E.g., N.T. Aug. 19, 2016, 1:29 PM, 81:8-22 (Rau testifying that overriding goal of Phoenix placement is to get new refugee students to graduate, in part because District does not want a “drop-out factory”); Rau Dep. 82:15-83:11 (overriding goal is to get new refugee students to graduate in part because District is evaluated based on the number of students they graduate). See also N.T. Aug. 22, 2016 4:13 PM-5:45 PM, 39:2-4 (Abrom testifying regarding District’s concern about more kids dropping out and not graduating).
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127. If a student ages out of school without graduating, that will count as a “drop out” and affect the District’s graduation rates. N.T. Aug. 19, 2016, 1:29 PM, 72:3-15 (Rau testifying); Rau Dep. 83:13-17.
128. However, if a student is never enrolled (such as Alembe), that will not affect the District’s graduation rates. N.T. Aug. 19, 2016, 1:29 PM, 74:15-22 (Rau testifying).

IV. Phoenix Academy’s Environment Is Designed for Students with Behavioral Problems.

129. Phoenix Academy is run by Camelot Education, a for-profit company that specializes in schools for students with a history of disciplinary problems and special education needs.
130. Until shortly before the commencement of trial, Camelot Education’s website consistently listed Phoenix as a “transitional” school, a Camelot model that “integrates behavior and academics[.]” Ex. 18 at 3, 7; Ex. 89 at ISSA54.
131. Camelot employs the same behavioral interventions at the AEDY schools it manages as it does at Phoenix. See N.T. Aug. 18, 2016, 9:42 AM-2:11 PM 22:3-4 (Rivera testifying that Phoenix uses standard Camelot policies).
132. Indeed, these behavioral interventions are central to Camelot’s operation of Phoenix Academy. Ex. 19 at SDOL_RTK_002303 (changing behavior from anti-social to social is a stated goal); Id. at SDOL_RTK_002308-002315 (behavior management and behavior levels are also part of the handbook); Id. at SDOL_RTK_002320 (behavior accounts for 10% of a student’s grade).4
133. Phoenix has a reputation in the community as a school “where the bad kids go,” and where kids get beat up and slammed into the walls with no police recourse. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 47:22-23, 48:3-8 (Rivera testifying).
134. SDOL’s Operating Agreement with Camelot, signed April 15, 2014, for a three-year term, specifies that “Camelot will operate an alternative education program at the Phoenix Academy….” Ex. 9 at 1. Under the Agreement’s “Student Eligibility Criteria,” students must exhibit, “to a marked degree, any or all of the following”: (i) overage for their appropriate grade; (ii) significantly behind in credits earned toward graduation; (iii) previously dropped out of high school; (iv) exhibit one of more characteristics of “AtRisk Students”; or (v) habitual truancy. Id. at 7. The Agreement defines “At-Risk Students” as having a grade of F in Math or Language Arts, attendance below 80%, or earned less than 2 credits in an academic year. Id. at 1-2.

A. Security Protocols

135. Phoenix has severe and restrictive security protocols not in place at McCaskey.

4

The Phoenix Handbook is an accurate description of the school and how it

operates. Misnik Dep. 22:4-7 (referring to Ex. 19).

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1. Pat-Downs
136. Phoenix students are frisked every day by staff upon entering the building. E.g. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM 26:22-23 (Rivera testifying); N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 99:15-23 (Sui Hnem testifying that she was searched every day, and that staff use their hands to check her body); N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 50:7-14 (Qasin testifying that staff search students with their hands on students’ bodies).
137. McCaskey students are not frisked every time they enter the building. N.T. Aug. 19, 2016, 9:32 AM-12:19 PM, 81:4-81:8 (Hilt testifying).
138. The Phoenix pat-down involves staff placing their hands “all the way down the side of the body by the arm pit,” touching the bra strap in between girls’ breasts to make sure they aren’t hiding anything in their bra, touching down the legs and up the thighs, on the front and back of the students’ bodies. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 27:16-25 (Rivera testifying). Staff also search students’ collars, pockets, belt area, and socks. Misnik Dep. 30:18-22.
139. All staff at Phoenix are trained to perform these daily pat-down searches. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 27:4-6 (Rivera testifying).
140. Students are also directed to remove their shoes and shake them upside down to make sure there is nothing hidden in them. See Misnik Dep. 31:4; N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 29:5-9 (Rivera testifying); N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 99:1720 (Sui Hnem testifying that students must remove their shoes during daily pat-downs); N.T. Aug, 17, 2016, 9:32 AM-12:43 PM, 76:17-19 (Chesson testifying that students form single file line for pat-downs and are required to take off their shoes).
141. Dr. Rau did not know initially that Phoenix students were physically patted down daily and only came to understand this was an issue sometime after February 2016. N.T. Aug. 19, 2016, 1:29 PM, 103:12-104:22 (Rau testifying). Dr. Rau still expressed confusion over whether Phoenix students are patted down every day. N.T. Aug. 19, 2016, 1:29 PM, 105:5-15 (Rau testifying).
2. Prohibition on Personal Belongings
142. At Phoenix, students are prohibited from bringing anything in or out of the school. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 28:23-24 (Rivera testifying).
143. This means that Phoenix students are not allowed to take home books to study, nor can they bring their own books into the school. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 17:10-11 (Khadidja testifying).
144. Camelot’s agreement with SDOL requires Camelot to pay for “replacement of any lost or damaged textbooks.” Ex. 9 at 14 (¶ 3.4.1.)
145. Phoenix students are not permitted to bring homework assignments into or out of the school. See, e.g, N.T. Aug, 17, 2016, 9:32 AM-12:43 PM, 75:13-20 (Chesson testifying
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that at orientation, Phoenix officials explained that there is no homework because students are not allowed to bring anything in or out of school); N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 17:13-15 (Khadidja testifying). 146. Phoenix students are not permitted to bring to school any personal belongings, including bags, books, papers, and other articles – to or from school. Ex. 19 at SDOL_RTK_002305 (Phoenix Student Handbook); N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 17:8-9 (Khadidja testifying). 147. District guidelines regarding rights of students not in effect at Phoenix. Ex. 92 at Issa_000326-000333 (listing student rights, including rights to make their own choices regarding dress and grooming. and free expression); Ex. 19 at SDOL_RTK_002305 (Phoenix Student Handbook) (regulating student appearance).
B. Harsh Disciplinary Interventions
1. “Handle with Care” Behavioral Correction System
148. The “Handle with Care” system of “verbal interventions” and “physical interventions” is central to life at Phoenix.
149. All Phoenix staff are trained in “Handle with Care” methods. N.T. Aug. 22, 2016, 12:27 PM-4:01 PM, 145:18-22 (Misnik testifying). In addition, Phoenix employs dedicated “behavioral specialists.” N.T. Aug. 22, 2016, 12:27 PM-4:01 PM, 145:18-25 (Misnik testifying).
150. The “Handle with Care” escalating intervention levels are demonstrated to new students at orientation, using a student as a volunteer. N.T. Aug, 17, 2016, 9:32 AM-12:43 PM, 71:23-72:5 (Chesson testifying); Misnik Dep. 54:12-15.
151. “Handle with Care” is a harsh system designed for kids with history of behavioral problems.
152. The system is implemented at Camelot’s Alternative Education for Disruptive Youth (AEDY) schools. Misnik Dep. 68:15-20.
153. “Handle with Care” involves seven levels of intervention to be used on students who are being non-compliant. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 22:22-24 (Rivera testifying); see generally Ex. 19 at SDOL_RTK_2316-2317 (Phoenix Student Handbook); N.T. Aug. 22, 2016, 12:27 PM-4:01 PM, 107:8 (Misnik testifying). The lowest levels of intervention involve friendly or concerned verbal or non-verbal cues to the student who is not following the rules. See N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 22:24-23:2 (Rivera testifying). The highest level of intervention is a physical restraint with the student being pressed up against wall with their hands behind their back. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 23:2-6 (Rivera testifying); N.T. Aug, 17, 2016, 9:32 AM-12:43 PM, 72:1-3 (Chesson testifying).
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154. McCaskey does not use “Handle with Care” or demonstrate restraints at new student orientation. N.T. Aug. 19, 2016, 9:32 AM-12:19 PM, 80:17-81:3, 81:9-81:12 (Hilt testifying).
155. Indeed, at Phoenix, students disrupted classroom teaching and had to be removed from the classroom “like every day.” N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 42:18-43:4 (Anyemu testifying). Ms. Rivera testified that she frequently observed staff members using physical interventions without first attempting the lower-level interventions. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 23:16-19. She explained: “Staff members would suddenly pick up a child for no reason, slam a child against a wall, slam a child against a door, scream at a child, yell at a child, curse at a child. More often than not I saw these seven levels not handled properly, but handled improperly.” N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 23:19-24.
2. Behavioral Ranking System
156. Phoenix encourages “confrontations” between students, identifying confrontation of peers as the number one “step to success” at Phoenix. Exh. 19 at SDOL_RTK_002309 (Phoenix Student Handbook).
157. Consistent with the “Handle with Care” model, Phoenix policy encourages “confrontations” between students: Phoenix requires students to “confront[] the negative behavior of their peers,” and identifies confrontation of one’s peers as the number one “step to success at Phoenix. Exh. 19 at SDOL_RTK_002309; SDOL_RTK_002313. To advance further in the behavioral rankings, a Phoenix student must fill out a “Pledge Log” so that school personnel can review “who they have been confronting, [and] the reason for the confrontation[.]” Exh. 19 at SDOL_RTK_002315. Only students who are consistently documented “confronting and enforcing the normative culture at Phoenix” can earn the highest behavioral ranking. Exh. 19 at SDOL_RTK_002315-002317.
158. See also N.T. Aug, 17, 2016, 9:32 AM-12:43 PM, 77:14-16 (Chesson testifying that Becky Falcone stated at orientation “We are a very confrontational school.”); N.T. Aug. 22, 2016, 12:27 PM-4:01 PM, 102:21 (Misnik testifying that confrontation is something that is done all the time at Phoenix Academy).
159. Students who regularly confront the negative behavior of peers are rewarded with status and privileges. Exh. 19 at SDOL_RTK_002313; N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 25:18-26:5 (Rivera testifying); Misnik Dep. 27:7, 19-21; N.T. Aug. 22, 2016, 12:27 PM4:01 PM, 78:13-17 (Misnik testifying).
160. Phoenix did not distinguish between peer-to-peer confrontations with a negative tone (telling another student to “shut up,” for example) and those with a positive tone. Students were routinely rewarded with advancement to a higher behavioral ranking for confronting their peers in any manner at all, even negatively. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 26:13-18 (Rivera testifying).
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161. The Phoenix dress code is designed to reinforce the student hierarchy based on behavior. Students are rewarded with different colored uniform shirts as a behavioral incentive. See N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 25:16-21 (Rivera testifying); N.T. Aug. 22, 2016, 12:27 PM-4:01 PM, 127:7-9 (Misnik testifying).
D. Pervasive Bullying
162. Language barriers make it difficult for ELLs to ask for help dealing with bullying. N.T. Aug, 17, 2016, 9:32 AM-12:43 PM, 107:10-13 (Chesson testifying that Qasin told her that it was difficult for him to communicate with anyone at school because no one spoke his language).
163. Refugees’ heightened fear of retaliation makes them less likely to ask for help. Many refugees come from countries where people are often retaliated against for speaking up and reporting injustices. N.T. Aug, 17, 2016, 9:32 AM-12:43 PM, 105:18-106:2 (Chesson testifying).
164. Qasin did not tell anyone at Phoenix about the bullying because he feels alone at the school and was worried about retaliation by his classmates. He also does not know the process for reporting. N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 53:15-54:2 (Qasin testifying).
165. Qasin tried to avoid using the bathroom in order to avoid his bullies. N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 54:12-13 (Qasin testifying).
E. Limited Curriculum and Programming
166. At Phoenix’s orientation, Becky Falcone explained that Phoenix offers only general education courses needed for graduation. N.T. Aug, 17, 2016, 9:32 AM-12:43 PM, 78:15-21 (Chesson testifying).
167. Phoenix has fewer course options than McCaskey. There are no Small Learning Communities, and no diversified occupations program at Phoenix. N.T. Aug. 22, 9:27 AM-12:34 PM, 138:23-152:11 (Heisey testifying); Ex. 21 at 7, 19-21 (McCaskey Curriculum).
168. Most of the courses listed in McCaskey’s 104-page Curriculum Guide are not available to students at Phoenix. N.T. Aug. 22, 2016, 9:27 AM-12:34 PM, 138:23-150:4; 151:10152:11 (Heisey testifying).
169. Phoenix offers no extra-curricular activities or sports. 170. The District has not reported any Phoenix students playing any sports for McCaskey.
N.T. Aug. 22, 2016, 9:27 AM-12:34 PM, 153:1-155:21 (Heisey testifying); Ex. 86 at 1 (Phoenix Academy, Interscholastic Athletic Opportunities Disclosure Form 15.6, 201415 School Year) (listing zero Phoenix student participants in interscholastic athletic activities and failing to indicate on page 4 of 4 that any Phoenix students participate at other schools, such as McCaskey).
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171. Phoenix did not inform its ELLs of any opportunity to participate in sports or extracurricular activities at McCaskey. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 32:2333:1 , 33:14-16 (Anyemu testifying); N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 48:6-8 (Qasin testifying).
172. Anyemu would have been eager to play on the soccer team, since he played the game before coming to the U.S., loves it, and is good at it. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 33:2-33:13 (Anyemu testifying). It is also an activity that has allowed him to overcome language barriers and successfully form bonds with English speakers. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 46:4-22 (Anyemu testifying).5
173. Phoenix does not prepare students for college. 174. Phoenix does not offer students any meaningful college counseling. N.T. Aug. 17, 2016,
2:06 PM– 3:56 PM, 38:6-18 (Anyemu testifying). 175. Phoenix students do not graduate “college ready.” N.T. Aug. 17, 2016, 2:06 PM– 3:56
PM, 38:6-18 (Anyemu testifying; Ex. 94 (PDE “college ready” stat). 176. Phoenix generally ranks worse than McCaskey in every measure of performance tracked
by the Pennsylvania Department of Education, such as number of highly qualified teachers, drop-out rates, college preparedness, and student academic performance. N.T. Aug. 22, 12:27 PM, 39:14-51:7 (Heisey testifying); see generally Ex. 94 (School Performance Profiles for Phoenix and McCaskey).

V. Phoenix Academy’s Environment Negatively Impacts the Ability of Students Who Are SLIFE to Learn

177. Students—particularly students who are SLIFE—need to be in an environment where they feel safe and welcomed in order to learn. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, at 99:8-15 (Marshall testifying). In the absence of such a safe and welcoming environment, their affective filter is raised, causing students to feel anxiety and stress that undermines learning. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 106:2-23 (Marshall testifying); see also id. 106:13-18 (Marshall testifying that “If you're not comfortable in your learning situation, you have any anxiety, you’re not going to be a risk taker and your affective— your feelings are blocking your ability to access learning, and to be motivated and interested and engaged in learning. And you kind of shut down.”).
178. The school environment at Phoenix undermines learning. It is inappropriate to assume that SLIFE need behavioral adjustment because, while “these . . . newcomers . . . may not [all] be refugees and they may or may not have had . . . stress and trauma . . . [they are

5

Phoenix is aware of the transformative power of soccer, which is why they built it into

the structure of the optional, grant-funded summer program for refugee students. See N.T. Aug.

19, 2016, 9:32 AM-12:19 PM, 92:22-93:4, 93:14-93:21 (Hilt admitting that participation in

activities of interest is helpful for new immigrant students to become integrated into the school

community). However, they limited the soccer to 15 minutes, once a week. N.T. Aug. 17, 2016,

2:06 PM-3:56 PM, 48:6-10 (Anyemu testifying).

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nevertheless] brand new to the country and for them from day one to be put in a situation where [they are] made to feel that they need to adjust their behavior” is inappropriate. N.T. Aug. 18, 2016, 2:11 PM-5:07 PM, 15:15-21-16:1-4 (Marshall testifying). 179. Acculturation is “tied very closely to . . . language acquisition.” N.T. Aug. 18, 2016, 2:11 PM-5:07 PM, 16:18-19 (Marshall testifying). In fact, “what really works well and what the literature says about bicultural [students] is that [students] who maintain their control, not assimilate completely, become acculturated, become bicultural, learn English better and do better in school in general.” N.T. Aug. 18, 2016, 2:11 PM-5:07 PM, 17:3-7 (Marshall testifying).
A. Impact of Pat-Downs
180. The daily pat-downs made many of the Plaintiffs feel uncomfortable, or feel like they were suspected of wrongdoing.
181. Former Phoenix teacher Jandy Rivera testified that immigrant students would “stiffen immediately” when someone they didn’t know was touching them. It seemed as though they felt uncomfortable being touched in the pat-downs. N.T. Aug. 18, 2016, 9:42 AM2:11 PM, 28:4-20 (Rivera testifying).
182. The pat-down at Phoenix was Khadidja’s first experience of this kind. She said “I was never patted down like that and I’ve never even witnessed or heard of patting down like this.” N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 16:20-21 (Khadidja testifying). “I have never seen a place where they pat you down in order to enter school and they actually do it every day,” she stated. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 16:24-17:1 (Khadidja testifying).
183. Qasin testified that the pat-downs made him feel bad about himself, like a “bad person,” because pat-downs are generally used on people suspected of having illegal things, and that the pat-downs made him hate the school and the system. N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 50:1-51:2.
184. ELLs lack the English skills to answer questions posed to them during searches, which causes stress.
185. Staff were unable to explain to ELLs what was happening with the pat-downs, like they could with English speaking students. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 28:9-17 (Rivera testifying).
186. Van Ni testified that she is sometimes afraid during the daily pat-down searches because when she gets questioned, she is unable to explain herself to the security guards. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 81:11-82:6.
187. Sui Hnem likewise testified that she is afraid during pat-down searches when she is questioned by staff and isn’t able to explain why her clothing has a “bump” in it. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 99:24-100:3.
B. Impact of Prohibition on Personal Belongings
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188. The prohibition on bringing anything into the school was particularly stressful for female ELLs. Cultural, religious, and language barriers make it uncomfortable for many girls to ask for feminine hygiene products from teachers and staff. N.T. Aug, 17, 2016, 9:32 AM-12:43 PM, 76:9-12 (Chesson testifying).
189. Phoenix’s restrictive security protocols also mean that immigrants can’t bring bag lunches to school, and thus have no access to food they are familiar and comfortable with. N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 49:14-17 (Qasin testifying that he would like to bring his own food to school).6
C. Impact of Disciplinary Interventions
190. The “Handle with Care” restraints and confrontational techniques central to life at Phoenix can be upsetting for trauma victims.
191. Jandy Rivera testified that in her year and a half at Phoenix, teachers (including ESLcertified teacher Kelleher in particular) would often “yell” at students during “Town House,” using the daily meetings as a “venting session for teachers who were frustrated about a specific class that hadn’t gone well the day before.” N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 30:4-25. She regularly observed immigrant ELLs “hunched over, heads down, eyes on the floor, shoulders forward, and they appeared to be terrified” because they didn’t understand what the teacher was yelling or screaming about. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 31:16-24.
D. Impact of Bullying
192. Bullying undermines victims’ ability to learn. N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 57:15-17 (Qasin testifying that it is “impossible” to learn at Phoenix); N.T. Aug, 17, 2016, 9:32 AM-12:43 PM, 112:5-10 (Chesson testifying that her clients feared for their safety at Phoenix, didn’t feel supported, and that Qasin told her that if he had to choose between Phoenix and prison, he would choose prison).
193. Bullying also contributes to drop-out. Indeed, Qasin testified that he stopped going to school because of the bullying. N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 54:6-7.
E. Impact of Limited Curriculum and Programming

6

Phoenix is aware of the importance of culturally appropriate meals, and thus tailored all

of the meals at the grant-funded summer refugee program to what the students were used to

eating at home. Heisey admitted that during the school year, school-mandated lunches do not

provide this level of familiarity and comfort for immigrants. N.T. Aug. 22, 9:27 AM-12:34 PM,

77:19-78:15 (Heisey testifying).

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194. Students who are SLIFE must have access to grade-level content instruction from the beginning and need to fill in gaps in learning. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 101:9-20 (Marshall testifying). To ensure access to grade-level content, the school must provide appropriate scheduling of content classes in light of the needs of students to fill gaps. Id. at 102:18-25.
195. In contrast, the environment at Phoenix, characterized by a lack of opportunities for engagement with the school community, heightens isolation and undermines enthusiasm. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 22:11-18:5 (Marshall testifying).
196. Phoenix’s lack of attention to college preparation leaves immigrant ELLs, who are at a disadvantage in trying to pursue higher education without help navigating the system, are without meaningful college prospects or guidance. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 37:24-38:14 (Anyemu testifying that he did not feel prepared to go to college to study biology and that no one at Phoenix advised him on how to apply to college); id. at 51:5-10 (no one helped him fill out college applications, including in Skills Prep or Counseling).
VI. Phoenix’s “Accelerated Credit Recovery” Model Undermines Immigrant ELLs’ Ability to Learn.
A. Accelerated Credit Recovery
197. Phoenix Academy offers an “accelerated curriculum” in which students accrue credits faster than they could in a regular school environment. N.T. Aug. 18, 2016, 9:42 AM2:11 PM, 13:14-20 (Rivera testifying); Misnik Dep. 12:9; N.T. Aug. 22, 2016, 12:27 PM4:01 PM, 140:14-21 (Misnik explaining that “accelerated means faster”).
198. Phoenix’s “accelerated” program is designed to allow 16- to 21-year-old students to complete high school in 2.5 years or less. Ex. 84 at 2 (Camelot website description of accelerated programs); Answer, ECF No. 23, ¶ 47.
199. At McCaskey, if a student attended one of the summer programs, they could accrue 24 credits in two years. N.T. Aug. 22, 9:27 AM -12:34 PM, 107:18-108:12 (Heisey testifying).
200. At Phoenix, a student can obtain 5.5 credits per semester. Misnik Dep. 90:10-12; Ex. 19 at SDOL_RTK_002303 (Phoenix Student Handbook).
201. Phoenix operates on a block scheduling system, with five 80-minute class periods instead of seven 48-minute class periods, and Phoenix purports to cover the same content in one semester that McCaskey covers in a year. Heisey Dep. 29:10-30:12; see also N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 14:18-21 (Rivera testifying).
202. Phoenix teachers did not receive any guidance from Phoenix about how to adapt the district curriculum to its accelerated model. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 17:13-16 (Rivera testifying).
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203. Administrators did not verify how much of the district curriculum was actually covered in Phoenix classes. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 17:13-16 (Rivera testifying).
204. Students at Phoenix do not receive any more instructional time per year than students at McCaskey do.
205. Phoenix and McCaskey operate on an identical academic calendar and, thus, provide students the exact same number of instructional days. N.T. Aug. 22, 9:27 AM-12:34 PM, 116:22-117:2 (Heisey testifying that she understands PA law mandates 180 school dates and Phoenix does not provide excess of the minimum). The two schools also offer approximately the same number of instructional hours each day. N.T. Aug. 22, 9:27 AM12:34 PM, 117:15-20 (Heisey testifying that assuming McCaskey is open 7:30-3:00 she agrees that the two schools provide the same amount of instructional time). Phoenix is open from 7:30 a.m. to 3:15 p.m. Ex. 89 at ISSA55. First period class does not begin until approximately 8:15 or 8:30 a.m., and classes do not begin at the same time each day. N.T. Aug. 22, 9:27 AM-12:34 PM, 111:12-112:19 (Heisey testifying).
206. The reality is that Phoenix provides substantially less instructional time to students for every credit earned than does McCaskey.
207. Students at McCaskey receive a total of 24 more hours of instruction per credit than Phoenix students, which amounts to an additional thirty 48-minutes class periods at McCaskey for each course. N.T. Aug. 22, 9:27 AM -12:34 PM, 122:10-124:23 (Heisey testifying).
208. Since Phoenix students are given 24 hours less instructional time per class credit, Phoenix necessarily must accelerate the pace of instruction and students must learn the material more quickly.
209. Former teachers Jandy Rivera and Mary Ann Ortiz both testified that the material is covered more quickly and less thoroughly at Phoenix than at McCaskey.
210. Phoenix teachers were given the District’s “school year at a glance” curriculum materials and told “you need to teach this double time.” N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 14:1-7 (Rivera testifying).
211. Rivera found it “impossible” to cover a year’s worth of district curriculum material in half the year at Phoenix. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 15:22-25 (Rivera testifying). N.T. Aug. 22, 2016, 4:13 PM- 5:45 PM, 60:11-22 (Ortiz agreed that it was difficult for ELL students to be in an accelerated model and believed, rather, that their learning should be slowed down).
1. Computer-Based Learning
212. Phoenix’s accelerated program relies in part on computer-based learning. Camelot’s contract notes that Phoenix utilizes “a basic academic curriculum which focuses on the mastery of essential knowledge and skills in English language arts and mathematics through computer-driven and teacher-driven instruction.” Ex. 9 at § 2-1 (Master Operating Agreement for Phoenix).
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213. “Skills Prep” class, one of 5 daily courses for many Phoenix ELLs, focused on computerbased learning with minimal teacher instruction. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 26:8-11 (Anyemu testifying); N.T. Aug. 22, 2016, 4:13 PM – 5:45 PM, 58:13-20 (Ortiz testifying that Skills Prep is a computer-based class that helps with math and communication arts).
214. Skills Prep is not an ESL course. N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 58:16-17 (Ortiz testifying).
215. Computer-based learning is not susceptible to adaptations for ESL students. Indeed, Anyemu could understand “some word[s]” his teacher said during the short instruction portion of the class, but “only a little bit” and “didn’t learn much in the class.” N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 26:3-16 (Anyemu testifying).
2. Rapid Grade Advancement
216. At Phoenix, students are promoted quickly from one grade to the next. 217. Anyemu Dunia’s school records demonstrate how quickly students can be promoted at
Phoenix. His transcript lists him as a ninth grader during the 2014-15 school year, and a twelfth grader during the 2015-16 school year. Ex. 50 at LSD115. Anyemu Dunia began ninth grade on February 9, 2015. The fall term ended on June 4, and on August 24, he began a new school year as a tenth grader. He completed tenth grade on January 14, 2016, and on January 19, 2016, he started his first day of eleventh grade. He completed eleventh grade on May 23, 2016. Remarkably, Anyemu started twelfth grade on May 24, 2016, and graduated on June 2, 2016. Ex. 50 at LSD87 (Anyemu Dunia Entry/Withdrawal List); see also Ex. 50 at LSD115 (Student Transcript showing “Graduation Date: 6/2/2016”).7 218. Khadidja was also promoted to the next grade level after less than one semester, since she did not start classes until February 17, 2016, a month after the start of the semester. Ex. 15 at LSD5 (Entry Withdrawal List). 219. Qasin was advanced to the next grade despite not attending class since early April. Ex. 48 (Student Records) at LSD74-75; Ex. 49 (Student Records).

7

Heisey suggested that Anyemu may have been able to graduate so quickly only

because he received credits for the two optional summer refugee programs he completed in

summer 2015 and summer 2016. N.T. Aug. 22, 2016, 12:27 PM, 53:17-54:13 (Heisey

testifying). If it is the case that Anyemu did not graduate until completion of the summer 2016

refugee program in late July, then it would appear that Phoenix and the District marked Anyemu

as a District graduate on official school records before he actually obtained the necessary credits.

Moreover, if Anyemu was within 3 credits of graduation at the time of the filing of this lawsuit,

then Defendant should have granted his request to transfer to McCaskey for the remainder of his

schooling, as was explicitly demanded in the Complaint.

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220. Each Phoenix class serves students in a range of grade levels. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 16:1-11 (Rivera testifying); see also N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 34:13-17 (Anyemu testifying).
221. Because of the rapid and irregular promotion from grade to grade and the mix of grades in each class, Phoenix students are often unaware of what grade they are in. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 34:13-17 (Anyemu testifying that he didn’t know what grade he was in because his classes had students from all different grade levels); N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 104:15-18 (Sui Hnem testifying that she did not know how many credits she had because she doesn’t speak English and does not know how to ask).
222. In Khadidja’s case, even her school records are unclear regarding what grade she is in. Her enrollment form dated November 2015 suggests she be placed in twelfth grade. Ex 15 at LSD21 (Enrollment Form). Khadidja was told she was started in eleventh grade, N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 15:9-11, but her last semester transcript reports she completed tenth grade. Ex. 15 at LSD35 (Student Transcript).
3. Summer Program for Refugees
223. The District’s summer program for refugees is not part of the Phoenix English language program.
224. It is not mandatory. N.T. Aug. 19, 2016, 9:32 AM-12:19 PM, 83:24-84:1 (Hilt testifying).
225. It does not appear to be graded. Ex. 46 at LSD186; Ex. 47 at LSD264 (transcripts not referring to summer program).
226. It is limited to refugees, and not available to all immigrant newcomer ELLs. Misnik Dep. 90:17-20.
227. And it is not exclusively for Phoenix students; rather, it is a mix of students from Phoenix and McCaskey. N.T. Aug. 22, 9:27 AM -12:34 PM, 104:12-18 (Heisey testifying that McCaskey students who are refugees and who qualify can fully participate in the summer program).
228. Indeed, only three of the Named Plaintiffs at Phoenix attended the program this summer: Anyemu, Van Ni and Sui Hnem. See N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 105:12-16 (Sui Hnem testifying); N.T. Aug. 17, 2016, 2:06 PM – 3:56 PM, 35:18-20 (Anyemu testifying).
B. Phoenix’s Accelerated Curriculum Allows Immigrant ELLs to Advance Without Understanding Material
229. Plaintiffs and two former teachers agree that the accelerated teaching pace at Phoenix is too fast for students new to the American school system and the English language to allow them to overcome their language barriers and meaningfully participate.
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230. As Rivera observed, the accelerated pace of the curriculum makes it more difficult for teachers to accommodate the range of different grade and learning levels and special needs, such as language assistance, within each classroom. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 16:1-14 (Rivera testifying).
231. Phoenix staff received limited professional development on working with ELLs. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 21:1-7 (Rivera testifying that, from 2011-2013, she was aware of only one twenty-minute professional development training on ELLs); N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 68:4-23 (Ortiz testifying that she “tweaked” trainings from the district down to 20-30 minutes).
232. This brief presentation on best practices and demographics was not sufficient training to ensure content teachers could make effective accommodations to ELLs in their classrooms. N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 69:2-8 (Ortiz testifying).
233. None of the professional development trainings focused on how to teach ELLs in an accelerated setting. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 21:10-14 (Rivera testifying).
234. Ms. Ortiz observed that her colleagues teaching content classes did not implement best practices for ESL accommodations. N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 59:6-25 (Ortiz testifying that it was likely difficult for content teachers without training to provide ELL accommodations).
235. Both students and teachers at Phoenix felt that the pace was too fast for immigrant ELLs to effectively learn the material. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 25:12-14 (Khadidja testifying that “[t]he classes move fast, but I don’t understand anything.”); id. at 29:20-22 (Khadidja testifying that “Phoenix Academy the classes go very fast and I do not understand anything and I’m not benefiting so I want a school that is slower in pace so I can understand.”); see also N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 29:9-21 (Anyemu testifying); N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 44: 5-7 (Qasin testifying); N.T. Aug. 16, 2016, 1:29 PM –5:27 PM, 100:16-20 (Sui Hnem testifying); N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 18:1-9 (Rivera testifying that “At the fast pace and the atmosphere at Phoenix, [the ELL students] were not able to learn or master the material. They would have needed a regularly paced atmosphere or perhaps even an extended learning atmosphere in order to master the material.”); id. at 18:10-13 (testifying that, in her opinion, the accelerated model did not work for newly arrived ELLs). N.T. Aug. 22, 2016 4:13 PM-5:45 PM, 60:11-22 (Ortiz testifying that “you want students in extended program and slowed down,” not accelerated).
236. As Dr. Marshall concluded based on her review of interviews with students and a careful examination of their education records and work products, it is clear that Plaintiffs’ transcripts do not “reflect[] . . . mastery of the classes that were taught double time with mainstream teachers and mainstream students.” N.T. Aug. 18, 2016, 2:11 PM-5:07 PM, 22:7-16 (Marshall testifying).
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237. SLIFE students at Phoenix are “not understanding what’s happening, they’re not really progressing, they’re not moving forward.” N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 172:18-20 (Marshall testifying).
238. Phoenix students are graded and promoted based in large part on “seat time,” meaning how often they attend class, rather than their grasp of material or meaningful class participation. See, e.g., N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 53:14-17, 54:3-8 (Rivera testifying); N.T. Aug. 16, 2016, AM,PM,9:44 AM–12:16 PM, 103:12-104:1 (Mastropietro testifying that Superintendent Rau stated at July 13 meeting that at Phoenix, credits are earned by “seat time,” meaning simply being present in class).
239. Principal Heisey testified that Khadidja’s strong grades and top class rank were partly the result of Phoenix’s grading rubric, which rewards class attendance. See N.T. Aug. 22, 9:27 AM-12:34 PM, 83:20-84:7 (Heisey testifying).
240. The program goals at Phoenix do not relate to academic proficiency. They include recovering credits for graduation, changing anti-social behavior, and developing skills that will help sustain that change. Ex. 19 (Phoenix Academy student handbook); see also N.T. Aug. 22, 9:27 AM -12:34 PM, 134:12-138:10 (Heisey testifying); Misnik Dep. 24:422.
241. Perhaps unsurprisingly, then, Phoenix students can advance to the next grade and even graduate without appropriate mastery of core curriculum.
242. Anyemu, who could explain no content that he acquired at Phoenix, graduated sixth in his class at Phoenix. Ex. 50 at LSD115 (Anyemu Dunia Student Transcript showing rank of 6/107); see also N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 36:9-12 (Anyemu testifying).
243. Khadidja was promoted to the next grade level after a semester even though she did not understand her classes. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 25:12-14 (Khadidja testifying).
C. Phoenix’s Accelerated Instruction Model Is Not Based on Sound Educational Theory Supported by Experts in the Field and Is Fundamentally Inappropriate For Students Who Are SLIFE.
244. Dr. Marshall’s testimony that Phoenix’s instructional model is not based on sound educational theory supported by experts in the field is unrebutted in this case.
245. A credit-recovery model is inappropriate for SLIFE because SLIFE have not “fallen behind”: “[it is] not as if [SLIFE] have been in this country for all these years and . . . haven’t accumulated credits, we’re not remediating, we’re teaching them for the first time and so it seems . . . [that] this approach is . . . not designed . . . for [SLIFE].” N.T. Aug. 18, 2016, 2:11 PM-5:07 PM, 15:4-14 (Marshall testifying).
246. These students, who are SLIFE, need to learn how to learn in the United States. In the U.S. we teach critical thinking skills and use decontextualized tasks, such as multiple choice and matching, but the school experience of these students is often limited to
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recitation and memorization. In an accelerated program, there is little time to explain these fundamental concepts. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM at 104:4- 105:17 (Marshall testifying). Ms. Ortiz similarly testified that students with limited prior schooling have not developed a strong enough foundation in their own language so it will be harder for them to try to learn in the English language. N.T. Aug. 22, 2016, 4:13 PM5:45 PM, 62:5-10 (Ortiz testifying). 247. In her testimony regarding the basis of this opinion, Dr. Marshall explained: “students who are behind academically and can't handle grade level and don't understand English cannot be expected to go faster through content when they haven't reached a threshold of English.” N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 119:18-22 (Marshall testifying). “You have to go more slowly and build, build the language, build the literacy and reach certain threshold, and then also fill in the gaps. And eventually you will have success.” Id. at 120: 4-8. Students like Plaintiffs need “a runway” to take off from with a solid foundation in English language acquisition. An accelerated pace requires students to jump into the air at full speed which they cannot do in light of their very low levels of English proficiency, low literacy and lack of formal schooling. “The best way to explain that, I believe is like a plane taking off on a -- a plane needs kind of a runway to take off, and so what it seems to me is that the accelerated recovery program at Phoenix is asking them to just (indicating) we're up in the air, and you can't do that with this population.” Id. at 119:23-120:3. 248. Teaching students who are SLIFE takes time. A subject teacher needs time to explain and reinforce a concept through the use of pictures, gestures, and oral presentation because they are teaching both English and content at the same time. As explained through the example of the owl pellet, a teacher needs to use multiple strategies to communicate a lesson in both basic and academic English while expanding a student’s understanding of idioms that are entirely new to students who is SLIFE. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 130:18-132:9 (Marshall testifying). 249. This view is supported by experts in the field. “Uniformly the field in talking about this population talks about going more slowly, building in redundancy, building in repetition, and having them become familiar with material in many different ways in order for them to learn it, and not to go at double time.” Id. at 120:11-16. Researchers, such as Gohungl, Lazino (ph) and Short and Boison who have studied SLIFE uniformly conclude that “the key is to take your time, take your time, present it in a variety of ways, make sure they get it.” Id. at 126:5-12. This view is “uniformly accepted” in the field and there is no opinion to the contrary. Id. at 126: 21-23 and 126:24-127:2. Accelerating the curriculum “backfires, it’s misguided.” Id. at 127:13. 250. The language instruction model at Phoenix is not informed by a sound educational theory because an accelerated credit-recovery model is contraindicated for SLIFE; in fact, “[i]t is the opposite of what they need.” N.T. Aug. 18, 2016, 2:11 PM-5:07 PM, 5:16-25
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(Marshall testifying). SLIFE “need a slow start.” N.T. Aug. 18, 2016, 2:11 PM-5:07 PM, 5:1 (Marshall testifying). 251. While Phoenix is known as an accelerated model, it is “holding back” SLIFE because they are not understanding the content in their classes and not getting enough English language instruction. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 172:12-21 (Marshall testifying). 252. Computer-based learning is also inappropriate for SLIFE. Students who are SLIFE from an oral tradition are the program’s reliance on computer-based learning is ineffective for them. They need learning to be provided through in-person oral communications and the use of pictures, gestures etc. This means that “their most comfortable way of learning is from people, from interaction, not from written material, not from worksheets, or even from the computer. They learn with oral transmission.” N.T. Aug. 18, 2016, 9:42 AM2:11 PM at 129:2-6 (Marshall testifying).
VII. Phoenix Lacks Sufficient Language Support for Immigrant ELLs
253. Phoenix’s language program is under-resourced. N.T. Aug, 17, 2016, 9:32 AM-12:43 PM, 80:2-7 (Chesson testifying that Falcone stated after orientation that she and the head of ESL for the district were overwhelmed by the refugee population at Phoenix and they felt Phoenix was not the best placement for them).
A. Inadequate Direct ESL Instruction
254. At Phoenix, direct instruction in ESL consists of only one 80-minute class period with Ms. Ortiz. N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 47:11-15 (Ortiz testifying).
255. Ortiz is the only ESL certified teacher at Phoenix who actually teaches direct ESL instruction. N.T. Aug. 22, 2016, 12:27 PM, 23:1-4 (Heisey testifying).
256. Entering level ELLs with limited or interrupted schooling need more support and ESL instruction than just 80 minutes. N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 61:24-62:3, 76:8-10 (Ortiz testifying). An Entering Level I ELL needs 2-3 hours of direct ESL instruction. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM at 137:1-4 (Marshall testifying); Ex. 8 at 4. This is a federal and state standard and reflected in the SDOL’s policies. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 137:1-4. Ex. 8 at 4. SLIFE students at Phoenix are thus “not getting enough language” instruction; they need more direct English instruction. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 172:8-14 (Marshall testifying).
257. Plaintiffs did not find one 80-minute period to be sufficient English instruction each day to overcome their language barriers. E.g., N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 43:1218 (Qasin testifying).
258. Phoenix’s model does not permit sufficient English language instruction for students with the limited literacy. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 119:6-11 (Marshall testifying). These students, who are SLIFE, need “intensive” ESL instruction and strong
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basic literacy components. Id. at 99:22-24. One research study by Browder examined the standardized test scores of 200 secondary school students who are SLIFE to determine the relationship between language level, language acquisition, and success in learning content as measured by standardized tests. He concluded that students who are SLIFE need significant amount of ESL instruction in order to be successful. The students who had several periods of ESL and the rest of the day, in their content areas did significantly better. The more ESL classes they had “the better they did on the content area, math, science, social studies…” Id. at 122:6-125:24. Essentially, they are likely to learn content once they have reached a threshold level of English that they can leverage in learning the subject areas.
B. Understaffing
259. For years, Phoenix had only one teacher devoted to direct ESL instruction. N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 54:24-55:1 (Ortiz testifying she was the only ESL certified person at Phoenix prior to 2013); N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 20:19-22, 34:613 (Rivera testifying that from 2011-2013, Ms. Ortiz was the only ESL teacher identified to her by Phoenix).
260. Ms. Ortiz has since left the school. N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 42:20-43:6 (Ortiz testifying).
261. Even after Phoenix acquired a second ESL teacher, the ratio of direct ESL teachers to students was higher at Phoenix than McCaskey. Phoenix has approximately 100 ELLs at any given time, and one full-time ESL teacher, Ortiz. Another teacher, Ms. Weathers, teaches two ESL classes (for third-level “developing” ELLs), along with Communication Arts classes. The ratio of ELLs to teachers offering direct ESL was thus 50:1. N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 55:8-17, 57:21-58:2 (Ortiz testifying).
262. Mr. Kelleher, a third ESL-certified teacher, did not teach any direct ESL instruction. N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 57:11-13 (Ortiz testifying); N.T. Aug. 22, 2016, 12:27 PM, 21:21-22:5 (Heisey testifying).
263. Camelot’s Operating Agreement provides funding for only two ESOL teachers. Ex. 9 (Exhibit “A”).
264. Ms. Weathers’ Communication Arts class was not direct ESL instruction. She did not offer English instruction or assistance with English language acquisition every day. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 52:9-20 (Anyemu testifying). Nevertheless, Ms. Heisey testified that Phoenix students receive more than one period of ESL because she would count the period spent in Communication Arts class taught by a ESL-certified teacher. N.T. August 22, 2016, 12:27 PM, 10:18-22 (Heisey testifying). She admitted that she was not familiar with state guidance to the contrary. N.T. August 22, 2016, 12:27 PM, 16:21-25 (Heisey testifying).
265. The SDOL cannot count Ms. Weathers’ classes as both ESL instruction and a content class as these classes are separate and distinct. As Dr. Marshall explained, an ESL
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instruction class teaches language. It is separate and distinct from a content class: “So direct English instruction means that you're focused on the language, the grammar, the pronunciation and vocabulary….when you're teaching a content you're teaching a content area although you bring the language in to support it. In a sheltered model content class, it’s primarily a content course but you are using language to help access the content as opposed to per se teach the language.” N.T. Aug. 18, 2016, 2:11 PM-5:07 PM, 8:17-25 (Marshall testifying). 266. Ms. Weathers does not teach all ELLs, and students not in her class do not know her. N.T., Aug. 22, 2016, 12:27 PM, 22:14-16 (Heisey testifying that Ms. Weathers does not teach classes that are only ESL); N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 23:18-20 (Khadidja testifying she does not know Ms. Weathers). 267. The Pennsylvania Department of Education guidance interpreting state law makes clear, "Direct English language instruction may not take place during other content classes." Ex. 74 at 3 (PDE Guidance, Educating Students with LEP and ELL). 268. Ms. Hilt acknowledged the law requires that direct English language instruction may not take place during other content classes. N.T. August 19, 2016, 9:32 AM - 12:19 PM, 90:22-2 (Hilt testifying). Ms. Hilt verified that when "counting how many ESL hours a student receives, that's got to be ESL hours not being taught by an ESL certified teacher in a content class." N.T. August 19, 2016, 9:32 AM - 12:19 PM, 91:3-6 (Hilt testifying).
C. Inadequate Supports in Content Classes
1. Structured Immersion
269. Students at Phoenix “[receive] structured English immersion and pull out ESL.” N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 159:2-4 (Marshall testifying); see also Ex. 8 at LSD267 (SDOL Services for ELLs, describing Phoenix as offering “structured immersion”); N.T. Aug. 22, 12:27 PM, 27:2-20 (Heisey testifying that Phoenix classes are “structured immersion”).
270. In a “structured immersion” model, students are not grouped with students who are at the same Entering Level or very close to their English proficiency level, but rather are taught with a range of ELLs and native speakers. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM at 151:3-152:3 (Marshall testifying). This model requires content teachers to accommodate the needs of those students who are not native speakers in some way, such as being dually certified in ESL, or by providing push-in or pull out instruction to support teachers. Id. at 153:1-21. In Dr. Marshall’s opinion, the immersion model is not sound because there is too wide a range of English proficiencies, making even well-constructed differentiated teaching impossible. Id. at 160:23-162:3. “So to have SLIFE in a structured immersion program is definitely not appropriate.” Id. at 161: 16-18.
271. In a “structured immersion” model, ELLs take their classes together with English speaking students. E.g., Id. at 160:8-11; N.T. Aug. 19, 2016, 1:29 PM, 5:16-5:25 (Hilt testifying that Phoenix classes combine emerging and entering ELLs and native English
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speakers); N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 47:3-10 (Ortiz testifying); Id. at 46:19-25; N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 18:17-22 (Rivera testifying that her Communication Arts classes included students at “all ranges” of English proficiency, including fluent English speakers); N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 28:14-29:8 (Anyemu testifying that his content classes were overwhelmingly with English speaking classmates and just one or two ELLs); N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 19:20-24 (Khadidja testifying that there are students in her content classes that speak English); N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 44:22-45:5 (Qasin testifying that his content classes contained mostly English speakers). 272. The social studies class taught by Kelleher (one of the teachers certified in ESL8) likewise included a variety of levels of ELLs and native English speakers as well. N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 75:12-14 (Ortiz testifying). 273. Furthermore, Phoenix ESL and content classes mix a range of English learning levels together. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 160:8-11 (Marshall testifying). 274. Khadidja testified that there are students in her ESL class with Ms. Ortiz that speak English better than she does. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 20:7-12 (Khadidja testifying). Qasin testified that other than himself and Khadidja, the other students in their ESL class seemed to speak much better English. N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 43:19-44:1 (Qasin testifying). 275. The result of mixing “newcomers with very little English . . . in with fluid English speakers,” is that, “even if [the teacher] is good at differentiating . . . it becomes overwhelming for the lower level ELLs and it retards the progress of the [students] who are native speakers if accommodations are being made.” N.T. Aug. 18, 2016, 9:42 AM2:11 PM, 160:15-22 (Marshall testifying). More specifically, SLIFE, which is a type of student not a level of ESL, “do not belong . . . with regular level one student[s].” Id. at 161:11-14. Thus, “even if [a SLIFE] test[s] in level one, [he or she] should not be mixed with regular level one student[s].” Id. at 161:14-16. 276. Plaintiffs’ expert testified that Phoenix is too understaffed to support an effective structured immersion program. In determining whether a language program is supported and implemented, it is important to start by looking at staffing. N.T. Aug. 18, 2016, 2:11 PM-5:07 PM, 10:10-16 (Marshall testifying). Specifically, the inquiry relates to the number of “highly qualified ESL teachers” on staff. Id. at 10:18-19. Documents disclosed that Phoenix employed one certified full-time ESL teacher (Ms. Ortiz) to support 90 ELL students. Id. at 10:18-22. There are two additional teachers listed as ESL certified, but those teachers actually teach core content areas, like social studies, so

8

Ms. Weathers and Mr. Kelleher obtained their ESL certifications in 2013. N.T. Aug. 22,

2016, 4:13 PM-5:45 PM, 54:17-20 (Ortiz testifying).

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they are not spending the entirety of their day supporting ELLs. Id. at 11:1-25. This is insufficient staffing to support a structured immersion ESL model. Id. at 12:7-10.
2. Limited “Push In” and “Pull Out” and No “Co-Teaching”
277. Phoenix does not offer “push in” supports for ELLs in every class. N.T. Aug. 22, 9:27 AM -12:34 PM, 128:8-23, 130:14-18 (Heisey testifying).
278. “Push in” instruction refers to having the ESL teacher come into a content class and assist the ELLs while the lesson is going on. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 154:8-12 (Marshall testifying). It requires “very close coordination and collaboration” Id. at 155:23. It requires a formalized structure whereby the ESL teacher pushes into class on a regular basis. Id. at 155:22-156:1. In a push-in model, it is ideal that the ESL teacher stay for the entire class period. Id. at 156:2-4.
279. Ms. Ortiz did not have room in her schedule to provide push-in services. N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 53:25-54:1, 69:12-17 (Ortiz testifying).
280. Khadidja testified that she has never seen Ms. Ortiz come into her content classes. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 23:15-17. Khadidja does not know who Ms. Weathers is. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 23:18-20.
281. Qasin likewise testified that neither the English teacher nor any other teacher ever came into his content classes to assist ELLs with the material. N.T. Aug. 16, 2016 1:29 PM5:27 PM, 45:11-13, 45:20-23.
282. Phoenix has no formalized “pull out” language support system. 283. Pull-out instruction at the high school level means pulling ELL students out of content
classes to teach them the content of their mainstream classes. This requires communication and coordination with a content teacher to modify the content lesson for an ELL student by “kind of slowing it down to their pace.” N.T. Aug. 18, 2016, 9:42 AM-2:11 PM at 153:24-154:18 (Marshall testifying). This is done by removing ELL students from the mainstream classroom to work in a structured setting with an ESL certified teacher to complete the material that the mainstream content teacher is covering in that particular lesson and then returning that ELL student to the mainstream content classroom. Id. at 154:8-12. “There has to be communication between the ESL teacher and the content teacher.” Id. at 154:17-18. It is recommended that the ESL teacher conducting pull out have access to the content material ahead of time, so that the ESL teacher can perform pre-teaching as part of the pull out and to ensure that the pull out instruction is not simply remediation instruction. Id. at 154:18-23. 284. Ms. Ortiz was only available during one “resource” period a day when high school students could come to her classroom for support with their content classwork. N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 52:1-10 (Ortiz testifying). 285. Phoenix had no formalized system for coordinating this support with content teachers so that Ms. Ortiz could familiarize herself with what the students were learning or anticipate
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which students would be dropping by for help. N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 53:11-15 (Ortiz testifying). 286. Very few students took advantage of Ms. Ortiz’s “open door” or ”resource” period. N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 53:2-10 (Ortiz testifying that numbers varied from 1 or 2 to sometimes 7 students). 287. Qasin was never allowed to leave class to get help understanding content from another teacher. N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 45:6-10. 288. Phoenix did not offer “co-teaching” (pairing a content teacher with an ESL teacher) in any class. N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 50:13-15 (Ortiz testifying); see also N.T. Aug. 22, 2016, 9:27 AM-12:34 PM, 130:14-18 (Heisey admitting there is not coteaching or push-in for every content class). 289. Phoenix has no system for coordinating the provision of ESL services. N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 47:25-48:3 (Ortiz testifying). Ortiz was not the ESL coordinator; she was an ESL teacher and the building contact but had no supervisory function or coordination-related title. N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 48:4-19 (Ortiz testifying).
3. Interpretation and Translation
290. Phoenix has no policies regarding the use of interpreters or translation services to assist ELLs. N.T. Aug. 22, 2016, 12:27 PM-4:01 PM, 120:5-7 (Misnik testifying).
291. Phoenix never employs in-person interpreters to help ELLs understand or communicate. N.T. Aug. 19, 2016, 9:32 AM-12:19 PM, 58:15-58:18 (Hilt testifying that it is not a “best practice” to use interpreters so Phoenix does not do this). See also N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 84:2-3 (Van Ni testifying that there are never interpreters in any classes); N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 100:21-23 (Sui Hnem testifying that the school never provides interpreters in her classes); N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 45:14-16 (Qasin testifying that no teacher ever brought in an interpreter to help him understand something); N.T. Aug, 17, 2016, 9:32 AM-12:43 PM, 100:11-14 (Chesson testifying that home visitor and Phoenix teacher went to Qasin’s house without an interpreter to try to talk with him).
292. Phoenix did not provide an interpreter for Khadidja’s orientation, at which she was supposed to learn the school rules. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 15:15-18, 2325; Id. 16:4-6 (Khadidja testifying).
293. No Phoenix staff ever used phone interpretation to communicate with Anyemu, Qasin, Van Ni, or Sui Hnem. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 30:21-24 (Anyemu testifying); N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 45:17-19 (Qasin testifying); N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 84:4-7 (Van Ni testifying); N.T. Aug. 16, 2016, 1:29 PM5:27 PM, 100:24-101:2 (Sui Hnem testifying).
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294. Phoenix staff only used phone interpretation to communicate with Khadidja when she had a medical appointment. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 24:9-13 (Khadidja testifying).
295. In contrast, when Anyemu had a medical emergency at school, Phoenix staff opted not to use any interpretation assistance to communicate with his parents and instead relied on him to interpret. N.T. Aug. 22, 9:27 AM-12:34 PM, 79:19-80:9 (Heisey testifying).
296. In the six years that Ms. Ortiz worked at Phoenix, she called Language Line approximately 3 times. N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 63:6-12 (Ortiz testifying).
297. Phoenix used computer or tablet interpreters or translation services only rarely. 298. Only one of Anyemu’s teachers ever used a computer or tablet to translate for him, and
this was only a few words on one or two occasions in ninth grade. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 30:25-31:13 (Anyemu testifying). 299. The school never used a computer or table to translate anything for Khadidja or Qasin. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 24:17-19 (Khadidja testifying); N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 45:24-46:1 (Qasin testifying). 300. Camelot’s Operating Agreement with the SDOL requires it to pay for computers, laptops and tablets for teachers and students, creating a financial disincentive to invest in more or updated technology. Ex. 9 at p. 14 (¶ 3.4.4.). 301. Phoenix only translates documents if a student or parent requests the translation. N.T. Aug. 22, 2016, 12:27 PM-4:01 PM, 120:22-25, 121:1-9 (Misnik testifying). 302. Neither the District nor Phoenix Academy makes a regular practice of translating any documents for Phoenix ELLs. E.g., N.T. Aug. 22, 9:27 AM -12:34 PM, 132:12-134:10 (Heisey testifying that Phoenix Academy student handbook has not been translated into the languages the refugees speak); N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 84:14-16 (Van Ni testifying that school documents are never translated in Hakha Chin).
4. Class Instruction Not Adapted for ELLs
303. All core classes are taught in English without modification for ELLs. 304. Core curriculum teachers do not regularly explain material to ELLs using pictures. 305. No Phoenix teacher used pictures to help Anyemu understand something they were
saying. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 31:14-16 (Anyemu testifying). Qasin testified that only his ESL teacher used pictures to help him understand. N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 46:2-4. 306. Phoenix teachers did not use hand gestures effectively to explain material. 307. Phoenix teachers did not use many hand gestures to help Anyemu understand something they were saying. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 31:17-22 (Anyemu testifying). Qasin testified that although his teachers used hand gestures, they did not usually help him understand any of the material. N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 46:5-12. 308. At Phoenix, exams are not adapted for ELLs.
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309. At Phoenix, ELLs were not provided interpreters or translated test materials for standardized tests such as the Keystone exams. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 32:7-16 (Anyemu testifying).
310. Normal class tests were also administered entirely in English without language supports. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 32:17-22 (Anyemu testifying); N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 47:18-23 (Qasin testifying).
311. Accommodations for tests were limited to Spanish and Nepali languages. N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 62:18-25 (Ortiz testifying).
312. Based on Dr. Marshall’s interviews with students and review of records, she concluded that Phoenix was not making significant accommodations for ELLs in their core content classes. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 159:9-10 (Marshall testifying).
313. This supports the conclusion that Phoenix employed a “submersion” model of ESL instruction as opposed to “immersion.” N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 159:1114 (Marshall testifying).
5. No After-School Supports for ELLs
314. At Phoenix, students are not allowed to take books, classwork, or tests home to study. See, e.g., N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 33:23-34:3 (Anyemu testifying).
315. No one offered to make photocopies of books or class materials for ELLs to take home. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 34:4-6 (Anyemu testifying); N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 48:13-25 (Qasin testifying).
316. Indeed, there is no policy at Phoenix of providing photocopies of schoolwork to students who request it. Rather, any such requests are weighed “on a case by case basis.” Misnik Dep. 39:1-14.
317. No homework was ever assigned in any Phoenix classes. N.T. Aug. 17, 2016, 2:06 PM3:56 PM, 34:7-9 (Anyemu testifying); N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 48:9-12 (Qasin testifying).
318. Megan Misnik testified that it was “not fair” to assign homework at Phoenix because the students are not able to feasibly do it on their own and this could “cause frustration and make them feel not pour or not, you know, confident in their work.” N.T. Aug. 22, 2016, 12:27 PM, 134:14-135:16.
319. At Phoenix, instructional time was used to allow students to complete assignments that, at traditional high schools, would normally be given as homework. For example, because Phoenix did not allow students to bring books home or to school, a “significant amount” of class time in Communication Arts was devoted to allowing students to read the literature they were supposed to discuss, leaving less class time to analyze or learn from the material. See N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 16:22-17:12 (Rivera testifying).
320. Many students testified about their desire for homework assignments, and to take hom classwork, tests, and books in order to have extra time to continue learning at home. N.T.
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Aug. 16, 2016, 1:29 PM-5:27 PM, 82:14-20 (Van Ni testifying); N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 100:4-8 (Sui Hnem testifying); N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 34:10-12 (Anyemu testifying); N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 48:13-25, 49:14-21 (Qasin testifying); see also N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 60:7-9 (Anyemu testifying that Phoenix should start assigning homework, and that without homework, student sometimes just watch TV and sleep instead of learning). 321. Phoenix’s practice of not assigning homework to students limited ELL students’ exposure to the English language. N.T. Aug. 18, 2016, 2:11 PM-5:07 PM, 19:8-22 (Marshall testifying). ELL students are challenged to use English during the school day, but use their native language at home. N.T. Aug. 18, 2016, 2:11 PM-5:07 PM, 19:10-13 (Marshall testifying). “If [these students] leave English at the door of the school they’re not going to be reinforcing what they had learned that day and they’re not going to be furthering their English.” N.T. Aug. 18, 2016, 2:11 PM-5:07 PM, 19:13-16 (Marshall testifying). Phoenix is “retarding . . . [the] progress [ELLs] by not giving them homework because they could learn faster if they could take work home . . . .” Id. at 20:1-3. 322. Plaintiffs were unaware of any after-school language support offered by the school. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 33:17-19 (Anyemu testifying); N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 47:24-48:5 (Qasin testifying). 323. Plaintiffs were also unaware of any teachers who would stay late to offer extra afterschool help. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 33:20-22 (Anyemu testifying); N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 47:24-48:5 (Qasin testifying). 324. Mail sent home to parents of Phoenix students is almost always in English. 325. Neither the School District nor Phoenix ever translated documents pertaining to Anyemu into Swahili for the Dunias, though the family occasionally received mail in Swahili from the School District pertaining to his younger siblings at McCaskey. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 31:23-32:4 (Anyemu testifying). 326. Qasin testified that mail from school was sent home in English. School mail was never translated into Arabic, the language he can read best. The District sent one letter to his mother translated into Somali, but she cannot read Somali very well, and only understood about half of it. Qasin cannot read Somali at all. N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 46:19-47:17. 327. Limiting the school’s communication with LEP parents limits students’ chances for success. In order for an ESL program to be effectively implemented, it is “very important that parents be involving in decision-making . . . .” N.T. Aug. 18, 2016, 2:11 PM-5:07 PM, 20:10-17 (Marshall testifying). Parents of Phoenix ELL students “did not understand completely . . . the different programs that were possible for . . . their children.” Id. at 20:18-21.
VIII. Phoenix Has Not Evaluated Its English Language Program
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328. Phoenix has not evaluated whether its ELLs are learning, and has no system in place to evaluate whether ELLs are learning at Phoenix.
329. Ms. Hilt acknowledged that it is a legal requirement and the school’s responsibility to assess ESL programs to ensure they are working for students. N.T. Aug. 19, 2016, 9:32 AM-12:19PM, 107:5-12 (Hilt testifying); N.T. Aug. 19, 2016, 1:29 PM, 6:9-20 (Hilt testifying). She testified that Castaneda v. Pickard is listed at the top of the Internal Review Survey because it is "one of the two most pertinent laws or cases that reflect in our law in our practice in ESL." N.T. August 19, 2016, 9:32 AM - 12:19 PM, 106:15-21 (Hilt testifying); Ex. 65 at LDS298 (ESL Dept. Internal Review Survey, 2015-16 McCaskey, citing Castaneda)
330. The District has likewise not evaluated whether ELLs are learning at Phoenix. 331. Superintendent Rau testified that the District has not evaluated either the Phoenix ESL
program or International School English language programs. N.T. Aug. 19, 2016, 1:29 PM-4:07 PM, 84:16-85:4, 88:12-89:1 (Rau testifying). While she has a goal of evaluating the International School in the next few years, she has no plans to evaluate Phoenix’s ESL program. Id. 332. The District has not met its obligation to assess whether the accelerated model works for ELLs or SLIFE. N.T. Aug. 19, 2016, 1:29 PM-4:07 PM, 93:15-94:5 (Rau testifying).
A. ACCESS Data
333. Phoenix has the raw data, in the form of ACCESS tests, to do an analysis of whether Phoenix Academy’s accelerated model helps students overcome their language barriers, but they have failed to disaggregate the data from McCaskey and thereby it cannot be determined how effectively Phoenix functions. N.T. Aug. 18, 2016, 2:11 PM-5:07 PM, 46:5-48:20 (Marshall testifying); see also N.T. Aug. 19, 2016, 1:29 PM, 10:7-19 (Hilt testifying that there is no data from which Phoenix could determine whether or not its ESL program is working).
334. The Superintendent testified that she does not believe the District has disaggregated data specifically on performance of ELL students, and has not examined Phoenix’s effectiveness in teaching ELLs specifically. Rau Dep. 96:3-9, 98:3-12.
B. Teacher Observations
335. The SDOL also failed to evaluate whether the Phoenix program is overcoming language barriers by examining teacher effectiveness through teacher observations. The SDOL did not identify any teacher observation tool that it used regularly at Phoenix to assess ESL teachers to ensure that they are implementing an effective and appropriate instruction model. N.T. Aug. 18, 2016, 2:11 PM-5:07 PM at 48:18-49:14 (Marshall testifying).
336. While the SDOL produced numerous documents relating to teacher accountability measures and evaluation of student performance applicable to its ESL program at
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McCaskey, there was only one document, dated January 13, 2014, relating to teacher accountability and student performance concerning Phoenix’s program. Ex. 78 (ELL Second Marking Period Checklist); N.T. Aug. 18, 2016, 2:11 PM-5:07 PM at 53:10-19 (Marshall testifying). Phoenix’s grading of ELLs is not a useful or accurate tool to determine whether the program is effectively overcoming language barriers. 337. Phoenix does not keep any records reflecting observations of ESL teachers. N.T. Aug. 19, 2016, 9:32 AM-12:19 PM, 83:17-20 (Hilt testifying). 338. Outside of the grant-funded summer refugee program, Ms. Ortiz was observed by a member of the ESL department at SDOL only once during the six years she worked at Phoenix. N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 67:20-22; 66:3-9, 66:11-14 (Ortiz testifying that Kaitlin Bartlett observed her once). The only written feedback from the ESL department she ever received about her teaching performance was in relation to this 2014 observation by Kaitlin Bartlett. Id. at 66:16-67:2. 339. Ms. Ortiz was observed twice during the optional, grant-funded summer refugee program in 2014 and 2015 by Amber Hilt. N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 66:9-10, 67:10-19 (Ortiz testifying).
C. Informal Survey
340. Phoenix has not done a formal assessment of data regarding its English language program. Heisey Dep. 87:6-87:15; Hilt Dep., 106:19-106:22.
341. The only ESL survey Phoenix has undertaken is a self-survey that does not include any quantitative analysis. N.T. Aug. 18, 2016, 2:11 PM-5:07 PM, 48:18-50:5, 53:10-55:1 (Marshall testifying).
342. The only form that Ms. Ortiz completed relating to evaluating Phoenix’s ESL program was an internal review survey she completed at the beginning of each school year on which she listed “the positives of the program as well as things that needed to be worked on.” N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 70:9-23 (Ortiz testifying).
343. Ms. Ortiz identified acquiring more staffing and technology as “needs.” Id. at 70:22-24. 344. Follow-up meetings to these annual surveys were not long, only about 20 minutes. N.T.
Id. at 73:2-4. 345. There was no program-wide or in-depth analysis of ACCESS scores in connection with
the annual survey; only a general comment that writing and reading scores were low. N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 73:5-10 (Ortiz testifying). 346. No one made any changes to ESL delivery at Phoenix as a result of an annual internal survey. N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 73:11-15 (Ortiz testifying). 347. In order to assess an ESL program, it is important to examine quantifiable data such as ACCESS scores to determine whether there was growth for ELL students, whether and how quickly students are moving through the levels of English proficiency based on where they started and to assess the distribution of ELL students with regard to the four skills and examine how students are progressing in each of the four skill domains
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(reading, writing, listening and speaking). An evaluation should also consider how students are doing after they exit the ESL Program and how they are fairing once they are mainstreamed. N.T. Aug. 18, 2016, 2:11 PM-5:07 PM, at 46:9-47:9 (Marshall testifying). 348. The only ESL survey relating to Phoenix’s program produced by the SDOL consists of a self-monitoring survey that does not include a quantitative analysis to permit an inquiry into whether the program is effectively overcoming language barriers. Rather, the “information in each category is suggestive and broad brush” and is not “robust” enough to determine whether the program is effective. There is no real breakdown or analysis of ACCESS scores to determine how students are doing. N.T. Aug. 18, 2016, 2:11 PM-5:07 PM at 56:18-57:1 (Marshall testifying). 349. A cursory review of 2015 “snapshot” data comparing McCaskey to Phoenix disclosed “a glaring difference” in reading and writing ACCESS scores. ELL students at Phoenix were at much lower levels in reading and writing while ELL students at McCaskey are “clearly doing a much better job of getting them through the levels in the reading and the writing” which is a critical issue reflecting how the program would impact students who are SLIFE. N.T. Aug. 18, 2016, 2:11 PM-5:07 PM at 57:21-59:5 (Marshall testifying). 350. “[T]the evidence shows that what they're doing is almost holding them back from making progress in the language, you know, it's detrimental what they're doing… they're not overcoming their language barriers and they are holding them back from progress they could be making in language N.T. Aug. 18, 2016, 2:11 PM-5:07 PM, at 59:15-20 (Marshall testifying).
IX. Phoenix’s Method of Teaching ELLs in an Accelerated Credit Setting Did Not Produce Results Indicating that Language Barriers Were Being Overcome.
351. Although Phoenix did not undertake any meaningful assessment of whether its program was successful in overcoming ELLs’ language barriers, all available evidence suggests that teaching ELLs in an accelerated credit setting with minimal ESL and language supports is not an effective way to overcome language barriers.
352. From a teacher’s perspective, the accelerated model at Phoenix made it more difficult to provide sufficient support to ELLs. N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 60:11-13 (Ortiz testifying). She explained that for ELLs, she would instead “want them to be in an extended program and things would have to be slowed down.” N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 60:17-22 (Ortiz testifying). It would be better to provide “more assistance, more time to learn things, possible have not just one teacher… There could be an aide in the classroom as well, and not to be in with various levels…their anxiety level is lower when they’re amongst students that they feel comfortable with.” N.T. Aug. 22, 2016, 4:13 PM-5:45 PM, 61:2-8 (Ortiz testifying).
353. Jandy Rivera agreed that the accelerated program utilized at Phoenix absolutely did not produce results indicating that language barriers were actually being overcome. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 54:21-25 (Rivera testifying); accord N.T. Aug. 22,
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2016, 4:13 PM-5:45 PM, 75:17-22 (Ortiz testifying that Phoenix’s program is not effective at overcoming the language barriers for entering-level ELLs). 354. As a result of the insufficient language support, it is extremely difficult for Plaintiffs to communicate with their teachers or classmates. 355. Anyemu made a point of devoting 10 or 15 minutes a day to trying to speak with his classmates and teachers in order to improve his English, but when he needed to tell staff something or they needed to tell him something, communication was “very hard.” N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 30:4-20 (Anyemu testifying). 356. Khadidja testified that she does not understand her teachers and staff, or her classmates speaking English. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 19:14-24. 357. Qasin testified that he understood only his English teacher, and did not understand any other teachers or classes. N.T. Aug. 16, 2016 1:29 PM-5:27 PM, 42:17-20, 42:24-43:4, 44:9-17. 358. As a result of the insufficient language support, many students become disillusioned with school. 359. Khadidja testified that Phoenix is a “bad school” and a different school would be better than to go to Phoenix where “you don’t understand anything and just go and sit there.” N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 25:4-11. She understands that “[i]n America, if you don’t get an education you’ll have a very hard life…” N.T. Aug. 16, 2016, 1:29 PM5:27 PM, 25:17-18 (Khadidja testifying). 360. Sui Hnem “sometimes want[s] to give up.” N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 101:12-13 (Sui Hnem testifying). 361. Qasin stopped attending Phoenix, but has asked, clearly and repeatedly, to continue his education at McCaskey. E.g., Ex. 26 (ACLU letter demanding that Qasin be transferred to McCaskey). 362. Immigrant ELLs do not understand their core classes at Phoenix or what happens during the school day. 363. Khadidja could not explain what she studied in two of her classes because “they speak and write in English and I don’t understand.” N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 19:4-5, 8-11. She could also not understand what was happening in the daily “Town House” homeroom meeting. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 18:11-17 (Khadidja testifying). 364. Qasin did not understand anything being taught in class, except for Ms. Ortiz’s ESL course. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 42:17-20, 42:23-43:4, 44:9-17 (Qasin testifying). He responded to the Court’s question that he sat in class all day and did not understand anything. Id. at 73. He indicated that it was “impossible” to learn at Phoenix and that if he stayed there it would take him “10 years” to graduate. Id. at 57. 365. Anyemu could not explain what the point of the class was or remember a single thing he did in Counseling class. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 26:8-11 (Anyemu testifying).
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366. Van Ni testified that she has trouble understanding what is being taught in core classes because she does not understand what is being said and finds it hard to understand the English speaking students. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 83:18-84:1. See also N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 100:16-20 (Sui Hnem testifying that her core classes are very difficult because everything is in English).
367. Some of the Plaintiff’s schoolwork—including tests—reflects exercises they simply copied, or answered with the help of their teachers. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 23:1-6 (Khadidja testifying that she is instructed to copy material from the board but is not learning what any of the words or concepts mean); N.T. Aug. 16, 2016, 1:29 PM5:27 PM, 24:3-8, 24:23-25:3 (Khadidja testifying that when she does not understand an activity or a test, she asks for help, and teachers “help” by giving her the answers).
X. McCaskey International School Has a Comparatively Strong English Language Program That Would Better Serve the Educational Needs of Plaintiffs and Class Members
368. The International School provided at McCaskey is specifically designed for students like Plaintiff Class Members who are newly arrived SLIFE. It is described by the District as follows:
The International School located at McCaskey East for grades nine to 12 provides intensive ESL support and content based ESL instruction in a one year program, primarily for entering students. This unique, small, learning community introduces new cultural values and beliefs while respecting the cultural diversity brought by the students. Students participate in ESL, sheltered instruction in science, sheltered instruction in math, sheltered instruction in social studies and enrichment subject. Students develop a beginning level of English proficiency and prepare to enter another small learning community of their choice, based on their personal interest. Key features of the international school include, close communication with families, access to appropriate translation services, and assistance in connecting to community resources. Eligibility for this program is determined through screening conducted at the enrollment center in collaboration with the facilitator of the international school.
Ex. 8 at 1; N.T. Aug. 18, 2016; 9:42 AM-2:11 PM, 143:20-144:11 (Marshall testifying).
369. The school as described by the District “conforms exactly” to what is known as a newcomer program and ensures Entering level students receive “intensive English and content material from day one, but with language incorporated into the content.” N.T.
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Aug. 18, 2016, 9:42 AM-2:11 PM at 145:1-4 (Marshall testifying). A newcomer school is “intended for English learners, immigrants, refugees of whatever age at the secondary level.” Id. at 145:12-14. While the program focuses on Entering level students, it can include a student at the Emergent level if the student has gaps in schooling or low literacy and therefore needs a newcomer program. Id. at 145:18-21. It focuses on a small group of students that work together as a learning community. Id. at 145:4-7. 370. Hilt agrees that the International School is good at progressing SLIFEs and that the International school is a great example of the District adopting nationally recognized best practices to educate ELLs. N.T. Aug. 19, 2016, 9:32 AM-12:19 PM, 102:1-7 (Hilt testifying). 371. Beginning/entering ELLs at McCaskey have two 48-minute periods of ESL per day. Ex. 21 at 11 (McCaskey High School Campus 2015/2016 Curriculum Guide) (students “take two courses of ESL (English as a Second Language) at one of two proficiency levels, determined by the International School Staff.” (parenthetical in original)). 372. Importantly, the McCaskey International School offers sheltered instruction in core classes for beginning/entering ELLs for their content classes. Ex. 21 at 11 (McCaskey High School Campus 2015/2016 Curriculum Guide) (“Students attend mathematics, science, social studies and technology classes (sheltered content)….”). 373. Pull-out is an inappropriate model for SLIFE because “SLIFE need an entire day of instruction [that is] tailored to them.” N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 163:10-13 (Marshall testifying). There is “no reason” to pull out SLIFE from the classroom, because SLIFE should always be in a classroom that is “appropriate for them.” Id. at 163:12-17. The only time it is appropriate to pull out a SLIFE is when the district is “low incident,” meaning there are very few, perhaps only one, SLIFE. Id. at 18-25. 374. The sheltered instruction model used at McCaskey gives Entering Level newly arrived immigrant students instruction in the content areas in a program where the content and methodology are adapted by a teacher who knows how to teach both language as well as content. The teacher is trained to provide language instruction while teaching concepts in an integrated manner. Id. at 140:5-17. Teachers must teach cognitive development level concepts but with very low level English. “It takes skill to do this.” Id. at 147:2-4. 375. The International School is beneficial because it is a cohort model whereby students form a learning community and stay with each other all day. A “big benefit” of this is that teachers share students and compare notes and collaborate and can teach subjects thematically. Id. at 149:12-150:5. The cohort model enables students to access the curriculum more readily. Id. at 150:12-14. Based on a review of the ESL instructional services matrix, it is apparent that “McCaskey identifies [SLIFEs] and creates a section” just for that population of students. Id. at 162:20-22. McCaskey has two rosters of SLIFE, which permits small group instruction. Id. at 163:2-5. 376. In addition, SLIFE belong in a program that is specifically designed for them because “they are a particular type of student getting used to school and the way . . . school [is
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done] in this county.” Id. at 165:12-16. Other ELLs, even entering or beginning level ELLs, do not need the programming specifically designed for this type of student. Id. at 165:15-17. Phoenix does not provide a separate section for “limited formally schooled students” or SLIFE. Id. at 164:8-15. 377. In addition to sheltered instruction in core subjects, the International School also focuses on “teaching cultural values and norms while fostering an environment of tolerance and diversity.” Ex. 21 at 11 (McCaskey High School Campus 2015/2016 Curriculum Guide). A strong emphasis on culture and teaching students about school are both beneficial to newcomers. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM at 146:1-6 (Marshall testifying). 378. The International School model at McCaskey would be beneficial for all Plaintiffs, even for a student like Alembe Dunia, who although too old to accrue enough credits to earn a high school diploma, being SLIFE, could benefit from a one-year program designed specifically for SLIFE that provides a “window into math, science, social studies,” as well as intensive English language instruction. Id. at 167:2-16. 379. Several of the Named Plaintiffs’ younger siblings or friends attend McCaskey and have been more successful learning English and advancing their education than their Phoenixstudent siblings who have been in school the same amount of time. 380. For example, Van Ni and Sui Hnem’s younger brother has just finished tenth grade at McCaskey in the International School, where he receives more ESL and brings books and homework home to work on, and he has been able to learn much more English than his sisters. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 80:3-5; 85:9-21, 93:18-20 (Van Ni testifying); N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 101:22-102:1 (Sui Hnem testifying). 381. Khadidja’s sister, Nouracham, has learned better English at McCaskey, where she can bring work home, than Khadidja has at Phoenix. N.T. Aug. 16, 2016, 1:29 PM-5:27 PM, 17:19-18:2 (Khadidja testifying). See also N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 59:2260:3 (Anyemu testifying “I think McCaskey would be better for me because the school is big and they have more teachers and they don’t go fast like at Phoenix, so McCaskey they go slow they make sure [to cover] the material before they move on, but that wasn’t the case at Phoenix[.]”).
XI. SDOL Was on Notice About Illegal Treatment of Immigrant ELLs and Did Not Act to Remedy the Problems.
382. Refugee resettlement caseworkers have complained to District officials about delays and denials in enrollment of older immigrant and refugee students since 2010. N.T. Aug. 16, 2016, 9:44 AM–12:16 PM, 69:23-73:5 (Mastropietro testifying). In 2013, the District was sued in Lancaster County Court of Common Pleas for refusing to enroll a 19-yearold Nepali immigrant student, and was forced to enroll him. N.T. Aug. 22, 2016 4:13 PM-5:45 PM, 27:8-24 (Abrom testifying). The problems re-emerged in 2015, N.T. Aug. 16, 2016, 9:44 AM–12:16 PM, 78:1-81:16 (Mastropietro testifying), and have persisted.
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383. Between November 2015 and March 2016, CWS and LRS brought to the attention of Jack Blackman and Amber Hilt, who often enlisted Arthur Abrom, enrollment problems involving six different refugee students, including that of Plaintiffs Van Ni, Sui Hnem, Khadidja and Qasim. (Tim Purcell notifying Amber Hilt by email that Qasin was denied enrollment); N.T. Aug, 17, 2016, 9:32 AM-12:43 PM, 39:1-4 (Chesson testifying that a conference call was held with LIRS staff and Amber Hilt and Jack Blackman on January 4, 2016 regarding Qasin’s enrollment issues); Id. at 62:4-24, 84:25-85:1 (Chesson testifying regarding meeting between LRS staff Madav Sharma, Willis Orlando and Elise Chesson and District officials Dr. Abrom, Amber Hilt, and Jack Blackman on February 11, 2016 to discuss concerns about delays and denials of enrollment, including case of Khadidja Issa).
384. The circumstances around Khadidja’s enrollment screamed out that there was a problem with SDOL’s process with educating immigrant and refugee students that enrolled to attend school. Khadidja had been recorded enrolled by SDOL as of November 18, 2015, triggering the flow of state and federal funds. Ex. 15 at LSD21 (listing “District Enrollment Date” as 11/18/15). Nevertheless, Khadidja had not been allowed to attend school as of January 21, 2016 when her caseworker Bilal AlTemimi brought the issue to SDOL’s attention. Ex. 83 (Emails between Bilal and Hilt, Bilal reporting Khadidja not attending school). Despite a lengthy email exchange between Bilal and Amber Hilt that Mr. Blackman was copied on, Mr. Blackman purports to have ignored the entire email which claimed – correctly – that Khadidja was being refused entry to school. N.T. August 22, 2016, 9:27 AM – 12:34 PM, 27:2-28:1 (Blackman testifying that he did not read three email exchanges he was copied on about Khadidja enrollment). He ignored the actual substance of the email even when it was further elevated as an issue because he sent an inadvertent reply to Bilal that began,“[t]his guy is nuts,” and participated in a meeting, with his supervisor Dr. Abrom, about the exchange. N.T. Aug. 22, 2016, 9:27 AM – 12:34 PM, 41:2-16, 42:12-43:16 (Blackman testifying); Ex. 16 (Email Jan. 21, 2016 Blackman to Bilal). No investigation or corrective action about the enrollment/placement process occurred as a result of the email exchange or the meeting. N.T. Aug. 22, 2016, 9:27 AM – 12:34 PM, 44:23-45:12;48:4-13 (Blackman testifying).
385. A more organized effort to fix the enrollment problems and address perceived deficiencies in the education being provided by Phoenix began in January and February of this year, when new LIRS caseworker Elise Chesson took over Qasin and Khadidja’s cases. Ms. Chesson learned from her LRS colleagues that they too experienced problems with student enrollments. N.T. Aug, 17, 2016, 9:32 AM-12:43 PM, 43:17-44:10. She researched the law by looking at the Pennsylvania Department of Education, the U.S. Department of Education, and the Education Law Center websites. Id. at 44:11-45:12. She also accompanied Khadidja to her orientation at Phoenix on February 17, where she witnessed the stringent security measures and learned that education for ELLs seemed deficient. Finally, she brought her concerns to Sheila Mastropietro at Church World
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Services. Ex. 55 (emails between Ms. Chesson and Ms. Mastropietro). Ms. Mastropietro, who has been involved in refugee resettlement work for nearly thirty years, prodded SDOL officials into a meeting. N.T. Aug. 16, 2016, 9:44 AM–12:16 PM, 84:1985:5 (Mastropietro testifying). 386. On March 17, 2016, Superintendent Rau and Dr. Abrom met with Ms. Chesson, Ms. Mastropietro and her associate, Valentina Ross. N.T. Aug. 16, 2016, AM,PM,9:44 AM– 12:16 PM, 84:19-85:15, 87:7-21 (Mastropietro testifying) The resettlement workers raised concerns about how Phoenix operated and served ELLs, including insufficient ESL services compared with the International School, the punitive and restrictive atmosphere at Phoenix, enrollment problems, and why overage refugees were being sent to Phoenix. Id. at 87:7-21. Dr. Rau refused to discuss the plight of the individual students raised by Ms. Chesson, but promised to investigate the allegations and meet again after school ended. Id. at 88:23-89:12 (Mastropietro testifying); N.T. Aug. 19, 2016, 1:29 PM, 454:445:8 (Rau testifying); Rau Dep. 106:9-107:2. 387. In early April, Ms. Chesson met with Hilt, Blackman and Heisey to address Qasin’s problems with student-on-student bullying and the lack of sufficient academic supports at Phoenix. See Ex. 57 at 468 (Chesson emails to Dr. Abrom raising concerns regarding bullying of Qasin); N.T. Aug, 17, 2016, 9:32 AM-12:43 PM, 104:6 (Chesson testifying about April 7 meeting). Dr. Abrom cavalierly and insensitively dismissed Qasin’s bullying allegations, saying that “the events that [Qasin] described, even if they occurred, were not severe, persistent or pervasive”; that “Qasin has provided no verifiable and/or credible information to substantiate the bullying”: and that “Qasin’s statement that he feels unsafe at Phoenix Academy is neither credible nor reasonable.” Ex. 58 at ISSA 473 (April 15, 2016, email from Abrom to Chesson). 388. On April 26, the ACLU of Pennsylvania sent a letter addressed to Dr. Rau, Dr. Abrom and Principal Heisey detailing enrollment, academic support and bullying problems experienced by Qasin Hassan at Phoenix, and requested that the District transfer him to McCaskey. Ex. 26 (ACLU letter). The District never responded to the letter, and refused to admit Qasin to McCaskey. Abrom Dep. 32:14-19; 35:7-15. Dr. Rau indicated that she recognized that the letter was an indication that legal action may be imminent, but her only response was to give the letter to the District’s solicitor; she took no action to investigate the allegations concerning Qasin. N.T. Aug. 19, 2016, 1:29 p.m. (Rau) 76:177:3. In her words, “I’m not involved in that level of the weeds.” Id. 389. Dr. Rau, Dr. Abrom and Ms. Hilt met on July 13, 2016, with Ms. Mastropietro and her associate to follow up on the March 17 meeting. Ms. Mastropietro presented concerns about Phoenix Academy’s inadequate ESL, the accelerated curriculum, enrollment delays and denials, pat down searches, restrictive dress code, the no-homework rule, and the issue of why kids are sent to Phoenix and not McCaskey’s International School. N.T. Aug. 16, 2016, 9:44 AM–12:16 PM, (Mastropietro) 95:2-96:12, 98:23-99:22.
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390. The only changes identified by Dr. Rau on July 13 in response to all of the concerns raised by CWS and LRS were that Phoenix would no longer demonstrate the seventh level of the Handle With Care restraint system during orientation, and that she recommended to Camelot that refugee students not be patted down in the morning unless they were suspected of possessing contraband and consider allowing students to take home books. N.T. Aug. 16, 2016, 9:44 AM – 12:16 PM (Mastropietro) 99:23-25; N.T. Aug. 19, 2016, 1:29 p.m. (Rau) 107:12-108:14; Id. at 109:19-110:13. When Ms. Mastropietro raised concerns about how Phoenix could graduate students so quickly when they still didn’t speak English, Rau replied that they receive credit for “seat time,” by simply being present in class N.T. Aug. 16, 2016, 9:44 AM. – 12:16 PM (Mastropietro) 103:12-104:1. None of the changes announced by Dr. Rau involved moving the ELLs from Phoenix to McCaskey. N.T. Aug. 19, 2016, 1:29 PM (Rau) 112:4-9.
391. This lawsuit was filed and served on July 19. 392. Despite months of enrollment complaints involving numerous immigrant and refugee
students, and concerns raised about the harsh security measures, deficient academic supports for ELLs, and bullying at Phoenix, as of August 19, when Dr. Rau testified in federal court, she had not yet commenced an investigation into how Phoenix operates. N.T. Aug. 19, 2016, 1:29 p.m. 84:16-85:4 (Rau testifying). She was unaware of whether Camelot had ever demonstrated that the accelerated-credit model worked for ELLs or SLIFEs. Id. at 93:15-94:5. Despite her lack of knowledge about Phoenix after one year at the District’s helm, and the numerous complaints raised about the Phoenix operation, including a federal court class-action civil rights lawsuit, her recent recommendation to the SDOL Board of Directors that they form a committee to study ELL services did not include an examination of Phoenix Academy. Id. at 88:12-89:1. 393. Dr. Rau was disappointed when the instant litigation was filed because she believe the refugee agencies “instigated” the lawsuits. N.T. Aug. 19, 2016, 1:29 PM, 47:19-23; 103:7-11 (Rau testifying). 394. Furthermore, despite the history of enrollment problems, neither Dr. Abrom nor Dr. Rau have directed Mr. Blackman to do anything differently in terms of getting immigrant students enrolled in school. N.T. Aug. 22, 2016, 9:27 AM-12:34 PM, 48:14-18 (Blackman testifying). The only change Blackman has made, on his own initiative, is to try to be “more conscious communicating” with Ms. Riddick and the enrollment office. N.T. Aug. 19, 2016, 9:27 AM- 12:34 PM, 44:23-45:12; 48:4-13 (Blackman testifying). 395. The District also has expressed little concern and taken no action about the complaints of bullying. See discussion re Qasin, supra at ¶ 387. When Anyemu repeatedly reported bullying to Phoenix teachers or staff, he was advised that consistent with the Camelot rules encouraging peer confrontation that he should confront the bullies himself. N.T. Aug. 17, 2016, 2:06 PM-3:56 PM, 43:8-44:6 (Anyemu testifying). He saw no significant
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improvement in classmates’ behavior after alerting staff to the bullying problems. Id. at 44:6-18. 396. The District’s resistance to placing Plaintiffs and Class Members at McCaskey and its International School ignores the immigrant and refugee ELLs’ best interests. The District has pointed to an imperative to keep graduation rates high enough not to attract state monitoring. N.T. Aug. 19, 2016, 1:29 p.m. 39:23-40:7 (Rau testifying). Dr. Rau testified she did not want the District to be known as a “dropout factory.” Id. at 41:8-22. And she has criticized local refugee resettlement agencies for being “very narrowminded” in thinking about their “small select group” and not about everyone else. Id. at 42:18-43:7. When the District makes changes for “one small group of students there’s a ripple effect out into the rest of the community of students.” Id. at 43:8-12. The District does not have a federal-law obligation to help those other non-ELL students overcome language barriers. 397. In response to the Court’s question about why the District was opposed to transferring Class Members to McCaskey, Superintendent Rau responded, “I think that our biggest -one of our biggest concerns is that the School Code gives the authority to the Board of Directors to place students in a school. And there's a real concern of taking away the authority of a School Board in making those decisions.” N.T. Aug. 19, 2016, 4:07 p.m. – 4:26 p.m 12:14-13:13 (Rau testifying).
XII. Summary of Dr. Helaine Marshall Undisputed Expert Opinions
398. Dr. Helaine Marshall is an Associate Professor of Education, and the Director of Language Education Programs, at Long Island University. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 58:1-2 (Marshall testifying), Ex. 80 (Marshall CV). Dr. Marshall’s educational background and more than thirty years of professional experience are in TESOL, Teaching English to Speakers of Other Languages. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 58:9-59:13 (Marshall testifying) Her sub-specialty is in teaching ESL to SLIFE, Students with Limited Formal Interrupted Education. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 84:6-11 (Marshall testifying). She has published scholarly books and peer-reviewed articles on the subject. Ex. 80 at 2-4. She has also consulted with the states of New York and Massachusetts, and various individual schools and districts, on how to teach ESL for SLIFE. Ex. 80 at 2, 9-10. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 66:22- 69:7 (Marshall testifying)
399. Plaintiffs tendered Dr. Marshall under F.R.E. 702 as an expert in the field of TESOL, ESL programming, and meeting the needs of students with limited or interrupted formal education. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 84:12-16 (Marshall testifying). The Court accepted her as a qualified expert without objection from Defendant. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 95:24-96:5 (Marshall testifying).
400. Dr. Marshall’s testimony was unrebutted by any other expert. Indeed, the District did not produce an expert or provide to the Court any peer-reviewed or other studies to support
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the proposition that Phoenix program is supported in any way by sound educational theory or deemed a legitimate experimental strategy. Accordingly, Dr. Marshall’s expert opinion regarding the Phoenix program was reasonably based on a wide range of the District’s own recent documents as well as multiple interviews with Named Plaintiffs, parents, caseworkers and former teacher Ms. Rivera all of which is reflected in Information Considered for Expert Report by Helaine W. Marshall, Ph.D. (Ex.82). 401. Dr. Marshall expressly opined that the Phoenix program is not informed by an educational theory recognized as sound by experts in the field or deemed a legitimate experimental strategy. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 120:9-16 (Marshall testifying). Rather, the English immersion ESL model provided to Entering Level students who are SLIFE in an accelerated credit recovery program has been uniformly rejected by the field. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM at 120:11-16 (Marshall testifying). Second, Dr. Marshall concluded that the programs and practices used by Phoenix are not reasonably calculated to implement the proposed educational theory because it is not implemented in a way that makes it likely to succeed. N.T. Aug. 18, 2016, 9:42 AM-2:11 PM at 120:22-25 (Marshall testifying). Third, Dr. Marshall opined that there was no evidence that Phoenix program produces results indicating that the language barriers confronting students are actually being overcome. Instead, based on her analysis of the program and the fact that the students are “still at lower levels of English and the transcripts are telling us they are not understanding what’s going on in class,” N.T. Aug. 18, 2016, 9:42 AM-2:11 PM, 46:2-4 (Marshall testifying). “Phoenix is not overcoming the language barriers for this population.” N.T. Aug. 18, 2016, 9:42 AM2:11 PM, 45:23-24 (Marshall testifying)
CONCLUSIONS OF LAW
I. The Class of 17-21 Year-Old Immigrant and Refugee Children Should Be Certified
“I want to make sure changes happen so people who would come after me, refugees come after me they can be in better shape than me.”-Anyemue Dunia N.T. Aug. 17, 2016, [2:06 p.m. – 3:56 p.m], [60:9-11]
A. Class Certification Requirements
1. Plaintiffs seek class certification of the following class:
All limited English proficient (“LEP”) immigrants, who, at any time after August 1, 2013, while aged 17-21, were, are, or will be in the future, excluded from Defendant School District of Lancaster’s main high school, McCaskey—either as a result of being refused enrollment altogether, or through involuntary placement at Phoenix.
2. “To obtain class action certification, plaintiffs must establish that all four requisites of Rule 23(a) and at least one part of Rule 23(b) are met.” Baby Neal v. Casey, 43
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F.3d 48, 55 (3d Cir. 1994); see also Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613 (1997).

3. Rule 23(a) that:

Members of a class seeking certification must demonstrate pursuant to

impracticable;

a. the class is so numerous that joinder of all members is

b. there are questions of law or fact common to the class;

c. the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

d. interests of the class.

the representative parties will fairly and adequately protect the

4. Under Rule 23(b)(2), members of a putative class must further show 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 appropriate respecting the class as a whole[.]” Fed. R. Civ. P. 23(b)(2).

B. Numerosity

5. “The numerosity prerequisite is satisfied as long as the class representatives can show impracticability of joinder, even if the exact size of the class is unknown.” Santiago v. City of Philadelphia, 72 F.R.D. 619, 624 (E.D. Pa. 1980), see also In re K-Dur Antitrust Litig., No. 01-1652, 2008 U.S. Dist. LEXIS 118396, at *3 (D.N.J. Apr. 14, 2008), at *3 (“No threshold number is required to satisfy the numerosity requirement, and the most important factor is whether joinder of all parties would be impracticable for any reason.”); No minimum number of plaintiffs is required to maintain a suit as a class action . . . .’” Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001)).

6. The numerosity requirement is relaxed where injunctive and declaratory relief is sought. See Weiss v. York Hospital, 745 F.2d 786, 808 (3d. Cir. 1984) (declining to apply a strict application of the numerosity requirement after concluding “that the interests of the plaintiff class and the interests of the defendants will not be affected significantly by permitting [Representative Plaintiff] Weiss to maintain this class action. . . .”).

7. Populations under 20 can satisfy the numerosity requirement of Rule 23(a). See, e.g., Jackson v. Danberg, 240 F.R.D. 145, 147 (D. Del. 2007) (concluding that a putative class of 16 prisoners who had been sentenced to death was sufficiently numerous); Grant v. Sullivan, 131 F.R.D. 436, 446 (M.D. Pa. 1990) (noting that a court “may certify a class even if it is composed of as few as 14 members”); see also Manning v. Princeton Consumer Discount Co., 390 F. Supp. 320, 324 (E.D. Pa. 1975) (certifying a class of 15 persons who purchased cars at Springfield Dodge between June 1973 and June 1974 with similar financing conditions), aff’d, 533 F.2d 102 (3d Cir. 1976); see also Kazarov v. Achim, No. 02 C 5097, 2003

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U.S. Dist. LEXIS 22407, at *4 (N.D. Ill. Dec. 12, 2003) (certifying class of 10-17 immigrants who were likely indigent and unable to speak English).
8. SDOL has represented that there are at least 18 refugee students enrolled at Phoenix Academy. [Def.’s Resp. to Class Cert. Mot., ¶ 2 (ECF No. 25) This alone is sufficient to justify class certification under the circumstances of this case.
9. The proposed class also includes non-refugee immigrants who attend Phoenix Academy, or will be placed there in future. [FOF ¶ 38]
10. The class also includes immigrant and refugee children who were denied enrollment by SDOL, in the same way that Alembe, Khadidja and Qasim were, and never had that illegal denial rectified. SDOL does not maintain records of enrollment refusals [FOF ¶ 87], but the Court can infer additional enrollment refusals requiring a remedy from the enrollment practices demonstrated at the hearing.
11. “[N]umerosity is met where, as here, the class includes individuals who will become members in the future. As members in futuro, they are necessarily unidentifiable, and therefore joinder is clearly impracticable.” Gomez v. Ill. State Bd. of Educ., 117 F.R.D. 394, 399 (N.D. Ill. 1987); see also Stewart v. Abraham, 275 F.3d 220, 227 (3d Cir. 2001). This Court must ensure that future members of the class begin their education promptly after they enroll, and in the school that can overcome their language barriers, so that their limited time in the school system provides them the maximum benefit to which they are entitled under law.
12. In addition to class size, other factors relevant to evaluating the impracticability of joinder include “judicial economy, the geographic diversity of class members, the financial resources of class members, the relative ease or difficulty in identifying members of the class for joinder, and the ability of class members to institute individual lawsuits.” Anderson v. Dep’t of Public Welfare, 1 F. Supp. 2d 456, 461 (E.D. Pa. 1998).
13. In this case, joinder is highly impracticable. Because of their limited English proficiency, limited resources, and limited knowledge of the American legal system it is highly unlikely that Class Members in this matter would be able to bring individual cases to assert their rights. See Ray M. v. Bd. of Educ., 884 F. Supp. 696, 705 (E.D.N.Y 1995) (finding sufficient numerosity because joinder of individuals was impracticable for plaintiff preschool children denied special education services who lacked the capacity to bring legal action on their own, had few financial resources, limited proficiency in English, and no facility with American legal system); see also Rodriguez v. Berrybrook Farms, Inc., 672 F. Supp. 1009, 1013 (W.D. Mich. 1987) (finding impracticability because class of migrant labor workers lacked formal education, facility with English language, and knowledge of legal system); see also Sherman v. Griepentrog, 775 F. Supp. 1383, 1389 (D. Nev. 1991) (finding joinder impracticable in action brought for injunctive and declaratory relief challenging Medicaid policy because class consisted of poor and elderly or disabled people who could not bring individual lawsuits without great hardship).
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C. Commonality
14. The commonality requirement of Rule 23(a)(2) is satisfied if the named plaintiffs “share at least one question of fact or law with the grievances of the prospective class.” Baby Neal, 43 F.3d at 56; see also Stewart, 275 F.3d at 227. Common questions “need only exist, not predominate.” Baby Neal, 43 F. 3d at 60. “[B]ecause the requirement may be satisfied by a single common issue, it is easily met.” Id.
15. “A finding of commonality does not require that all class members share identical claims, and indeed factual differences among the claims of the putative class members do not defeat certification.” In re Prudential Ins. Co. America Sales Practice Lit. Agent Actions, 148 F.3d 283, 310 (3d Cir. 1998).
16. There are numerous questions of law and fact common to the class. All members of the class are entitled to enrollment up through the age of 21, regardless of credit status, and promptly within 5 days after enrollment, both which were regularly violated, and appear not to have even been understood by SDOL until this lawsuit was filed. [FOF ¶ 47]; 24 Pa. Cons. Stat. Ann. § 13-1301; 22 Pa. Code § 11.11(b).
17. All members of the class have been, and will continue to be subject to SDOL’s rigid practice of sending all older refugee and immigrant children to Phoenix if they are undercredited, without regard to language and academic proficiency, and without regard to whether the educational model for educating new immigrant and refugee children used at Phoenix is adequate to overcome language barriers that impede equal participation by its students in instructional programs. [FOF ¶ 94 et seq. ].
D. Typicality
18. Rule 23(a)’s typicality requirement asks “whether the named plaintiffs’ claims are typical, in common-sense terms, of the class, thus suggesting that the incentives of the plaintiffs are aligned with those of the class.” Baby Neal, 43 F.3d at 55. Factual differences do not defeat typicality “if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the absent class members, and if it is based on the same legal theory.” Stewart, 275 F.3d at 227-28; see also Hassine, 846 F.2d at 177-78 (stating that like commonality, the typicality requirement “mandates only that complainants’ claims be common, and not in conflict.”). As the Third Circuit has noted: “even relatively pronounced factual differences will generally not preclude a finding of typicality where there is strong similarity of legal theories.” Baby Neal, 43 F.3d at 58. “Where an action challenges a policy or practice, the named plaintiffs suffering one specific injury from the practice can represent a class suffering other injuries, so long as all the injuries are shown to result from the practice.” Id.; see also Kerrigan v. Phila. Bd. of Election, 248 F.R.D. 470, 476 (E.D. Pa. 2008) (quoting New Directions Treatment Servs v. City of Reading, 490 F.3d 293, 313 (3d Cir. 2007)) (“Conflicts of interest are rare in Rule 23(b)(2) class actions seeking only declaratory and injunctive relief.”).
19. Named Plaintiffs are typical of the class in that all of them are being denied timely enrollment in the SDOL school delivering English language services adequate for them to overcome language barriers, because of delayed or denied enrollment or because of
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automatic placement at Phoenix because due to credit status, regardless of language proficiency or educational needs.
E. Adequacy
20. SDOL does not dispute that Plaintiffs and their attorneys are adequate representatives for the Class. See Defendant’s Response to Plaintiffs’ Motion for Class Action Certification [Def.’s Resp. to Class Cert. Mot. ¶ 4 (ECF No. 25)
F. 23(b)(2) Requirements
21. Under Rule 23(b)(2), members of a putative class must further show 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 appropriate respecting the class as a whole[.]” Fed. R. Civ. P. 23(b)(2).
22. There is no dispute that SDOL has acted on grounds that apply generally to the class, namely that it refuses to enroll any members of the class at McCaskey based on their credit status, without regard to English proficiency or other educational needs.
G. Class Action Conclusion
23. The class proposed by Plaintiffs meets all requirements of Rule 23(a) and (b)(2), and is thus ordered certified.
II. Plaintiffs Have Satisfied the Requirements for this Court to Issue a Preliminary Injunction
24. This Court must weigh four factors to determine whether to issue a preliminary injunction: (a) the likelihood that the moving party will succeed on the merits; (b) the extent to which the moving party will suffer irreparable harm without injunctive relief; (c) the extent to which the non-moving party will suffer irreparable harm if the injunction is issued; and (d) the public interest. Liberty Lincoln-Mercury Inc. v. Ford Motor Co., 562 F.3d 553, 556 (3d Cir. 2009); McNeil Nutritionals LLC v. Heartland Sweeteners, LLC, 511 F.3d 350, 356-57 (3d Cir. 2007).9
B. Plaintiffs have demonstrated likelihood of success on the merits of its EEOA claim.
25. The EEOA provides that “[n]o State shall deny equal educational opportunity to an individual on account of his race, color, sex, or national origin, by . . . the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in instructional programs.” 20 U.S.C. § 1703(f).
9 Plaintiffs are not seeking a ruling on their Equal Protection claims in this Preliminary Injunction proceeding, but preserve those claims for the Court’s consideration of its request for Permanent Injunction.
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26. To prevail under the EEOA, a plaintiff need not prove that the district intentionally denied educational opportunity on account of national origin. C.G. v. Pa. Dep’t of Educ., 888 F. Supp. 2d 534, 574-76 (M.D. Pa. 2012). To state a claim for national origin discrimination under Section 1703(f), plaintiffs need only allege facts showing: “(1) language barriers; (2) defendant’s failure to take appropriate action to overcome these barriers; and (3) a resulting impediment to students’ equal participation in instructional programs.” Id. at 575.
27. There is no dispute that all Plaintiffs have language barriers. [Ans. ¶ 1-2]
28. The leading case articulating criteria for assessing programs serving LEP students for illegal discrimination is Castaneda v. Pickard, 648 F.2d 989 (5th Cir. 1981). See also C.G., 888 F. Supp. 2d at 575 (applying Castaneda to determine whether language program constitutes “appropriate action” under the EEOA); see also Valeria G. v. Wilson, 12 F. Supp. 2d 1007, 1017-18 (N.D. Cal. 1998) (same).
29. Pursuant to Castaneda, a reviewing court must determine: (1) whether a school system is pursuing a program “informed by an educational theory recognized as sound by some experts in the field or, at least, deemed a legitimate experimental strategy”; (2) whether the programs and practices actually used by a school system are reasonably calculated to implement effectively the educational theory adopted by the school; and (3) whether the program, once employed for a sufficient time period to give the plan a legitimate trial, produces “results indicating that the language barriers confronting students are actually being overcome.” Castaneda, 648 F.2d at 1009-10. The test is conjunctive. All three requirements must be fulfilled for SDOL to comply with EEOA.
30. SDOL is familiar with the Castaneda factors, and recognizes that SDOL ESL program for Plaintiffs must satisfy them.
31. Delays or refusals to allow students to go to school as required by State law is by definition a denial of equal educational opportunity. The illegal delays that were experienced by immigrant and refugee students after the students were officially reported enrolled to State and Federal governments was a standard practice of the School District. [FOF¶ 43] There is no evidence this practice was inflicted on non-refugee/immigrant students enrolling at SDOL. The District also refused to allow certain refugee students to attend school based on snap judgments that their intentions about attending school were insincere, despite the completion of the enrollment process, and advocacy by case workers and statements by parents.
32. SDOL has also violated all three Castenada criteria in its education of Plaintiffs at Phoenix.
Castenada Factor 1: Sound Educational Theory
33. The accelerated program used at Phoenix is not an educational theory for overcoming language barriers recognized as sound by experts in the field. Plaintiffs’ Expert, Dr. Marshall, testified that the “accelerated recovery program is totally inappropriate for this population.” [FOF ¶ 245-246] There is “absolutely no contrary research.” [FOF ¶ 249] Dr. Marshall testified, and nobody disputed, that students with entering level proficiency needed their first education in an American school to be slowed down, not sped up – a runway before
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takeoff. [FOF ¶ 38, 247] This need is particularly profound for SLIFE students. [FOF ¶ 246249] No expert disputed this opinion.
34. The educational theory that is recognized as appropriate for students at entering level English proficiency, particularly SLIFE students, is employed at the International School at McCaskey: 2-3 hours of ELL each day, and sheltered instruction of students at the same level in all content classes. [FOF ¶ 256, 371-78 ] Ms. Hilt recognized that “this is actually a great example of the District adopting best practice recognized nationally for how to educate ELLs.” [FOF ¶ 370].
35. In addition to being accelerated, Phoenix’s program lacks the attributes agreed by Dr. Marshall and Ms. Hilt to be best practices for educating new ELLs, including 2-3 hours of ESL and sheltered instruction in content classes with same English proficiency level. [FOF ¶ 254-258 ]
36. Students at Phoenix are also handicapped by not being given homework as is done at McCaskey. [FOF ¶ 321] The patronizing suggestion by Phoenix Executive Director Megan Misnik that ELLs at Phoenix weren’t given homework because they would be frustrated by taking home work that “they’re not going to be able to feasibly do on their own” [FOF ¶ 318] is entirely undermined by the fact that homework is regularly given to younger ELLs at McCaskey. Plaintiffs with siblings at McCaskey see their younger siblings racing ahead in their English language acquisition. [FOF ¶ 379 ]
37. SDOL purports to be satisfying its requirement to provide 2-3 hours of ESL to Entering level students at Phoenix by treating its Communications Arts class as ESL. [FOF ¶ 364] This practice violates the Pennsylvania Department of Education’s interpretation of what state law requires for teaching ESL. [FOF ¶ 267]. SDOL is accelerating Plaintiffs through school by providing them with less ESL than this standard requires, which experts recognize as necessary to overcome language barriers.
Castenada Factor 2: Effective Implementation
38. The program used at Phoenix for new ELLs is not reasonably calculated to effectively implement the educational theory adopted by the school. The structured immersion model that places students at different levels of English proficiency, including native speakers, is not a sound educational theory for beginning ELLs. [FOF ¶ 270] It is also not being implemented consistently or effectively.
39. The strategies for applying structured immersion – for those students with more advanced English proficiency who might benefit – include differentiated instruction, pushin, pull-out, and co-teaching. Dr. Marshall gave undisputed testimony that any differentiated instruction provided at Phoenix could not be effective given the range of English language proficiency levels in content classes, and former Phoenix teachers Rivera and Ortiz gave undisputed testimony that it was not effective. [FOF ¶ 271] The students testimony that they did not understand most of what was taught to them in content classes is consistent with this testimony. [FOF ¶ 243. 357, 363-367]
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40. The other strategies for applying structured immersion were not formalized, i.e., they were applied inconsistently as limited resources permitted, not regularly as part of any coordinated plan so that students could count on their application to advance their comprehension of core content. [FOF ¶ 282-286]
Castenada Factor 3: Results
41. SDOL has no “results indicating that the language barriers confronting students are actually being overcome.” ESL Coordinator Amber Hilt acknowledged that “there is no data at this level that would allow us to determine whether the educational program, the ESL delivered to these students in with the Phoenix accelerated model is working or not.” N.T. 8.19.16 PM, 10:7-10:19 (Hilt testimony). SDOL has elected to not disaggregate its Phoenix ACCESS data to make this assessment, keeping the effectiveness of the program completely hidden from itself as well as the Court. [FOF ¶ 333] Through her own extensive efforts, Dr. Marshall was able to discern from limited data provided by SDOL that Phoenix’s performance on literacy measures– the core measure of “overcoming language barriers” – was far worse than McCaskey’s. [FOF ¶ 349-350]
42. The only “assessment” described at the Preliminary Injunction Hearing was an Internal Survey document filled out by the Phoenix ESL teacher, Maryann Ortiz. [FOF 329, 340-345¶] This review was never entered into evidence by SDOL to show its program was working, and there was no suggestion by Ms. Ortiz or any other witness that this Review constituted a quantitative assessment of progress at Phoenix that would show its accelerated program was actually resulting in students overcoming language barriers.
43. Plaintiffs have demonstrated that the District has not met a single one of the three Castaneda factors and, thus, that Plaintiffs are likely to succeed on the merits of its EEOA claim.
C. SDOL is Deliberately Indifferent to Immigrant and Refugee Children In All Aspects of Their Delivery of Educational Services, In Violation of Title VI
44. 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; see also 34 C.F.R. § 100.3(b)(1)(i)-(vi) (describing specific discriminatory actions prohibited under Title VI).10 Title VI prohibits intentional discrimination, which the Third Circuit has held may be demonstrated through proof of “deliberate indifference.” Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 272-73 (3d Cir. 2014). A plaintiff can establish deliberate indifference by proving that a school district: (1) had actual knowledge of the alleged misconduct; (2) had the power to correct it; and (3) failed to do so. Id. at 273 (citing Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 645-49 (1999) (articulating a deliberate indifference standard in the Title IX context)). Thus, school systems can be found liable under Title VI for discrimination against ELLs not only by their actions but by inaction.
10 There is no question that the District is a recipient of federal funding and subject to Title VI’s anti-discrimination mandate.
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45. Deliberate indifference pervades every aspect of SDOL’s interactions with Plaintiffs and the proposed Class, from enrollment through graduation. This indifference extends from undisputed violations of law, to elevation of District priorities over the educational needs and rights of students, to uninformed assumptions about Plaintiffs’ goals, to casual disregard for serious problems and issues brought to SDOL’s attention. It is only through the efforts of refugee resettlement agencies and this lawsuit that any of the serious violations of Plaintiffs’ legal rights have been addressed; many of these problems remain unresolved and susceptible to repetition.
46. Deliberate indifference towards older refugee and immigrant children begins as soon as they arrive seeking enrollment. Even though Pennsylvania law requires students to start school five days after submission of four required enrollment documents, and even though SDOL’s assignment of an enrollment date triggers the delivery of funds from the Commonwealth of Pennsylvania and the U.S. government, SDOL adopted the regular practice of requiring refugees to wait for weeks until they meet with Mr. Blackman whereby they were assigned to a school. There is no evidence that non-immigrant and refugee students were forced to wait for weeks to start school after their official enrollment date. Some students simply were not enrolled at all, again in violation of State law, at least until their caseworkers intervened on their behalf.
47. SDOL has been deliberately indifferent to its own illegal conduct. As one prominent example, it was brought to SDOL’s attention on January 21, 2016 that Khadidja Issa had not started school, despite having completed the enrollment process in mid-November 2015. [FOF ¶ 54] Mr. Blackman ignored the emails directly relating to his denial of this student’s enrollment, other than to direct an angry missive purportedly about Miss Hilt that began: “This guy is nuts.” [FOF ¶ 384] Even though this email thread became the source of embarrassment for SDOL as a result of its inadvertent transmittal to the initiator of the email thread, caseworker Bilal Altememi, resulting in an in-person meeting, the actual subject of Bilal’s email -- the denial of education to a student for months after she properly enrolled -- was completely disregarded by Blackman and his colleagues. Mr. Blackman testified that no investigation or action to address this situation were initiated by himself or his supervisor Dr. Abrom. [FOF ¶ 384] At trial, Dr. Abrom and other witnesses attempted to rationalize away this violation of Khadidja’s education rights by speculating that there were immunization issues. There is no evidence in the record that there were open immunization issues when SDOL reported Khadidja enrolled to the Commonwealth and U.S. governments; indeed, SDOL would not have made those reports if Khadidja had not completed all paperwork required for enrollment. [FOF ¶ 42-43]
48. An investigation of SDOL’s practices when enrolling and placing older immigrant and refugee students would have revealed that similar denials and delays were inflicted on most of the other Plaintiffs. It might also have revealed similar treatment of other immigrant and refugee students who have been denied entry to SDOL schools, or had their start delayed. To date, no such investigation has occurred.
49. Deliberate indifference in the enrollment and placement process is also demonstrated by the snap judgment that Mr. Blackman made about Qasin Hassan. Even though Qasin manifested his intent to go to school by enrolling, Mr. Blackman decided he could unilaterally override that intention and deny Qasin the free public education that he was entitled
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to because he stood silently apart during the short meeting between Mr. Blackman, Ms. Hilt and Qasin’s family. [FOF ¶ 85] (At trial there was a suggestion that Qasin expressed a desire to work, not go to school – which could not have occurred if he was silent. In all likelihood, that desire to work was not expressed until after his miserable experience at Phoenix, as testified about by Ms. Ortiz). [FOF ¶ 164]
50. Despite the serious violations brought to SDOL’s attention by the refugee agencies on March 17, by the ACLU’s letter of April 26, and again through this lawsuit filed on July 19, it does not appear that any rigorous investigation of past misconduct has been undertaken, or any clear policies developed to protect students from future violations. The most that has been suggested is that Mr. Blackman is endeavoring to “communicate better” with SDOL staff involved with enrollment. [FOF ¶ 394]
51. For those older immigrant and refugee students that SDOL allows in school, SDOL is indifferent to whether they get the meaningful education required by EEOA, or whether they graduate college or career ready – the goal for other students enrolled in SDOL. [FOF ¶ 105-115]
52. SDOL is bound by the requirements of Castenada, and SDOL knows that. Nevertheless, Phoenix was permitted by SDOL to use an educational theory for ELLs that does not satisfy EEOA requirements [FOF ¶ 329 ] , and which SDOL knew was different than the best practices used by SDOL at McCaskey. [FOF ¶ 254-289; 368-371]
53. SDOL actually authorized Phoenix to provide less ESL instruction than required by the State, by counting its Communications Arts class as ESL instruction.
54. Phoenix was also demonstrated to be inferior to McCaskey by every criteria that can be described and measured, other than pace of credit acquisition:
• Qualified teachers [FOF ¶ 176]
• Course offerings [FOF ¶ 167-168]
• Extracurricular activities [FOF 169-171]
• School Performance [FOF ¶ 176]
55. SDOL has also allowed Phoenix to use intrusive search practices, peer confrontation and aggressive behavior management practices on its students that are not used at McCaskey. [FOF ¶ 136-141; 148-161]. SDOL is so deferential to the private company running this public school that its Superintendent had no idea that it used intrusive searches until a year into her tenure, when the practice was confirmed during a July meeting with staff from Church World Services. [FOF ¶ 141]
56. Despite the fact that the refugee agencies brought this and many other serious problems, including violations of law, to SDOL’s attention over the past year, they are considered “instigators” by SDOL. [FOF ¶ 393].
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57. SDOL has knowingly deprived older immigrant and refugee children of these educational rights and benefits for the sole purpose of faster credit acquisition towards graduation. Graduation is one important objective for students at SDOL, but appears to be the sole objective that SDOL is pursuing.
58. The accelerated program that Phoenix delivers is provided as an option to students who come through McCaskey for pursuing their graduation. [FOF ¶ 97] Immigrant and refugee children are not provided that option. [FOF ¶ 98-100] There is no evidence in the record that the accelerated program was designed with ELLs in mind, including SLIFEs. Providing the same “benefit” to students differently situated as a result of national origin in terms of their academic needs and rights is as discriminatory as treating identicially situated students differently on that basis.
59. Equal treatment of immigrant and refugee students, including Plaintiffs, would require that they also get the chance to start at McCaskey so they could begin their education with the runway that the International School provides, and then assess whether to bridge from McCaskey to Phoenix based on their English proficiency, other academic development, and goals about finishing high school and moving on to other education or work. SDOL allows non-immigrant and refugee students who have come through their school system, and their families, to make this kind of choice about how to best pursue their academic goals.
60. Instead, SDOL consigns older immigrant and refugee students to Phoenix until their fast-tracked graduation, rather than allowing them to bridge from McCaskey, as other students do. [FOF ¶ 98-99] The only rationale for this practice presented at trial appears to be concerns about maturity differences between these students, and the student body at McCaskey. This is not a legal reason to compromise students’ educations, and indeed must be managed by other school districts that do not have an accelerated school in which to quarantine older students.
61. SDOL has made no plans to evaluate the education at Phoenix, as it has for McCaskey, to assess whether it is actually meeting Plaintiffs’ language acquisition and other educational needs. [FOF ¶ 390]. Superintendent Rau strongly suggested that she is more interested in shuttering the International School, a program endorsed by her own ESL Coordinator Ms. Hilt as the best practice for new ELLs, in favor of immersing them with English language speakers, an approach that neither Ms. Hilt, nor national experts recommend. Id.
D. Plaintiffs Have Demonstrated Likelihood of Success on the Merits of Their Procedural Due Process Claim
62. The Fourteenth Amendment provides that “no person shall be deprived of life, liberty, or property without due process of law.” U. S. Const. amend. XIV.
63. The Supreme Court has established a two-part test to determine whether a person has been denied of life, liberty, or property without due process of law. The first step is to determine whether there is a protected liberty or a property interest that has been interfered with by the government. If so, the second step is to determine whether the procedures that attend the deprivation are constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 490
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U.S. 454, 460 (1989) (citations omitted); accord Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000).
64. Property interests are “created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985) (citations omitted).
65. The right to a free public education is clear under Pennsylvania law. Every child who has not graduated from high school has a right to attend the public schools in her district until the end of the school year in which she turns 21. 24 Pa. Cons. Stat. Ann. § 131301. A child who turns 21 during the school term and who has not graduated from high school has the right to continue to attend the public schools in his district free of charge until the end of the school term. See 22 Pa. Code § 12.1(a).
66. Pennsylvania regulations expressly require that a “school district or charter school shall normally enroll a child the next business day, but no later than 5 business days of application.” 22 Pa. Code § 11.11(b).
67. Pennsylvania law creates a protected property interest in attending public school. Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 149 (3d Cir. 2005); Bell v. Pennsbury Sch. Dist., Civ. No. 09-5967, 2011 WL 292241 at *6 (E.D. Pa. Jan. 31, 2011). That is because the right to a free public education is clearly established in Pennsylvania law. 24 P.S. § 13-1301; see also 22 Pa. Code § 12.8(a) (2005) (“[E]ducation is a statutory right, and students must be afforded all appropriate elements of due process if they are to be excluded from school.”). Accordingly, a student’s legitimate entitlement to a free public education cannot be taken away without procedural due process.
68. Once a protected liberty or property interest has been identified, the focus shifts to the quality and timing of the process due before the government may deny an individual her protected property interest. Goss v. Lopez, 419 U.S. 565, 573 (1975); Shuman, 422 F.3d at 149. The test for determining what process is due, first enunciated in Mathews v. Eldridge, 424 U.S. 319 (1976), requires this Court to balance three factors: (1) “the private interest that will be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards”; and (3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id. at 334-35; accord E.B. v. Verniero, 119 F.3d 1077, 1106 (3d Cir. 1997).
69. The Goss Court established the minimum process required for brief (i.e., ten days or less) exclusions from school: [I]n connection with a suspension of 10 days or less . . . the student [must] be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story. . . The Clause requires at least these rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school. Shuman, 422 F.3d at 14950 (quoting Goss, 419 U.S. at 581). Goss noted that “[l]onger suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures.” Id. at 584.
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Goss, thus, establishes “the minimum requirements” for exclusions from school. Newsome v. Batavia Local Sch. Dist., 842 F.2d 920, 927 (6th Cir. 1988) (emphasis in original).
70. Although the process due to students who are denied enrollment may not be the same as that due to students who are expelled from a school they are already attending, see Orozco by Arroyo v. Sobol, 703 F. Supp. 1113, 1120 (S.D.N.Y. 1989) (at least some “notice advising that the system provides for a hearing at which the prospective student’s contrary concerns may be aired” is required when school refuses to enroll students for not meeting residency requirements), in this case the Court need not rule now on the exact contours of what process is due to students denied enrollment because SDOL provides no process whatsoever.
71. In this case, Plaintiff Alembe Dunia has been excluded from school for over a year, and Plaintiffs Issa and Q.M.H. were excluded for many months before their respective case workers convinced SDOL to reverse the decision to deny enrollment. The District did not provide them with written notice of why they were excluded and failed to provide them notice of their appeal rights to the Pennsylvania Department of Education. The District did not even provide an interpreter for the enrollment meeting, leaving the students and their parents truly without notice or knowledge. In a case similar to this one, a U.S. District Court judge recently denied a motion to dismiss a procedural due process claim over the Utica School District’s failure to provide any process before refusing to enroll refugee children in the regular high school, sending them instead to an alternative high school, like Phoenix. See Utica, 2016 WL 1555399, at *9 (students “deprived of that property interest by virtue of the deliberate diversionary policies enacted and enforced by senior District officials”).
72. SDOL’s failure to provide students denied enrollment in McCaskey with any notice of reason for denial, with documents translated into their native language, or an interpreter to assist them violates Plaintiffs’ right to procedural due process. Without any due process, the risk that the District’s decisions will be arbitrary or discriminatory is high.
73. In light of the undisputed testimony establishing the absence of any type of notification of a denial of enrollment and the acknowledged failure of the school district to afford any student the opportunity to challenge the denial of enrollment through the enrollment complaint system maintained by the Pennsylvania Department of Education, Plaintiffs have established their likelihood of success on the merits of the procedural due process claim.
E. Plaintiffs Have Demonstrated Likelihood of Success on the Merits of Their State Law Claims
74. Education is a fundamental right under the Pennsylvania Constitution and the Pennsylvania Public School Code of 1949. See Pa. Const. Art. III, § 14; Sch. Dist. of Wilkinsburg v. Wilkinsburg Educ. Ass’n, 667 A.2d 5, 9 (Pa. 1995) (interpreting Article III, Section 14 of the Pennsylvania Constitution to make public education a fundamental right in the Commonwealth).
75. The right of older immigrant students to be educated in the district where they live is clear and unequivocal. In Pennsylvania, every child who has not graduated from high school has a right to attend the public schools in her district until the end of the school year
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in which she turns 21. 24 Pa. Stat. § 13-1301 (“Every child, being a resident of any school district, between the ages of six (6) and twenty-one (21) years, may attend the public schools in his district, subject to the provisions of this act.”); 22 Pa. Code § 11.12 (describing school age); see also 22 Pa. Code § 12.1(a) (“All persons residing in this Commonwealth between the ages of 6 and 21 years are entitled to a free and full education in the Commonwealth’s public schools.”).
76. The right to a free public education extends equally to immigrant students who do not speak English as their primary language and who have a limited ability to read, speak, write, or understand English.
77. Pennsylvania regulations require that a “school district or charter school shall normally enroll a child the next business day, but no later than 5 business days of application.” 22 Pa. Code § 11.11(b).
78. Pennsylvania regulations also explicitly state that a “child’s right to be admitted to school may not be conditioned on the child’s immigration status . . . [and, thus, a] school may not inquire regarding the immigration status of a student as part of the admission process.” 22 Pa. Code § 11.11(d).
79. The School District of Lancaster has a pattern or practice of denying or delaying enrollment for immigrant LEP youth that are 17-21 years old. [FOF ¶ 41 et seq. ]
80. The District illegally denies enrollment to older immigrant students under the age of 21 if District officials believe they would not graduate by the year in which they turn 21.
81. Plaintiff Alembe Dunia had just turned 19 when he sought to enroll in the SDOL. However, District officials refused to admit Alembe because of his limited prior schooling and age, and the District’s determination that he could not graduate high school by age 21.
82. It took Plaintiff Qasin Hassan several months of trying to enroll in school before he was finally placed at Phoenix on January 20, 2016. [FOF ¶ 55]
83. Khadidja’s enrollment documents were submitted in November 2015 and she met with Mr. Blackman during that same month, but she did not start school until February 2016.
84. Plaintiff Sui Hnem sought to enroll in the District in November 2015 but did not start school until February 2016, several months after her sister began at Phoenix.
85. Plaintiff Van Ni submitted required documents to the District on November 18, 2015 but did not actually started at Phoenix on December 22, 2015.
86. The District requires older immigrant youth to wait for a meeting with Mr. Blackman. [FOF ¶ 46, 48] Appointments with Mr. Blackman can be delayed or unavailable for weeks or months. [FOF ¶ 46, 49, 51-56] In addition, once Mr. Blackman unilaterally determines
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placement for a student to Phoenix, the student must also wait for an orientation before beginning classes. [FOF ¶ 50]
87. The District’s actions of denying these student enrollment violate state law which requires the SDOL to enroll all students within 5 days of presentation of requisite enrollment documents: proof of age, residency, immunization records and an Act 26 Statement. 22 Pa. Code § 11.11(b). For these students, who have a time-sensitive limited window when they are eligible to attend school, every day of lost instruction time and English language learning matters
88. In light of the evidence of record demonstrating the District’s pattern and practice of denying enrollment to older immigrant students Plaintiffs have demonstrated a likelihood of success on the merits of its state law claim.
F. Plaintiffs Will Suffer Irreparable Harm If An Injunction is Not Issued
89. Irreparable harm is shown where the movant suffers “potential harm which cannot be redressed by a legal or an equitable remedy following trial.” Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir. 1994); In re Arthur Treacher’s Franchisee Litig., 689 F.2d 1137, 1146 (3d Cir. 1982); “Compensation in money can never atone for deprivation of a meaningful education in an appropriate manner at the appropriate time.” John T. ex rel. Paul T. v. Commonwealth, Civ. No. 98-5781, 2000 WL 558582, at *8 (E.D. Pa. May 8, 2000).
90. Denial of a free public education, either by refusing or delaying enrollment, is irreparable harm. See, e.g., N.J. v. New York, 872 F. Supp. 2d 204, 214 (E.D.N.Y. 2011) (“interruption of a child’s schooling causing a hiatus not only in the student’s education but also in other social and psychological developmental processes that take place during the child’s schooling, raises a strong possibility of irreparable injury”); L.R. ex rel. G.R. v. SteeltonHighspire Sch. Dist., No. 1:10-CV-00468, 2010 WL 1433146, at *3-4 (M.D. Pa. Apr. 7, 2010) (holding that homeless student would be irreparably harmed “if he is not immediately re-enrolled in the District”); Ross v. Disare, 500 F. Supp. 928, 934 (S.D.N.Y. 1977); Blackman v. Dist. of Columbia, 185 F.R.D. 4, 7 (D.D.C. 1999); Oravetz v. W. Allegheny Sch. Dist., 74 Pa. D. & C.2d 733, 737-38 (Pa. Ct. Common Pleas 1975) (“deprivation of educational rights can produce irreparable harm and establishes a need for prompt and immediate relief”); Minnicks v. McKeesport Area Sch. Dist., 74 Pa. D. & C.2d 744, 749-50 (Pa. Ct. Common Pleas 1975) (“Absence from school cannot be repaired by money damages or even by a subsequent reinstatement at a future period”).
91. Plaintiffs have been or are being denied a meaningful education through denial or delays in enrollment, and by placement at a school that violates the EEOA by failing to overcome their language barriers.
G. The Balance of Equities Weighs in Favor of Granting the Injunction
92. Placing Plaintiffs at McCaskey, simply could not result in “greater harm” to the District that outweighs the indisputable, serious, and ongoing harm to Plaintiffs of being excluded from equal educational opportunities. See Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 167 (3d Cir. 1999) (explaining that the relevant question is not whether the defendant
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“would suffer some harm” but which of the two potential harms is greater). In balancing those potential harms, the court should be “unwilling to gamble with a child’s education.” New Jersey v. New York, 872 F. Supp. 2d 204, 215 (E.D.N.Y. 2011).
93. Education is not merely a “‘benefit’ indistinguishable from other forms of social welfare legislation.” Plyer, 457 U.S. at 221. Rather, “[b]oth the importance of education in maintaining our basic institutions, and its lasting impact of its deprivation on the life of the child, mark the distinction.” Id. Accordingly, courts routinely find that the balance of harms favors students in education cases, rather than schools. See, e.g., Abington Heights Sch. Dist. v. A.C., No. 3:14-CV-00368, 2014 WL 1767193, at *11 (M.D. Pa. May 2, 2014) (finding balance of harms favored student seeking special education, noting that “any harm to the school district presents only solvable issues of a financial, staffing, and administrative nature”); John T., 2000 WL 558582, at *8 (finding the balance of harms favors plaintiff student when he suffers more harm the longer defendant fails to provide services for which there is a legal entitlement).
94. The District has no interest in continuing practices that violate the Constitution and federal and state law. See Child Evangelism Fellowship of New Jersey, Inc. v. Stafford Twp. Sch. Dist., 233 F. Supp. 2d 647, 667-68 (D.N.J. 2002), aff’d on appeal by Child Evangelism Fellowship of New Jersey, Inc. v Stafford Tp. School Dist., 386 F.3d 514 (3d Cir. 2004) (citing American Civil Liberties Union v. Reno, 217 F.3d 162, 180-81 (3d Cir. 2000)). “Providing statutorily [and constitutionally] granted services to a child does not harm the school district; doing so is its function under state and federal law.” See John T., 2000 WL 558582, at *8.
95. The District’s only potential claim of harm is administrative inconvenience and expense. However, if the District had complied with federal and state law from the Plaintiffs’ first contact with the District, it would have incurred the same educational expenses then that it will incur now, and would have avoided the administrative inconvenience of having to change course. These theoretical harms to Defendant should be “discounted” by virtue of the fact that the Defendant “brought that injury upon itself.” Karakozova v. University of Pittsburgh, 2009 WL 1652469, *3 (W.D.Pa. Jun. 11, 2009) (internal quotations omitted).
96. Furthermore, the District already has in place the International School, a program that can satisfy its legal duties to Plaintiffs. To its credit, the District knows what to do for refugee and immigrant children – all that is required is that it do it for all of them.
H. An Injunction Is In the Public Interest
97. The Third Circuit has stated that, “[a]s a practical matter, if a plaintiff demonstrates both a likelihood of success on the merits and irreparable injury, it almost always will be the case that the public interest will favor the plaintiff.” American Tel. and Tel. Co. v. Winback and Conserve, Inc., 42 F.3d 1421, 1427 n.8 (3d Cir. 1994); L.R., 2010 WL 1433146, at *5. Moreover, the public interest generally favors constitutional protection even in the face of otherwise important interests. Child Evangelism Fellowship, 233 F. Supp. 2d at 667-68.
98. It is “undeniably in the public interest for providers of public education to comply with the requirements [of federal education law].” L.J., 2007 WL 3252240, at *9; see
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also Reach Acad. for Boys & Girls, Inc. v. Del. Dep’t of Educ., 46 F. Supp. 3d 455, 475-76 (D. Del. 2014); John T., 2000 WL 558582, at *8; Grube v. Bethlehem Area Sch. Dist., 550 F. Supp. 418, 424-25 (E.D. Pa. 1982).
99. The public interest clearly weighs in favor of granting a preliminary injunction to ensure Plaintiffs’ immediate enrollment in McCaskey and access to the meaningful education to which they are legally entitled.
REQUESTED RELIEF
Plaintiffs respectfully request that this Court grant their Motion for Preliminary Injunction and, specifically, order the following relief:
1. Plaintiffs’ Motion for Class Certification is hereby granted and this Court provisionally certifies a class consisting of the following individuals (“Class Members”):
All limited English proficient (“LEP”) immigrants, who, at any time after August 1, 2013, while aged 17-21, were, are, or will be in the future, excluded from Defendant School District of Lancaster’s main high school, McCaskey—either as a result of being refused enrollment altogether, or through involuntary placement at Phoenix.
2. Defendant shall forthwith transfer Plaintiffs Khadidja Issa, Qasin Hassan, Sui Hnem Sung and Van Ni Iang to the International School at McCaskey, in time for them to begin school on Monday, August 29, 2016.
3. Defendant shall take all reasonable and necessary steps to welcome the four above-mentioned Plaintiffs to McCaskey and to orient them appropriately to their new school, including providing for an escort to assist them the first week of school.
4. Defendant shall enroll all four students in the International School at McCaskey and assess the four Plaintiffs’ language and core content proficiencies the first week of school and place them in appropriate ESL and core content classes at McCaskey.
5. Plaintiff Anyemu Dunia will be given one week from this date to make a decision about whether he wants to enroll at McCaskey. If he chooses to enroll in McCaskey, the parties are directed, in the first instance, to attempt to work out an appropriate grade placement and lesson plan. If the parties are unable to agree on his placement and courses, this court shall schedule a conference call with the parties in order to resolve the dispute.
6. Defendant shall provide compensatory education services for Plaintiff Alembe Dunia, and for Plaintiff Anyemu Dunia if he chooses not to attend McCaskey, for a two year period on an hour-for-hour basis based on the denial of educational services by the SDOL for a two year period. These funds, which shall be held in trust by a third party, may be used solely for educational purposes to cover the cost of Plaintiffs’ education at Harrisburg Area Community College (HACC) or another program of language instruction or education,
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including career technical opportunities, and shall be made available forthwith to allow enrollment in such programs this Fall.
7. Defendant shall forthwith identify all Class Members presently attending Phoenix and within three (3) days of this date provide a confidential list to Plaintiffs’ attorneys that includes students’ names, addresses, telephone numbers and any other available contact information, native language, present grade level and length of time at Phoenix. Defendant shall provide to Plaintiffs’ attorneys, if the request includes a signed authorization by the student or his or her parent/guardian if a minor, the student’s academic and other records within twenty-four (24) hours of request.
8. Defendant shall enroll at McCaskey all Class Members who elect to transfer from Phoenix within five (5) days of being notified that the student wishes to transfer. Defendant shall assess each student’s language and core content proficiencies within one week of transfer to determine appropriate ESL and core content classes at McCaskey.
9. Defendant shall forthwith cease sending any newly enrolling ELL’s to Phoenix Academy. All newly enrolled ELL’s shall henceforth only be enrolled in McCaskey’s International School, and said enrollment shall comply with Pennsylvania’s five-day rule. The school may reassign any students who are not at the entering or emergent language proficiency levels to classes at McCaskey that are outside the International School, if academically appropriate.
10. Defendant shall forthwith cease denying, delaying or discouraging any newly enrolling ELLs, regardless of the student’s age so long as the student will be less than twenty-one (21) years of age at any point during the upcoming school year, from enrolling in the SDOL.
11. Defendant shall forthwith provide parents and students with written notice of an enrollment denial in the family’s preferred language, with said notice to include (1) the reason(s) for the District’s decision to exclude the student from school; and (2) a description of the appeal process available through the Pennsylvania Department of Education to challenge the District’s denial of enrollment.11
11 This procedure is set forth in the Basic Education Circular on Enrollment of Students issued by the Pennsylvania Department of Education and provides: When a dispute arises regarding enrollment of a student, the person attempting to enroll the child or the school district may bring the dispute to the attention of the Department’s School Services Office. A complaint may be filed by mail, email or by phone with written follow up. After receipt of a complaint, a Department representative will contact the school district, family or other involved parties to determine the facts, whether the child is entitled to enrollment in the district and to try to resolve the problem. These contacts, whenever possible, will occur within five (5) days of receipt of the complaint. If the complaint is not amicably resolved, a written determination will be made and sent to the school district and the individual who filed the complaint. If the school district does not enroll the student within five (5) school days after receiving the written determination, the Department will issue a letter to the school district requesting its position on the situation. The school district will have five (5) school days to respond to the request. If the school district refuses to enroll the student or does not respond, the matter will be forwarded to the Department’s Office of Chief Counsel (OCC). The OCC and the Deputy Secretary for Elementary/Secondary Education will determine if the school district’s response is valid to deny enrollment. If not, the Deputy Secretary will determine what additional measures may be necessary to assure enrollment. See
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12. Any party may, for good cause shown, petition this Court to modify the terms of this Order.
13. This Order shall remain in effect until further Order of this Court.

Dated: August 25, 2016

Respectfully submitted,

/s/ Eric Rothschild Eric Rothschild, Esquire (PA71746) Kathleen A. Mullen, Esquire (PA84604) Kaitlin M. Gurney, Esquire (PA309581) Megan Morley, Esquire (PA321706) PEPPER HAMILTON LLP 3000 Two Logan Square Eighteenth & Arch Streets Philadelphia, PA 19103-2799 Telephone: (215) 981-4000 Fax: (215) 981-4750 rothschilde@pepperlaw.com mullenk@pepperlaw.com gurneyk@pepperlaw.com morleym@pepperlaw.com
/s/ Witold J. Walczak Witold J. Walczak, Esquire (PA62976) American Civil Liberties Union of Pennsylvania 247 Fort Pitt Blvd. Pittsburgh, PA 15222 Telephone: (412) 681-7736 Fax: (412) 681-8707 VWalczak@aclupa.org
Molly Tack-Hooper, Esquire (PA307828) Michelin Cahill, Esquire (PA314553) American Civil Liberties Union of Pennsylvania P.O. Box 60173 Philadelphia, PA 19102
http://www.education.pa.gov/Documents/Codes%20and%20Regulations/Basic%20Education%20Circulars/Purdons %20Statutes/Enrollment%20of%20Students.pdf
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Telephone: (215) 592-1513 Fax: (215) 592-1343 MTack-Hooper@aclupa.org MCahill@aclupa.org /s/ Maura McInerney Maura McInerney, Esquire (PA71468) Kristina Moon, Esquire (PA306974) Alex Dutton, Esquire (PA267321) Education Law Center 1315 Walnut Street Suite 400 Philadelphia, PA 19107 Telephone: (215) 238-6907 Fax: (215) 772-3125 mmcinerney@elc-pa.org kmoon@elc-pa.org adutton@elc-pa.org /s/ Seth F. Kreimer Seth F. Kreimer, Esquire (PA26102) 3501 Sansom Street Philadelphia, PA 19104 Telephone: (215) 898-7447 skreimer@law.upenn.edu Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE I hereby certify that on August 25, 2016, a true and correct copy of the foregoing document was served via electronic mail and ECF upon the following:
Sharon M. O’Donnell, Esquire Marshall Dennehey 100 Corporate Center Drive Suite 201 Camp Hill, PA 17011
/s/ Eric Rothschild Eric Rothschild, Esquire

 
 Case 5:16-cv-03881-EGS Document 32 Filed 08/25/16 Page 1 of 67

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KHADIDJA ISSA; Q.M.H., A MINOR, :

INDIVIDUALLY, BY AND THROUGH :

HIS PARENT, FAISA AHMED

:

ABDALLA; ALEMBE DUNIA; ANYEMU :

DUNIA; V.N.L., A MINOR,

:

INDIVIDUALLY BY AND THROUGH :

HER PARENT MAR KI; SUI HNEM

:

SUNG; AND ALL OTHERS SIMILARLY :

SITUATED,

:

PLAINTIFFS

:

:

v.

:

:

THE SCHOOL DISTRICT OF

:

LANCASTER,

:

DEFENDANT

:

CIVIL ACTION NO. 16-cv-3881 HON. EDWARD G. SMITH CLASS ACTION

DEFENDANT'S PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW AND SUPPORTING MEMORANDUM OF LAW

The Defendant, The School District of Lancaster, through its counsel, MARSHALL

DENNEHEY WARNER COLEMAN & GOGGIN, hereby submits to this Honorable Court its

Proposed Findings of Fact, Conclusions of Law and supporting Memorandum of Law in

response and objection to the Order for Preliminary Injunction requested by the above-named

Plaintiffs, as follows.

Additionally, Defendant, The School District of Lancaster, incorporates herein by

reference, as if fully restated herein, its Motion for Partial Dismissal and supporting

Memorandum of Law that objected to portions of Plaintiffs' Complaint, as well as its Response

in Opposition to Plaintiff's Motion for Class Certification and supporting Memorandum of Law

filed previously with the Court prior to and/or no later than the first day of the injunction hearing

commencing August 16, 2016. Facts reflected in Defendant's Answer to the Complaint,

Response in Opposition to the Motion for Preliminary Injunction, or Response in Opposition to

1

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the Motion for Class Certification are not incorporated to the extent that they have been amended by the testimony of record beginning August 16 and ending August 22, 2016, and are reflected below. STANDARD OF REVIEW
Fed. R. Civ. P. 65 provides that the court may issue a preliminary injunction after notice to the adverse party, F.R.C.P. 65(a); only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained, F.R.C.P. 65(c). Moreover, every order granting an injunction must (a) state the reasons why it issued; (b) state its terms specifically; and (c) describe in reasonable detail – and not by referring to the complaint or other document – the act or acts restrained or required. F.R.C.P. 65(d).
To evaluate whether or not a preliminary injunction should issue, the court determines whether or not the movant has demonstrated that: (1) she is likely to suffer irreparable harm in the absence of preliminary relief; (2) the balance of equities tips in her favor; (3) she is likely to succeed on the merits; and (4) an injunction is in the public interest. Miller v. Monroe School District, 131 F.Supp.3d 1107, 1112 (W.D. Wash. 2015), citing, Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20, (2008); accord, Voice of the Arab World, Inc. v. MDTV Med. News Now, Inc, 645 F.3d 26, 32 (1st Cir. 2011), quoting, Winter, supra. "A preliminary injunction is an 'extraordinary and drastic remedy'; it is never awarded as of right." Munaf v. Geren, 553 U.S. 675, 689-690 (1998), quoting, 11A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2948, at 129 (2d ed. 1995). "Though each factor is important, … the 'sina qua non of the four-part test is likelihood of success on the merits; if the movant cannot demonstrate that he is likely to succeed in his quest, the remaining factors become matters of idle
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curiosity. '" Sindicato Puertorriqueno de Trabajadores, SEIU Local 1996 v. Fortuno, 699 F.3d 1, 10 (1st Cir. 2012) quoting, New Comm Wireless Servs., Inc. v. SpringCom, Inc., 287 F.3d 1, 9 (1st. Cir. 2002).
Here, Plaintiffs and the putative class are young adults, ages 17-21. They reside within the geographical parameters of the District. They are refugees of other countries, who do not speak English, need credits to graduate and have shown that they are eligible and qualified for public school enrollment. Most have been placed at the Phoenix Academy. One of the Plaintiffs, Alembe Dunia, was 20 years old when he presented for enrollment at the District and did not enroll.
Plaintiffs and the putative class members have the burden of demonstrating that they have a substantial likelihood of proving that the Board of School Directors of the School District of Lancaster have unlawfully placed them in the Phoenix Academy, either on account of, or by reason of, their race or national origin. 24 P.S. §13-1310; Title VI, 20 U.S.C. §1703(f). They further claim that they have been denied equal access to education with their siblings who have been placed at the International School at McCaskey because the educational methodology at Phoenix is allegedly substantially inferior to that at McCaskey and, consequently, it is alleged, Plaintiffs have been deprived of an opportunity to overcome language barriers sufficient to participate meaningfully in the schools' educational programs, both curricular and extracurricular. (Complaint, pp. 8-9).
While Title VI prohibits discrimination on the basis of national origin, our courts have held that language and national origin are not interchangeable. K.A.B., et al. v. Downingtown Area School District, 2013 U.S Dist. LEXIS 99321, at *30-31 (E.D. Pa. 2013). A policy that treats students with limited English proficiency differently than other students in the district does
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not facially discriminate on the basis of national origin. Id., citing, Mumin v. Abraham Lincoln High Sch., 618 F.3d 789 (8th Cir. 2010); accord, Soberal-Perez v. Heckler, 717 F.2d 36, 41 (2d Cir. 1983) (stating in the equal protection context, that "[a] classification [that] is implicit made…on the basis of language, i.e., English-speaking versus non-English-speaking individuals, [is] not on the basis of race, religion, or national origin", citing, Frontera v. Sindell, 522 F.2d 1215, 1219-1220 (6th Cir. 1975)and Carmona v. Sheffield, 475 F.2d 738, 739 (9th Cir. 1973). Consequently, Plaintiffs' complaint that "language barriers are tantamount to their exclusion from McCaskey" and that such exclusion is based upon their national origin is not only factually inaccurate, but also legally incorrect. As such, their claims for violations of the equal protection clause of the Fourteenth Amendment, the EEOA, Title VI, 42 U.S.C. 2000d and 24 P.S. §131310, must fail.
Likewise, because Plaintiffs' have alleged a violation of the Fourteenth Amendment procedural due process clause, based upon the absence of an appeal process from the school board's exercise of its discretionary right to place students where the board deems the student is best placed for education within the District, that claim, too, must fail. The Board's authority and discretion is founded within the black letter law of the Pa. School Code, supra. If Plaintiffs take issue with the lack of an appeal process, their complaints are better levied against the Legislature who promulgated that law, and not to this Court, which is powerless to re-write it.
Should this Court wish to consider other factors which may give rise to the imposition of an injunction, the Defendant points out the following.
(1) Plaintiffs will not suffer irreparable harm if the Board of Education is not enjoined from assigning them to the Phoenix Academy to accelerate their education to graduation.
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"Irreparable harm" has been defined by our courts as the type of harm that cannot be compensated by standard civil remedies such as money damages. An injury is irreparable if "it cannot adequately be compensated for either by a later-issued permanent injunction, after a full adjudication on the merits, or by a later-issued damages remedy." NW. Bypass Grp. V. U.S. Army Corps of Engineers, 470 F. Supp. 2d 30, 64 (D.N.H. 2007). A finding of irreparable harm must be grounded on something more than conjecture, surmise, or a party's unsubstantiated fears of what the future may have in store." Charlesbank Equity Fund II v. Blinds to Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004).
While it is true that money damages will not compensate some of the Plaintiffs for the time they have spent at the Phoenix Academy, or, at least in the case of Plaintiff Qasin Hassan, for any time that they have refused to spend at Phoenix Academy, Plaintiffs, and each of them, have always had the right to come to school and obtain an education until they graduate. No Plaintiff has yet shown that they were refused admission to the School District of Lancaster. Therefore, because the "right" at issue is the "right to equal access to education", and each of the Plaintiffs, ages 17-21, has been fully afforded the right to attend school at Phoenix which has a comparable educational program with ESL instruction and support, they cannot show that they will suffer irreparable harm if they are not enrolled at McCaskey High School. The Plaintiff, Alembe Dunia, who was not enrolled in school, cannot show that he will suffer irreparable harm by not enrolling in high school because he will soon turn 21 years of age. Even if he did express a desire to enroll, he would not have graduated before the end of his 21st year.
(2) The balance of equities for transferring Plaintiffs and the class members to the McCaskey High School does not tip in Plaintiffs' favor and is not in the public interest
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The balancing of equities inquiry requires the court to weigh "the hardship that will befall the nonmovant if the injunction issues contrasted with the hardship that will befall the movant if the injunction does not issue." Borinquen Biscuit Corp. v. M.V. Trading Corp., 443 F.3d 112 (1st Cir. 2006). As well, courts should "pay particular attention to the public consequences in employing the extraordinary remedy of injunction." Winter, supra, citing, Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S. Ct. 1798, 72 O. Ed. 2d 91 (1982). In their Complaint, Plaintiffs identify themselves by their national origins, the amount of time spent in refugee camps, whether they have been accompanied by (a) parent(s) to Lancaster, and their ages. They have not pleaded whether or not they have accumulated educational credits before coming to Lancaster or whether or not they have already graduated from their home schools. Such being the case, they cannot prove that the District's reason for placing them at Phoenix Academy, i.e., for the acceleration or recovery of educational credits towards graduation, is a pretext for unlawful discrimination on account of, or based upon their national origins.
Since none of the six Plaintiffs herein have been refused enrollment within the District, Plaintiffs will suffer no hardship whatsoever if their motion for this extraordinary relief is denied because they have a right to a full, free public education, complete with ESL instruction and supports, at the Phoenix Academy to obtain the balance of their educational credits towards graduation, and to graduate.
Plaintiffs' Alleged Hardships When the Plaintiffs testified about their hardships, their complaints focused primarily on not having equal access to English language instruction that is "better" at McCaskey, and, secondarily, to the many elective courses available to students at McCaskey. However, the overwhelming testimony was that the program called the International School at McCaskey
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is intended for entering level ELS who are educated in a cohort of other English Learners for one year. In a few months to a year, they would be moved out of the International School based on their beginning language proficiency status and into the regular curriculum with their same-aged peers. These over-aged, under-credited Plaintiffs, and their expert, Dr. Marshall, believe that the International School is a better program for entering English Learners regardless of their ages. There is no agreement on the part of the School District of Lancaster to that unfounded belief. No educator at Phoenix Academy or the School District of Lancaster Administration would agree that the sound educational theories at the Phoenix pale in comparison to those at McCaskey. All of the District representatives, and, most importantly, the Coordinator of ESL K-12/World Languages, Ms. Amber Hilt, who assisted the Phoenix Academy Principal/Academic Lead, Ms. Aura Heisey, testified that the programs are similar. Ms. Hilt helped Ms. Heisey to develop a program at Phoenix Academy for the incoming non-English speaking students, who are over-aged and under credited, that models the International School at McCaskey. However, all of the District representatives testified that the soundness, implementation and successes of educational theories and programs in either school do not stop "life from getting in the way."
The District representatives testified that the Phoenix Academy accelerated program helps to alleviate the obstacles to graduation that are created by the ultimate hardships that befall over-aged students. They testified that the true hardship is when students drop out altogether because of the stresses on time for school and other matters that become larger priorities. Therefore, should this Court decide to substitute its judgment for the judgment of the professional educators and Board of Education whose overarching goals are to assist and encourage students to achieve the best result possible, i.e., a diploma, the Court will be
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transferring them against the better judgment of the School District of Lancaster and setting up the Plaintiffs, and potentially many others, for failure.
Hardships on the Defendant, School District of Lancaster Plaintiffs have attacked the Phoenix Academy's program management by Camelot. They have attacked Camelot's philosophy for New Student Orientation, security, and academic program construction through an accelerated model. However, Pennsylvania law allows for variations in student attendance, 22 Pa. Code §11.5(a) (students of school age may qualify for graduation by attending the public school part-time when lawfully employed). This section gives older students with family obligations a chance to participate meaningfully in a public school education towards graduation while holding a full-time job. Pennsylvania law allows searches at school, 22 Pa. Code §12.14 (the governing board of every school entity shall adopt reasonable policies and procedures regarding student searches… and shall notify students and parents or guardians of the policies and procedures regarding student searches.) This section gives the District the power to protect its students at the Phoenix Academy and allows Camelot to conduct its orientation to advise students and parents of the methods to be used in performing security measures. Pennsylvania law further provides a School District with the power to prepare its own written strategy and plan for the provision of student services, 22 Pa. Code §12.41(a), including, but not limited to the power to use "diagnostic services to identify barriers that limit a student's success in school, and actively engage staff in activities planned to reduce or eliminate specific barriers to student success." 22 Pa. Code §12.41(b)(2)(i). This section gives the School District the power to develop and use its own curriculum and instructional methods, including an accelerated model of learning for under-credited persons who want to accumulate credits sufficient to graduate, and especially, the educational theory espoused in English-for-Second-
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Language as an instructional device to assist English Learners to overcome language barriers to achieve success.
Any Court intervention that transfers enrolled adult public school students ages 17-21 from their present location to a different location, removes the power, authority and choice of this Pennsylvania public school district's Board of Education to do any one of the foregoing and will have the unintended consequence of ignoring the public policies underlying Pennsylvania law by tying the hands of the school board from placing adult students who are 17-21 of age where they believe they young adults are most appropriately and best educated. This would improperly usurp the role of The School District of Lancaster's School Board. See, Zebra v. Sch. Dist. of City of Pittsburgh, 296 A.2d 748, 750 (Pa. 1972) (courts are restrained when reviewing matters of school policy and "should not function as super school boards.").
(3) Plaintiffs are not likely to succeed on the Merits of their Claims
In order to establish that Plaintiffs cannot succeed on the merits of proving their claims, we take each seriatim.
(A). The claims of Plaintiffs Alembe Dunia and others similarly situated under the Equal Education Opportunity Act, 20 U.S.C. §1703(f),
The Equal Education Opportunity Act1, as cited by Plaintiffs in their Complaint, provides:
1 This Act effectively codified the U.S. Supreme Court decision in Lau v. Nichols, 414 U.S. 563, 94 S. Ct. 786, 39 L. Ed. 2d 1 (1974); See, 4-10D EDUCATION LAW §10D.01; but, see, University of California Regents v. Bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 750 (1978), wherein Justice Brennan observed, "…We recognize that Lau, especially when read in light of our subsequent decision in Washington v. Davis, 426 U.S. 229 (1976), which rejected the general proposition that governmental action is unconstitutional solely because it has a racially disproportionate impact, may be read as being predicated upon the view that, at least under some circumstances, Title VI proscribed conduct which might not be prohibited by the Constitution. Since we are now of the opinion, for the reasons set forth above, that Title VI's standard, applicable alike to public and private recipients of federal funds,
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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… 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." (Compl. P. 164).
First and foremost, the foregoing provision applies to children 21 years of age, or younger, who are enrolled in a public school. Collins v. City of New York, et al., 2016 U.S. Dist. LEXIS 3062 (S.D.N.Y. 2016). Because Alembe Dunia, and others similarly situated, is not a student enrolled in the District, he cannot be denied an equal educational opportunity to participate in its instructional programs because of his alleged language barrier. Consequently, Count I of Plaintiffs' Complaint must be dismissed as to Alembe Dunia and others similarly situated.
Secondly, Plaintiffs cannot show that the School District of Lancaster has "failed to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs." Although the Pennsylvania School Code cited above requires the District to teach the curriculum in English, it also imposes upon the District a duty to take appropriate action to identify barriers and develop a plan to overcome those barriers in order for students to access the curriculum. Federal law also provides a rubric from which a court may observe whether or not the action taken by the School District is reasonably calculated to overcome language barriers for the Phoenix-Plaintiffs to access the curriculum. Horne v. Flores, 557 U.S. 433 (2009). In C.G., et al. v. Commonwealth of Pennsylvania, Department of Education, et al., 888 F.Supp.2d 534 (M.D.Pa. 2012), the district court observed that, "this Court has previously adopted the standard articulated by the United States District Court for the Northern District of Illinois and held that to establish an EEOA violation, Plaintiffs must
is no broader than the Constitution's, we have serious doubts concerning the correctness of what appears to be the premise of that decision."
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establish: (1) language barriers; (2) defendant's failure to take appropriate action to overcome these barriers; and (3) a resulting impediment to student's equal participation in instructional programs. Id., 888 F.Supp.2d at 575, citing, Leslie v. Bd. of Educ., 379 F. Supp. 2d 952, 960 (N.D. Ill. 2005). Further, in that decision, Judge Kane observed that, as here, the Plaintiffs had established that they were non-English speaking students and that the School District of Lancaster had indeed identified them as LEP students and EL learners, with all the "challenges faced by certain members of the class." Judge Kane found, however, that the Plaintiffs had failed to meet their burden of establishing the second and third elements, i.e., the failure to take appropriate action and resulting impediments to the students' equal participation in instructional programs. In so finding, Judge Kane looked to the purpose of the EEOA by noting that "Congress granted the states broad discretion in determining which programs and techniques should be implemented to satisfy the EEOA's requirement to take 'appropriate action to overcome language barriers,'" Id., citing, Horne, supra,557 U.S. at 440-441, quoting, Castaneda v. Pickard, 648 F.2d 989, 1009 (5th Cir. 1981)(emphasis added). Moreover, Judge Kane observed that under Castaneda, a reviewing court must evaluate whether or not a [school district] has taken 'appropriate action' under 20 U.S.C. §1703(f) by determining whether: (a) a school system is pursuing a program informed by an educational theory recognized as sound by some experts in the field2, or at least, deemed a legitimate experimental strategy; (b) the programs and
2 The Castaneda Court further opined that its examination is not be done with any eye toward discerning the relative merits of sound but competing bodies of expert educational opinion, for choosing between sound but competing theories is properly left to the educators and public officials charged with responsibility for directing the educational policy of a school system. … The court's responsibility, insofar as educational theory is concerned, is only to ascertain that a school system is pursuing a program informed by an educational theory recognized as sound by some experts in the field or at least deemed a legitimate experimental strategy." Moreover, in that case, the trial court noted that there was 'almost total disagreement between the experts, witnesses, and lay persons as to the benefits of the [challenged] program… however, … we do not think that the school system has failed to fulfill its obligation under 1703(f), even if the result of such a program is an interim sacrifice of learning in other areas during this period…. We believe that statute clearly contemplates that provision of a program placing primary emphasis on the development of English language skills would constitute "appropriate action." 648 F.2d at 1009-1011.
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practices actually used by a school system are reasonably calculated to implement effectively the educational theory adopted by the school; and (3) the program, after being employed for a period of time sufficient to give the plan a legitimate trial… produce(s) results indicating that the language barriers confronting students are actually being overcome. " Id., citing, Castaneda, supra, 648 F.2d at 1009-1010; Valeria G. v. Wilson, 12 F. Supp. 2d 1007, 1017-1018 (N.D. Cal. 1998).
In C.G., Judge Kane found that the Plaintiffs had failed to challenge the appropriateness of the program and therefore, entered judgment for the Defendants on all of Plaintiffs' claims. The Defendant in this case, The School District of Lancaster, asked this Court to enter judgment in its favor on the basis that the weight of the evidence does not support Plaintiff's allegations that the "District has failed to pursue a program informed by an educational theory recognized as sound by some experts in the field"; or, that the District has failed to take "appropriate action" to overcome the language barriers of its EL students; or that the programs in place at the Phoenix Academy have failed.
More specifically, all of the District representatives and Plaintiffs' expert, Dr. Marshall, testified that English-as-a-Second Language is a sound educational theory, given its wide acceptance through the Commonwealth of Pennsylvania. Where the parties disagree is in the delivery of ESL instruction. Defendant's witnesses, Amber Hilt and Aura Heisey, both testified that the ESL instruction at Phoenix Academy is modeled directly after the programming and instruction provided at the International School. The difference between the McCaskey International School (MIS) ESL program and the Phoenix Academy ESL program is in the delivery – MIS instructors deliver two 48 minutes of direct ESL instruction daily, one of which counts as an ESL credit and one which counts as a Communication Arts credit towards
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graduation. The Phoenix Academy provides two 80 minute classes per day of direct ESL supports, which of which counts as an ESL credit and one which counts as CA credit towards graduation. In addition to instruction, the District provides supports in the nature of word-toword translation dictionaries, Google Translator, computer translation, I-Pad translation, and Language Line, in addition to a buddy-system where students at differing levels can assist each other to translate to English. One witness, Marianne Ortiz, the former ESL teacher at Phoenix, testified that although she recently left for another opportunity, during her six-year tenure, she provided additional language support services to non-English speakers during Sixth Period Resource Class to help them understand the lesson and what was being asked of them.
Although Dr. Marshall testified that she was provided with documents subpoenaed by Plaintiffs' counsel, Maura McInerney, from the District, and looked on-line at the various websites of Phoenix and McCaskey, she was completely unaware that she could have personally observed the classrooms and high school environments of both buildings and hence had no "hands-on" information upon which to base her opinion that the International School was a better placement for the students because they received "more" English instruction. Dr. Marshall's usage of a visual analogy to an airplane taking off on a runway was based upon her review of documents, alone, together with her academic and professional experience as an expert in "TESOL," an acronym for "Teaching English to Students of Other Languages." She admitted that although she was a "teacher of teachers," she had never actually taught ESL instruction to young adults, or children, of public schools, ever, in her lifetime. She did not observe any classes that occurred in the summer program nor did she inquire with any district administration or teachers.
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Finally, the record evidence amply demonstrates that the ESL instruction, supports and delivery is, and continues to be successful. One Plaintiff, Anyemu Dunia, testified that he graduated from the Phoenix Academy on August 16, 2016, after 16 months of accelerated programming (80-minute classes limited to core curriculum for graduation) and by attending summer school for two consective summers in order to accumulate additional credits over the course of two summers. Mr. Dunia spoke no English prior to coming to Phoenix and read aloud to the Court an essay that he wrote while at Phoenix. Aura Heisey, the former Principal/Academic Lead at Phoenix, and the current Executive Director, Megan Misnik, both testified that they have graduated many 17-21 students, a good portion of them former nonEnglish speaking refugees. Both Ms. Heisey and Ms. Misnik testified that many of their graduates have gone on to college at Millersville University and the Harrisburg Area Community College.
In short, Plaintiffs have failed to establish that the delivery of ESL instruction and supports at the Phoenix Academy is not implemented, or not successful. Such being the case, Plaintiffs have failed to show that they have a substantial likelihood of success on the merits on their EEOA claim.
(B). Plaintiffs claim under Title VI of the Civil Rights Act, 42 U.S.C. 2000d, must be dismissed pursuant to Fed. R. Civ. Pro. 12(b)(6)
It is well-settled that the legislative intent of Title VI reflects a strong prohibition against unlawful discrimination on the basis of [race/national origin] in the provision of benefits through federally funded programs. University of California Regents v. Bakke, 438 U.S. 265 (1978). Courts before and after Bakke have carefully scrutinized education claims where individual and class plaintiffs have complained of being victimized by a public school district that intentionally deprives students of color, or non-American national origin, from receiving the same or similar
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educational opportunities as their white peers, and vice versa. Id. Indeed, the Bakke court observed, without deciding, that a private right of action may not even exist to state a claim for a denial of rights to participate equally in the benefits of federal funding, citing Representative Gill's argument in debate:
"Nowhere in this section do you find a comparable right of action for a person who feels he has been denied his rights to participate in the benefits of Federal funds. Nowhere. Only those who have been cut off can go to court and present their claim." Id., at fn 18, citing, 110 Cong. Rec. 2467 (1964); accord, id., at 765 (remarks of Sen. Keating); 6562 (remarks of Sen. Kuchel). That said, our sister courts have observed the Supreme Court's desire to construe Title VI as co-extensive with the Equal Protection Clause of the Fourteenth Amendment insofar as the racial classifications for protection are concerned. Bakke, supra, 438 U.S. at 352-353; Fullilove v. Klutznick, 448 U.S. 448 (1980). 3 Moreover, in Mumid, et al. v. Abraham Lincoln High School, et al., 618 F.3d 789 (8th Cir. 2010), the court correctly observed that Title VI prohibits only intentional discrimination of those protected racial classifications. Proof of disparate impact is insufficient. Id., citing, Alexander v. Sandoval, 532 U.S. 275 (2001). Under Title VI, a plaintiff who claims to be a member of a racial classification subject to protection from unlawful discrimination, must plead the existence of:
(a) Language barriers; (b) A school's failure to take appropriate action to overcome these barriers; and (c) A resulting impediment to students' equal participation in instructional programs.
42 U.S.C. 2000d; 35 Fed. Reg. 11, 595 (1970). In this case, Plaintiffs' Complaint, at paragraph 165 alleges: "165. National origin discrimination has been defined to include the denial of equal opportunities due to an individual's, or his or her ancestor's, place of origin, or because an
3 For the sake of argument, Defendant assumes this court will treat similarly the protected class of national origin.
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individual has the physical cultural or linguistic characteristics of a national origin group, including limited English proficiency. (No citation.)"
And, at paragraph 166: "All Named Plaintiffs… are LEP immigrants who have documented language barriers." And finally, at paragraph 167: "Through its actions and inactions, the District denied enrollment to Plaintiffs or required them to attend Phoenix Academy…. Providing limited and inadequate language assistance services in an accelerated instructional model that is not reasonably designed to appropriately address their educational and language needs." Courts have held that "while Title VI prohibits discrimination on the basis of national origin, language and national origin are not interchangeable." Mumid, et al., supra, 618 F.3d at 795, citing, Hannoon v. Fawn Eng'g Corp., 324 F.3d 1041, 1048 (8th Cir. 2013); Soberal-Perez v. Heckler, 717 F.2d 36, 41 (2d Cir. 1983); Garcia v. Gloor, 618 F.2d 264, 268 (5th Cir. 1980). Here, like the Mumid Plaintiffs, Plaintiffs claim that they are assigned to an alleged substandard curriculum and programming at Phoenix Academy, compounded by fewer educational and extra-curricular opportunities available to students in the other high school, on account of their documented language barriers. Plaintiffs claim that the Phoenix Academy does not provide adequate English language instruction or support to them. However, English language instruction or support cannot be a legal basis to claim national origin discrimination. "A policy that treats students with limited English proficiency differently than other students in the district does not facially discriminate based on national origin." Mumid, 618 F.3d at 795. Therefore, even if it were true that the District's policy is to assigns all of its enrolled LEP students between the ages of 17-21 to the Phoenix Academy, that policy is not facially unlawful or unconstitutional. Moreover, for the reasons stated above, the record evidence does not substantiate that the ESL instruction and supports delivered to Phoenix Academy students in 80-
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minute daily increments coupled with push-in support as necessary throughout the day is "not reasonably designed to appropriately address their educational and language needs." To the contrary, students of the Phoenix Academy, ages 17-21, who enter without any credits toward graduation and who do not speak English are, indeed, successful – and they graduate.
Such being the case, Plaintiffs have failed to show a substantial likelihood of success on the merits of their Title VI claim.
(C). Plaintiffs claim under 42 U.S.C. §1983 for an alleged violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution must be dismissed pursuant to Fed.
R. Civ. Pro. 12(b)(6) The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that:
"no state shall deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend. XIV. Our Supreme Court has construed that provision to mean that, "this is not a command that all persons be treated alike, but, rather, a direction that all persons similarly-situated be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). The Court has further explained that this Amendment is designed to prevent official conduct that discriminates on the basis of race, Washington v. Davis, 426 U.S. 229 (1976), or any other suspect classification, Bakke, supra, 438 U.S. at 289-290 (the "guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color" and "racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination"). Plaintiffs' Complaint fails to state that Plaintiffs' national origins were considered by the District in making its assignments to the Phoenix Academy. Rather, their claims insinuate that
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their placement at Phoenix Academy is based upon their language barriers and that the accelerated or transitional implementation of the curriculum, supported by ESL classes4, is unlawfully discriminatory. Plaintiffs acknowledge in their Complaint that they receive ESL education at Phoenix Academy. Complaint, at ¶ 56. Their claim is that the ESL education at McCaskey is better because McCaskey has an International School that "provides intensive support and content-based ESL instruction in a one-year program… primarily for entering students." Complaint, at ¶ 59. This allegation is particularly telling because it identifies other students who are foreign nationals with language barriers, newly enrolled with the District who have been assigned to McCaskey, as "entering students." Clearly, because Plaintiffs have pleaded that the District enrolls all qualified non-English-speaking foreign national students, and then assigns them to either McCaskey or Phoenix Academy, Plaintiffs have not stated a claim for discrimination on the basis of national origin. Moreover, Plaintiffs have not stated a claim that, in either school, they have been deprived of ESL education. Rather, their only complaint is that because of their ages (17-21) and lack of academic credits, they are assigned to the Phoenix Academy for enrollment. However, neither age, education nor refugee status are valid, protected classes under the applicable analytical framework necessary to show a constitutional violation.
Because Plaintiffs fail to state that their national origins are part of the decision-making process in assigning them to Phoenix, and further, have failed to state that their assignments to Phoenix consequently deprive them of any ESL education as opposed to the other ESL students at McCaskey, their claims alleging violations of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution show no likelihood of success on the merits.
4 English-as-a-Second-Language, or ESL program, is an acceptable alternative to a true bilingual education, in which a special English class is added to the standard school curriculum which a student attends in addition to regular classes. See, American Inst. For Research in Behavioral Sciences, Evaluation of the Impact of ESEA Title VII, Spanish/English Bilingual Programs, Vols. I & II (1977), Vols. III & IV (1978).
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(D). Plaintiffs claim under 42 U.S.C. §1983 for an alleged violation of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution must be dismissed pursuant to Fed. R. Civ.
Pro. 12(b)(6) Fourteenth Amendment Substantive Due Process Alleged Violations Bullying Respecting the claims of Q.M.H. and Anyemu Dunia who have alleged that they were bullied at Phoenix, the District cites, in response, the jurisprudence of S.K. v. North Allegheny School District, 2016 U.S. LEXIS 25975 (W.D. Pa. 2016) and Monn v. Gettysburg Area School District, 2013 U.S.Dist.LEXIS 47371 (M.D.Pa. April 2, 2013), for the proposition that absent a state-created danger, the state owes no duty to protect a private citizen from the acts of private individuals. Monn, citing,Sanford v. Stiles, 465 F.3d 298, 303-304 (3d Cir. 2006), citing, Deshaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 198-200 (1989). Allegations that the School District failed to prevent future bullying after initial complaints cannot be characterized as an affirmative misuse of authority.Monn, 2013 U.S.Dist.LEXIS 47371, at *18-19, citing, D.R. by L.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364, 1373 (3d Cir. 1992); Brown v. School District of Philadelphia, 456 F. App'x 88, 91 (3d Cir. 2011)(non-precedential) See, also, Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2003)("a state's failure to protect an individual against private violence does not constitute a violation of due process") and Brown v. Commonwealth of Pennsylvania Department of Health Emergency Medical Services Training Institute, 318 F.3d 473, 483 (3d Cir. 2003) ('there is no federal constitutional right to rescue services, competent or otherwise). Consequently, this claim must fail.
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Property Rights in Education Alembe Dunia, and others similarly situated, brought claims against the District because
they were allegedly denied enrollment in violation of the Fourteenth Amendment's constitutional protection of their property interests in their educations. Defendant agrees that the Pennsylvania legislature created property rights in education through the Article III of the Pennsylvania Constitution and a legal right to a free public education from ages 6-21, through the provisions of Chapter 11 of the Pennsylvania Public School Code. The Defendant, and the Plaintiffs who are enrolled students, further agree that at least based upon their pleadings, they are all within the ages of 17-21, which would entitle them to a free public education in Pennsylvania and within the School District of Lancaster and all of whom have property rights in their educations.
Where the parties differ is in the construction and application of these laws. "The state is constrained to recognize a student's legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct, without adherence to the minimum procedures required by that Clause." K.A. o/b/o her minor child, J.A. v. Abington Heights School District, 28 F. Supp. 3d 356, 367 (M.D. Pa. 2014), citing, Goss v. Lopez, 419 U.S. 565, 574 (1975). Since Alembe is not an enrolled student, he does not have a property interest in an education. His claim is that he was refused enrollment. But Alembe has failed to state whether or not he received any education credits prior to attempting to enroll with the School District of Lancaster. Alembe has further failed to state whether attending the accelerated program at the Phoenix Academy would have allowed him to achieve the necessary and sufficient credits to graduate from the School District of Lancaster. And finally, Jack Blackman, the Coordinator of Counseling and Drop-Out Prevent testified that, following enrollment, Alembe failed to keep his appointment with Mr. Blackman for placement.
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He testified on re-direct that he injured his knee playing soccer, that his injury did not affect his ability to work, but "played only in his decision to stay home because I couldn’t go to school [because] my knee was bothering me."
Where the parties further differ is in the notion that persons of certain national origins have been turned away at the door of the School District of Lancaster, on account of those national origins. Fascinating in its suggestion is the allegation that Alembe's brother, Anyemu, was accepted for enrollment into the District and that the siblings are logically of the same national origin. Alembe does not specify in his pleading how the District selects which foreign nationals upon which it will slam its doors and refuse enrollment. One might infer, however, that persons under 21 who have already graduated, would not be entitled to enroll at a public school. One might also infer that persons under 21 who have no interest in participating in an accelerated educational program might themselves refuse enrollment. There are many other explanations for why persons 21 years of age and younger are not enrolled, or do not enroll, in a public school for education and graduation, none of which have anything to do with the national origin of the student, including "soccer injuries to their knees."
On the basis of the foregoing, it is unlikely that Alembe, and other Plaintiffs claiming a "refusal of enrollment" can show a substantial likelihood of success on the merits of their claims of 14th Amendment violations. Procedural Due Process Rights
Alembe and others have claimed that the District affords no appeal rights to students who are not enrolled or who are assigned to the Phoenix Academy following the completion of the enrollment process. Pennsylvania law provides the board of education with the unfettered discretion to assign students to buildings within the District where, in the Boards' collective
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judgment, that student will best be educated. 24 P.S. §13-1301, et seq. The School Code does
not provide a right to an appeal by the student for the placement of that student at a particular
building, unless a disability is claimed. Id.; K.A./J.A. v. Abington Hgts S.D., supra.
Because Plaintiffs have failed to show that appeal rights exist under the applicable
procedural due process laws or state legislation governing entitlements to enrollment, or
entitlements to refuse to enroll due to compulsory education requirements, Plaintiffs have shown
no substantial likelihood of success on their procedural due process claim.
(D). Plaintiffs claim under 24 P.S. §13-1301 and 22 Pennsylvania Code Chapter 11 must be dismissed pursuant to Fed. R. Civ. Pro. 12(b)(6)
Qualification for enrollment in a Pennsylvania public school district is governed by 24
P.S. §13-1301, et seq., which states, in pertinent part:
"Every child, being a resident of any school district, between the ages of 6-21 years, may attend the public schools of his district, subject to the provisions of this Act….and who has not graduated from high school..." Id., 13-1301.
At §13-1302, the law states, again, in pertinent part:
"(a) A child shall be considered a resident of the school district in which his parents or the guardian of his person resides… Before such child may be accepted as a pupil, such resident shall file with the secretary of the board:
(1) Appropriate legal documentation to show dependency or guardianship;
(2) A sworn statement that he is a resident of the district;
At §13-1303(a)….[a child must receive] proper immunization; and
At §13-1310, relating to Assignment of pupils to schools, the law provides:
"The board of school directors of every school district… shall, for the purpose of designating the schools to be attended by the several pupils in the district… subdivide the district… in such manner that all the pupils in the district shall be assigned to, and reasonably accommodated in one of the public schools in the district… or may classify and assign the pupils in the district to any
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school or schools therein as it may deem best, in order to properly educate them…It shall be unlawful for any school directors… to make any distinction whatever, on account of, or by reason of, the race or color of any pupil or scholar who may be in attendance upon, or seeking admission to, any public school maintained wholly or in part under the school laws of the Commonwealth." Id.
Three key points come from a review of the foregoing provisions – first, a Pennsylvania public school district's obligation to educate children within its borders ends at (1) the culmination of sufficient credits to receive a diploma and graduate, or, (2) at the end of the child's 21st year or the end of that school year. Secondly, the inherent discretionary power of school boards regarding the assignment of students is properly limited only by orders of the Human Relations Commission. School District of Pittsburgh v. Rankin, 396 A.2d 856, 858 (Pa. Commw. 1978). The School Code includes the federal prohibition against unlawful discrimination based upon a protected status. Thirdly, this statute applies to all students, regardless of where they previously resided and were educated, or how much education they actually received before their enrollment in a Pennsylvania school. The statute makes no special provisions for refugee children.
It is well-established in Pennsylvania that students have no entitlement to be enrolled at any age unless they present evidence of proper immunizations. Id.; 22 Pa. Code §11.20. Plaintiffs Khadidja Issa and Qasin M. Hassan both delayed presenting proper immunization paperwork to the District enrollment officers. However, when through the assistance of their resettlement agents, they were able to produce proper evidence of immunization, they were enrolled.
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Alembe Dunia, as he testified above, was not enrolled because he did not follow with Mr. Blackman and appear for his appointment. He testified that he injured his knee playing soccer and could not attend school.
It is respectfully submitted that the Plaintiffs cannot establish a substantial likelihood of success on the merits of this claim, and therefore, their request for a Preliminary Injunction should be denied.
(4) Transferring Plaintiffs, who are over-aged and under-credited, from Phoenix Academy to McCaskey High School is not in the public interest.
The Pennsylvania legislature has promulgated the following legal requirements for public school students, regardless of their national origin or English-speaking abilities.
22 Pa. Code §4.11(b) provides that the purpose of a public education is to "prepare students for adult life by attending to their intellectual and developmental needs and challenging them to achieve at their highest level possible. In conjunction with families and other community institutions, public education prepares students to become self-directed, life-long learners and responsible, involved citizens."
22 Pa. Code §4.11(d) provides, "The academic standards describe the knowledge and skills that students will be expected to demonstrate before graduating from a public school.
22 Pa. Code §4.23(a), relating to High School education, provides: "Instruction in the high school program must focus on the development of abilities needed to succeed in work and advanced education through planned instruction." (emphasis added.)
22 Pa. Code §4.23(g) provides, "School districts….shall determine the most appropriate way to operate their high school programs to achieve the purposes of subsection (a) and any additional academic standards as determined by the school entity."
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22 Pa. Code §4.4 General Policies. (a) It is the policy of the Board that the local curriculum be designed by school entities to achieve the academic standards under §4.12 and any additional academic standards as determined by the school entity. (b) It is the policy of the Board that local school entities have the greatest possible flexibility in curriculum planning consistent with providing quality education and in compliance with the School Code, subjects to be taught in the English language (24 P.S. §15-1511) courses adapted to the age, development and needs of the pupils (24 P.S. §15-1512), minimum school year of 180 days and minimum of 900 hours of instruction at the elementary level and 990 hours of instruction at the secondary level (24 P.S. §§15-1501 and 15-1504; employment of sufficient numbers of qualified professional employees (24 P.S. §11-1106) and superintendents to enforce the curriculum requirements of State law (24 P.S. §10-1005) and this part. (Emphasis added.) 5 22 Pa. Code §4.42 relating to grade structure does not require educational programs to be organized in traditional grades according to students' chronological ages or academic achievement levels. But the Rules of the State Board of Education recognizes individual grade levels K-12 (Organization of Schools, Requirement a., 0520-1-3-.02) with requirements for student evaluations in Grades K-8, and compulsory attendance until age 17 or to the student's 18th birthday unless he/she has received a diploma or other certificate of completion of high school. (Administration of Schools, Requirement B., Rule 0520-103.03)(emphasis added). Clearly, separating children in public education through grade levels commensurate with some age-related expectations for academic achievement have been considered by the Board in promulgating its Rules.
5 See, also, Lau v. Nichols, 414 U.S. 563 (1974) (public schools must take affirmative steps in the areas of language acquisition and academic content development by local schools and the state, but leaves the methodology up to the local expertise.)
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The School District of Lancaster has placed Plaintiffs, and all similarly-situated young adults at the Phoenix Academy without regard to their national origin or abilities to speak English.
Here, the Plaintiffs, none of whom presented evidence of having been formally educated before reaching the City of Lancaster, and the School District of Lancaster, have had no early preparation through grades K-8 for achievement in high school, the last milestone before graduation. Therefore, those Plaintiffs who have no ability to graduate before reaching age 21 cannot possibly benefit from the academic challenges at either the Phoenix Academy or the McCaskey High School that their same-age peers have overcome in order to become "selfdirected, life-long learners and responsible, involved citizens." Without the instruction, repetition and structure of an education longer than 12 months, they cannot be goal-directed towards employment or secondary education. Consequently, they become nothing more than warehoused in a dead-end program with students who do not share their levels of emotional or intellectual maturity, interests, or goals.
Plaintiffs, like any other students who are English speakers and are between the ages of 17-21, who presented without transcripts of prior education at the time of enrollment, including diplomas or other certificates of completion, have all been placed in 9th grade at the Phoenix Academy, which is the lowest level of high school in which the required accumulation of 24 credits towards graduation begins. The 9th grade level is where a typical Pennsylvania public school student enters at ages 13-14 at the McCaskey High School. Moreover and more importantly, these Plaintiffs, who are now young adults at ages 17-21, have entered the District at Phoenix Academy when the same-aged peers have begun to leave and graduate from McCaskey. Therefore, there are very few, if any, same-aged peers in high school, much less the
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9th grade classrooms. Further, the typical 17-21 year old student that receives a diploma at graduation has already moved on to college, a full-time job, or the military. However, these Plaintiffs, at the same age as their peers who have left the District following graduation, cannot move forward to any of those same goals upon entering a public school district in the 9th grade. If they wish to graduate with a diploma, they must remain in school until their 24 credits have been accumulated. Because Pennsylvania does not compel a teenager's public school attendance after reaching the age of 18 (22 Pa. Code §11.13 relating to compulsory school age under 17 or graduation from high school, whichever occurs first), students who are already parents and/or bread-winners will likely become frustrated and quit, frequently because daily attendance and academic achievement place stress upon their time to attend to their other priorities.
Such being the case, this Court must look at the consequences of placing over-aged young adults at ages 17-21, some of whom have no graduation goals to accomplish, in the same classrooms at McCaskey with 13-14 year old 9th grade students. The Court must evaluate the differences in emotional and intellectual maturity levels, sexual awareness and activity, the differences or commonalties in after school interests, including whether some of them are married, parents, or already working to support families. Clearly, there is a huge disparity between students of these ages because the legislature saw fit to transfer control of a student's decision about whether or not to attend school upon the student's 18th birthday. The 9th grade students of ages 13-14 do not have that same control over their futures because they remain controlled by their parents or guardians. More critically, the Court must take notice of the severe consequences of those 17-21 young adults who are accepted into the Pennsylvania public schools in their quest for a better life, who may unintentionally or otherwise, take advantage of their
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younger classmates in their attempts to socialize.6 In fact, 18 year olds in Pennsylvania can vote, legally emancipate from their parents and buy tobacco products. If they have graduated, they can register for armed service. 21 year-olds can legally purchase and consume alcohol. This age typically coincides with the age when most students are graduating from college; however, the Pennsylvania Legislature, by virtue of the Pennsylvania Public School Code, 24 P.S. 13-1301, for reasons that are altogether unclear, has aligned the end of a student's entitlement to a free public education to coincide with its legal drinking age -21.
The Programs at Phoenix Academy and the International School at McCaskey are identical in curriculum. The structure of English language instruction and support is the same or similarly in content and quality, but different in duration in each building.
The Pennsylvania Department of Education recommends at least 2 hours of English language instruction per day, in order to assist English Learners to overcome language barriers to comprehend instruction and to perform to the academic standards of the District and the Department of Education. The Phoenix-Plaintiffs' argument that the English Language instruction and supports available to other non-native English speakers in the one-year International School at McCaskey is "better for them" is only useful to this Court if the Court finds that the English language instruction and supports at the Phoenix Academy are not based upon sound educational theory, are not implemented with ESL instruction and supports; and are not working. Castaneda, supra. However, there is no evidence based upon actual observations by any Phoenix-Plaintiffs, or the Plaintiffs' expert consultant that the ESL language and supports at the Phoenix Academy are non-existent; the testimony was that McCaskey was better, although
6 See, Commonwealth v. Samarin, (citation omitted), wherein on August 26, 2016, 23-year-old Artur Samarin, a Ukranian national, posed as a 19-year-old student and was enrolled in the Susquehanna Township School District, pled guilty to a host of federal charges including, but not limited to, statutory rape for having sex with a 15-year-old classmate identified as "E.F." (See Exhibit A for details.)
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none of them had personal knowledge through observations of building, classrooms, or interviews with staff, that the International School Program was actually better than those provided by the Phoenix Academy staff in the accelerated program.
Defendant, The School District of Lancaster, argues that it is not in the public interest to place all entering non-English speaking students ages 17-21 at the "one-year International School program" at the McCaskey High School because the education, while "sheltered" for some classes, especially English Language (ESL) Instruction, does not guarantee "sheltered instruction" for the duration of the year. Following the end of that year, students are then integrated with the general population of native English speakers with only "push-in" support for assistance.
On the other hand, entering students ages 17-21 already enrolled at the Phoenix Academy have the additional supports of a full 80-minute exclusive ESL class taught by an ESL-certified instructor, additional ESL direct instruction through a dually-certified Communication Arts and ESL instructor, and push-in support in every content class, together with additional assistance in Sixth Period Resource Class where the ESL instructor provides 1:1 assistance to the EL. Push-in supports include technological assistance in the nature of a computer-assisted training, I-Pads, "Google Translator" and Language Line, a specialty telephone-assisted translation company that locates and delivers translation services in even rare languages, such as in this case, Fur, Arabic, and Hahka Chin. These services and supports exceed PDE's recommended 2 hours of ESL per day, and are provided throughout the student's entire education at Phoenix, as needed. Moreover, students at Phoenix rarely exceed 350 in number, so that the students are educated from the first day to the last day before graduation in a small learning community, with the same language and/or education level peer groups.
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Finally, it is not in the public interest for this Court to substitute its judgment for the judgment of the administrators and professional staff of the School District of Lancaster, whose efforts are exercised every day, all year, to maximize every student's ability to achieve success, to attend school safely, and to graduate with a diploma that is the gateway to becoming "selfdirected, life-long learners and responsible, involved citizens."
PROPOSED FINDINGS OF FACT Current and Former Resettlement Agents Sheila Mastropietro, (N.T. Aug. 16, 2016, A.M. session)
1. Sheila Mastropietro is the current Director of the Lancaster Office of Church World Service, Immigration and Refugee Program. (N.T. Page 53, ln. 14-15).
2. Church World Services is a refugee resettlement agency contracted by the Department of State to perform certain things for refugees upon arrival to Lancaster, including, inter alia, register children in school, find English as a Second Language classes for adults… the idea is self-sufficiency with 90 days. (N.T. p. 56, ln. 15-25.)
3. Most of the groups CWS brings over now do not have a high number of children that speak English, have educations in refugee camps to ninth grade, without usable records to verify their education. (N.T. pp. 62-64.)
4. The contract between CWS and the State Department requires children to be enrolled within 30 days of arrival. (N.T. p. 69, lns. 13-22.)
5. Her experience with the District since 2010 was that over-aged young adults were not enrolled with the School District of Lancaster because of age [maturity] differences (N.T. pp. 72-73, and because of improper immunizations (N.T. p. 73, lns. 16-24.)
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6. In 2015, there continued to be problems with delayed enrollment and [she] wasn't convinced that Phoenix Academy provided the education these students needed. (Id. at p. 77, lines 14-25.)
7. She was told by students that they were not enrolled because they were "too old" but she did not follow up with anyone at the District to confirm that information. (N.T. pp. 106107.)
8. Two out of four refugee students she enrolled at SdoL were ages 17-19, and placed at Phoenix Academy because they were "overaged and undercredited." (N.T. p. 78, lns. 1124.)
9. Ms. Mastropietro and an employment specialist from Lutheran Resettlement Services, Elise Chesson, agreed that they were having similar issues with enrollment and scheduled a meeting with the District Superintendent on March 17, 2016. (N.T. pp. 83-85.)
10. At the meeting of March 17, 2016, Dr. Rau, the Superintendent, was advised that there "wasn't much ESL given, there wasn't as much at Phoenix as there was at McCaskey, that the atmosphere at Phoenix was more punitive that it is at McCaskey." (N.T. p. 87, lns. 914).
11. Neither Ms. Mastropietro nor Ms. Chesson raised enrollment as an issue at that time, rather, [why] over-aged refugee kids are sent to [Phoenix.] (Id. at lines 17-21).
12. Ms. Mastropietro admitted that [school] brought it up that, although she didn't know how they knew, some of the kids didn't want to go to school, that they were older, wanted to work and should apply for a GED. (N.T. p. 87, ln. 25, p. 88, lines 1-5.)
13. Ms. Mastropietro said that Dr. Rau indicated that she would look into all of their allegations, familiarize herself with what was going on at Phoenix Academy and they
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would have another meeting after school ended in June of that year. That was an acceptable answer to Ms. Mastropietro. (N.T. p. 88, lines 23-25); p. 89, lines 1-14). 14. Ms. Mastropietro attended a meeting of the Refugee Service Providers Coalition on April 6, 2016, where she met Amber Hilt, SDoL's ESL Coordinator, who confirmed that overaged and undercredited students go to Phoenix Academy. (N.T. p. 89, lines 20-25; pp. 90-91.) 15. Ms. Mastropietro admitted that her resettlement coordinator who attended an orientation at Phoenix did not find it as punitive as [Ms. Chesson said.] (N.T. p. 93, ln. 25; p. 94, lines 1-11.) The students were not walking around the halls repressed or any other way different than regular students. (Id.) 16. Ms. Mastropietro testified to another meeting on July 13, 2016, with Valentina Ross from her office because by then, Lutheran Refugee Services had closed its doors. (N.T. p. 95, lines 2-15.) 17. Ms. Mastropietro and Ms. Ross expressed concerns that ESL wasn't adequate, enrollment was late, students were patted down, took no homework from Phoenix and "just the issue of why the kids are sent to Phoenix and not to the international school." (Id. at lines 16-25.) 18. She was told by District officials attending the meeting that Phoenix students are given two to three hours of ESL, co-teaching, and that there were many ways to learn English which don't count as "direct hours." (N.T. p. 96, lines 13-25.) 19. Ms. Mastropietro has no independent information about what is taught or how it is taught at Phoenix. (N.T. p. 97, lines 1-5.) She does not know when the time for placement ends before a semester begins. (N.T. pp. 108-109.)
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20. At the end of the meeting, Dr. Rau said that the orientations would be presented so that the refugee students were more comfortable, they would consider allowing children to bring in backpacks and their own feminine products if they wished, rather than using the ones provided by the school. (N.T pp. 100-101.)
21. Dr. Abrom told her that the [District's] goal or mission is to get these kids graduated, get them a high school diploma. He emphasized the importance of having a high school diploma and getting a job. (N.T. pp. 101, lines 19-25, 102, lines 1-2.)
22. Dr. Abrom explained that the older kids including refugees are sent to the Phoenix Academy's accelerated program so that they can earn more credits that they need to graduate, because at McCaskey they can only earn 7 (per year), but at Phoenix they could earn more. (N.T. pp. 102-103).
23. Ms. Mastropietro talked to a lot of school age refugee kids and had concerns that they were in an accelerated class but did not speak English well. (N.T. p. 105).
24. Ms. Mastropietro did not have any knowledge about whether or not a student could receive 80-minutes per day of ESL and graduate from the Phoenix Academy. (N.T. p. 111.)
25. Ms. Mastropietro does not believe that all students at Phoenix Academy receive an inferior education, that success depends on the student, (N.T. pp. 113, 114), the student's effort and initiative. (Id. at lines 1-6.) ELISE CHESSON, N.T. AUGUST 17, 2016, AM SESSION
26. Elise Chesson is a former resettlement agency, current unemployed. (N.T. p. 120, lines 12-15.)
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27. She acknowledged that one of her former clients, Faissa Hasson, came to the District with several school age children, but that Qasin's older siblings chose not to enroll. (N.T. p. 120, pp. 19-23.)
28. She acknowledged that when Qasin turns 18, he can refused to enroll in public school. (N.T. pp. 121, lines 2-6.)
29. She was not his case manager, does not know how old he was entering the country or his birthdate. (N.T. pp. 122, 123.)
30. She was unaware that the District's records showed that Qasin's age was 19 at the time he presented for enrollment. (N.T. p. 124-125.)
31. She was aware of an email showing that the District had a discrepancy in its records. (N.T. p. 130, lines 1-7.)
32. She was aware that Mr. Blackman discussed pathway options with older students. (N.T. Id. at lines 21-25.)
33. She agreed that it was difficult for students to get "anywhere", or a job without a high school diploma, and believes that Qasin should be in school if that's the choice he wants to make. (N.T. p. 137, lines 12-23.)
34. She agreed that a GED would help him as well, did not know that he could transfer his certificate for an SdoL diploma after one year. (N.T. p. 138.)
35. With respect to Khadidja's reluctance to ask anyone for a feminine hygiene product, Ms. Chesson believes it is the School District's job to help her get over that, not hers. (N.T. p. 142, 143.)
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36. Ms. Chesson learned that Dr. Rau had the District's ESL program evaluated by one of her own expert consultants and was looking into various ways to resolve problems. (N.T. pp. 144, 145.)
The Plaintiffs Khadidja Issa; N.T. August 16, 2016, PM SESSION
37. Khadidja speaks Arabic, was born in Sudan, moved to Chad to live in a refugee camp, which she left at age 17. (N.T. pp. 9, 10.)
38. She attended school until sixth grade, learned to speak Arabic, some English and French. (N.T. p. 10, lines 8-18.)
39. When she arrived in the U.S. she could not read or write English. (N.T. p. 10.) 40. Her sister has learned English at McCaskey, and other students in her class at Phoenix
have learned English. (N.T. pp. 17-19.) 41. She understands math because math is mostly numbers. (Id. at p. 20.) 42. Mrs. Ortiz, the ESL teacher, comes into her classes to help her. (Id. at p. 22, 23.) 43. If she has a question in class, her teacher helps her. (Id. at 23, 24.) 44. If she takes tests in class, her teachers help her. (Id. at 25.) 45. At enrollment, Bilal (her resettlement worker) interpreted for her. (Id. at 27.) 46. He only told her she was too old to enroll, did not tell her there were problems with her
immunization papers. (Id.) 47. She could have graduated in Chad, but was short one semester at age 17. (Id. at p. 29). 48. She doesn't want to graduate, she just wants an actual education. Now, even if she
graduates, she knows nothing. (Id. at p. 30). 49. She is taught mathematics in English. (Id. at 30).
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50. She does not understand what she writes in English. (Id. at 30-31) 51. When shown, Khadidja identified a hat, a heart, a camera, and a bed – in English. (Id. at
31.) Qasin M. Hassan 52. Qasin was born on September 9, 1998, is 17 years old now, and will be 18 in September. (N.T. p. 35, 36.) 53. He was born in Somalia, went to Egypt where he lived from the time he was 12 years old. (Id.) 54. He did not enroll in school, "took private school" at home. (Id.) 55. At home, he learned the Arabic language, to read and write a little bit. (Id.) 56. He came to the U.S. on September 9, 2015. (Id. at 37.) 57. He tried to enroll into school, got tired of waiting. He waited about 5 months. (Id. at 37.) 58. He said the first meeting he met Mr. Blackman who told him that he did not speak English and could not enroll in either McCaskey or Phoenix. (Id. at 39, 40.) 59. Megan tried so hard to enroll him, it took three months. (Id. at 41.) 60. He enrolled at Phoenix but no one spoke Somali or Arabic. (Id. ) 61. He took five classes, really only understood the English teacher. (Id. at 42). 62. He tried to learn as much as he could, but it was hard. (Id.) 63. Most people in English class could speak English better than him and Khadidja. (Id. at 43.) 64. His teacher helped him a lot. (Id. at 44.) 65. He understood what was happening in English class 100%. (Id.)
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66. He was bullied. Several students at a time were present in the bathroom and kicked the door. (Id. pp. 54-55.) He said a security guard came in and told everyone to return to their classes. (Id.)
67. A girl pulled his hair. He told her not to. She stopped. (Id. at 56.) It bothered him a lot. (Id.)
68. He stopped going to school. (Id. at p. 57). 69. He wants to be a policeman. (Id.) 70. He has never been to school in his life, nor have his siblings. (Id. at 63.) 71. He attended school at Phoenix for 1 ½ months, felt he gave it enough time to decide that
he didn't like it. (Id.) 72. He doesn't recall telling anyone from the school who came to his home that he wanted to
work. (Id. at 64.) 73. He worked before enrolling in school at a market where he sold produce. (Id.) He did
not know the name of the market. (Id. ) 74. He says it's impossible to become a police officer, because it's [] education. (Id. at 66.) 75. Phoenix Academy was not supporting or helping him. (Id.) 76. He feels he would do better at McCaskey because it has a better reputation. (Id. at 67.)
Van Ni Lang 77. Van Ni was born on October 30, 1998, in Xaio Pai, Chin State. (Id. at 76, 77.) 78. She speaks Hahka Chin, some Burmese, no English before coming to the U.S. (Id. ) 79. She goes to Phoenix school because she wants to be educated. (Id. at 79.) 80. Her sister, Sui Hnem, also attends at Phoenix. (Id. at 80). 81. Her favorite class is ESL, she likes to learn English. (Id. at 83.)
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82. Her sister also speaks Hahka Chin. (Id. at 84.) 83. She receives English tutoring outside of the home, once a week. (Id. at 85.) 84. She learns about the moon, stars, rocks, and the sun, in science class. (Id. at 84). 85. She knows that there are only two people at McCaskey that speak Hahka Chin, and two
people at Phoenix Academy (she and her sister) who speak Hahka Chin. (Id. at 87). 86. There are no interpreters at either school. (Id. at 84, 87.) 87. Her education at Phoenix Academy is "not bad." (Id. at 89. 88. She believes it is more important to get more minutes of English instruction a day than to
attend a school where she gets less English instruction. (Id. at 92). SUI HNEM SUNG 89. Sui Hnem is Van Ni's sister, was born October 19, 1996, lives in Burma, the Chin State. (Id. at 95, 96.) 90. She was 19 years old at the time she enrolled, was placed at Phoenix Academy. (Id. at 99.) 91. She likes ESL class, the teacher was very good at teaching. (Id. at 100.) 92. All other classes are taught in English. (Id.) 93. She has outside tutoring at home. (Id. at 101.) 94. She wants to go to McCaskey because she believes she will get more ESL and it is closer to her home. (Id. at 102. ) 95. She can walk to McCaskey and didn't know that she can take a bus to Phoenix. (Id. at 104.) 96. She attended summer school at Phoenix, does not stay after school for extra credit. (Id. )
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97. She doesn't feel that she receives enough ESL instruction at Phoenix, but never told

anyone because she doesn't speak English and can't tell them. (Id.)

ALEMBE DUNIA

Notes of Testimony, August 17, PM SESSION

98. Alembe was born in Tanzania on November 11, 1995, will be 21 years old in November.

(N.T. p. 9).

99. His family left Tanzania and arrived in Mozambique in 2003 where they lived in a

refugee camp. (Id. at 11.)

100.

Alembe attended school in the refugee camp, but it was difficult because

Tanzania is an English-speaking country. (Id. at 11, 12.)

101.

He had to learn Portuguese in Mozambique and it was difficult for them. (Id. at

12.)

102.

He learned basic English in Mozambique while in school. (Id. at 12.)

103.

His family came to the U.S. in 2014. (Id.)

104.

He didn't know English went he arrived. (Id. at 12,13.)

105.

He tried to enroll in school, was accompanied by Bilal, his resettlement worker.

(Id. at 14.)

106.

He said he understood some of the conversation during enrollment, but Bilal told

him after six months that he was too old to go to school. (Id. at 14.)

107.

He thought it would be a waste of time to take free English classes outside of

school because he heard they were not very good. (Id. at 17.)

108.

He knows if he enrolled at school at age 20 he could not earn enough credits to

graduate by the time he turns 21. (Id. at 18.)

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109.

He injured his knee playing soccer [a long time], doesn't remember the date. That

played a role in why he stayed home and didn't go to school because his knee was

bothering him. (Id. at 20).

ANYEMU DUNIA

110.

Anyemu was born on September 18, 1997, arrived in Lancaster in November of

2014 at age 17. (Id. at 21.)

111.

He learned after enrollment that he was assigned to attend Phoenix Academy. (Id.

at 23, 24.)

112.

He understood some of the content of his classes in Skills Preparation, ESL,

Communication Arts, Counseling, Math and Chemistry. (Id. at 24, 25.)

113.

In computer class, it would take an hour to explain to the class what to do, and

then they would work on computers. (Id. at 25, 26.)

114.

He thought it was hard to communicate with teachers. (Id. at 30.)

115.

They used an iPad to translate sometimes. (Id. at 31.)

116.

Today, he writes and reads in English better than he did when he began at

Phoenix. (Id. at 40.)

117.

He graduated on August 16, 2016. (Id. at 45.)

118.

He had a good relationship with his teachers at Phoenix. (Id. at 48.)

119.

He enjoyed the summer school program. (Id.)

120.

He received report cards; would know if he didn’t pass a class. (Id.)

121.

He would like changes at Phoenix for people coming after him. He doesn't want

the school to focus on helping them get the degrees, but to help them learn instead of

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going fast and to graduate to get a diploma when they can do nothing with the diploma.

(Id. 60).

122.

He doesn't want to go back to high school. He wants to move on to college. (Id.

at 61.)

FORMER TEACHERS

Jandy Rivera – August 18, 2016, AM Session

123.

Jandy Rivera is currently unemployed, worked at Phoenix Academy from 2011

to 2013 as a 9th and 10th grade Communication Arts/English teacher. (N.T. p. 11-12).

124.

Phoenix provides an accelerated credit recovery program that has five 80 minute

periods a day. (Id. at 13-15).

125.

It was impossible for her to teach a year's worth of curriculum in half a year at

Phoenix. (Id. at 15.)

126.

She understands the concept of differentiated teaching, where she needs to modify

or change the curriculum based on each student's individual needs. (Id. at 39.)

127.

She found that impossible to do. (Id.)

128.

At some point, she was placed on a performance improvement plan to assist her

with her teaching at Phoenix. (Id. at 40.)

129.

Towards the end of that plan, she was ready for something else and found a new

job. (Id. at 40.)

130.

She did not have professional development training, but acknowledged the

trainings could have been held on days she didn't come to work. (Id. 44.)

131.

She gave credit to students for actually showing up to class and sitting there, so a

portion of the grade was given for that. (Id. at 54.)

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132.

She didn't see a lot of effort from the top focusing on unique challenges of the

refugee students to overcome language barriers, but saw that more from the ESL teacher,

Ms. Ortiz, who went "above and beyond" in trying to meet the unique needs of the

refugee students. (Id. at 54.)

133.

While she did not think the accelerated program at Phoenix produced results that

the language barriers were overcome, she had no idea whether or not they would be able

to do so at McCaskey. (Id. at 54, 55.)

Marianne Ortiz – N.T. August 22, 2016 (4:13 pm to 5:45 pm.)

134.

Ms. Ortiz is a former ESL teacher at Phoenix Academy. (N.T. p. 43.)

135.

She worked there from 2009-2016. (Id. at 44.)

136.

Some students were non-refugee immigrant students with limited or interrupted

schooling, one from Ethiopia, some from the Dominican Republic and some from Haiti.

(Id. at 44, 45.)

137.

She felt that these students were better placed at the International School at

McCaskey because to her understanding, it doesn't have an accelerated program. (Id. 45.)

138.

At Phoenix Academy, she delivered 80 minutes of direct ESL instruction. (Id.

47.)

139.

She also provided a resource period for middle school students and a resource

period for high school students for ESL learners who needed assistance. They could

come to her and she would help them understand what they had to do. (Id. at 52.)

140.

Those students could be considered "pull-out" students for ESL instruction. (Id. at

53.)

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141.

She also provided push-in services to ESL students for math and other content

classes. (Id. at 54.)

142.

Ms. Weathers also provided push-in services to developing students. (Id. at 55.)

143.

Ms. Ortiz never taught at McCaskey and has no direct knowledge of anything that

goes on in those buildings. (Id. at 78.)

144.

She never co-taught, however, Ms. Weathers did. (Id. at 8).

145.

She went to Qasin's home on a home-school visit and he told her "No school.

Work." (Id. at 81.)

HELAINE MARSHALL, PH.D.

Notes of Testimony, August 18, 2016, AM and Partial PM Session

146.

Dr. Marshall was qualified as an expert in "TSOL," "ESL" and meeting the needs

of "students with limited or interrupted formal education." (N.T. p. 96.)

147.

Dr. Marshall has never taught a single class of ESL. (Id. 90, lines 5-9).

148.

She has never interacted with anyone at the Pennsylvania Department of

Education. (Id. at 93.)

149.

Dr. Marshall opined that the School District has not produced evidence that the

program (at Phoenix) indicates that language barriers confronting these particular

students are being overcome. (Id. at 59.)

150.

Dr. Marshall opined that all of the students in this case and those similarly

situated could benefits from being placed at McCaskey. (Id. at 59. )

151.

In fact, she said it was "very clear" that is where these students would thrive. (Id.)

152.

In a "snapshot" of looking at data, she opined that "if you look at the two schools,

they're going to be different, but it didn't look that different when you looked at the

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overall distribution of levels." When she separated out literacy, in this snapshot, she

found the McCaskey students doing better in reading and writing. (Id. at 58.)

153.

In preparing her reports and her testimony, she received some records from the

District which were provided to her primarily by an attorney for the plaintiffs, some

WIDA information from the website, which she did not print, State of Pennsylvania

documents, and federal regulations. (Id. at 65, 66.)

154.

She looked at the Phoenix Academy website, did not use the material in her

report. (Id. at 67.)

155.

She looked at the School District of Lancaster website, did not use the material in

her report. (Id.)

156.

Other than the documents provided to her by Plaintiffs' counsel, she did not rely

on any documents concerning the Phoenix Academy program or the International School

at McCaskey. (Id.)

157.

She interviewed all of the Plaintiffs, but did not where she was when she

interviewed them. (Id. at 72.)

158.

She interviewed Sheila Mastropietro, Meghan Brown and Jandy Rivera by phone.

(Id. at p. 69, 77).

159.

She spoke with no one at the Phoenix Academy. (Id. 79.)

160.

She knows that Megan Misnik is the Executive Director of the Phoenix Academy

but "did not know it was appropriate or expected for [her] to [contact] her. She did not

know that was something possible for her to do. (Id.)

161.

She did not know if it was appropriate or expected of her to speak with the

Principal at Phoenix Academy. (Id. at 80).

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162.

She did not know if it was appropriate or expected of her to speak with Dr. Rau,

the Superintendent of Schools at The School District of Lancaster. (Id. at 81.)

163.

She acknowledged that she did not know it would be appropriate or expected of

her to speak with the administrators at The School District of Lancaster. (Id.)

164.

SLIFE students may or may not have trauma or stress in their past experiences,

may or may not have limited (in terms of quality of books, conditions in the country that

do not allow for serious focus on school) access to education, may or may not have come

from war-torn countries, may be refugees, may be immigrants. (Id. at 83-85.)

165.

SLIFE students might be American children who speak English, like Jamaicans.

(Id. at 85.)

166.

Her opinion that the students at Phoenix Academy do not receive an equal

educational opportunity with the students at McCaskey is based upon the delivery

of ESL instruction and supports through the accelerated model. (Id. at 86.)

167.

With respect to Khadidja Issa, she did not believe she receives at the Phoenix

Academy an equal educational opportunity to her sister is educated at McCaskey High

School, based upon the records she reviewed and her interview with the Plaintiff. (Id.

89).

168.

Interestingly, Dr. Marshall did not have Khadidja's work samples at the time she

interviewed her, she did not receive them until later. Neither, apparently, she did ask for

any demonstrations of Khadidja's knowledge at the time she interviewed her. (Id. 90-91.)

169.

Dr. Marshall did not interview of the other 12 potential class members at Phoenix

Academy (immigrants and refugees 17-21 years old who have arrived and were placed in

Phoenix Academy instead of being given a choice to go to another school. (Id. at 99.)

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170.

She opined that they would not be able to learn in the accelerated model at

Phoenix Academy, even supported with experts. (Id. at 100.)

171.

In rendering that opinion, she did not meet with any focus groups of ELL teachers

to survey their needs. (Id.)

172.

In rendering that opinion, she did not conduct one or more walk in classroom

observations to get a feel for the instruction at Phoenix. (Id.)

173.

She asked the attorneys if she was able to observe at Phoenix. She was told "No."

(Id. at 101.)

174.

Dr. Marshall did not know the names or backgrounds of the District's educational

consultants, but thought it was good to bring in consultants to help improve the program.

(Id. at 108).

175.

Dr. Marshall testified that the Pennsylvania Department of Education standard for

ESL instruction is two hours, that it is an expectation of the DOE. (Id. at 115.)

176.

Dr. Marshall does not focus on graduation as an end goal, but rather on

"prioritizing overcoming language barriers and accessing the core curriculum." (Id. at

118.)

177.

Dr. Marshall does not believe ESL students should be educated with native

English speakers… "that is the deal breaker." The 80 minute block schedule, i.e.,

the accelerated program "doesn't matter." What matters is that "they're with

mainstreaming students in a mainstream curriculum with a teacher without ESL

training, very special training you need to even work with SLIFE even beyond the

regular ESL. Phoenix just isn't going to be able to do that." (Id. at 121.)

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THE SCHOOL DISTRICT OF LANCASTER

Notes of Testimony, August 19, 2016 A.M. Session

AMBER HILT

178.

Amber Hilt is the Coordinator of K-12 ESL and World Language for the School

District of Lancaster. (N.T. p. 10).

179.

Ms. Hilt also served as an Assistant Principal for the McCaskey Campus for

approximately 3 ½ years. (Id. at 11.)

180.

As Assistant Principal, she was responsible for, inter alia, discipline. (Id. at 12.)

181.

Discipline involved referrals from teachers, day-to-day incidents and urgent

matters. (Id.)

182.

One incident involved police officers using physical restraint of a student, on the

ground, who was deemed to be a threat to himself or others. (Id. at 13)

183.

In addition to police officers, hall monitors are also utilized at McCaskey High

School. (Id.)

184.

The police officers can cite, arrest and use weapons they carry (guns and tasers.)

(Id. at 14.)

185.

Phoenix Academy does not have SROs. (Id. at 15.)

186.

Ms. Hilt is a member of CAL, the Center for Applied Linguistics, receives

periodicals called "Bridging Youth" and "Migration Policy Update". (Id. )

187.

She belongs to an internal refugee working group involving teachers that teach

ESL and schools that have high populations of refugee students, etc. that meet monthly to

discuss how we can further support refugees and their families coming to their school.

(Id. at 15.)

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188.

She is active with the Refugee Community Center at SdoL Reynolds Middle

School that provide access for refugee students and their families to health and medical

services, ESL on site, counseling, case management, document review for all refugees

regardless of whether or not they are enrolled with the District. (Id. at 16).

189.

She was invited to present at the Philadelphia Urban seminar as a success story

and was awarded the SdoL Unsung Hero Award for going above and beyond the call of

duty as an ESL teacher at Hand Middle School. (Id. at 17.)

190.

She assists with grant writing for Refugee Funding. (Id. at 18.)

191.

She is involved in quarterly refugee meetings with community partners such as

the resettlement agencies workers including Sheila Mastropietro and Elise Chesson. (Id.

at 19.)

192.

She has a collaborative relationship with all community partners. She believes

this litigation was started because the agencies would not wait to get back into a

discussion with Dr. Rau at the end of the school year. (Id. at 19.)

193.

She knows Plaintiffs Qasin Hassan and Khadidja Issa personally. (Id. at 21.)

194.

She met with Qasin in a few meetings, the first at enrollment when he refused to

participate in the meeting, did not approach the table or engage in conversation. (Id. at

21.)

195.

She met with Qasin again at Phoenix Academy when he complained that he was

bullied. She prepared for him a plan to contact five individuals he felt safe speaking with

in order to allay his concerns about continued bullying. (Id. at 21.)

196.

Her understanding from the first meeting was that Qasin's mother wanted him to

enroll, but he did not want to. (Id. at 23.)

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197.

He was eventually enrolled, placed at Phoenix Academy at age 17, although at the

time, it was thought that his age was 19. (Id. at 23, 24).

198.

Her understanding was that Qasin's goal was to work. (Id. at 24.)

199.

She was advised that a home-school visit was made because Qasin never came

back to school after the second meeting. No interpreter was present except for the

Language Line. (Id. at 25.)

200.

Following the home visit, the teachers received a rather aggressive phone call

from Elise Chesson who thought the District was kicking out Qasin from school. (Id. at

26.)

201.

An investigation was conducted by the head behavioral interventionist, with

interviews of all teachers and some students. No confirmation of bullying was made.

(Id. at 29.)

202.

Qasin's student file reflected that he came in to Phoenix as an "entering level"

ESL student, able to learn English, uses Arabic and Somali to speak primarily at home.

(Id. at 43.)

203.

Qasin was receiving 2 to 3 hours of literacy support. (Id. at 45.)

204.

Qasin's schedule for his first semester was appropriate for a student coming from

a background with no prior education. (Id. at 45.)

205.

Qasin had a lot of unexcused absences which would cause gaps in his availability

to learn and earn credits. (Id. at 47).

206.

If his schedule was transferred to McCaskey's international school, Qasin would

have only 48 minutes of each subject, including ESL. (Id. at 48.)

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207.

He would stay in the International School until he tested as a beginner or one-

year. (Id.)

208.

The international school program was reviewed by expert consultants hired by the

District , Vivian Fialo and Secora Herrara, who consulted with the administrators,

providing professional development training for the teachers. Prior to those evaluations,

the District sought assistance from Ana De la Pena from PDE's training network,

PaTTAN and technical assistance advisors through PDE for the migrant and refugee

populations. (Id. at 51.)

209.

Ms. Herrara provided training to the District's ESL staff on culturally relevant

biography driven instruction, a research-based theory, which was also discussed by Dr.

Marshall. (Id. 52.)

210.

Phoenix Academy is designated by PDE as a magnate school, meaning that it is

held separate and accountable to PDE on its performance. (Id. at 52.)

211.

Ms. Hilt reviewed Dr. Marshall's report and observed that Dr. Marshall did not

seek information directly from the District (Id. at 53.), did not speak with District staff,

District students other than the Plaintiffs, (Id. at 54).

212.

Ms. Hilt met with Dr. Herrera 6 to 8 times a year for her review of their entire

program including materials, curriculum, demographics, and parent involvement. (Id. at

55.)

213.

PDE does not endorse "dual immersion" strategies where English is taught in two

languages, nor does it endorse translation for non-native English speakers. (Id. at 57.)

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214.

Translators are not considered best practices. According to many theorists, it's

about the strategies teachers bring to the classroom for entering level students such as

visuals, gestures, songs and chants. (Id. at 58.)

215.

Interpretation is not considered best practice for teaching ESL students.

216.

Both Phoenix and McCaskey utilize netbook cards (small computers), iPads and

computer labs for English learners. (Id. at 60.)

217.

Ms. Hilt disagreed that Dr. Marshall's opinion that "ESL was being taught without

evidence of adaptation of content" because Dr. Marshall never reviewed lesson plans or

made classroom observations. (Id. at 62.)

218.

Ms. Hilt observed classroom techniques during this summer's program and also

observed Sui, Anyemu and Khadidja's sister, Noursham, as students there. (Id. at 65.)

219.

Ms. Hilt testified that some students received their instruction with English

speakers, through an educational theory called "sheltered immersion." (Id. at 66.)

220.

Sheltered immersion typically occurs in mathematics or art classes. (Id. at 67.)

221.

Ms. Hilt disagreed with Dr. Marshall's opinion that the Phoenix instructional

block schedule was inappropriate to teach English Learners (Id. at 68) because 80

minutes of ESL accrue to the PDE expectation of provided at least 2 hours of ESL

instruction per day. (Id.)

222.

The same instruction time for ESL occurs at McCaskey for entry and beginning

levels. (Id. at 68,69).

223.

"Can Do" descriptors, per WIDA and PDE requirements, sets goals for what a

student can do within an 80 minute block, a single class, as opposed to the classes in the

International School, that run only 48 minutes daily. (Id. at 71.)

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224.

Ms. Hilt has actually taught ESL classes and has delivered differentiated

instruction to the students. (Id. at 74-75.)

225.

She explained there are many ways to deliver differentiated instruction within a

classroom of students learning at varying levels, including the rotation model, 1:1

instruction, visuals, word banks, etc. (Id. at 75.)

226.

Ms. Hilt testified that the student-teacher ratio for ESL instruction is about 40:1 at

McCaskey's International School. (Id. at 78.)

227.

Ms. Hilt testified that the student-teacher ratio for ESL instruction is about 30-1 at

Phoenix Academy. (Id. at 7y9.)

228.

Ms. Hilt testified that there are approximately -y 1800-1900 ELLs in the District

with approximately 525 in high school. (Id. at 87.)

229.

Ms. Hilt testified that all extra-curricular activities at McCaskey High School are

available to Phoenix Academy students. (Id. at 94.)

230.

Ms. Hilt testified that some, but not all students at the International School are

SLIFE. (Id. at 101.)\

NOTES OF TESTIMONY – AUGUST 19, 2016 P.M. SESSION

231.

Ms. Hilt testified that, in her experience, SLIFE or refugee students sometime

needs to transfer to Phoenix from McCaskey to assist their families as caregivers, as

bread-winners, and from time to time drop out of school completely from the larger

environment at McCaskey. (Id. at 33.)

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DR. DAMARIS RAU

232.

Dr. Rau's vision for the District since coming aboard is to graduate students, have

them college or career ready. (Id. at 38.)

233.

Research has demonstrated that without a high school diploma, the changes of

positive outcomes for students is negligible. Dr. Rau observed that if one does not have a

high school diploma, one is more likely to get a low wage paying job, which results in

not having adequate health insurance which results in not having adequate health care.

(Id. )

234.

Students needs diplomas to have options and opportunities. (Id.)

235.

Her vision of graduating students to get them college or career ready is co-

extensive with the expectations of the Department of Education. (Id. at 39.)

236.

Five or six schools, including McCaskey, within the District, are on PDE's

"priority" or "focus" list for the state to monitor. (Id. at 39.)

237.

These schools are monitored by PDE with a plan for improvement. (Id. at 40).

238.

Dr. Rau just began her position with the District when she was introduced to Elise

Chesson and the refugee resettlement agents that assist refugees to enroll in the District.

(Id. at 44.)

239.

Dr. Rau listened to all the concerns, advised that she would look into them, and

suggested that the group reconvene in the summer after school had ended. (Id.)

240.

She was very disappointed that the group did not wait to meet with her, but rather

commenced litigation instead. (Id. at 45.)

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241.

Dr. Rau did speak with the administrators at Phoenix to encourage their assistance

to lessen the impact of orientation on entering refugees and to allow more freedom with

bringing items in and out of school. (Id. at 52.)

242.

Dr. Rau learned that some students were not enrolled within five days of

presentation as required by law and instructed her Director of Enrollment to move

students eligible for ELL services into their placement immediately. (Id. at 61.)

243.

Dr. Rau testified that students are placed at the international school if they are

able to graduate before reaching age 21. If they cannot, they are placed at Phoenix

Academy, unless they are 20 years old and cannot earn enough credits to graduate. (Id.

95.)

244.

However, Dr. Rau testified that the District cannot expect a student who has never

to been to school or had very limited education who is 18 to come to us and learn the

depth of understanding of a native speaker. (Id. at 96.)

JACQUES BLACKMAN

Notes of testimony, August 22, 2016 A.M. Session.

245.

Mr. Blackman is the current Coordinator of Counseling and Drop Out Prevention

for the School District of Lancaster. (N.T. pp. 5-6).

246.

Both the Phoenix Academy and the McCaskey High School use Small Learning

Community models to educate students. The only difference between the International

School at McCaskey and the Phoenix Academy is that Phoenix is used for credit

recovery. (Id. at p. 8.)

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247.

The students are the same ages, generally, at both schools, except that Phoenix

delivers instruction to students who need credit recovery because of their lack of credits.

(Id.)

248.

The same extracurricular activities are provided, except that no student is able to

participate in PIAA sports after the age of 18. (Id. at 9.)

249.

Dropout prevention is based upon nationwide best practices and the District

works hard at their own data to make the best decisions for students to get to graduation.

(Id. at 11.)

250.

Students at age 17 are interviewed to assist them to make the best decision for

their college or career goals. If they have no credits, they are assigned to Phoenix

Academy. (Id. at 12.)

251.

Mr. Blackman personally believes that a high school diploma is the gateway to

future opportunities. (Id. at 13.)

252.

Compulsory education in Pennsylvania occurs between ages 8-17. (Id. at p. 13).

253.

English language instruction and supports are the same at both schools. (Id. at

15.)

254.

Mr. Blackman's understanding of a public school education is to get as many

students as possible to graduation. (Id. at 16.)

255.

Students without a high school diploma or equivalency are at an educational dead

end. (Id. at 20,21.)

256.

Alembe Dunia was never denied enrollment. Mr. Blackman never met with him.

He never appeared for his appointment with Mr. Blackman. (Id. at 21, 22.)

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257.

Once a student provides appropriate paperwork through enrollment, they have

been cleared to be placed. (Id. at 26.)

258.

Qasin Hassan would not participate in the enrollment meeting. (Id. at 37.)

259.

Enrollment appointments with him for two plaintiffs in the litigation were

delayed, which he acknowledges is a problem that must be corrected. (Id. at 39.)

260.

His understanding was that Qasin wanted to work, not attend school. (Id. 50.)

261.

No plaintiff in this lawsuit ever asked him to transfer to McCaskey's international

school. (Id.)

262.

Alembe Dunia's enrollment was complete, but he failed to show for his placement

meeting. (Id. at 51. He was not refused enrollment.

263.

He respectfully disagrees with Dr. Rau's testimony that he has a policy requiring

students to wait for an appointment with him. (Id. at 51-52.)

264.

It is important that students graduating from the District are self-motivated adults,

that can support their families. Without a diploma, a student cannot get into the military

or enter college. For people to be in school and leave without a diploma is a failure as a

system, for the district, for the school, for him, personally. (Id. at 52,53.)

265.

Older students who share classrooms with younger students get discouraged,

embarrassed and leave school. (Id. at 56.)

266.

PDE standards and federal laws require schools to improve their graduation rates

and in order to do that, a school must find alternative pathways to cover credits more

quickly before students lose interest or "life happens." (Id. at 58.)

267.

Some young men get young ladies pregnant, leave to support their families, and

all sorts of circumstances that knock them off track. Credit recovery at Phoenix allows

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them to come back to McCaskey and finish with their four-year cohort to graduation. (Id.

at 58.)

268.

Public high schools traditionally are not designed for older students. (Id. at 60,

lines 11-15.)

269.

If there is an attempt to educate students of disparate ages, i.e., 13 and 17, his

research says that neither side is successful. Some older students are embarrassed to be

there. (Id. at 61.) 18 year olds think about different things than 13 year olds. (Id. at 62.)

270.

Additionally, SLIFE students with traumatic histories may do better in the smaller

learning community at Phoenix than at the larger complex at McCaskey which houses up

to 2900 students. (Id. at 67.)

AURA HEISEY

271.

Ms. Heisey is the former principal/academic lead at the Phoenix Academy, a part

of the School District of Lancaster. (Id. at 69,70).

272.

As an academic lead, she was responsible for any relating to teaching, and

learning including teacher observations, testing, progress monitoring, ensuring delivery

of curriculum consisted with the School District's high school curriculum. (Id. 71.)

273.

Teachers are expected to make lesson plans, accommodations to the plans for in-

class activity which must be aligned to the academic standards and core curriculum of

the District. (Id. at 71.)

274.

Accommodations can be made for EL students but will also be appropriate for all

students in the class. (Id. at 72.)

275.

Instructional models must target students for readiness for career or college. (Id.

70).

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276.

Those instructional models include delivery of strategies that target differentiated

learning including scaffolding, collaborative group work, questioning, classroom talk and

literacy groups. (Id. at 73).

277.

The curriculum at Phoenix is the same as the curriculum at McCaskey High

School. (Id.)

278.

Curriculum pacing guides are available to all teachers to outline a roadmap for the

delivery of the core curriculum and common core standards. (Id. at 74.)

Accommodations and changes are made when necessary, but it all ties back to what the

expectations are for the student to have finished and learned by the end of the course.

(Id.)

279.

Students are generally able to keep up with 80 minutes class periods because it

gives the teacher more instructional time, the students more time to complete their

assignments and teachers available to answer questions firsthand. (Id. at 75).

280.

Ms. Heisey is familiar with three Plaintiffs, Anyemu, Sui and Van, and Khadidja's

sister, Noursham. (Id. at 76).

281.

She had all three students in the summer program where they earn additional

credits towards graduation and additional English instruction. (Id.)

282.

The summer program is designed for refugee students to add three additional

credits toward graduation by the end. (Id. at 77.)

283.

Ms. Heisey was unaware that these Plaintiffs were unhappy with their educations

at Phoenix Academy until the lawsuit was released. (Id. 79.)

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284.

She had an open relationship with Anyemu Dunia, met three separate times to talk

about his credits, that if he wanted to come back in the fall, he could, but he expressed to

her that was ready to move on to college and trying to work at the same time. (Id. at 80).

285.

Ms. Heisey observed Khadidja in class and greeted her every morning. (Id. at

81.)

286.

Ms. Heisey was told by some of Khadidja's teachers that she was not advancing at

the same rate that some of her other students coming in at the same level. (Id. at 82.)

She was given 1:1 supports, 1:1 assistance in class. (Id. )

287.

Ms. Heisey was told that Khadidja's effort was not always the same, that there

seemed to be barrier toward her progress. (Id. at 82, 83.)

288.

Qasin Hassan only attended 20-30 days of school at Phoenix. (Id. at 85.)

289.

Her ESL teacher performed a home visit and was told that Qasin wanted to work.

(Id. at 86.)

290.

Following shortly was an angry phone call from Elise Chesson who told her that

Qasin was being bullied at school and did not want to attend. (Id. at 87.)

291.

After a meeting with Qasin when he was given a plan to assist him with

communicating his concerns, Qasin did not return to school. (Id.)

292.

Ms.Heisey observed Sui and Van in their summer classrooms. (Id. at 88.)

293.

Ms. Heisey testified that every student receives 80 minutes of ESL instruction per

day with their ESL teacher, a communication arts class taught by a highly qualified ESL

teacher, skills prep – an analog to the class taught at the International School at

McCaskey; and push-in supports and co-teaching. (Id. at 89.)

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294.

ESL, English as a Second Language, is an educational theory implemented at both

high schools, with Phoenix modeled from the International School, which is working at

Phoenix. (Id. at 90). Looking at ACCESS scores, students can be exited from the ESL

program, looking at graduation rates, as well. (id. )

295.

Anyemu Dunia is not the only student to graduate; there have been approximately

30 students who have graduated , including, Sonta, a friend of Anyemu's. (Id. at 91)

NOTES OF TESTIMONY, August 22, 2016 PM Session

MEGAN MISNIK

296.

Ms. Misnik is the Executive Director of Phoenix Academy. (N.T. p. 68.)

297.

Phoenix Academy is a magnet school that is sanctioned by the Pennsylvania

Department of Education. (Id. at 70).

298.

The accelerated program delivery is the basis for the "magnet" identification and

is a research-based model. (Id.)

299.

Teachers are provided professional development by SdoL and by Camelot

corporate levels. (Id. at 71.)

300.

Teachers at Phoenix participate in PDE professional development trainings. (Id. at

72).

301.

Phoenix is a small setting of 350 students. Ms. Misnik knows every single

student at the student. (Id. at 81).

302.

No translators are used for non-English students, but a variety of different

methods overcome language barriers, including buddy systems, Google Translate, iPads.

(Id. at 80).

303.

Language Line has been used in the past. (Id. at 87.)

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304.

Although Khadidja testified she just sat in class all day, not engaged, Ms. Misnik

testified that students are not expected to come and fill a seat. It is the responsibility of

the student to be an active, engaged learner. (Id.)

305.

Orientations were usually conducted by Ms. Falcon or Ms. Ortiz. (Id. at 88.)

306.

A dress code is enforced, but clothing is given to students who need it. (Id. at 89.)

307.

ESL is an educational theory, provided to their students by qualified staff. The

program is working; Phoenix has many students that have graduated. (Id. at 91.)

308.

Recent graduates have gone on to enroll at Millersville University and HACC

(Harrisburg Area Community College.) Id. at 92.

309.

80-minute block scheduling in the accelerated model allows the teachers to get

into depth of subject matter with their students. (Id. at 95.) Teachers provide an

introduction, an instruction, group or guided instruction, and follow up. (Id. )

310.

Phoenix is not a dead-end, warehouse for incorrigible students. While Phoenix

supports the SdoL's graduation initiative, Phoenix goes further by helping the student set

up a post-secondary plan, or a job. (Id. at 100,101.)

311.

She felt that Qasin's lack of candor about the bullying at Phoenix was upsetting.

She knew he conveyed that he was surrounded by a group of boys in the lavatory, but that

the Phoenix accelerated structure allows for two boys at a time to leave and come back

quickly. There are no large groups in the bathrooms. (Id. at 104).

312.

Phoenix Academy is a Middle States accredited school which allows for campus

improvements and growth. (Id. at 111.)

313.

One recent target is attendance, which is always an issue with older students.

(Id.).

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314.

One students are no longer overaged and under credited, they can return to

McCaskey; some want to stay. (Id. at 113.)

Notes of Testimony, August 22, 2016, PM session

Dr. Arthur Abrom

315.

Dr. Abrom is the acting Director of Pupil Services for the School District of

Lancaster. (N.T. p. 6.)

316.

As such, he oversees Jack Blackman, the Coordinator of Counseling and Drop

Out Prevention. (Id. at 7.)

317.

He is aware that Dr. Rau's mission is ensure that all students graduate with a

diploma, and are ready for the workforce, the military or college. (Id.)

318.

The general purpose of a public school education is to ensure that students receive

a high school diploma. (Id.)

319.

Challenges of the District include ELL students, refugee students of 39 different

languages represented across the District; a poverty rate of 87-90%. (Id. at 8.)

320.

Refugees bring unique challenges by not having any credits, school experience at

all and trying to determine what's best for them. (Id.)

321.

The District tries to place students with their age-appropriate peers, but older

students have none. (Id. 9.)

322.

Piaget's theory observes that a person at age 8 is a different person at age 18. That

is a developmental process. Another process is where a person at age 17-21 is in life. He

may be the bread-winner; she may be pregnant; some have arranged marriages; all of

which make it difficult to concentrate on school. (Id. at 10).

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323.

Placement of students upon enrollment requires consideration of the student's

goals and how best to get them to graduate. (Id. at 13.)

324.

He is aware of a meeting with community partners, i.e., Elise Chesson and Sheila

Mastropietro, regarding their issues with Phoenix Academy including the searches,

homework, backpacks and cell phones. (Id. at 16).

325.

He is aware that Qasin had reported bullying, but that an investigation conducted

which involved interviews of nine different teachers, and students, revealed that someone

had knocked on the bathroom stall and someone else had pulled his hair. (Id. at 18.)

326.

He responded to Ms. Chesson's concern with a written letter that provided the

legal definition of bullying and advising Ms. Chesson that it did not appear to have

occurred. (Id. 19)

327.

Another meeting with Ms. Chesson concerned her request to transfer the refugee

students to McCaskey. (Id. at 20).

328.

Dr. Abrom expressed his concern that all students receive equal educational

opportunities. They cannot assign refugee students to Phoenix differently than they

would any other student. He expressed that the District must treat students the same,

realizing that segregating students completely, or for too long, was not preferred. (Id. at

24.)

329.

Students with life challenges, who need credit recovery, at placed at Phoenix; not

students with discipline and behavioral problems. (Id. at 35.)

330.

Students at age 21 and students at ages 13-14, beginning 9th grade, are vastly

different levels of maturity. Students at age 21 can purchase and consume alcohol;

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students age 18 can disenroll from student, buy cigarettes, or assume their own FERPA

rights from their parents. (Id. at 18).

331.

Plaintiff Alembe Dunia, after enrollment, did not appear for his appointment with

Jack Blackman and testified that he did not attend school because of a soccer injury to his

knee;

332.

Plaintiff Hassan did not return to school because he wanted to work and not

because of alleged complaints of bullying, which were unfounded following an

investigation;

333.

Students, ages 17-21, should not be educated at the International School at

McCaskey in classes with students who have not yet reached the same level of maturity,

interests and goals, but rather, should remain in an age-appropriate cohort where

additional supports may be provided to them in a smaller learning environment in an

accelerated model which leads to graduation, and post-graduation plans for their career,

college or military readiness, along with their same-aged peers.

CONCLUSIONS OF LAW

1. Plaintiffs, and each of them, have failed to show that they will suffer irreparable

harm if they are not immediately transferred to the McCaskey High School's

International School on August 29, 2016.

2. Plaintiffs, and each of them, have failed to show that they have a substantial

likelihood of success on the merits of their claims for the following reasons.

3. Plaintiffs' Motion requesting a preliminary injunction is therefore DENIED.

Respectfully submitted, MARSHALL DENNEHEY WARNER
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Case 5:16-cv-03881-EGS Document 32 Filed 08/25/16 Page 65 of 67

Dated: August 25, 2016

COLEMAN & GOGGIN
By: /s/ Sharon M. O'Donnell Sharon M. O'Donnell, Esquire PA ID# 79457 Suite 201 100 Corporate Center Drive Camp Hill, PA 17011 Ph. 717-651-3503 Fax: 717-651-3707 Email: smodonnell@mdwcg.com

65

Case 5:16-cv-03881-EGS Document 32 Filed 08/25/16 Page 66 of 67
CERTIFICATE OF SERVICE
I, Sharon M. O'Donnell, Esquire, do hereby certify that, on this 25th day of August, 2016,
I served a true and correct copy of the foregoing document, via electronic filing, upon the
following:
Eric Rothschild, Esquire rothschilde@pepperlaw.com Kathleen Mullen, Esquire mullenk@pepperlaw.com Kaitlin Gurney, Esquire Megan Morley, Esquire Hedya Aryani, Esquire PEPPER HAMILTON LLP 3000 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103
Witold Walczak, Esquire vwalczak@aclupa.org AMERICAN CIVIL LIBERTIES UNION OF PA Fort Pitt Blvd. Pittsburgh, PA 15222
Molly Tack Hooper, Esquire Mtack-hooper@aclupa.org AMERICAN CIVIL LIBERTIES UNION OF PA P.O. Box 60173 Philadelphia, PA 19102
Maura McInerney, Esquire mmcinerney@elc-pa.org Kristina Moon, Esquire Alex Dutton, Esquire EDUCATION LAW CENTER 1315 Walnut Street, Suite 400 Philadelphia, PA 19107
66

Case 5:16-cv-03881-EGS Document 32 Filed 08/25/16 Page 67 of 67

Seth F. Kreimer, Esquire skreimer@law.upenn.edu 3501 Sansom Street Philadelphia, PA 19104
DATE: August 25, 2016

MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN
BY: /s/Sharon M. O'Donnell Sharon M. O'Donnell, Esquire Pennsylvania Bar I.D. No. 79457 100 Corporate Center Drive, Suite 201 Camp Hill, PA 17011 Phone: (717) 651-3503 Fax: (717) 651-3707 Email: SMODonnell@mdwcg.com
Attorneys for Defendant School District of Lancaster

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 Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 1 of 65

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Khadidja Issa; Q.M.H., a minor, individually, by and through his parent, Faisa Ahmed Abdalla Alembe Donia; Anyemu Donia; V.N.I., a minor, individually by and through her parent Mar Ki; Sui Hnem Sung; and all others similarly situated,

Civil Action No. 16-cv-3881 HON. EDWARD G. SMITH

Plaintiffs,

CLASS ACTION

v.

The School District of Lancaster, Defendant.
CONSENT DECREE

AlE
'JUN 2 9 2011
Bly<ATEBARl(iMAN,c~rk
----Dep, Clerk

Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 2 of 65

TABLE OF CONTENTS DEFINITIONS........................................................................................ 1 INTRODUCTION ................................................................................................................ 6

I.

ADMINISTRATIVE DIRECTIVE ....................................................................... 7

II.

ENROLLMENT OF IMMIGRANT STUDENTS AGES 17-21............................ 7

III. PLACEMENT OF NEWLY-ENROLLED IMMIGRANT STUDENTS AGES 17-21 ............................................................................................................ 9

IV. NEW STAFF POSITIONS .................................................................................. 12

V. DUTY OF DISTRICT TO PROVIDE TRANSLATION AND INTERPRETATION SERVICES ......................................................................... 12

VI. COMPENSATORY EDUCATION .................................................... 13

VII. FORMS ................................................................................................................. 15

VIII. CERTIFICATION OF TEACHERS .................................................................... 15

IX. DURATION OF THIS CONSENT DECREE ...................................................... 16

X. MONITORING AND REPORTING .................................................................... 16

XI. ENFORCEMENT ................................................................................................. 18

XII. NOTICE TO COUNSEL ...................................................................................... 19

XIII. MODIFICATION ................................................................................................. 19

XIV. RESERVATION OF JURISDICTION................................................................. 19

XV. RELEASE OF CLAIMS ...................................................................................... 20

XVI. ATTORNEYS' FEES AND COSTS .................................................................... 20

XVII. NON-WAIVER PROVISIONS ............................................................................ 21

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Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 3 of 65 XVIII. ENTIRE AGREEMENT ....................................................................................... 21 XIX. EXECUTION ........................................................................................................ 21
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Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 4 of 65
DEFINITIONS Action means Issa, et al. v. School District ofLancaster, Index No. 16-cv-3881, filed on July 19, 2016. Alternative education program means any high school-level educational program serving students enrolled in the School District of Lancaster ("SDOL") that is (a) not located on the McCaskey Campus, or (b) provides an accelerated curriculum. Application Date refers to the date on which an applicant for enrollment to SDOL completes an enrollment application form. Complaint means the legal document filed by Named Plaintiffs on behalf of themselves and others similarly situated to initiate this Action. Defendant or District or SDOL means the School District of Lancaster ("SDOL"). Consent Decree means the agreement between the Parties in the Action that is entered and so ordered by this Court. Effective Date means the date the Court signs and enters the Consent Decree. English Learner or EL means an individual who does not speak English as their native or primary language and has a limited ability to read, speak, write, or understand English. ESL means English as a Second Language instruction. Immigrant means any person between the ages of 17 to 21 who (a) was not born in any state of the United States of America defined to include the 50 States, the District of Columbia, and any U.S. territory (including Puerto Rico, Guam and Virgin Islands) and (b) as of the Application Date has not been attending one or more schools continuously in any one or more States for the preceding twelve (12) months.
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Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 5 of 65
Immigrant EL Placement Form means the appropriate document, included as Exhibits A through C to this Consent Decree, which shall be reviewed and signed by any student covered by this Consent Decree and a parent of such a student (unless the student is emancipated), following: (a) translation of the Form into the student's and parent's preferred language; and (b) a meeting between one or more District representatives and the student, the parent (unless the student is emancipated), and up to three additional individual(s) of the family's choice, which may include a caseworker or other individual as long as the parent (or the student ifthe student is 18 years of age or older) signs a form permitting the additional individuals access to the student's education records. The Form shall fully and fairly apprise the parent and student of the option to attend Mccaskey, or voluntarily choose to attend Phoenix Academy. Mccaskey means any educational program physically located on the McCaskey Campus of the District at 1051 Lehigh Avenue, Lancaster PA, including, but not limited to, J.P. McCaskey High School and Mccaskey East High School. Named Plaintiffs means Khadidja Issa; Q.M.H., a minor, individually, by and through his parent, Faisa Ahmed Abdalla; V.N.I., a minor, individually by and through her parent Mar Ki; Sui Hnem Sung; Alembe Dunia; and Anyemu Dunia. Newcomer Program refers to the educational program formerly known as the International School and located at McCaskey Campus, 1051 Lehigh Avenue. The Newcomer Program is a one-year transition program for students who were not born in the United States of America and are WIDA Level I students. All newly-enrolled immigrant students ages 17 to 21 with WIDA Level I proficiency will be placed into the Newcomer Program. Students in the Newcomer Program attend English as a Second Language (ESL) and "core subject" classes (mathematics, science and social studies) in a "sheltered environment" with their Newcomer Program peers.
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Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 6 of 65
Students in the Newcomer Program have full access to activities, sports, and extracurricular programs offered at the Mccaskey Campus. A student's English language proficiency will be assessed at the completion of each full 10-week marking period in the Newcomer Program. An immigrant student age 17 to 21 in the Newcomer Program attaining WIDA Level II proficiency will transfer out of the Newcomer Program, and will have the option to either join a Small Learning Community on the McCaskey Campus or based on a knowing, voluntary decision to attend Phoenix Academy. Newly-enrolled means never having been previously enrolled in the District. Over-aged and under-credited means a student is not able to earn sufficient credits through the regular course of instruction at McCaskey (48-minute classes, 10 week marking periods and 180 days of instruction) to graduate by the end of the school term in which that student turns 21 years old. A student who is 17 years old at the time of enrollment in the District will have time to graduate from Mccaskey, provided the student earns the 24 credits required for graduation. A student who is 18 years old at the time of enrollment may also be able to graduate from Mccaskey, depending on birth date, enrollment date and the extent to which the student has obtained credits prior to and after enrollment. Parent means a biological parent with legal custody rights or a legal guardian of an immigrant student aged 17 to 21. Parties mean the Plaintiffs and Defendant in the Action. Phoenix Academy ("Phoenix") means the accelerated credit-recovery educational program located at 630 Rockland Street, Lancaster, PA 17602, operated by or on behalf of SDOL, that educates, among others, students who are over-aged and under-credited and would not be able to graduate from Mccaskey by the school term in which they turn 21 years of age. Phoenix
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Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 7 of 65
provides an accelerated, semester-based credit recovery program for high school students, which means that students can earn credits toward high school graduation at a faster pace than at McCaskey. Unlike McCaskey's Newcomer Program, Phoenix does not offer sheltered instruction in core subjects (mathematics, science and social studies), which means that English Learners may be placed in classes that include some native English speakers who are fluent in English and have lived their entire lives in the United States. Phoenix is located approximately two (2) miles from the Mccaskey Campus, and Phoenix provides its students with transportation to and from school. Although Phoenix does not offer extracurricular programs, all Phoenix students are permitted to participate in the full array of extracurricular programs at McCaskey, and the District provides them with transportation to do so. Phoenix does not offer any Newcomer Program. School-age means the period of an individual's life from the earliest admission age to a school district until the end of the school term in which a student reaches the age of 21 years. See 22 Pa. Code § 11.12. School Term means "school term" as defined by 24 P.S. § 1-102 of the Public School Code of 1949, "[t]he period of time elapsing between the opening of the public schools in the fall of one year and the closing of the public schools in the spring of the following year." School Year means "school year" as defined by 24 P.S. § 1-102 of the Public School Code of 1949, "the first day of July of one year and the 30th day of June of the following year." Small Learning Community or SLC means the instructional program offered at McCaskey Campus wherein students are assigned to small groups. SLCs offer students a number of advantages: personalized learning, electives that match student interests, and targeted support. Students are provided with personal and individual teaching and learning opportunities based
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Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 8 of 65 on their career and personal goals. At Mccaskey, students choose (subject to availability) the SLC that best suits their interests and career goals. Students have full access to activities, sports, and extracurricular programs offered at the Mccaskey Campus. Student means any immigrant student aged 17-21 years. WIDA Level I (Entering) means the first level of English language proficiency as defined by WIDA (formerly known as World-class Instructional Design and Assessment) following the administration of W-APT test (current), WIDA screener or WIDA Model (soon to be implemented). WIDA Level II (Emerging) shall mean the second level of English language proficiency as defined by WIDA (formerly known as World-class Instructional Design and Assessment) following the administration of W-APT test (current), WIDA screener or WIDA Model (soon to be implemented).
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INTRODUCTION The Parties to this Consent Decree, by their attorneys, hereby stipulate and agree as follows:
WHEREAS, Named Plaintiffs Khadidja Issa; Q.M.H., a minor, individually, by and through his parent, Faisa Ahmed Abdalla; Alembe Dunia; Anyemu Dunia; V.N.I., a minor, individually by and through her parent Mar Ki; and Sui Hnem Sung ("Plaintiffs") filed, on behalf of themselves and similarly situated students, and Defendant SDOL has denied the Plaintiffs' allegations, and the Parties have voluntarily agreed to resolve the Action according to the terms set forth herein;
WHEREAS, the Named Plaintiffs filed the Class Action Complaint commencing the Action in the U.S. District Court for the Eastern District of Pennsylvania ("District Court") seeking preliminary injunctive relief to allow older immigrant students the opportunity to attend McCaskey, the regular public high school rather than being educated in an alternative accelerated program; and
WHEREAS, following expedited discovery and a five-day hearing, the District Court granted in part Plaintiffs' motion for preliminary injunction permitting the students to attend Mccaskey High School and finding that the District violated the federal Equal Educational Opportunity Act, 20 U.S.C. § 1703(f) (EEOA), a ruling that was subsequently affirmed by the U.S. Court of Appeals for the Third Circuit;
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED, and the Parties do hereby stipulate and agree, as follows:
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Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 10 of 65
I. ADMINISTRATIVE DIRECTIVE Within 20 days of entry of this Consent Decree, the District shall issue a written administrative directive stating that the District's practices and procedures shall conform to the terms of this Consent Decree. This directive shall expressly set forth the following specific practices and procedures outlined below with regard to both enrollment and placement of students.
II. ENROLLMENT OF IMMIGRANT STUDENTS AGES 17-21 A. The District shall comply with the following enrollment requirements for immigrant students aged 17 to 21, pursuant to Pennsylvania law, 22 Pa. Code § 11.11 (b), (d) and (e), which are also included in the District's School Board Policy 200:
1. The District shall normally enroll a child the next business day, but no later than 5 business days, after the Application Date if the parent, guardian or other person having control or charge of the student has completed the enrollment application and has supplied some proof of the child's age, residence, and immunizations as required by law. Any one of the following constitutes acceptable documentation: birth certificate; notarized copy of birth certificate; baptismal certificate; copy of the record of baptism- notarized or duly certified and showing the date of birth; notarized statement from the parents or another relative indicating the date of birth; a valid passport; a prior school record indicating the date of birth; or I-94 Arrival-Departure Record. Upon enrollment, the District shall contact the student's former school and request a certified copy of the student's education records. The District shall not, though, condition enrollment or delay a student's admission due to the absence of student records or other information or documents that are not required for enrollment in accordance
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Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 11 of 65
with guidance issued by the Pennsylvania Department of Education in its Basic Education Circular entitled Enrollment of Students, available at: http://www.education.pa.gov/Documents/Codes%20and%20Regulations/Basic%20Education% 20Circulars/Purdons%20Statutcs/Enrollment%20of%20Students
2. The District shall administer a Home Language Survey ("HLS") to all students seeking first time enrollment.
3. The District shall not inquire regarding the immigration status of a student as part of the admission process, and shall not condition a child's right to enroll in the District upon the child's immigration status.
B. With regard to assessing the English language proficiency of newly-enrolled immigrant students aged 17-21, the District shall comply with guidance of the Pennsylvania Department of Education ("PDE") as reflected in Basic Education Circular 22 Pa. Code § 4.26, titled Educating Students with Limited English Proficiency (LEP) and English Language Learners (ELL), or with any replacement Basic Education Circular issued by PDE during the term of this Consent Decree.
C. When immigrant students ages 17 to 21 present themselves to the District for the purpose of applying for enrollment, the District shall not initiate discussions about alternatives to enrollment (such as G.E.D. training or English language instruction not offered by the District), but may respond to inquiries about such alternatives and provide further information upon request.
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III. PLACEMENT OF NEWLY-ENROLLED IM1'1IGRANT STUDENTS AGES 17-21
A. Newly-Enrolled WIDA Level I Immigrant Students -- Initial Placement All newly enrolled immigrant students ages 17 to 21 with WIDA Level I proficiency shall be placed into the Newcomer Program. B. Transfer Options for Immigrant Students
1. After Newcomer Program Students Attain WIDA Level II After achieving WIDA Level II status through the Newcomer Program, immigrant students ages 17-21 shall have the option to either: (i) enter into a Small Learning Community on the Mccaskey Campus; or (ii) transfer to Phoenix Academy. There shall be a meeting to discuss such options between one or more District representatives, the student, the parent(s) (unless the student is emancipated), and any three additional individuals of the family's choice, so long as the parent (or the student if the student is 18 years of age or older) has signed a form permitting the additional individuals access to the student's education records. If Plaintiffs' counsel is to be one of the additional individuals selected by the family to attend the meeting, Plaintiffs' counsel shall provide at least 24-hour advance notice to the District's Solicitor, who shall not bar the participation of counsel or any individuals who seek to participate in the process. The District shall provide an appropriate language interpreter (via phone or in-person) to discuss the options. A written notice and election form describing these options (Ex. A, Immigrant EL Placement Form for Students Who Have Achieved WIDA II Status and Are Leaving the Newcomer Program), translated into the student's and parent's preferred language(s) (unless the student is emancipated), shall be provided to the student and to the parent at least 3 days prior to the meeting, and the District shall have a copy of the translated form(s) available for review at the meeting.
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2. Additional Option - for "Over-age Under-Credited" Newcomer Program Students Aged 19-21
Immigrant students ages 19-21 who have completed at least one full 10-week marking period in the Newcomer Program, but have not achieved WIDA II proficiency and who do not have sufficient credits to graduate from Mccaskey by the completion of the school year in which they tum 21 years of age, shall have the additional option to either: (i) remain in the Newcomer Program at Mccaskey until they attain WIDA II proficiency; or (ii) transfer to Phoenix Academy. There shall be a meeting to discuss this additional option between one or more District representatives and the student, the parent(s) (unless the student is emancipated), and any three additional individuals of the family's choice, so long as the parent (or the student if the student is 18 years of age or older) has signed a form permitting the additional individuals access to the student's education records. If Plaintiffs' counsel is to be one of the additional individuals selected by the family to attend the meeting, Plaintiffs' counsel shall provide at least 24-hour advance notice to the District's Solicitor. The District shall provide an appropriate language interpreter (via phone or in-person) to discuss the options. A written notice and election form describing these options (Ex. B, Immigrant EL Placement Form for Students Ages 19-21 Following Completion of One Full Marking Period in the Newcomer Program), translated into the student's and parent's preferred language, shall be provided to the student and to the parent (unless the student is emancipated), at least 3 days prior to the meeting, and the District shall have a copy of the translated form available for review at the meeting.
C. Newly-Enrolled WIDA Level II Immigrant Students -- Initial Placement Options
Newly-enrolled immigrant students ages 17 to 21 with WIDA Level II proficiency shall be given the option to enter either: (i) a Small Learning Community on the McCaskey Campus;
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or (ii) Phoenix Academy. There shall be a meeting to discuss such options between one or more District representatives, the student and the parent(s) (unless the student is emancipated), and any additional individual of the family's choice, so long as the parent (or the student ifthe student is 18 years of age or older) has signed a form permitting the additional individual(s) access to the student's education records. If Plaintiffs' counsel is to be one of the additional individuals selected by the family to attend the meeting, Plaintiffs' counsel shall provide at least 24-hour advance notice to the District's Solicitor. The District shall provide an appropriate language interpreter (via phone or in-person) to discuss the options. A written notice and election form describing these options (Ex. C, Immigrant EL Placement Form for Entering WIDA Level II Students), translated into the student's and parent's preferred language, shall be provided to the student and to the parent (unless the student is emancipated) prior to the meeting. Such meeting shall occur as soon as is practicable but in no case longer than 4 days following completion of Application and the Home Language Survey and the identification of WIDA proficiency level, and the District shall have a copy of the translated form(s) available for review at the meeting. The student shall have up to two working days following the meeting to select an option. If no option is timely selected the student shall be placed at McCaskey until an option is selected.
D. Parental Rights/Emancipated Minors With regard to all proposed options, a parent shall make the placement decision unless the student is an emancipated minor as defined by 22 Pa Code 11.1 l(a)(l). E. No Discrimination from Programs/Regular Policies and Rules Apply/Age-
Cohorts Immigrant students ages 17 to 21 may not be denied any educational opportunities for which they are otherwise eligible due to their age or national origin. The District's regular policies and rules generally applicable to all students shall apply equally to immigrant students
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ages 17 to 21. Immigrant students ages 17 to 21 may not be isolated into separate classrooms by age or national origin, except that the District shall have the discretion to place immigrant students aged 19-21 on the McCaskey campus into "age-cohort" classes, so long as the cohort includes no fewer than five students in each class.
IV. NEW STAFF POSITIONS The District agrees to maintain the following new staff positions throughout the duration of this Consent Decree. A. "Enrollment Specialist," whose training and job duties shall include the enrollment and placement of immigrant students aged 17-21 in accordance with state and federal laws, District policies and this Consent Decree. B. "Program Facilitator" for the Newcomer School, a new position dedicated to provide an enhanced level of oversight and support for the Newcomer School, including overseeing and assessing curriculum, monitoring and evaluating students' progress toward WIDA II proficiency, and working with the Guidance Department to facilitate the development of a post-high school plan for all Newcomer School students. The position will also be a dedicated single point of contact and liaison between the Newcomer School and SDOL support services, including guidance and enrollment. V. DUTY OF DISTRICT TO PROVIDE TRANSLATION AND INTERPRETATION
SERVICES
A. The District shall, in compliance with its general duties under state and federal laws, provide all EL students and LEP parents with interpretation services at all meetings relating to the student's enrollment and school placement and shall translate all documents relating to these meetings into the preferred language of both the student and parent.
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VI. COMPENSATORY EDUCATION A. The District shall create a compensatory education program fund which shall not exceed the amount of $66,500, to be administered (at no cost to the District) by an appropriate person identified by Plaintiffs but approved by the District (the "Fund Administrator"). B. Students shall be eligible to receive compensatory education program funds on an individual basis, as follows:
1. Six Named Plaintiffs shall be eligible to receive $3,000 each (subtotal of $18,000);
2. Newly-enrolled immigrant students aged 17 to 21 placed at Phoenix Academy during the 2016-2017 school year ("2016-17 Immigrant Students Placed at Phoenix"), shall be eligible to receive $1,500 each (estimated subtotal of $16,500);
3. Immigrant students ages 17-21 who went to the District for enrollment between 2013 and the Effective Date, but who were never enrolled ("Immigrant Youth Never Enrolled"), shall be eligible to receive $1,000 each (estimated subtotal of $32,000).
C. Within 30 days of the Effective Date of this Consent Decree, the District shall provide to Plaintiffs' counsel a list of the available identifying information regarding both the 2016-17 Immigrant Students Placed at Phoenix and the Immigrant Youth Never Enrolled. Identifying information shall include, if available in the District's records: each person's name, age, native language, last known address, last known telephone number, and the names of his or her parent(s) and any other advocate or contact person associated with their school enrollment inquiry.
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D. Eligible Students must give the District notice of their intent to use funds for an educational program by submitting the appropriate Intent to Use EL Compensatory Education Services Form (attached to Consent Decree as Exhibits D, E and F) to the designated Trust Administrator by June 30, 2018, and must utilize funds for any educational purpose by June 30, 2021.
E. Funding shall not be provided by the Fund Administrator until an Intent to Use EL Compensatory Education Services Form is submitted by a student and approved by the Fund Administrator, and an invoice, receipt or request for payment (as required by such Form) has been provided to the Fund Administrator.
F. To the extent any portion of the compensatory education program fund has not been committed for utilization through the submittal of Intent to Use EL Compensatory Education Services forms as of June 30, 2018, such remaining portion shall be returned to the District. In addition, any portion of the compensatory education program fund that is not utilized by June 30, 2021, shall be returned to the District.
G. The compensatory education fund described herein shall be used wholly and exclusively for educational purposes, which may include tuition for any educational program including post-secondary programs, vocational training/services, therapeutic and/or remedial instruction, programs, courses, services and materials, ESL programs, and cyber-based programs and related technology to support cyber-based programs but only if such programs further the goals of the student's education or language development, or will assist the student in achieving some educational goal. While compensatory education may be used as stated above for technology purchases such as computers, printers and educational software, it may not be used to purchase non-educational technology or software, such as an I-Phone or I-pad. The Parties
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agree that the compensatory education fund qescribed herein shall not be used to fund, pay and/or reimburse purchases of any phones, non-educational software, including computer games, or for any non-educational purpose, such as, but not limited to attorney's fees, vehicles of any kind, home improvements, furniture of any kind or leisure travel.
H. The Fund Administrator will quarterly provide to the District and Plaintiffs' counsel (a) copies of Intent to Use Compensatory Education Forms received during such quarter, and (b) data substantiating the use of compensatory education funds to date. Said data shall include a description of requests and expenditures, the programs or services provided, the dates of purchase, refusals of requests, and the cost, and shall include the supporting invoices and receipts required to be submitted to the Fund Administrator pursuant to such Forms.
I. Under no circumstances shall the District be required to pay more than $66,500 into the compensatory education program fund. Any students receiving money from the fund shall be required to waive and release claims against the District for additional compensatory education for 2013 through June 2017 relating to or arising from claims brought against the District in this settled litigation.
VII. FORMS The Forms attached to this Consent Decree as Exhibits A through F have been agreed upon by the District and Plaintiffs' counsel, and shall not be altered by the District without written agreement by Plaintiffs' counsel.
VIII. CERTIFICATION OF TEACHERS The District shall ensure that all ESL teachers serving immigrant students aged 17 to 21 are certified by the Pennsylvania Department of Education to teach ESL, in accordance with
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state requirements and guidance and that all other teachers are properly certified to teach their assigned subjects in accordance with applicable standards.
IX. DURATION OF THIS CONSENT DECREE A. This Consent Decree is effective immediately upon the signature of the Court ("Effective Date").

B. 2019.

Without further action by the Court, this Consent Decree shall expire on June 30,

X. MONITORING AND REPORTING

A. Monitoring and reporting shall begin in August in anticipation of the 2017-2018 school year. Monitoring reports shall be due on August 18th, September gth and monthly beginning on October 15th for the 2017-2018 school year. Reports shall be submitted quarterly during the 2018-2019 school year, and continue thereafter quarterly ifthe Consent Decree is

extended by order of the Court (unless stated otherwise in such extension order). In accordance with this schedule, the District shall provide Plaintiffs' counsel with a report, within at most 15

days of the end of the preceding reporting period, which includes the following information for such preceding period:

1. the District;

The number of immigrant youth aged 17-21 requesting new enrollment in

2. The number of newly-enrolling students, who, upon application to the District, were aged 17-21 and whose HLS indicated a home language other than English,

disaggregated by the student's: (a) age upon application; (b) home language; (c) score on the WAPT; and (d) school placement. The report shall include the student's name and contact information including address, phone number(s), email address; country of origin; and the date

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of each student's: (i) initial application to the District; (ii) formal enrollment; and (iii) first day of class attendance at the student's school placement. Pursuant to Section X.A.9 below, students and their parents shall be advised that such information will be shared with Plaintiffs' counsel.
3. The number of immigrant students who transferred from the Newcomer Program at McCaskey East to another Small Learning Community at Mccaskey during the preceding reporting period, disaggregated by the student's: (a) age on the date of transfer; (b) WIDA Level on the date of transfer; and (c) home language;
4. The number of immigrant students who transferred from the Newcomer Program at Mccaskey East to Phoenix Academy (or to any other alternative education program operated by or for the District) during the preceding reporting period, disaggregated by the student's: (a) age on the date of transfer; (b) WIDA Level on the date of transfer; and (c) home language;
5. The number of immigrant students who transferred from a Small Learning Community at Mccaskey (not including the Newcomer Program) to Phoenix Academy (or to any other alternative education program operated by or for the District) during the preceding reporting period, disaggregated by the student's: (a) age on the date of transfer; (b) WIDA Level on the date of transfer; and (c) home language;
6. A copy of all signed EL Immigrant Election Forms for SY 2017-18 and EL Placement Forms received during such reporting period;
7. The number of total pupils assigned to any age-cohort class on the Mccaskey campus that includes any immigrant students aged 19-21.
8. For the August 18, 2017, report, the District shall provide information about all students covered by this Agreement dating back to January 1, 2017. However,
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retroactive information shall not result in any violation of this Agreement, which pertains to prospective duties of the District. Thereafter, reports shall provide information covering the intervening reporting period.
9. The Parties acknowledge that federal and state law, including the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g ("FERPA"), governs the disclosure of student education records. Pursuant to FERPA regulations, 34 C.F.R. § 99.31(a)(9), the District may provide the information required pursuant to the Consent Decree, after providing notification through Exhibits A, B, C or through other means that such information will be provided, so that a parent or eligible student under FERPA has opportunity to seek protective action. Further, the District's production of signed school placement forms and other identifying information shall be made pursuant to the protective order entered by the Court and attached as Exhibit H to this Consent Decree.
10. The District shall designate a specific employee who shall be charged with the duty to monitor and provide reports required under this Consent Decree.
XI. ENFORCEMENT A. The Parties consent to the jurisdiction of this Court over any proceedings seeking to enforce the terms of this Consent Decree. B. In the event of material non-compliance by the District, which is not remedied within fourteen days of the District's receipt of written notice specifying such non-compliance, Plaintiffs may petition this Court for an extension of the Consent Decree beyond June 30, 2019. C. In the event the Court finds that a party has not complied with a material provision of this Consent Decree, which is not remedied within fourteen days of the noncompliant party's receipt of written notice of such non-compliance, the Court shall have the
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power to order specific performance of the provision and/or any other relief the Court deems necessary to ensure compliance.
XII. NOTICE TO COUNSEL A. Notices and other written communications pursuant to this Consent Decree shall be in writing. B. Notice to the District shall be addressed to the Superintendent of the School District of Lancaster, with a copy to the District's Solicitor (Howard L. Kelin, Esq., Kegel Kelin Almy & Lord LLP, 24 North Lime Street, Lancaster, PA 17602, kelin(ii)kkallaw.com). Notice to Plaintiffs shall be addressed to Maura Mclnerney, Esq., Witold J. Walczak, Esq. and Kathleen A. Mullen, Esq., at the addresses specified in the signature pages of this Consent Decree. C. The District's Solicitor shall notify Plaintiffs' counsel in the event of a change in the District's Superintendent or Solicitor, and Plaintiffs' counsel shall notify the District's Solicitor in the event substitution is to be made in Plaintiffs' counsel to receive communications under this Consent Decree, and in either event the new names and contact information shall be provided.
XIII. MODIFICATION This Consent Decree may not be modified without the written consent of the Parties and the approval of the Court.
XIV. RESERVATION OF JURISDICTION Upon approval of the Consent Decree by the Court, the Parties shall execute, deliver, and file a stipulation of resolution of the Action, substa:itially in the form attached hereto as Exhibit G. The Court shall retain jurisdiction of the Action to enforce this Consent Decree, and the protective order attached as Exhibit H. The Court may, for administrative purposes, mark the
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case as closed and discontinued. The parties may, consistent with the terms of this Consent Decree, reopen the proceedings to enforce the terms herein.
XV. RELEASE OF CLAIMS In consideration of the rights and obligations set forth herein, Plaintiffs, their successors, assigns, heirs, executors, administrators, and legal representatives, with the intent to be legally bound hereby, fully and forever release, acquit, discharge and hold harmless Defendant District, and any and all of their agents, servants, employees, officials, officers, directors and assigns, from any and all actions, causes of action, claims, demands, damages, or costs relating to the facts set forth in the Complaint which were raised on their behalf by Named Plaintiffs, including but not limited to any causes of action, claims, demands, damages or costs relating to the Equal Education Opportunity Act, 20 U.S.C. § 1701 et seq. (Count One of the Complaint), Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. (Count Two of the Complaint), the Due Process Clause of the Fourteenth Amendment to the United States Constitution (Count Three of the Complaint), the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution (Count Four of the Complaint), and Pennsylvania Public School Code§ 1301 and 22 Pa. Code Chapter 11 (Count Five of the Complaint).
XVI. ATTORNEYS' HEES AND COSTS A. The District shall arrange for payment of attorneys' fees to Plaintiffs in the amount of $300,000, and payment of litigation costs to Plaintiffs in the amount of $70,000, and such payments shall be full satisfaction of Plaintiffs' outstanding fees and costs. B. The District shall make payment of the $70,000 for litigation costs within 7 days of the Effective Date, and shall arrange for its insurance carrier to make payment of the $300,000 for attorneys' fees within 45 days of the Effective Date, through checks payable in such amounts
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to Pepper Hamilton LLP, delivered to Kathleen A. Mullen, Esq., at Pepper Hamilton LLP, Suite 200, 100 Market Street, P.O. Box 1181, Harrisburg, PA 17108-1181.
C. In the event of material non-compliance by the District, which is not remedied within fourteen days of the District's receipt of written notice specifying such non-compliance, Plaintiffs reserve the right to request additional attorneys' fees and costs for any time reasonably incurred thereafter to enforce implementation of the terms of the Consent Decree.
XVII. NON-WAIVER PROVISIONS A. This Consent Decree does not limit or affect the rights and remedies of any persons who are not a party to this Consent Decree. B. The failure by any party to enforce any provision of the Consent Decree with respect to any deadline or other provision herein shall not be construed as a waiver of their right to enforce deadlines or provisions of this Consent Decree.
XVIII. ENTIRE AGREEMENT This Consent Decree, along with its exhibits, embodies the entire agreement of the Parties. No prior or contemporaneous agreements, oral or written, entered into prior to the execution of this Consent Decree regarding the subject matter of this Action shall be deemed to exist, or to bind the Parties hereto, or to vary the terms and conditions contained herein. Captions are included herein solely for convenience of reference, and shall not be used to limit the terms of the Consent Decree.
XIX. EXECUTION This Consent Decree may be executed in multiple counterparts, and faxed, electronic, and/or emailed signatures will be valid and enforceable, each of which shall be deemed an original, and all of which shall constitute one and the same document.
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Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 25 of 65

Dated: June 28, 2017

For the Plaintiffs,
Isl Witold J Walczak Witold J. Walczak, Esquire (PA62976) American Civil Liberties Union of Pennsylvania 247 Fort Pitt Blvd. Pittsburgh, PA 15222 Telephone: (412) 681-7736 Fax: (412) 681-8707 VWalczak@aclupa.org
Molly Tack-Hooper, Esquire (PA307828) Michelin Cahill, Esquire (PA 314553) American Civil Liberties Union of Pennsylvania P.O. Box 60173 Philadelphia, PA 19102 Telephone: (215) 592-1513 Fax: (215) 592-1343 MTack-Hooper@aclupa.org M Cahill@aclupa.org
Isl Kathleen A. Mullen Thomas B. Schmidt, III (PA 19196) Kathleen A. Mullen (PA84604) PEPPER HAMILTON LLP Suite 200, 100 Market Street P.O. Box 1181 Harrisburg, PA 17108-1181 Telephone: (717) 255.1155 Fax: (717) 238.0575 schmidtt@pepperlaw.com mullenk@pepperlaw.com

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Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 26 of 65
Kaitlin M. Gurney (PA309581) Megan Morley (PA321706) Hedya Aryani (PA 306616) PEPPER HAMILTON LLP 3000 Two Logan Square Eighteenth & Arch Streets Philadelphia, PA 19103-2799 Telephone: (215) 981-4000 Fax: (215) 981-4750 gurneyk@pepperlaw.com morleym@pepperlaw.com aryanih@pepperlaw.com
Isl Maura Mclnerney Maura Mcinerney, Esquire (PA71468) Kristina Moon, Esquire (PA306974) Alex Dutton, Esquire (PA267321) Education Law Center 1315 Walnut Street Suite 400 Philadelphia, PA 19107 Telephone: (215) 238-6907 Fax: (215) 772-3125 mmcinerney@elc-pa.org kmoon@elc-pa.org adutton@elc-pa.org
Isl Seth F. Kreimer Seth F. Kreimer, Esquire (PA26102) 3501 Sansom Street Philadelphia, PA 19104 Telephone: (215) 898-7447 skreimer@law.upenn.edu
Attorneys for Plaintiffs Khadidja Issa; Q.MH, a minor, individually, by and through his parent, Faisa Ahmed Abdalla; V.Nl, a minor, individually by and through her parent Mar Ki; and Sui Hnem Sung.
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Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 27 of 65

Dated: June 28, 2017

For the Defendant,
Isl Sharon M 0 'Donnell Sharon M. O'Donnell, Esquire (PA79457) Marshall Dennehey Warner Coleman & Goggin 100 Corporate Center Drive, Suite 201 Camp Hill, PA 17011 Telephone: (717) 651-3503 Fax: (717) 651-3707 smodonnell@mdwcg.com

This Order is hereby APPROVED on thisz.q+-:ga..y....o£Ju,.......-.i~~·

is GRANTED.

.

6v

Hon. Edward Smith, U.S.D.J.

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Exhibit A to Consent Decree SCHOOL DISTRICT OF LANCASTER IMMIGRANT EL STUDENT PLACEMENT FORM FOR STUDENTS WHO HAVE ACHIEVED \VIDA II STATUS
AND ARE LEAVING THE NEWCOMER PROGRAM Administrative Instructions For School District of Lancaster Staff 1. Use of the form This form is to be used with immigrant students ages 17 to 21, who have achieved the WIDA 2 proficiency level and are leaving the Newcomer Program. The form's purpose is to identify and select placement options available to such students. School staff will explain the options and answer questions the family may have regarding the choices. Staff MAY NOT press families to choose one option over the other. Parents of students make this decision unless the student is an emancipated minor as defined by the School Code 1 in which case the student makes the decision.
2. Procedure The District will meet and discuss placement options with the student, the parent, and up to three additional individuals of the family's choice, so long as the parent (or the student if the student is 18 years of age or older) signs a form permitting the additional individuals access to the student's education records. The District shall provide an appropriate language interpreter (via phone or in-person) to discuss the options. This form, translated into the student's and parent's preferred language, shall be provided to the student and to the parent at least 3 days before the meeting, and the District shall have a copy of the translated form available for review at the meeting. The student shall have up to two working days following the meeting to select an option. If no option is timely selected the student shall be placed at McCaskey until an option is selected.
1 Pursuant to 22 Pa. Code 11.11 (a) (1) an emancipated minor is "a person under 21 years of age who has chosen to establish a domicile apart from the continued control and support of parents or guardians. A minor living with a spouse is deemed emancipated."

Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 29 of 65

SCHOOL DISTRICT OF LANCASTER EL IMMIGRANT STUDENT PLACEMENT FORM FOR STUDENTS WHO HAVE ACHIEVED WIDA II STATUS
AND ARE LEAVING THE NEWCOMER PROGRAM
(THIS FORM MUST BE TRANSLATED INTO THE PREFERRED LANGUAGE OF THE STUDENT AND PARENT)

Dear Student and Parent/Guardian:

You and your child may choose to attend Mccaskey which is the District's main high school or your child may choose to attend Phoenix Academy. The choice is yours. This form explains those options.

Student's name:

Date of Birth:

~~~~~~~~~~~~~~~~~~

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1. Placement Options
Small Learning Community at McCaskey Camp,..!!!
The School District's Mccaskey Campus is located at 1051 Lehigh Avenue, Lancaster PA, and includes J.P. Mccaskey High School and McCaskey East High School. Students on the Mccaskey Campus attend Small Learning Communities ("SLCs") that focus on particular areas of interest to the student. For example, studer.ts interested in a possible career in the field of health care may wish to attend the SLC for Health Sciences. Current SLCs include Arts and Humanities, Health Sciences, Technology, Media Studies and Communications, Public Leadership and Services, and Technical and Business Careers. Students are assigned to a SLC they select, assuming space is available in that SLC. All SLCs provide the basic credit requirements such as English, math, science and social studies courses. Elective courses are based on the specific focus of the SLC. The Mccaskey Campus provides after-school activities, sports teams and other extracurricular programs.
Phoenix Academy
Phoenix Academy is the District's "accelerated credit-recovery educational program" located at 630 Rockland Street, Lancaster, PA 17602. The school educates, among others, students who are over-age and under-credited and would not be able to graduate from Mccaskey by the school term in which they turn 21 years of age. Phoenix provides an accelerated semester-based credit recovery program for high school students, which means that the curriculum is taught at a faster pace. Students can earn credits toward high school graduation more quickly than at Mccaskey. Phoenix is located approximately two (2) miles from the Mccaskey Campus, and Phoenix provides its students with transportation to and from school. Phoenix does not offer Small Learning Communities, nor does it offer extracurricular programs at the school, but students may participate in extracurricular programs at Mccaskey, and are provided transportation to do so.

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2. Your Child's Current Credit Status
Under Pennsylvania law, a student is entitled to receive an education in the District through the end of the school term in which the student turns 21 years of age. A student who is 17 years old at the time of enrollment in the District will have time to graduate from McCaskey, provided the student earned the 24 credits required for graduation. A student who is 18 years old at the time of enrollment may also be able to graduate from McCaskey, depending on birth date, enrollment date and the extent to which the student has obtained credits prior to and after enrollment. In addition, if your child is not able to graduate from Mccaskey, s/he may seek a General Equivalency Diploma or GED which can be exchanged for a high school diploma. However, obtaining a GED requires studying for and taking a separate test covering the content areas of language arts, math, science and social studies.
Based on your child's educational records provided to the District, your child earned_ credits before coming to the School District of Lancaster, which will count towards the student's minimum requirement of 24 credits to graduate and receive a high school diploma. (Any disagreement regarding this number of credits should be reported immediately to the District).
Based upon your current age and credits earned prior to enrolling in the District, the District has indicated below whether you can earn enough credits to graduate and receive a diploma, before or during the school term in which you turn 21 years of age, through enrolling in a Small Learning Community on the McCaskey Campus:
Can earn enough credits to graduate _ Cannot earn enough credits to graduate_
Based upon your current age and credits earned prior to enrolling in the District, the District has indicated below whether you can earn enough credits to graduate and receive a diploma, before or during the school term in which you turn 21 years of age, through enrolling in Phoenix Academy:
Can earn enough credits to graduate _ Cannot earn enough credits to graduate _
NOTE: Pursuant to a Consent Decree entered in Issa v. School District ofLancaster, Civil Action No. 16-3881, a case in the United States District Court for the Eastern District of Pennsylvania, the School District will be providing information to Plaintiffs' counsel regarding this individual student and the student's educational placement.
I would like the following additional individuals to participate in my placement meeting with the School District to be held on
~~~~~~~~~~~~~
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Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 31 of 65 Placement Selection Decision Following In-Person Meeting

Date of M e e t i n g : - - - - - - - - - - - - - - - - - - - - - - - - - - - Participants in m e e t i n g : - - - - - - - - - - - - - - - - - - - - - - - - - -

My rights have been explained to me. I understand that I can choose to go to either a Small Leaming Community on the McCaskey Campus or Phoenix Academy. I make this choice voluntarily. I choose to have my child attend:

Small Learning Community on McCaskey Campus

_ _ _ _ (Parent or Student
Initials ifEmancipated Minor)

Phoenix Academy

- - - - (Parent or Student
Initials ifEmancipated Minor)

Signatures

By signing below, you are saying that you understand the options provided to you in this form, that this is your decision, and that no one has forced you to make your decision.

Parent/Guardian Signature:
Student signature: - - - - - - - - - - - - - - - - Date: - - - - - -

4

Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 32 of 65
Exhibit Bto Consent Decree
SCHOOL DISTRICT OF LANCASTER IMMIGRANT EL STUDENT PLACEMENT FORM FOR STUDENTS AGED 19-21 FOLLOWING COMPLETION OF
ONE FULL MARKING PERIOD IN THE NEWCOMER PROGRAM
Administrative Instructions For School District of Lancaster Staff
1. Use of the form
This form is to be used with immigrant students age 19 to 21, who have completed one full marking period in the Newcomer Program, but have not yet achieved the WIDA 2 level of English proficiency.
The form's purpose is to identify and select placement options available to such students. School staff will explain the options and answer questions the family may have regarding the choices. Staff MAY NOT press families to choose one option over the other. Parents of students make this decision unless the student is an emancipated minor as defined by the School Code 1 in which case the student makes the decision.
2. Procedure
The District will meet and discuss placement options with the student, the parent, and up to three additional individuals of the family's choice, so long as the parent (or the student ifthe student is 18 years of age or older) signs a form permitting the additional individuals access to the student's education records.
The District shall provide an appropriate language interpreter (via phone or in-person) to discuss the options. This form, translated into the student's and parent's preferred language, shall be provided to the student and to the parent at least three days before the meeting, and the District shall have a copy of the translated form available for review at the meeting.
The student shall have up to two working days following the meeting to select an option. If no option is timely selected the student shall be placed at McCaskey until an option is selected.
1 Pursuant to 22 Pa. Code 11.11 (a) (1) an emancipated minor is "a person under 21 years of age who has chosen to establish a domicile apart from the continued control and support of parents or guardians. A minor living with a spouse is deemed emancipated."

Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 33 of 65

SCHOOL DISTRICT OF LANCASTER EL IMMIGRANT STUDENT PLACEMENT FORM FOR IMMIGRANT STUDENTS AGED 19-21 FOLLOWING COMPLETION OF
ONE FULL MARKING PERIOD IN THE NEWCOMER PROGRAM (THIS FORM MUST BE TRANSLATED
INTO THE PREFERRED LANGUAGE OF THE STUDENT AND PARENT)

Dear Student and Parent/Guardian:

You and your child may choose to complete the Newcomer Program at McCaskey or your child may choose to attend Phoenix Academy. The choice is yours. This form explains those options.

Student's name:

Date of Birth:

~~~~~~~~~~~~~~~~~~

-~~-

1. Placement Options
Complete the Newcomer Program
The Newcomer Program at McCaskey is a one-year transition program for students who were not born in the United States of America and are WIDA Level I students. Students in the Newcomer Program attend English as a Second Language (ESL) and "core subject" classes (mathematics, science and social studies) in a "sheltered environment" with their Newcomer Program peers. Students in the Newcomer Program have full access to activities, sports, and extracurricular programs offered at the Mccaskey Campus. A student's English language proficiency will be assessed at the completion of each full 10-week marking period in the Newcomer Program. An immigrant student age 17 to 21 in the Newcomer Program attaining WIDA Level II proficiency will transfer out of the Newcomer Program, and will have the option to either join a Small Leaming Community on the Mccaskey Campus or based on a knowing, voluntary decision to attend Phoenix Academy.
Phoenix Academy [No WIDA Level 1 students start in this program] Phoenix Academy is the District's "accelerated credit-recovery educational program" located at 630 Rockland Street, Lancaster, PA 17602. The school educates students who are over-age and under-credited and would not be able to graduate from McCaskey by the school term in which they tum 21 years of age. Phoenix provides an accelerated semester-based credit recovery program for high school students, which means that the curriculum is taught at a faster pace. Students can earn credits toward high school graduation more quickly than at McCaskey. Phoep.ix is located approximately two (2) miles from the Mccaskey Campus, and Phoenix provides its students with transportation to and from school. Phoenix does not offer Small Leaming Communities, nor does it offer extracurricular programs at the school, but students must be permitted to participate in extracurricular programs at Mccaskey and shall be provided transportation to do so.

2

Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 34 of 65
2. Your Child's Current Credit Status
Under Pennsylvania law, a student is entitled to receive an education in the District through the end of the school term in which the student turns 21 years of age. A student who is 17 years old at the time of enrollment in the District will have time to graduate from Mccaskey, provided the student earned the 24 credits required for graduation. A student who is 18 years old at the time of enrollment may also be able to graduate from Mccaskey, depending on birth date, enrollment date and the extent to which the student has obtained credits prior to and after enrollment. In addition, if your child is not able to graduate from McCaskey, s/he may seek a General Equivalency Diploma or GED which can be exchanged for a high school diploma. However, obtaining a GED requires studying for and taking a separate test covering the content areas of language arts, math, science and social studies.
Based on your child's educational records provided to the District, your child earned_ credits before coming to the School District of Lancaster, which will count towards the student's minimum requirement of 24 credits to graduate and receive a high school diploma. (Any disagreement regarding this number of credits should be reported immediately to the District).
Based upon your current age and credits earned prior to enrolling in the District, the District has indicated below whether you can earn enough credits to graduate and receive a diploma, before or during the school term in which you turn 21 years of age, through completing the Newcomer Program and then enrolling in a Small Learning Community on the Mccaskey Campus:
Can earn enough credits to graduate _ Cannot earn enough credits to graduate_
Based upon your current age and credits earned prior to enrolling in the District, the District has indicated below whether you can earn enough credits to graduate and receive a diploma, before or during the school term in which you turn 21 years of age, through enrolling in Phoenix Academy:
Can earn enough credits to graduate _ Cannot earn enough credits to graduate _
NOTE: Pursuant to a Consent Decree entered in Issa v. School District ofLancaster, Civil Action No. 16-3881, a case in the United States District Court for the Eastern District of Pennsylvania, the School District will be providing information to Plaintiffs' counsel regarding this individual student and the student's educational placement.
I would like the following additional individuals to participate in my pltcement meeting with the School District to be held on
~~~~~~~~~~~~~~~~
3

Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 35 of 65 Placement Selection Decision Following In-Person Meeting

Date of M e e t i n g : - - - - - - - - - - - - - - - - - - - - - - - - - - Participants in m e e t i n g : - - - - - - - - - - - - - - - - - - - - - - - - - -

My rights have been explained to me. I understand that I can choose to either remain in the Newcomer Program at Mccaskey or transfer to Phoenix Academy. I make this choice voluntarily. I choose to have my child attend:

Complete the Newcomer Program at McCaskey East

-Init-ial-s if-Em(Paanrceipnat toerdSMtuidneonr)t

Phoenix Academy

____ (Parent or Student
Initials ifEmancipated Minor)

Signatures

By signing below, you are saying that you understand the options provided to you in this form, that this is your decision, and that no one has forced you to make your decision.

Parent/Guardian Signature: Student signature:

Date: - - - - - -

4

Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 36 of 65
Exhibit C to Consent Decree
SCHOOL DISTRICT OF LANCASTER IMMIGRANT EL STUDENT PLACEMENT FORM FOR ENTERING WIDA LEVEL II STUDENTS
Administrative Instructions For School District of Lancaster Staff
1. Use of the form
This form is to be used with newly-enrolled immigrant students ages 17 to 21, who upon entering the School District of Lancaster are at the WIDA 2 proficiency level for English.
The form's purpose is to identify and select placement options available to such students. School staff will explain the options and answer questions the family may have regarding the choices. Staff MAY NOT press families to choose one option over the other. Parents of students make this decision unless the student is an emancipated minor as defined by the School Code1 in which case the student makes the decision.
2. Procedure
The District will meet and discuss placement options with the student, the parent, and up to three additional individuals of the family's choice, so long as the parent (or the student if the student is 18 years of age or older) signs a form permitting the additional individuals access to the student's education records.
The District shall provide an appropriate language interpreter (via phone or in-person) to discuss the options. This form, translated into the student's and parent's preferred language, shall be provided to the student and to the parent before the meeting, and the District shall have a copy of the translated form available for review at the meeting. The meeting shall occur within 4 days following completion of the enrollment application and the identification of WIDA proficiency through a Home Language Survey.
The student shall have up to two working days following the meeting to select an option. If no option is timely selected the student shall be placed at McCaskey until an option is selected.
1 Pursuant to 22 Pa. Code 11.11 (a) (1) an emancipated minor is "a person under 21 years of age who has chosen to establish a domicile apart from the continued control and support of parents or guardians. A minor living with a spouse is deemed emancipated."

Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 37 of 65

SCHOOL DISTRICT OF LANCASTER EL IMMIGRANT STUDENT PLACEMENT FORM FOR ENTERING WIDA LEVEL II STUDENTS
(THIS FORM MUST BE TRANSLATED INTO THE PREFERRED LANGUAGE OF THE STUDENT AND PARENT)

Dear Student and Parent/Guardian:

You and your child may choose to attend McCaskey which is the District's main high school or your child may choose to attend Phoenix Academy. The choice is yours. This form explains those options.

Student's name:

Date of Birth:

~~~~~~~~~~~~~~~~~~

-~~-

1. Placement Options
Small Learning Community at Mccaskey Campus
The School District's McCaskey Campus is located at 1051 Lehigh Avenue, Lancaster PA, and includes J.P. Mccaskey High School and Mccaskey East High School. Students on the McCaskey Campus attend Small Learning Communities ("SLCs") that focus on particular areas of interest to the student. For example, students interested in a possible career in the field of health care may wish to attend the SLC for Health Sciences.Current SLCs include Arts and Humanities, Health Sciences, Technology, Media Studies and Communications, Public Leadership and Services, and Technical and Business Careers. Students are assigned to a SLC they select, assuming space is available in that SLC. All SLCs provide the basic credit requirements such as English, math, science and social studies courses. Elective courses are based on the specific focus of the SLC. The McCaskey Campus provides after-school activities, sports teams and other extracurricular programs.
Phoenix Academy
Phoenix Academy is the District's "accelerated credit-recovery educational program" located at 630 Rockland Street, Lancaster, PA 17602. The school educates students who are over-age and under-credited and would not be able to graduate from Mccaskey by the school term in which they turn 21 years of age. Phoenix provides an accelerated semester-based credit recovery program for high school students, which means that the curriculum is taught at a faster pace. Students can earn credits toward high school graduation more quickly than at Mccaskey. Phoenix is located approximately two (2) miles from the Mccaskey Campus, and Phoenix provides its students with transportation to and from school. Phoenix does not offer Small Learning Communities, nor does it offer extracurricular programs at the school, but students may participate in extracurricular programs at McCaskey, and shall be provided transportation to do so.

2

Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 38 of 65
2. Your Child's Current Credit Status
Under Pennsylvania law, a student is entitled to receive an education in the District through the end of the school term in which the student turns 21 years of age. A student who is 17 years old at the time of enrollment in the District will have time to graduate from Mccaskey, provided the student earns the 24 credits required for graduatio:1. A student who is 18 years old at the time of enrollment may also be able to graduate from McCaskey, depending on birth date, enrollment date and the extent to which the student has obtained credits prior to and after enrollment. In addition, if your child is not able to graduate from Mccaskey, s/he may seek a General Equivalency Diploma or GED which can ~e exchanged for a high school diploma. However, obtaining a GED requires studying for and taking a separate test covering the content areas of language arts, math, science and social studies.
Basec! on your child's educational records provided to the District, your child earned_ credits before coming to the School District of Lancaster, ·.vhich will count towards the student's minimum requirement of 24 credits to graduate and receive a high school diploma. (Any disagret-1-:ient regarding this number of credits should be reported immediately to the District).
Based upon your current age and credits earned prior to enrolling in the District, the District has indicated below whether you can earn enough credits to graduate and receive a diploma, before or during the school term in which you turn 21 years of age, through enrolling in a Small Leaming Community on the McCaskey Campus:
Can earn enough credits to graduate _ Cannot earn enough credits to graduate_
Based upon your current age and credits earned prior to enrolling in the District, the District has indicated below whether you can earn enough credits to graduate and receive a diploma, before or during the school term in which you tum 21 years of age, through enrolling in Phoenix Academy:
Can earn er.ough credits to graduate _ Cannot earn enough credits to graduate _
NOTE: Pursuant to a Consent Decree entered fa Issa v. School District ofLancaster, Civil Action N:J. 16-3881, a case in the Unihld ~:ates District Court for the Eastern District of Pennsylvania, the School District will be provi..:'~ng information to Plain1i'ffs' counsel regarding this individual student and the studer..t's educational placement.
I would tilce the following additional individua:s to parti~ipate in my placement meeting with the School District to be held on
~~~~~~~~~~~~~~~~-
3.

Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 39 of 65 Placement Selection Decfakn F~Hn-.ivingl_~'-Person Meeting

Date of M e e t i n g : - - - - - - - - - - - - - - - - - - - - - - - - - - - Participants in m e e t i n g : - - - - - - - - - - - - - - - - - - - - - - - - - -

My rights have been explained to me. I understand that I can choose to go to either a Small Learning Community on the McCaskey Campus or Phoenix Academy. I make this choice voluntarily. I choose to have my child attend:

Small Learning Community on Mccaskey Campus

____ (Parent or Student
Initials ifEmancipated Minor)

Phoenix.Academy

____ (Parent or Student
Initials ifEmancipated Minor)

By signing below, you are saying that you understand the options provided to you in this form, that this is your decision, and that no one has forced you to make your decision.
Parent/Guardian Signature:
Student signature: - - - - - - - - - - - - - - - - Date: - - - - - -

4

'. ;, I

"'

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Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 40 of 65

Exhibit. D to C~nsent Decree
SCHOOL DISTRICT OF LANCASTER COMPENSATORY EDUCATION FUND NOTIFICATION FORM TO NAMED PLAINTIFFS
[THIS FORM SHALL BE SENT B.Y HE ~OMPENSATORY EDUCATIOJ.'ti FUND ADMINISTRATOR TO ALL NAI.1ED PLAINTIFFS}
Dear Parent and Student,
As a result of settlement of litigation involv'ng th~ School District of Lancaster, Issa v. School District ofLancaster, Civil Action No. 16- 881, a ~ase in the United States District Court for the Eastern District of Pennsylvania, the Schoo District has established a compensatory education fund, from which you may apply to receive up to $3,000, to be used solely for educational purposes as described in this letter.
Moneyfrom the compensatory education fl nd may be used only for educational purposes, which may in~lude tuition for any educational pro ram including post-secondary programs, vocational training/seryices, therapeutic and/or remedi 1instn:ction, programs, courses, services and materials, ESL programs, and cyber-based rogran:s and related technology to supfort cyber-
1 based programs, but only if such programs· urther the goals of the student's educat~on or
language development, or will assist the student in achieving some ecucational go~l. While compensatory education funds may be used as stated above for technology purcha~es such as computers, printers and educational software, it may not be used to purchase non-eClucational technology or software, such as an I-Phone or I-Pad. The compensatory education fund shall not be used to fund, pay and/or reimburse any technology purchases for any phones or noneducational software, including computer games, er for any non-educational purpo e, such as, but not limited to attorney's fees, vehicles of any kind, home improvements, furnit re of any kind or leisure travel.
The student will need to identify below on this form the intended use of the compe satory education funds requested. Funds to be us~d for educational programs will be sent directly to the program provider - when payment becomes due, the student will need to provide copy of an invoice that includes the name and address of the 11rogram provider, so that payme t may be sent on the student's behalf. Similarly, approved educrl!ional materials may be purchas d directly by
the Fund Administrator in which case payments re~uested fr:Jm and made to vend rs shall be
documented by the Fund Administrator, or the stuJent may be reimbursed for such costs upon providing the Fund Administrator a copy o; a rece!Jpt or invoice that identifies the aterials purchased and their cost.

To utilize funds, you must complete and return thi form by June 30, 2018 to the Fund
Administrator at the following address or email ad~~ress: [m:mc, address a:e!d email address of

Fund Administrator].

·

If you have any questions, you may also direct the by email to the Fund Administrator.

This money for education must be used by .".Iur.e ~· 2Q2L

,,t,, .• ' ·.~ .. '

. ' ' .'

Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 41 of 65
.
~::
' 't''• '
Student Name: Student Address:
Amount of funds requested (up to amount stated in the first paragraph ofthis form): _ _ __ Identify the intended use of funds (specify educational program or other permitted use):
Date (or range of dates) when funds will be u t i l i z e d : - - - - - - - - - - - - - - - Funds to be used for educational programs will be sent directly to the program provider - when payment becomes due, the student will need to provide a copy of an invoice that includes the name and address of the program provider, so tha: payment may be sent on the student's behalf. Funds used for approved educational materials wili be reimbursed to the student - the student will need to provide a copy of a receipt that identifies the materials purchased and their cost. By signing below, the student and parents agree tc use t:e -requested funds cnly for the intended purpose stated above, and further agree thr;~ upon r-eceip~ of't!'le requested funds, they agree to waive and release any claims or actions r~f;fnst .~~~:! S&oo} District ofLancaster for compensatory education relating to the claims rai~~d in Issa v. School District ofLancaster, Civil Action No. 16-3881, a case in the United States District Court for the Eastern District of Pennsylvania, regarding whether the School District has fulfilled enrollment requirements and taken adequate steps to overcome language barriers for immigrant students ages 17 to 21 with limited English proficiency from 2013 through June 2017. Student Sign~ture: - - - - - - - - - - - - - - - - - - - - - - - - - - - - Date form is signed: - - - - - - - - - - - - - - - - - - - - - - - - - - - *Ifeligible individual is under 18 at time ofdeclaration ofintent to use: Parent/Guardian Name:
Parent/Guardian Signature: - - - - - - - - - - - - - - Date: - - - - - - -
2
',,.

Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 42 of 65 ·'

Exhibit J: to Co:hser~t Deeree

SCHOOL DISTRICT OF LANCASTER <20MP~NSATORY EDUCATION FUND NOTIFICATION TO IMMIGRANT STUDEUTS AGES 17-21 PLACED AT PHOENIX
ACADEMY DURING THE 2016-2017 SCHOOL YEAR

[THIS FORM SHALL BE SENT BY THE COMPENSATORY EDUCATION FUND ADMINISTRATOR TO ALL NEWLY ENROLLED.IMMIGRANT STUDENTS AGES 17-21 PLACED AT PHOENIX ACADEMY DURING.THE 2016-2017 SCHOOL YEAR]

Dear Parent and Student,

As a result of settlement of litigation involving the School District of Lancaster, Issa v. School

District ofLancaster, Civil Action No. 16-3831, a case in the United States District Court for the

Eastern District of Pennsylvania, the School L'~st~:0t ha~ established a corn;.ensatory education

fund, frc:n which you may apply to recdve ·.::?to X!,5<.'C, to be usecl solely for educati?nal

purposes as described in this letter.

·

Money from the compensatory education fun( m:iy be used only for educational purposes, which may include tuition for any educational program ir.':luding post-secondary programs, vocational training/services, therapeutic and/or remedia~ instrliction, programs, courses, services and materials, ESL programs, and cyber-based programs and related technology to support cyberbased programs, but only if such programs further the goals of the student's education or language development, or will assist the student in achieving some educational goal. While compensatory education funds may be used as stated above for technology purchases such as computers, printers and educational software, it may not be used to purchase non-educational technology or software, such as an !~Phone.or I-Pad. The compensatory education fund shall not be used to fund, pay and/or reimburse any technology purchases for any phones or noneducational software, including computer games, or for any non-educational purpose, such as, but not limited to attorney's fees, vehicles 0f any kind, home improvements,, furniture of any kind or leisure travel.

The student will need to identify below on this form the intended use of the compensatory
education funds requested. Funds to be used for educational programs will be sent directly to the program provider - when payment become~ due, ~~:e student will need to prc·r<Jide a r;opy of an invoice that includes the name and address cf the :1rogr~~ provider, so that payment may be sent on the studer..t's behalf. Similarly, approved e ~U~'1.tion2~ materials may be p',~;rchased directly by
the Fund _Administrator in which case payrr.en s :':'e1ues:~d from and made t'J .vendors shall be documented by the Fund Administrator, o:- ~h ~\::cent i::ay '.:le reimt~rse1 f:;r such costs upon providing the Fund Administrator a copy of a ~-::~:=::t o; :.nvoice tl::a: :dentifies the materials
purchased and their cost.

To u~iUze f:i1nds, you must complete and retu • t~is forW- by June 30, 2018 to the Fund Adminis·trator at the following address or ema 1&d<lress: [name, address End email address of Fund Administrator].

. l·i. ... ' ,, ,...,.. ~

I, 1·"-:,;
·"":•

Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 43 of 65
,{'
,i
If you have any questions, you may also direct them by email to the Fund Administrator. This money for education must be used by ~~,e ?C:, 202!Student Name: Student Address: Student Phone Number: Amount of funds requested (up to amount stated in the first paragraph of this form): _ _ __ Identify the intended use of funds (specify e1lucational prog~am or other permitted use):

Date (or range of dates) when funds will be 1tilizeC:: - - - + - - - - - - - - - - - - - -
Funds to be used for educational programs ;.ivill be sent dim;tly to the program provider - when payment becomes due, the student will need to prc·1ide a copy of an invoic~ that includes the name and address of the program provider, so thG.t payment may be sent on the student's behalf.
Funds used for approved educational materials wi~! ~e reim Jursed to the student - the student will need to provide a copy of a receipt that identifres the materials purchased and their cost.
By signing below, the student and parents r.gree to '1se the re.quested funds only for thie intended purpose stated above, and further agree that upon .~~eii;t of the requested funds, they agree to waive a~d reiease any claims or actions cednst the Sc.~(Jc.? District ofLancaster far compensatory education relating to the claims :ais'ed in :ss':lv. School Disti!ct ofLancaster, Civil Action No. 16-3881, a case in the United Sta'~es D:strict Court for the Eastern District of Pennsylvania, regarding whether the School District has ful 9.lled enrollment requirements and taken adequate steps to overcome language barriers for iffil11igrant students ages 17 to 21 with limited English proficiency from 2013 through June 2017.

Student Signature: - - - - - - - - - - - - - - - - - 1 - - - - - - - - - - - - - Date form is signed:

*Ifeliglble individual is under 18 at time ofdec:aration ~ intent to use:

Parent/Guardian Name: Parent/Guardian Signature:

Date: - - - - - - - -

2 . ,...':•.

Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 44 of 65

.;··'
Exhibit~·;:> !:::::::.~ent Decree
SCH00L DISTRICT OF LANCh.ST.ER ·~:1:MPZNSATORY EDUCATION FUND NOTIFICATION FORM FOR IMMIGRANT STUDENTS AGES 17-21 WHO WENT TO
THE DISTRICT FOR ENROLLMENT BUT WERE NOT ENROLLED FROM JU Y 2013- JUNE 2017
[THIS FORM SHALL BE SENT BY TH COMPENSATORY EDUCATION FUND ADMINISTRATOR TO ALL IMMIG .NT STUDENTS AGES 17-21 WHO WENT TO THE DISTRICT FOR ENROLLMENT BUT WERE NOT ENROLLED FROM JULY 2013- JUNE 2017.]

Dear - - - - - - -

As a result of settlement of litigation involving the School District of Lancaster, Issa v. School

District ofLancaster, Civil Action No. 16-3381, a case in the United States District Court for the

Eastern District of Pennsylvania, the Schoc:·District has established a compensatory education fund, from which you may apply to receiv~ -;,•p to $1,000', to be use?, sofoly for educational

purposes as described in this letter.

·

•
Money from the compensatory education fund may be used only for educational purposes, which

may inclu'.ie tuition for any educational program including post-secondary programs, vocational

training/services, therapeutic and/or remedial instruction, programs, courses, services and

materials, ESL programs, and cyber-based programs and related technology to support cyber-

based programs, but only if such programs further the goals of the student's education or

language development, or will assist the student in achieving some educational goal. While

compensatory education funds may be used as stated above for technology purchases such as

computers, printers and educational software, it may not be used to purchase non-educational technology or software, such as an I-Phone or I-Pad. The compensatory education fund shall not be useq to fund, pay and/or reimburse any technology purchases for any phones or non-

educational software, including computer games, or for any non-educational purpose, such as, but not limited to attorney's fees, vehicles of any kind, home improvements, furniture of any

kind or leisure travel.

The student will need to identify below on t-"ois form the intended use of the compensatory education funds requested. Funds to be used for ec\:cational programs will be sent directly to the program provider - when payment becomes due, tr.e st1.K~ent will .need to prcvide a copy of an invoice. that includes the name and address :>f the r:ogrrm provider, so th~t :'.:'ayment may be sent on the' student's behalf. Similarly, approved educ:donal materials !n~Y be purchased directly by the Fur.cl Administrator in which case payments requested fr:)m and made to vendors shall be
documented by the Fund Administrator, or the student may be reimbursed for such costs upon pro~.ridir1g the Fund Administrator a copy cf a receipt or invoice that identifies the materials
purchaaed and their cost.

. .'.• ... L', '

Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 45 of 65

art!l To utilize funds, you must complete and return this form by June 3!>, 2018 to the Fund
Administrator at the following address or email address: [name, address ~mail address of Fund Administrator]. If you have any questions, you may also direct them by email to the Fund Administrator. This money for education must be used by .Tune 3(), 2021. Student Name: Student Address: Student Phone Number: Amount of funds requested (up to amount stated in the first paragraph of this form): Identify the intended use of funds (specify educational program or other permitted use):

Date (or range of dates) when funds will be utilizeci: - - - - - - - - - - - - - - - -
Funds to.be used for educational programs will be sent directly to the progrn::n provider -when payment becomes due, the student will neet.:: to provide a copy of an invoice that includes the name and address of the program provider, so that payment may be sent on the student's behalf.
Funds used for approved educational materials wil! be reimbursed to the student - the student will need to provide a copy of a receipt that identi:Ees th~ materials purchased and their cost.
By signing below, the student and parents agree to use the r.equested funds only for the intended purpose stated above, and further agree that upon ~·eceipt of the requested fmids, they agree to waive and release any claims or actions against the Sdoo:l District ofLancasterfor compensatory education relating to the claims raited in Issa v. School District ofLancaster, Civil Action No. 16-3881, a case in the United States District Court for the Eastern District of Pennsylvania, regarding whether the School District l::as fulfllled enrollment requirements and taken e.d,equate steps to overcome language barriers for immigrant students ages 17 to 21 with limited English proficiency from 2013 through June 2017.

Student Signature:----------------------------Date form is signed:

*Ifeligible individual is under 18 at time cfdeclaratio1;. of:ntent to use:

Parent/Guardian Name: Parent/Guardian Signature:

Date: _______

2

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·'· ..

Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 46 of 65
11 ··.·
i 'I

Khadidja Issa; Q.M.H., a minor, individu lly, by and through his parent, Faisa Ahmed Abdalla; Alembe Donia; Anyemu Dunia;i V.N.I., a minor, individually by and througl her parent Mar Ki; Sui Hnem Sung; and a 1 others similarly situated,

Civil ~ction No. 16-cv-3881 HON[ EDWARD G. SMITH

Plaintiffs,

CLA$S ACTION '

v.

The School District of Lancaster,

Defendant.

WHEREAS, the Parties have enter d into.~- Caber,~ 0rder in the above-captioned

.

•

!

ac~ion ("Action") in the form attached her to that s~al~ settle and resolve an)r and all claims

arising from the allegations described in th Complaint in this· Action; and
i

WHEREAS the Court finds that th s Consent ijecree represents a just, fair, adequate

I

'

and equitable resolution of the claims rais din this Action.

IT IS HEREBY STIPULATED , D AGRJi:ED by consent of the Parties in the

Action, t?irough their respective counsel, that the Action be hereby deemed resolved

by the parties. The case is dismissed with prejudic~ 7,rith regard to all claims asserted in

the Complaint; however, the Court shall ~tain jurisdiction of this case solely for the purpose
of enforcing compliance with the Consent Decree. The,parties are ba~ed· frcr.• relitigating 1
any claims raised in this litigation or any claims re!eas;c:l by means c·fthe C>:nsent D~cree. The Court retains jurisdiction of he of th!s A~:ion to enforce all terms and

conditions of the Consent Decree as ente ed into on _ _ _ _ and subject to Section

. ,...,.. -.
, 'i-h

Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 47 of 65
XIV of the Consent Decree, until its ternination date as set forth in Secticn IX of the Consent Decree, including entering and en~orcing the Protective Order.attached as Exhibit H to the Consent Decree, and adjudicating any motion seeking enforcement of the Consent Decree pursuant to Section XI thereof (including any motion for fees and costs associated with any such enforcement motion). The Court.may direct.the Parties to undertake specific enforcement of the Consent Decree or restore the ca~e to th~ Court's active docket for further litigation. In the event a motion to eafo~ce the Consent Decree is net filed on or before termination date as set forth therein, the Ccurt sl;iall r~linquish jurisdiction and the case shall be deemed dismissed with prejudi~e 9ursuant to Rule 41(a) of the Federal Rules of Civil Procedvre without further order of th~ Court.

Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 48 of 65

Dated: June 28, 2017

",\.
For th~ Platntiffs,
Isl Witold J Walczak 'vlitold J. Walczak, Esquirb (PA62976)
J~merican Sivil Liberties Inion of
Pennsylvania 247 Fort Pitt Blvd.· Pittsburgh, PA 15222 Telephone: (412) 681-7736 Fax: (412) 681-8707 VWalczak@aclupa.org
Molly Tack-Hooper, Esquire (PA307828) Michelin Cahill, Esquire (PA 314553) J.merican Civil Liberties Union of Pennsylvania ?.0. Box 60173 Philadelphia, PA 19102 Telephone; (215) 592-1512 :?ax: (215) 592-1343 .
r~ffack-Hooper@ac'1~p2'.:e:rg
MCahill@1;tclupa.org · ·
Isl Kathleen A. Mullen Thomas B. Schmidt, III (PA 19196) Kathleen A. Mullen (PA8~·504) FEPPER HAMILTON LLP Suite 200, 100 Market Street P.O. Box 1181 Harrisburg, PA 17108-1181 Telephone: (717) 255.1155 Fax: (717) 238.0575 schmidtt@pepperlaw.com mullenk@pepperlaw.com

....:.\.

Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 49 of 65
Kaitlin M. Gurn~y (PA309581) Megan Morley (PA321706) Hedya Aryani (PA 306616) PEPPER HAMILTON LLP 3000 Two Logan Square Eighteenth & Arch Streets Philadelphia, PA 19103-2799 Telephone: (215) 981-4000 Fax: (215) 981-4750 gurneyk@pepperlaw.com morleym@pepperlaw.com aryanih@pepperlaw.com.
Isl Maura Mclnerney ~.faura Mcinerney, Esquire· (PA71468) Y..ristina Moon, Esquire (PA306974) Alex Dutton, Esquire (PAZ'S7321) Educa~ion Law Center 1315 Walnut Street Suite 400 Philadielphia, PA 19107 Telephone: (215) 238-6907 Fax: (215) 772-3125 mmcinerney@elc-pa.or.g kmoon@elc-pa.org adutton@elc-pa.org
Isl Seth F. Kreimer Seth F. Kreimer, Esquire (PA26102) 3501 Sansom Street Philadelphia, PA 19104 Telephone: (215) 898-7447 skreimer@law.upe!1n.edu
Attorneys for Plaintl"fs Khadidja Issa; Q.Af.H,
a minor, individually, by dzd through his
parent, Faisa A~1med Abc.~lla; VNl, a minor, individually by and through her parent Mar Xi; m~d Sui Hne1.'1 Sung.
.~··

Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 50 of 65

Dated: June 28, 2017

For the Defendant,
Isl Sharon M 0 'Doi1nelJ Sharon M. O'Donnell, Esquire (PA79457) Marshall Dennehey Warner Coleman & Goggin 100 Corporate Center Drbe, Suite 201 Camp Hill, PA 17011 Telephone: (717) 651-35J.J Fax: (717) 651-3707 smodonneH@mdwcg.com

SO ORDERED: Hon. Edward Smith, U.S.I).J.

Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 51 of 65

IN THE UNITED ~rrATES DISTRICT !YOUR':" FOR THE EASTERN DISTRICT OF PENNSYLVAN A

Khadidja Issa; Q.M.H., a minor, individually, by and through his parent, Faisa Ahmed Abdalla Alembe Dunia; Anyemu Dunia; V.N.I., a minor, individually by and through her parent Mar Ki; Sui Hnem Sung; and all others similarly situated,

Civil Action No. 16-cv-38 1 HON. EDWARD G. SMI H

Plaintiffs,

CLASS ACTION

v.

The School District of Lancaster,

Defendant.

The Parties to the above-captioned !:'.ction (the "Action"), by their at omeys, hereby stipulate 8nd agree as follows:
Y/HEREAS, the parties have ente ed into a Consent Decree on this date and have voluntarily agreed to resolve the Action a cording to the terms set forth in he Consent Decree;
WHEREAS, Section VI of the Co sent Decree includes certain req· irements relating to compensatory education which may result in the exchange 2.nd disclosure y the School District of Lancaster (the "District") to Plaintiffs' ounsel of confidential information pertaining to students' immigration status; education re ords; and other i:::fcrmajon prJ~:):;ted by 6e Family Education Rights an.d Privacy Act, 20 U.S,C.1232g (2013) (''FERPA");
WHEREAS, Section X of the Co sent Decree inckd~s certai"l !11onitoring provisions and requires, inter alia, the providing of student education records' protected under FERPA by the District to Plaintiffs' counsel;
-1-
:. ,,... ',,
.' ~,, ';

Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 52 of 65
WHEREAS, the Parties have demonstrated that ')ood cause exists for the order of protectior~." Pansy v. Borough ofStroudsburg, 23 F.3d 772, 786 (3rd Cir. 1994); and
WHEREAS, counsel for both Parties have given their consent to these terms and have agreed to request that the following Protective Order be.entered; and
WHEREAS, the Parties acknowledge that federal and state law, inc,luding FERPA, governs the disclosure of student education records;
.
HOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED, and the Parties do hereby stipulate and agree, as follows:
1. The provisions of the Stipulated Protective Order entered by the Court on January 20, 2017 relevant to the prorsion and dissemination of student education records and information shall apply Ito such provision and dissemination required under
I I
the Consent Decree throug1 the duration of the Consent Decree. 2. A copy of the signed Stipul*ted Protective Order is attached hereto as Exhibit A
I
and incorporated as if set fo~h in full herein.
-2-

Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 53 of 65

Dated: June 28, 2017

For the Pl&intiffs,

Isl Witold J. Walczak

Witold J. Walczak, Esquire (PA62976)

American Civil Liberties Union of

Pennsylvania

'

247 Fort Pitt Blvd.

Pittsburgh, PA 15222

Telephone: (412) 681-7736

Fax: (412) 681-8707

VWalczak@aclupa.org

Molly Tack-Hooper, Esquire (PA307828) Michelin Cahill, Esquire (PA 314553) American Civil Liberties Union of Pennsylvania P.O. Box 60173 Philadelphia, PA 19102 Telephone: (215) 592-1513 Fax: (215) 592-134: MTack-Hooper@ach1pa.org MCahill@aclupa.org

Isl Kathleen A. Mullen Thomas B. Schmidt, III (PA 19196) Kathleen J.~. Mullen (PA8~·604) PEPPER HAMILTON LLP Suite 200, 100 Market Street P.O. Box 1181 Harrisburg, PA 17108-1181 Telephone: (717) 255.1155 Fax: (717) 238.0575 schmidtt@pepperlaw.com mullenk@pepperlaw.com

-3-

Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 54 of 65
Kaitlin M. Gurney (PA309581) Megan Morley (PA321706) Hedya Aryani (PA 306616) PEPPER HAMILTON LLP 3000 Two Logan Square Eighteenth & Arch Streets Philadelphia, PA 19103-2799 Telephone: (215) 981-4000 Fax: (215) 981-4750 gurneyk@pepperlaw.com morleym@pepperlaw.com aryanih@pepperlaw.com
Isl Maura Mclnerney Maura Mclnerney, Esquir~ (PA71468) Kristina Moon, Esquir-;: {PA306974) Alex Dutton, Esquire (PA267321) Education Law Center 1315 Walnut Street Suite (00 Philadelphia, PA 19107 Telephone: (215) 238-6907 Fax: (215) 772-3125 mmcinerney@elc-pa.org kmoon@elc-pa.org adutton@elc-pa.org
Isl Seth F. Kreimer Seth F. Kreimer,_ Esquire (PA26102) 3501 Sansom Street" Philadelphfa, PA 19104 Telephone: (215) 893-7447 skreimer@law. upenn.eda
Attorneys for Plaintiffs Khadidja Issa; Q.MH, a minor, individually, by a:1d through his parent, Faisa Ahmed Abdalla; V.Nl, a minor, individually by and through her parent Mar Ki; and Sui Hnem Sung. 1
-4-

Case 5:16-cv-03881-EGS Document 104 Filed 06/29/17 Page 55 of 65

Dated: June 28, 2017

For the Defendi;>.:it,
/s/ Sharon M O'Donnell Sharon M. O'Donnell, Esquire (PA79457) Marshall Dennehey Warner Coleman & Goggin 100 Corporate Center Drive, Suite 201 Camp Hill, PA 17011 Telephone: (717) 651-3503 Fax: (717) 651-3707 smodonnell@{mdwcg.com

This Order is hereby APPROVED and ENTERED on this _ _ day of June, 2017. Hon. Edward Smith, U.G.D.J.

-5-

CasCea5s:e165-:c1v6--0c3v8-08318-8E1G-ESGSDoDcuomcuemnet n1t0848 FFilieledd0061//2290//1177 PPaaggee 516oof1f 065

IN THE UNITED STATES DISTR1CT C©URT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Khadidja ls!a et al., Plaintiffs,.
v.
The School District of Lancaster,

Civil Action No. 16..cv..3881 HON. EDWARD G. SMITH CLASS ACTION.

Defendant.

STIPULATED PROTECTIVE ORDE~

WHEREAS.• the parties to the abo·1e..captioned action (the "l.ctior}') will be en.gaged in

discovery proceedings that include, among. otl:ierthings, takbg depvsiti.or.s' &41d producing

documents;

WHEREAS, the discovery proceedings will necessarily involve the production of certain

information that the.parties to the Action (the ''Parties," each a "Party'.') believe to contain

confidential infonnation pertaining to the Named Plaintiffs and members ofthe putative Class;

WHEREAS, the .Parties expect that the confidential information pertaining to the Parties.•

will relate to, among other things, students' (1) immigration status.; (2) educational records; (4)

.

"

.

medical records; and (5) information protected by ·the Family Education Rights and Privacy Act,

20 u.s.c.. 1232g (2013);

.WHEREAS~ the Parties have de.monstrat~d th..at. ~g.ood cause e.xi~ts f.o~.· i~e order of protection." Pansy v. Borough ofStroudsburg, 25 F.3d ,·72. 786 (3rd C::r. 19:>4~; and

WHEREAS, counsel for both Parties have given their ~onser.:t to thi;-;;:~ terms and have

agreed to request that the following Protective Order be entered,

IT IS: HEREBY ORDERED, pursuant to Federal Rule cf Civil Proc~dv.re 26(c), that the

following provisions ofthis Stipulated Protective Order (the 14Protective Order") will govern the

CasCea5s:e165-:c1v6--0c3v8-08318-8E1G-ESGSDoDcuomcuemnet n1t0848 FFilieledd0061//2290//1177 PPaagge 527oof 1f 065
handling of documents, deposition testimony, deposition exhib~ts; deposition transcripts, written
discovery requests. interrogatory responses, responses to requests fo; admission, responses to
requests for the production of documents, and any other information or material produced, given, or exchanged, including any information contained therein or derived therefrom ("Discovery Material") by or among any Party or non-Party providing Dh;covery Material (each a "Producing Party") in this Action.
1. "Conficlential Material'' is Discovery Material designated as "Cop:fjdential'' pursuant to
Paragraph 2 below~ which a Party in good faith believes to contain sensitive or personal
infonnation which if disclosed might invade the ,privacy rights (including but not limited
t-a rights defined by the Family Educational and, Privacy Rights Act ("~EPRA"), 2.0
U.S.C.A § 1232g(b)(l) (2013)), ofany person1 including the Parties iL'1.d members of the putative Class. 2. The designation ofDiscov~ry Ma~erial,'as Confidential shall be made tn the following manner:
a. Documents or other materials may be designated a:/ Confidenti~ by affixing the legend "CONFIDENTIAL" to each page containing any Confidential Material.
b. For electronic documents produced in native fonnat, if:any, designations shall be made in accordance with an agreed. upon protoccl governing.production of electronically stored information.
c, Depositions or other pre-trial testimony may be desigtl'.l"<ed &S Confidential
t:,y: (l) a statement on the reconl, by counsel, at the time of such disclosure or before the
conclusion of the deposition or testimony; or (2) by written notice, ser:~ to all Parties
2

CasCea5s:e165-:c1v6--0c3v-808318-8E1G-ESGSDoDcuomcuemnet n1t0848 FFilieledd0061//2290//1177. PPage 538ofo1f065
.··· j· witb.in: fifteen (15) business days c;;fthe deposition or ether i;r~·t;:ie;: t-:~1imony; :~ovidei th~~ only those portions ofthe transcript designated as Confidential .shall be deeme.d
Confidential Material. The Parties may modify this procedure for anyparticular
deposition or other pre,.trial testimony~ through an agreement on th.e record at such deposition or testimony, without.further order ofthe Court. 3. All documents and records that contain the names or comparable identifying information of any student within the School District of Lanl~aster and all photographs and videotapes depicting such students' faces shall be considered to be Confidential Material without
the necessity t>f designation by any Party set forth in Paragraph 2 ofthis Proter:tive Order.
4. The Parties· shall only use Confidential Material in relation.tti t:'~e Action. The Parties shall ensure that the provisions of this.Protective Ord.er are made kncwn to, and fully
understood py, all persons involved in this Action.
5. All Confidential Material maybe dis.closed or made available by the party
receivingthe Confidential Material to the Parties; the Parties1 counsel, legal assistants, secretarial
and clerical personnel1 persons .assisting counsel, witnesses, experts and consultants (including their employees and ass.ociates) retained to perfQrm work in connections with the Action, the Court eaid its personnel, court reporters, stenographers, or videographers utilized in this Action, and any 0th.er person or party designated by the Court. Any person(s) with access to Confidential,Material may 011ly use .it for the purpose ofpreparing for and co:f:J~ucting this ActioJJ,.
6. During the pendency of this. Action, any Party obJrCting to th~ c1esignatio11 of~ny Discovery Material or te.stimony as Confidential Material may, ai\"1' resklng s: g.ood-faith effort to n~solve any such obj'ection with opposing counsel,. file a motion on,r~asonable notice for an

CasCea5s:e165-:c1v6--0c3v-808318-8E1G-ESGSDoDcuomcuemnet n1t0848 FFilieledd0061//2290//1177 PPage 459ofo1f 065

·, ',_

ore.et ve:;atir1g the designation. While such an application is pendiQ.g, the Discovery Material or testimony in question:shall be treated as Confioential Material pursliant to this Protective Order. The provisions ofthis Protective Order are not intended to shi~ any blll'dens ofproof, including the burden of establishing that any Discovery Material validly constitutes Confidential Material.

7. Inadvertent failure to designate Discovery Material as Confidential Material shall

not cori.stitute:a waiver ofsuch claim and may be corrected. A Producing Party may designate as

Confidential any Discovery Materh1l that has already beenproduc~d•. including Discovery !
Material that the Producing Party inadvertently failed to designate as Ccnfider.tial: (1) by

notif;1ing in writing the Party to whom the production has been mad~ that tr.e Piscovery Material

constitutes ~onfidential. Material; or (2) in any manner consistent vdth Paragraph 2. Upon

receiv~ng ~u;;h supplemental notice, the· Parties shall thereafter mark and treat the Discovery

Materia; so designated as Confidential Material~ and such Discovery Material shall be .fully

subject to this Protective Order from the dat.e of.such supplemental n.otice forward. The Party

reqeiving suqh notice shal.l make a reasonable, good·faith effort to ensure that any analyses,

memoranda, notes, or other suchmaterials generated qased upon.suchnewly-designated

information ~e immediately treated as containing Confidential Material. ·. I,1~ tiddition, upon

receiving such supplemental written notice, any P:a1ty that disclosed the Discovery Materi:al prior

'

-

to its designation as Confidential shall exercise its best efforts to: (1} en::i:,.re·::1e return or

destruction ofsuch Discovery Material; (2) ensure that any docUinents or.ofaer 'Jlaterials derived

from such Discovery Mater.ial are treated as if the Discovery Material had been designated .as

Confidentiat when originally produced; and (3) ensure that such Discovery! ifaterial is no.t

further cl.isciosed e"cept in accordance with the terms ofthis Protective Order,

4

CasCea5s:e165-:c1v6--0c3v-808318-8E1G-ESGSDoDcuomcuemnet n1t0848 FFilieledd0061//2290//1177 PPage 650ofo1f065
8. Ifany Confidential Material is used as an exhibit to .a cot:.."i f'Hwg or admitted into
evidence· as an exhibit at trial, the Parties shall .reclact or otherwise obscure ti'~~ confidential portions ofthe material, unless the confidential portions are an integr~ part ef a document or record, in which case the Parties shall tile the document or record under seal of the ColU't.• pursuant to Local Rule.s 5.1.2, 5.1.3 and 5.1.S.
9. If any photograph or portion ofa videotape that contains Confidential Material is
used as an exhibit to a court filing or admitted it1to evjdence at trial, the Parties shall fUe the photcgraph or portion ofthe videotape under seal ofthe Court.
10. Nothing in this Protective Order shall prohibit the use c:fidentifying foformation in a case or situation in which the person, or the person's parent, guarcian, custodian, or surrogate parent consents to the use of such information.
11. Nothing in this Protective Order shall prevent any Pcrr~y f<:cm :'::'ing or disclosing
its o'M1 Discovery Material in any matter is sees fit, without prior conser..t of opposing counsel o.r the Court.
12. Entering into this Ptotective Order;. or agreeing to and/G.r proC:.ucing or receiving Discovery Material or otherwise complying with the terms ofthis Pr.;,tective Order, shall not:
a. Prejudice in any way the rights of any Party to: (1) seek production of documents or information it considers subject to discovery; or (2) object to the production of documents or infonnation it considers not subject to discovery;
b. Prejudice in any way the rights ofany Party to object to the authenticity or admissibility into evidence .of any Discovery Material;.
s

CasCea5s:e165-:c1v6--0c3v8-08318-8E1G-ESGSDoDcuomcuemnet n1t0848 FFilieledd0061//2290//1177 PPaage 661ofo1f 065

'. (

I

c. Operate as an admission by anY Party that any particufa: Discovery Material constitutes Confidential Material or contains any other type of.confidential information;
d. Prejudice in any way the rights of any Party to: (1) petition the Court for a further protective order relating to any purportedly Confideritiai'Material: or (2) seek a determination by the Court whether any Discovery Material or Confidential Material should be subject to the terms ofthis .Protectiv~ Order;
e. Prevent any Party from agreeing in writing to alter or waive 1J.;:~ provisions or protections provided herein with respect to any particul-ar Disc.!:wery Material;
f. Prejudice in any way the r'gbts of any Party to object to the .re~evance, authenticity, use, or admis ibHity into evidence of any document, testimony, or ather evidence subject tot is Protective Order;
g. Preclude any Party from o d.ecting to discovery that it beHeves to be otherwise improper; or
h. Operate as a waiver of an attorney-client, work product, busine.ss strategy, trade secret, or other privilege.
13. Con.fic;lential Material file with the Couit shaU be filed unoer ze.al pursuant to the following procedures:
a. Where possible, only con denti~l portions of filings w:'.th the .~gurt shall be filed under seal. Information fi ed under seal shall b~ placed i1J:1. sealed envelope on which it shall be endorsed. with the title to this action~ fo~ ~;vorfS' '''TILED UNDER SEAL" and a statement substantially in the following fonn:
Wfhts envelope is sealed pursuant tc;> order of the Court 1t.n"' cc;>ntains Co11fide1Jtial Material file<J in this case by [name of l!'arty) and is 11ot to be

6

CasCea5s:e165-:c1v6--0c3v-808318-8E1G-ESGSDoDcuomcuemnet n1t0848 FFilieledd0061//2290//1177 PPage 672ofo1f 065
opened or the contents th:~reof to "e displayed or reYealecf e~.cept by order of
the Court,'' Any envelope containing infonnation filed under seal that is an exhibit to a pleading shall also bear the name ofthe pleading. A full and unreda~d copy of any such submission may be provided directly to the Court's chambers, marked "Chambers Copy" and ''Contains Confidential Mate1ial Subject tQ Protect:tve Oi:~er." b. If any Party objects to identified portions of the materials remaining urtder seal1 it ·shall, withiu ten ( 1O} business days uftet submission. of such materials to the Court, state its objections in a letter sent by facsimile or electronic mail to couqsel for all Parties in this action., The interested Parties shall promptly meet and confer to attempt to .resolve those objections and, if such objections cannot be resolved, the Party asserting such objections shall promptly tender those objections to the Court for resolution. The revised public filing~ if any, oftf.at submission shall be macle by the submitting Party within ten (10) business ~ays aft~x the Court's decision resolving that dispute. 14. Upon tennination of this action, including all appeals, the Piµ'.ties s~ll destroy or return to opposing counsel all documents or material designated as Confid~ntia! tha.t they recehied from the disClosing Party, and all copies thereof (including such c.opies as may have been marked as d~position exhibits and/or exhibits to any motion, pleadings or other court doq'!.im:>:;'.:.lts); provided, however, that counsel for the Parties shall be permitted to keep work prodl!ct reforencing. or containing Confidential Material on an attorneys' eyes only confidential basis. A Party that elects to destroy, rather than return, Confidential Material pw;sua11J to this Section shall certify in wri.ting to the disclosing Party that he/she/it has done so. 15. Nothing in this Protective Order shall prevent either Party fr_or:. &.pplying to the Court for any additional protection with respect to the confidentiality uf documents, material or
7

CasCea5s:e165-:c1v6--0c3v-808318-8E1G-ESGSDoDcuomcuemnet n1t0848 FFilieledd0061//2290//1177 PPage 683ofo1f065
·, .
"· '''?. ·'
infonn~ion, or for the right to utilize the Cc:ifid.ential Material in f!llY -::~,.~:;; nc~ contemplated
l:ereb; C.s either Party may consider appropriate. 16. The provisions ofthis. Protective Order shall survive- any settlement, judgment or
other disposition or conclusion of this action, and all appeals therefrom, and the Court handling this action shall retain continuing jurisdiction in order to enforce the terms of this Protective Order.
8

CasCeas5e:156:-1c6v--c0v3-0838818-E1-GESGSDoDcoucmumenetn1t 0848 FFiilleedd 0016//2209//1177 PPaaggee96o4f o1f065

Outed:
q t' , 1. O;DolU'lell, Esquire
Mar11ha.l l Dennehey 100 Corporate Center Drive Suite201 Camp Hiil, PA 17011 SMODonnell@MDWCO.com Attorneys/or Defendcmt

Respectfully submitted,
Kathleen A. MuUen, Esquire (PA.84604) Kaitlin M. Gurney, E:quire (PA309581) Megan Mol'ley, Esquire (r'A321106) Ucdya Aryani, Esquire (PA30(Sl6) PEPPER HAMILTON I.J.P
3000 Two JJogan Squl)re
Bishteenth .& Arch Streets Philadelphia, PA 19103·2799 Telephone: (215) 981-4000 Fax: (215) 981-4750 mullenk@peppcdaw.com gumeyk@pepperlaw.com morleym@iieppe1·ti;iw.com aryaJ)ih@pepperlaw.com
~~w~~
W1.told J. Walczak, Eiiqu1re (PA62976) American Civil Libc:rtii:;s Union of Pennsylvania 247 Fort Pitt Blvd. Pittsburgh, PA 1$222, Telephone: (412) 681-7736 Fax: (412)681-8707 VWalczak@nclupa.ors:
Mqlly Tack~lfooper,.'B~quire (PJ'.307828) Michelin CahiU, Esqtifre (~A314S53) American Civil L~berties U11ion of Pemlsylvania PO Boic 60173 Philndelphin, PA 19102 Telephone:. (21S)592-15 J3
rax: (21 S) 592-1343
MTnck:-Hooper@aclup~.org
MCahill@aclu1,a.c>rg

CaCsaes5e:156:1-6c-vc-v0-30838818-1E-EGGSS DDooccuummeenntt18084 FFilieledd0016/2/209/1/177 PPagaege1065ofo1f065
·1;
'
. :} ' ;l ·~··r'·"..,·-~·;·t. I . ~
Ma raMcinerney, Esqu~re{;-~~71468)
.Kristina Moon, Esq'lire (PA306974) Alex Dutton, Esqµife (PA267321) Educat.ion Law C~nter 1315 Walnut Stree~ Suite 400 Philadelphia; PA 19107 Telephone: (215) 238'-6907 Fax: (215) 772-3125. mmcinemey@elc..pa.org kmoon@elc·p~.org . adutton@elc.-pa.org
8-eih:~ Kre;i~et;E\ $(lUi it (P~ A26102)
3501 Sansom Street Philadelphj~. PA 19104 Telephone; (215) 898-7447 slqeimer@law.upenn.edu Attorneys for Plai::~:~:'J
10

 
 Issa v. School District of Lancaster, 847 F.3d 121 (2017) 339 Ed. Law Rep. 630
KeyCite Yellow Flag - Negative Treatment Distinguished by Antoine on behalf of I.A. v. School Board of Collier County, M.D.Fla., March 14, 2018
847 F.3d 121 United States Court of Appeals, Third Circuit.
Khadidja ISSA; Q.M.H., a minor, individually by and through his parent, Faisa Ahmed Abdalla; Alembe Dunia; Anyemu Dunia; V.N.L.; Sui Hnem
Sung, and All Others Similarly Situated v.
The SCHOOL DISTRICT OF LANCASTER, Appellant
No. 16-3528 |
Argued December 5, 2016 |
(Filed: January 30, 2017)
Synopsis Background: Refugee students with limited or interrupted formal education, who were also facing language barriers, brought putative class action against school district, alleging violations of Equal Education Opportunities Act (EEOA), Title VII, Fourteenth Amendment’s Due Process and Equal Protection Clauses, and Pennsylvania law. Students moved for preliminary injunction allowing them to enroll in and attend school district’s international school, rather than private school contracted by school district. The United States District Court for the Eastern District of Pennsylvania, Edward G. Smith, J., 2016 WL 4493202, granted motion, and, 2016 WL 4493201, entered order of preliminary injunction. School district appealed.
Holdings: The Court of Appeals, Fisher, Circuit Judge, held that:
students were likely to succeed on their EEOA claim, as required to support preliminary injunction;
remand was required to allow district court to determine, in the first instance, whether student’s state education law claims were cognizable;

students established that irreparable harm was likely in the absence of preliminary injunction;
balance of harms favored granting preliminary injunction; and
public interest favored granting preliminary injunction.
Affirmed and remanded.
Procedural Posture(s): On Appeal; Motion for Preliminary Injunction.
*124 On Appeal from the United States District Court for the Eastern District of Pennsylvania, (E.D. Pa. No. 5-16-cv-03881), District Judge: Honorable Edward G. Smith
Attorneys and Law Firms
*125 Sharon M. O’Donnell, Marshall Dennehey Warner Coleman & Goggin, 100 Corporate Center Drive, Suite 201, Camp Hill, PA 17011, Thomas A. Specht [ARGUED], Marshall Dennehey Warner Coleman & Goggin, P.O. Box 3118, Scranton, PA 18505, Counsel for Appellant.
Hedya Aryani, 217 Ryers Avenue, Philadelphia, PA 1012, Seth Kreimer, University of Pennsylvania School of Law, 3400 Chestnut Street, Philadelphia, PA 19104, Maura I. McInerney, Kristina Moon, Education Law Center, 1315 Walnut Street, Suite 400, Philadelphia, PA 19107, Kathleen A. Mullen, Thomas B. Schmidt, III, Pepper Hamilton, 100 Market Street, P.O. Box 1181, Suite 200, Harrisburg, PA 17108, Eric J. Rothschild, 217 Ryers Avenue, Philadelphia, PA 1012, Molly M. Tack-Hooper, American Civil Liberties Union of Pennsylvania, P.O. Box 60173, Philadelphia, PA 19106, Witold J. Walczak [ARGUED], American Civil Liberties Union of Pennsylvania, 313 Atwood Street Pittsburgh, PA 15213, Counsel for Appellees.
Tovah R. Calderon, Erin H. Flynn, United States Department of Justice, Civil Rights Division, Appellate Section, P.O. Box 14403, Ben Franklin Station, Washington, DC 20044, Counsel for Amicus Appellee.
Before: FISHER, KRAUSE and MELLOY,* Circuit Judges.

Issa v. School District of Lancaster, 847 F.3d 121 (2017) 339 Ed. Law Rep. 630
OPINION OF THE COURT
FISHER, Circuit Judge.
School-age refugees facing language barriers asked the District Court for a preliminary injunction compelling the School District of Lancaster to allow them to transfer from Phoenix Academy, an accelerated credit-recovery high school, to McCaskey High School’s International School, a program designed principally to teach language skills to English language learners, or ELLs. The District Court granted that request, finding likely violations of Pennsylvania law and a provision of a federal statute we’ve never addressed—the Equal Educational Opportunities Act of 1974 (EEOA), 20 U.S.C. § 1703(f). The School District appeals, asking us to vacate that order. We will affirm based on the EEOA violations but not on the state law violations.
I
A The named plaintiffs, now the appellees, are immigrants, ages 18 to 21. They fled war, violence, and persecution in their native countries to come to the United States, arriving here since 2014. International refugee agencies resettled them in Lancaster, Pennsylvania. None are native English speakers. As students, all fall within a subgroup of ELLs called SLIFE—students with limited or interrupted formal education. SLIFE are English language learners who are two or more years behind their appropriate grade level, possess limited or no literacy in any language, have limited or interrupted formal educational backgrounds, and have endured stressful experiences causing acculturation challenges. The named plaintiffs embody these traits.
Born in January 1998, Khadidja Issa, 19, fled Sudan when she was 5 to escape “insecurity” under President Omar al-Bashir. J.A. 568–69, 980. Until age 17, she lived in refugee camps in Chad where she received her only prior schooling. Her native language is Fur. She also speaks Arabic. After immigrating here in October 2015, she was resettled with her family in Lancaster. When she first arrived, she couldn’t speak, *126 read, write, or understand any English. She’s eligible to attend public school in Pennsylvania through 2019, the year she turns 21.1

Qasin Hassan (or Q.M.H.), 18, was born in Somalia in September 1998. When he was 12, al-Shabaab militants killed his father. He fled to Egypt. A native Somali speaker, he took private lessons at home and learned “a little bit” of Arabic, but he wasn’t accepted into Egyptian schools. J.A. 575. He arrived in Lancaster with his family in September 2015 speaking only “a few words” of English. Id. Like Issa, he’s eligible to attend public school in Pennsylvania through 2019, the year he turns 21.
Sisters Sui Hnem Sung and Van Ni Iang (or V.N.I.), born in October 1996 and October 1998, fled Burma when their father was forced into labor there. Sung, 20, and Iang, 18, arrived with their family in Lancaster in November 2015. By then, Sung had completed ninth grade and Iang eighth, but neither spoke or understood any English. Their native language is Hakha Chin. Sung is eligible to attend public school in Pennsylvania through 2017, the year she turns 21, and Iang is eligible through 2019, when she turns 21.
War forced brothers Alembe and Anyemu Dunia, ages 21 and 19, to flee “very bad” circumstances in Tanzania to Mozambique, where life in refugee camps remained “very bad” and “very difficult.” J.A. 615–16, 618. Native Swahili speakers, they were taught in Portuguese until the eighth or ninth grade when they could no longer afford schooling. With their family, they arrived in Lancaster in November 2014 speaking “just basic” English, like “hello” and “hi.” J.A. 618.2
The International School and Phoenix Academy The School District of Lancaster, the appellant in this case, administers numerous schools. Two are relevant here: McCaskey High School, which the School District operates directly, and Phoenix Academy, operated by Camelot Schools of Pennsylvania, LLC, a private, for-profit company under contract with the School District.
*127 McCaskey High School consists of two smaller schools. One is J.P. McCaskey, a traditional public high school. The other is McCaskey East, known as the International School. The International School is a program designed primarily to teach language skills to students who speak little, if any, English.3 Those students generally attend the International School for one year, after which they join J.P. McCaskey’s general population. During that year, they receive “intensive ESL” (English as a second language) support through two 48-minute

Issa v. School District of Lancaster, 847 F.3d 121 (2017)
339 Ed. Law Rep. 630
ESL courses per day. J.A. 901, 1071. For “content” classes—science, math, social studies, and other “enrichment subjects”—ELLs at the International School receive “content-based ESL” teaching through a method called “sheltered instruction.” J.A. 901. Under that method, ELLs, including SLIFE, are grouped together in content courses with other ELLs at comparable English-proficiency levels. ELLs are hence “sheltered” in those classes from other ELLs at higher proficiency levels and from native English speakers. To foster English-language proficiency, the International School also introduces ELLs to new American “cultural values and beliefs” while respecting their “cultural diversity” and embraces “close communication with families” and “access to appropriate translation services.” Id.
Phoenix Academy is, as the District Court said, “a little
different.” Issa v. Sch. Dist. of Lancaster, No. 16–3881, 2016 WL 4493202, at *2 (E.D. Pa. Aug. 26, 2016). It’s an “alternative education program” intended to serve “at-risk Students” over-age for their grade, under-credited, and in danger of not graduating high school before they age out of public-school eligibility at 21. J.A. 904, 910. Phoenix’s principal missions are to ensure that students accumulate enough credits to graduate and to change students’ negative behaviors—not to further their academic proficiencies. A significant portion of grading is therefore based on students’ behavior and attendance, known as “seat time.” J.A. 544, 639. In step with its mission to change students’ “anti-social” behaviors, J.A. 1039, Phoenix enforces stringent security measures not in effect at McCaskey, including daily pat-down searches. Phoenix bars its students from bringing in or out any personal belongings, like backpacks, food, books, and even homework. And a strict dress code is in place. Based on a hierarchical system, students are rewarded with different colored shirts as they demonstrate improved behavior.
Teaching is also different at Phoenix. All Phoenix students, including ELLs, take an accelerated curriculum allowing them to earn a high school diploma in roughly half (but sometimes less than half) the time of a traditional four-year high school, like McCaskey. Phoenix students take five 80-minute classes per day, generally completing each class in half an academic year (90 days). McCaskey students, in contrast, take seven 48-minute classes per day, generally completing each class in a full academic year (180 days). Under these different schedules, McCaskey students receive about 1,440 more minutes, or twenty-four more hours, of instruction per class than do students at Phoenix, the equivalent of about

thirty more 48-minute class periods per class. The upshot is, as one former Phoenix teacher put it, that Phoenix’s curriculum *128 must be taught “double time.” J.A. 632.
Phoenix’s program for teaching English to ELLs also differs from the International School’s. Phoenix offers ELLs of all levels, with no special accommodations for SLIFE, one 80-minute ESL course per day. Otherwise, ELLs, including SLIFE, take all their content courses—science, math, social studies—with Phoenix’s general population under the accelerated model. In those content classes, ELLs aren’t sheltered from each other by their English proficiency or from native English speakers like they are at the International School.
How does the School District empirically evaluate the efficacy of Phoenix’s ESL program? It doesn’t. The School District does not assess in any measurable way whether Phoenix’s program helps ELLs overcome their language barriers. It hasn’t attempted to weigh concretely the impact Phoenix’s accelerated, non-sheltered program has on ELLs, including SLIFE. Raw data about Phoenix’s ESL program apparently exists. But the School District doesn’t disaggregate it from data about the International School’s ESL program. Because the two programs rely on different ESL teaching methods, commingling the data means the School District cannot quantify whether Phoenix’s ESL program is successful.
The School District’s Enrollment Policies and Practices Enrollment in Phoenix rather than McCaskey is usually a choice offered to students and their families. But one group of prospective students isn’t offered that choice: new-to-the-District students over age 17 and under-credited. For students in that category (which included the plaintiffs), the choice is made for them: The School District unilaterally assigns them to Phoenix and doesn’t allow them to transfer to McCaskey. This mandatory enrollment rule applies regardless of a student’s English proficiency or educational background and even if the student has several years of public school eligibility left under Pennsylvania law. The School District does this, it says, because these students represent a higher risk of dropping out or aging out at age 21 before earning a high school diploma, which is a prerequisite for future advancement. But the School District’s funding and evaluations also turn, in part, on its graduation rates, which decline when students drop out or age out at 21.
Actual enrollment at Phoenix hasn’t been a smooth process for these plaintiffs. While the School District

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339 Ed. Law Rep. 630
unilaterally assigned them to Phoenix under the mandatory enrollment rule, their actual placement there proved far more difficult. They experienced significant delays between when they applied for enrollment and when they were either allowed to attend Phoenix or denied enrollment outright. The District Court said it well: In “no case” did the School District “accomplish the enrollment of the plaintiffs within the five-day period
mandated by state law.” Issa, 2016 WL 4493202, at *2. Iang and Sung were not permitted to start at Phoenix until December 2015 and February 2016, though they enrolled in November 2015. Issa enrolled in November 2015 but wasn’t allowed to start at Phoenix until February 2016. Hassan was initially denied enrollment outright. He was later enrolled when the School District learned he was 17, not 19, a factor with “no legal significance” under
Pennsylvania law. Id. And by when the injunction issued in late-August 2016, the School District had yet to enroll Alembe Dunia, despite his “repeated attempts to
enroll dating back to at least January 2015.” Id.
*129 How Attending Phoenix Affected the Plaintiffs For those plaintiffs ultimately admitted to Phoenix, a “common complaint” was that they didn’t understand the “vast majority” of content taught in their non-ESL
classes. Issa, 2016 WL 4493202, at *3. The plaintiffs all testified—through interpreters—that Phoenix’s accelerated curriculum moved too quickly for them to grasp. Apart from their Phoenix ESL courses, the plaintiffs explained, they couldn’t understand most of what their teachers and classmates were saying. Despite these difficulties, they accrued credits and advanced to higher grade levels.
Through her interpreter, Issa testified that Phoenix’s classes went “very fast” and she didn’t “understand anything.” J.A. 572–73. She felt she wasn’t “benefiting” there and wanted to attend a school “slower in pace.” J.A. 573. When asked, she couldn’t explain what two of her classes were about. In those classes, she said, her teachers and classmates spoke and wrote only in English, which she couldn’t understand. Nevertheless, she was promoted to the next grade. Of eighty-four students in her class, she was ranked first.
Hassan testified through his interpreter that learning at Phoenix was “impossible” and he only understood his ESL teacher. J.A. 580. He couldn’t understand his content-class teachers or classmates.

Through their interpreter, Iang and Sung explained they too had great difficulty understanding their content classes at Phoenix because they were all taught in English. They couldn’t understand their teachers or classmates, and there were “never” interpreters there to help. J.A. 558.
Anyemu Dunia graduated from Phoenix during the evidentiary hearing, earning a diploma in just sixteen months. He did so although he arrived in the United States without any academic credits or English-language proficiency, all while amassing forty-seven total absences. Despite his “readily apparent difficulties conversing in English” and his testimony that Phoenix’s classes moved too “fast” for him, he graduated sixth in his class of 107.
Issa, 2016 WL 4493202, at *3 & n.2; see J.A. 620, 1357.
B In July 2016, the plaintiffs sued the School District in the District Court for the Eastern District of Pennsylvania requesting a preliminary injunction allowing them and similarly situated ELLs to enroll in and attend McCaskey. On behalf of a putative class, they allege violations of the EEOA, 20 U.S.C. § 1703(f); Title VI of the Civil Rights
Act of 1964, 42 U.S.C. § 2000d et seq.; the Fourteenth Amendment’s Due Process and Equal Protection Clauses; and 24 Pa. Stat. § 13-1301 of the Pennsylvania Public School Code of 1949 and various Pennsylvania regulations.
Following expedited discovery on the plaintiffs’ preliminary-injunction motion, the District Court held a five-day evidentiary hearing. Eighteen witnesses testified and dozens of exhibits were entered into evidence. The plaintiffs’ expert, Dr. Helaine Marshall, a specialist in teaching English to speakers of other languages (TESOL) and teaching ESL to SLIFE, testified at length.
On August 26, 2016, the District Court granted the plaintiffs’ preliminary-injunction motion, finding likely
violations of the EEOA and state law. Issa, 2016 WL 4493202; see Order, 2016 WL 4493201.4 On *130 the plaintiffs’ EEOA claims, the District Court held that the School District failed on prongs one and three of the
three-part test penned in Castaneda v. Pickard, 648 F.2d 989, 1009–10 (5th Cir. 1981), a case we discuss in detail below. On their state law claims, the District Court

Issa v. School District of Lancaster, 847 F.3d 121 (2017) 339 Ed. Law Rep. 630
found likely violations of the Public School Code and regulations in light of the School District’s enrollment delays. It entered the following order:
[P]ending final resolution of this matter, the school district shall:
1. Enroll and permit the school-age plaintiffs, who so wish, to attend the main high school, McCaskey, beginning on August 29, 2016;
2. Ensure that all plaintiffs are properly assessed for language proficiency and receive an appropriate and adequate program of language instruction, including assignment to the International School if appropriate, ESL instruction, modifications in the delivery of instruction and testing to facilitate their achievement of English proficiency and state academic standards, and interpretation and translation services, as required by law, to enable the plaintiffs and their parents to meaningfully participate in education decisions;
3. Ensure that the plaintiffs have equal access to the full range of educational opportunities provided to their peers, including curricular and non-curricular programs and activities; and
4. The plaintiffs shall post a nominal bond of $1.00.
Order, 2016 WL 4493201, at *1. The District Court deferred deciding the plaintiffs’ motion for class certification but urged the School District to “fairly apply” its preliminary-injunction order to “school-age refugees similarly situated” to the plaintiffs in “language proficiency.” Id. at *1 n.1.
The School District filed this timely appeal, asking our Court to stay the injunction’s enforcement. It informed us that, as of September 16, 2016, four of six named plaintiffs—excluding Alembe and Anyemu Dunia—and five similarly situated ELLs transferred to the International School after the injunction issued, one of whom requested reinstatement at Phoenix. Appellant’s Resp. to Sep. 16, 2016 Order 1; see supra note 2. Later, our Court denied the School District’s stay motion and ordered expedited briefing. The United States Department of Justice filed an amicus brief supporting the plaintiffs.
II The District Court had jurisdiction under 28 U.S.C. §§

1331 and 1367(a). We have jurisdiction over this interlocutory appeal under 28 U.S.C. § 1292(a)(1). D.M. v. N.J. Dep’t of Educ., 801 F.3d 205, 211 (3d Cir. 2015).
At the outset, we underscore the School District’s heavy burden on appeal. In reviewing a preliminary-injunction order, findings of fact are assessed for clear error, legal conclusions are reviewed de novo, and the ultimate decision to grant relief is reviewed for abuse of discretion.
Del. Strong Families v. Attorney Gen. of Del., 793 F.3d 304, 308 (3d Cir. 2015). A finding of fact is clearly erroneous only if it’s “completely devoid of minimum evidentiary support displaying some hue of credibility or bears no rational relationship to the supportive evidentiary data.” *131 Havens v. Mobex Network Servs., LLC, 820 F.3d 80, 92 (3d Cir. 2016) (internal quotation marks omitted). An abuse of discretion occurs only if the decision reviewed rests upon a clearly erroneous finding of fact, an errant conclusion of law, or an improper application of law to fact. Mancini v. Northampton Cty., 836 F.3d 308, 314 (3d Cir. 2016). With these principles in mind, we turn to the legal standards for the issuance of a preliminary injunction.
III A preliminary injunction is an extraordinary remedy
granted in limited circumstances. Ferring Pharm., Inc. v. Watson Pharm., Inc., 765 F.3d 205, 210 (3d Cir. 2014). Those seeking one must establish that (A) they are likely to succeed on the merits of their claims, (B) they are likely to suffer irreparable harm without relief, (C) the balance of harms favors them, and (D) relief is in the
public interest. Id. We address each element seriatim.
A We turn first to whether the plaintiffs demonstrated a likelihood of success on the merits of their EEOA and state law claims. To satisfy this requirement for preliminary relief, the movant need only prove a “prima
facie case,” not a “certainty” she’ll win. Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 173 (3d Cir. 2001). We do not require that the right to a final decision after trial be “wholly without doubt”; the movant need only show a “reasonable probability” of success.
Punnett v. Carter, 621 F.2d 578, 583 (3d Cir. 1980)
(internal quotation marks omitted); see Singer Mgmt. Consultants, Inc. v. Milgram, 650 F.3d 223, 229 (3d Cir.

Issa v. School District of Lancaster, 847 F.3d 121 (2017)
339 Ed. Law Rep. 630
2011) (en banc). We address the plaintiffs’ EEOA claims first, followed by their state law claims.
1 This appeal requires us to interpret § 1703(f) of the EEOA, a provision we’ve never addressed and that the Supreme Court and our fellow Courts of Appeals have infrequently applied. We start where we always do when interpreting a statute: with its text. Passed in 1974 as a floor amendment to the Elementary and Secondary Education Act of 1965, the EEOA states in § 1703(f) that “[n]o State shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, by ... 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). An “individual” denied an equal educational opportunity may bring a civil action in federal court “against such parties, and for such relief, as may be appropriate.”5 Id. § 1706. The EEOA limits court-ordered remedies to those that are “ ‘essential to correct particular denials of equal
educational opportunity.’ ” Horne v. Flores, 557 U.S. 433, 450, 129 S.Ct. 2579, 174 L.Ed.2d 406 (2009) (quoting 20 U.S.C. § 1712).
Based upon these provisions, we hold that an individual alleging a violation *132 of § 1703(f) must satisfy four elements: (1) the defendant must be an educational agency, (2) the plaintiff must face language barriers impeding her equal participation in the defendant’s instructional programs, (3) the defendant must have failed to take appropriate action to overcome those barriers, and (4) the plaintiff must have been denied equal educational opportunity on account of her race, color, sex, or national origin. See 20 U.S.C. § 1703(f); id. § 1720(a) (defining “educational agency”).6
Here, there is no dispute the plaintiffs satisfied § 1703(f)’s first element. The School District does not quibble with the District Court’s conclusion that it is an “educational
agency” under §§ 1703(f) and 1720(a). See Issa, 2016 WL 4493202, at *1 & n.1. We see no reason to disturb that conclusion on appeal, as the EEOA expressly contemplates “local educational agencies,” like the School District, in defining an “educational agency.” 20 U.S.C. § 1720(a); see id. § 7801(30)(A).
Likewise, there is no genuine dispute the plaintiffs satisfied § 1703(f)’s second element. The record here is

replete with evidence the named plaintiffs, all SLIFE, face formidable language barriers. All testified through interpreters that they couldn’t understand their content courses taught in English at Phoenix. Given this evidence, we agree the plaintiffs demonstrated language barriers impeding their equal participation in the School District’s instructional programs, satisfying § 1703(f)’s second
element. See Issa, 2016 WL 4493202, at *7 n.5 (stating that the parties “do not dispute” the plaintiffs’ language barriers and crediting the plaintiffs’ testimony that “their participation was impeded”).
Because elements one and two of § 1703(f)’s prima facie case are met, we move to § 1703(f)’s more difficult third and fourth elements.
Section 1703(f)’s Third Element: “Appropriate Action” To satisfy § 1703(f)’s third element in the context of a preliminary-injunction motion, the plaintiffs must adduce evidence of a reasonable probability that the School District failed to take “appropriate action” to “overcome” their language barriers. Because the EEOA itself doesn’t define “appropriate action,” we must look elsewhere for guidance.
We turn first to the Supreme Court’s decision in Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), issued just before Congress passed the EEOA. There, a school district failed to provide any English-language instruction to a significant number
(about 60 percent) of its Chinese students. Id. at 564, 94 S.Ct. 786. Those students filed suit, alleging violations of Title VI, which restricts federal funding for entities that discriminate based on *133 race, color, or national origin.
Id. at 565, 94 S.Ct. 786. Finding adequate proof of a Title VI violation, the Court stressed the importance of language instruction in American education.
There 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

Issa v. School District of Lancaster, 847 F.3d 121 (2017) 339 Ed. Law Rep. 630

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. Because no “specific remedy” was requested, the Court left that question open, suggesting the school district had latitude to decide how it would comply with Title VI: “Teaching English to the students of Chinese ancestry who do not speak the language is one choice. Giving instructions to this group in Chinese is
another. There may be others.” Id. at 564–65, 94 S.Ct. 786.

Lau’s pronouncements about Title VI were later called into question, and the Supreme Court ultimately recognized its abrogation on that ground. See

Alexander v. Sandoval, 532 U.S. 275, 285, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (“[W]e have since rejected

Lau’s interpretation of [Title VI.]”). 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.” Castaneda, 648 F.2d at 1008.

Following Lau and § 1703(f)’s enactment, the Fifth
Circuit handed down Castaneda v. Pickard in 1981. Claiming violations of § 1703(f), Mexican-American students sued their school district, alleging its failure to implement a bilingual-education program impeded their
ability to overcome language barriers. Id. at 992. Measuring § 1703(f)’s reach, the Fifth Circuit found that by using the “less specific term, ‘appropriate action,’ ” Congress left state and local authorities a “substantial amount of latitude” to choose the “programs and techniques they would use” to satisfy § 1703(f)’s
mandate. Id. at 1008. But too much latitude, the court cautioned, would render § 1703(f) a nullity. Accordingly, the Fifth Circuit 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), and noted that Congress “deliberately placed on federal courts the difficult responsibility of determining whether
that obligation [is] met.” Id. at 1009. Without guidance from Congress on what “appropriate action” looks like, however, the Fifth Circuit found itself, like we are now,
confronted with a type of task which federal courts are ill-equipped to perform and which we are often criticized for undertaking—prescribing substantive standards and policies for institutions whose governance is properly reserved to other levels and branches of our government (i.e., state and local educational agencies) which are better able to assimilate and assess the knowledge of professionals in the field.
Id. Nevertheless, the court charted a path forward, fashioning a “mode of analysis” to fulfill the responsibility Congress reposed in the federal courts under § 1703(f) without “unduly substituting” its “educational *134 values and theories” for the “educational and political decisions” reserved to state and local school authorities and the “expert knowledge of
educators.” Id. That “mode of analysis,” it said, is threefold. First, courts
examine carefully the evidence the record contains concerning the soundness of the educational theory or principles upon which the challenged program is based. This, of course, is not to be done with any eye toward discerning the relative merits of sound but competing bodies of expert educational opinion.... The court’s responsibility ... is only to ascertain that a school system is [pursuing] a program informed by an

Issa v. School District of Lancaster, 847 F.3d 121 (2017) 339 Ed. Law Rep. 630
educational theory recognized as sound by some experts in the field or, at least, deemed a legitimate experimental strategy.

plaintiffs’ language barriers under § 1703(f), we agree with the District Court: The School District foundered on
Castaneda’s first and third prongs. We explain why below.7

Id. Second, courts determine 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. And 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” under prong two about the language competency of teachers employed in the school district’s bilingual classrooms and remanded for an evidentiary
hearing. Id. at 1012–13, 1015.

Courts have consistently followed

Castaneda’s

approach to apply § 1703(f)’s third element, requiring

“appropriate action.” See, e.g., United States v. Texas, 601

F.3d 354, 365–73 (5th Cir. 2010); Mumid v. Abraham Lincoln High Sch., 618 F.3d 789, 796 (8th Cir. 2010);

Gomez v. Ill. State Bd. of Educ., 811 F.2d 1030, 1037, 1040–42 (7th Cir. 1987); United States v. Texas, 680 F.2d

356, 371 (5th Cir. 1982). And in Horne v. Flores, the

Supreme Court relied on Castaneda to apply §

1703(f), 557 U.S. at 440–41, 454–55, 129 S.Ct. 2579, though it did not adopt the Fifth Circuit’s test explicitly,

id. at 458, 129 S.Ct. 2579 n.8 (expressing no view on “whether or not this test provides much concrete guidance regarding the meaning of ‘appropriate action’ ”). Given these decisions and the parties’ agreement that

Castaneda should here guide our analysis, we will apply the Fifth Circuit’s three-part test. Though we

decline to adopt “without qualification” Castaneda’s framework and think “fine tuning must await future cases,” we believe this test, as a general matter, properly balances § 1703(f)’s “allocation of responsibilities between the courts and the schools” and hence provides a “fruitful starting point” for our analysis under § 1703(f)’s

third element. Gomez, 811 F.2d at 1041.

Applying Castaneda here to resolve whether the School District took “appropriate action” to overcome the

*135 Castaneda Prong One
On Castaneda’s first prong—satisfied where an educational agency fails to pursue a program informed by an educational theory recognized as sound by some experts in the field—the plaintiffs showed a reasonable probability of success. Their expert, Dr. Marshall, testified consistently and at length that Phoenix’s accelerated, non-sheltered program for ELLs is unsound for SLIFE (again, students with limited or interrupted formal education). The plaintiffs and two former Phoenix teachers corroborated her testimony. The School District did not rebut it with another expert or through contrary research. We see no clear error here.
SLIFE, Dr. Marshall emphasized, generally struggle or have yet to learn to read or write in any language, including their native languages. Not only must they learn English in American schools, she explained, they must learn how to learn there. See J.A. 651 (“[W]e have to teach [SLIFE] for the first time how to read in a language that isn’t even a language they speak yet.”); J.A. 652 (describing how teaching in the United States relies on “decontextualized tasks”—multiple choice, matching, and true-false questions—that foreign students are “completely unaware of”). Dr. Marshall said that for SLIFE to succeed, teaching must “go more slowly and build, build the language, build the literacy,” and “fill in the gaps.” J.A. 656. This testimony went unchallenged.
Given SLIFE’s need for unhurried and deliberate literacy and language development, Dr. Marshall opined that Phoenix’s accelerated curriculum is “totally inappropriate” for them. Id.; see J.A. 671 (“For SLIFE ... it is contraindicated. It is the opposite of what they need.”). Students like the plaintiffs who are “behind academically” and “don’t understand English,” she explained, “cannot be expected to go faster through content when they haven’t reached a threshold of English.” J.A. 656. Her view, she attested, accords with those of other experts in the field. She was unaware of any contrary research, and the School District didn’t point to any. “Uniformly,” she said, “the field in talking about [SLIFE] talks about going more slowly, building in redundancy, building in repetition, and having them become familiar with material in many different ways in

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order for them to learn it, and not to go at double time.” Id. (emphasis added); see J.A. 658 (“Again and again they say the key is to take your time, present [the material] in a variety of ways, make sure they get it ... and nobody is talking about accelerating.”). No evidence was presented that an accelerated curriculum, on its own, is accepted as sound educational theory for SLIFE.
Dr. Marshall also opined consistently that “sheltered instruction” content classes, like those offered at the International School, are “needed” for SLIFE, J.A. 661–63, 667, and that Phoenix’s commingling of SLIFE with higher-level ELLs and native English speakers, when combined with accelerated content courses, is not accepted as sound educational theory, J.A. 666 (“[I]f you’re going to try and have newcomers with very little English ... mixed in with fluid English speakers ... what happens is that it becomes overwhelming for the lower level ELLs.”); see J.A. 667 (“SLIFE need an entire day of instruction that’s tailored to them.”); J.A. 669 (“[W]hen [SLIFE are] in their content classes with native speakers ... they’re not understanding what’s happening, they’re really not progressing, they’re not moving forward ... [b]ecause they’re not actually learning the material.”). Here too, *136 no evidence was adduced that accelerated, unsheltered instruction is accepted as sound educational theory for SLIFE. The plaintiffs’ own testimony, cited extensively above, confirmed their great difficulty in understanding their accelerated, non-sheltered content classes at Phoenix.
Former Phoenix teacher Jandy Rivera reinforced Dr. Marshall’s and the plaintiffs’ testimony, explaining that her “refugee students” were “not able to master the material” in Phoenix’s accelerated, non-sheltered program. J.A. 633. She stated that “[a]t the fast pace and atmosphere at Phoenix,” refugee students were “not able to learn”; that these students “needed a regularly paced atmosphere, or perhaps even an extended learning atmosphere in order to master the material”; and that in her experience, Phoenix’s program “didn’t work” for newly arrived ELLs. Id. Phoenix’s lead-ESL teacher, Marianne Ortiz, similarly corroborated Dr. Marshall’s testimony, stating that the International School is a “better placement for entering students” because it’s not “accelerated” and gives ELLs “sheltered [instruction] content classes.” J.A. 837. Given this evidence, we see no clear error in the District Court’s findings that
[w]hen a student with no ability to speak or understand English, such

as the plaintiffs, is placed in accelerated classes, the student will cover material twice as fast as a normal school, but that material is also taught in a language that student does not understand. On its face, this practice appears to be counterintuitive; expert testimony confirmed that the practice was unsound.... The District did not offer any expert to the contrary. Instead, the District offered its ESL Coordinator [Amber Hilt], who testified that the “structured immersion” technique is a sound theory generally for overcoming language barriers, but nothing persuasive to the court to contradict Dr. Marshall’s testimony that this technique was not recognized as sound for an accelerated, credit-recovery program. The Phoenix model of accelerated learning presents different language barriers than a traditional education program, and is particularly imposing for students who cannot yet understand the language in which the courses are taught.

Issa, 2016 WL 4493202, at *3, *6 (emphasis added).

On appeal, the School District attempts merely to

impeach the credibility of Dr. Marshall’s testimony. It

points out, for example, that Dr. Marshall “neglected” to

“personally

observe”

Phoenix’s

“classrooms/environments,” although Rivera and Ortiz

and all six named plaintiffs reinforced her testimony.

Appellant’s Br. 43. It says Dr. Marshall was a mere

“teacher of teachers,” not an ESL instructor, without

explaining why that might render the District Court’s

reliance on her testimony clearly erroneous. Id. And it

says Dr. Marshall contradicted herself when she testified

that “immersion” of ELLs in content classes with native

speakers impeded their progress, not necessarily

acceleration. Id. at 44. But when we consider the record

en bloc, these alleged blemishes in Dr. Marshall’s

testimony fail to persuade us that the District Court’s

findings are “completely devoid of minimum evidentiary

support displaying some hue of credibility” or bear “no

Issa v. School District of Lancaster, 847 F.3d 121 (2017) 339 Ed. Law Rep. 630
rational relationship to the supportive evidentiary data,” as required to show clear error. Havens, 820 F.3d at 92 (internal quotation marks omitted).
For these reasons, the District Court did not err in concluding that the plaintiffs showed a reasonable probability that Phoenix’s accelerated, non-sheltered program isn’t informed by an educational theory recognized as sound by some experts in *137 the field, as
required under Castaneda’s first prong.
Castaneda Prong Three
On Castaneda’s third prong—satisfied where an educational agency’s programs fail to produce results indicating that language barriers are actually being overcome—we agree with the District Court that the plaintiffs demonstrated a likelihood of success. The evidence shows that the School District doesn’t keep separate data on the efficacy of Phoenix’s ESL program. This rendered it difficult, if not impossible, for the District Court to ascertain whether the plaintiffs’ language barriers were actually being overcome at Phoenix. Given this evidence, we see no clear error in the District Court’s findings, unchallenged on appeal, that
[u]ndisputed testimony offered in court shows that the District does not evaluate whether the “language barriers confronting students are actually being
overcome” at Phoenix [as required by Castaneda]. The ESL Coordinator [Hilt] acknowledged that “there is no data ... that would allow us to determine whether ... the ESL delivered to these students in ... Phoenix[’s] accelerated model is working or not.” [J.A. 734.] Because the District did not disaggregate the Phoenix data to make this assessment, it could not demonstrate the effectiveness of the program to the court. Through her own efforts, Dr. Marshall was able to discern from limited data provided by the District that Phoenix’s performance on literacy measures—the core measure of “overcoming language barriers”—was far worse than McCaskey’s.
Issa, 2016 WL 4493202, at *6. The School District’s Superintendent, Dr. Damaris Rau, confirmed that the effectiveness of Phoenix’s ESL program had yet to be evaluated. J.A. 746–47. This further supports the District Court’s findings.
On appeal, the School District argues Phoenix’s ESL instruction “is and continues to be successful.”

Appellant’s Br. 44. To bolster that point, it notes that one named plaintiff, Anyemu Dunia, graduated from Phoenix and read an essay aloud in court, while “many” other unspecified ELLs have gone on to college after graduating Phoenix. Id. (citing J.A. 627). Though he could read an essay aloud in court, the District Court found that Anyemu had “readily apparent difficulties
conversing in English,” Issa, 2016 WL 4493202, at *3 n.2, and Anyemu himself testified that he could only “catch ... some word[s]” when his English-speaking teachers talked to him in class, J.A. 620. Even if we were to accept this as sufficient indicia of Anyemu’s progress, his ability to read a portion of an essay in court says nothing about whether the other four named plaintiffs were overcoming their own language barriers at Phoenix. The record here amply supports the District Court’s conclusion that they were not. As explained before, all testified they couldn’t understand what their teachers and classmates were saying in their content classes at Phoenix. This argument therefore fails to show clear error.
We also find unavailing the School District’s contention, in its papers and at oral argument, that an ELL’s ability to graduate Phoenix, on its own, weighs in the School District’s favor under § 1703(f). On this record, we see little evidence of a meaningful connection between ELLs graduating from Phoenix’s accelerated, non-sheltered program and ELLs actually overcoming their language barriers there. On the contrary, there is ample evidence supporting the District Court’s finding that “[a]lthough the student earns (or at least is issued) a diploma and all of the *138 attendant benefits, the student will likely graduate [Phoenix] with limited ability, if any, to converse in English—also often a prerequisite to future advancement—and limited understanding of the content
of the courses he actually took.” Issa, 2016 WL 4493202, at *3. We therefore conclude that the plaintiffs showed a likelihood that Phoenix’s program fails to produce results indicating that their language barriers are actually being overcome, as required under
Castaneda’s third prong.
Because the plaintiffs showed a likelihood of success
under Castaneda’s three-part test, they met § 1703(f)’s third element, requiring proof that the School District failed to take “appropriate action” to “overcome” their language barriers.

Issa v. School District of Lancaster, 847 F.3d 121 (2017)
339 Ed. Law Rep. 630
Section 1703(f)’s Fourth Element: “On Account of” a Protected Characteristic We now address § 1703(f)’s fourth and final element, which requires proof the plaintiffs were denied equal educational opportunity on account of their race, color, sex, or national origin. See 20 U.S.C. § 1703(f). We hold they met this element.
The Supreme Court has yet to address how the preamble to § 1703, which includes the “on account of” language here in issue, interacts with the rest of § 1703 and subsection (f) in particular. The Court did not discuss the
matter in Horne v. Flores, 557 U.S. 433, 129 S.Ct. 2579, so we look elsewhere. In its entirety, § 1703 provides that
[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;
(b) the failure of an educational agency which has formerly practiced such deliberate segregation to take affirmative steps, consistent with part 4 of this subchapter, to remove the vestiges of a dual school system;
(c) the assignment by an educational agency of a student to a school, other than the one closest to his or her place of residence within the school district in which he or she resides, if the assignment results in a greater degree of segregation of students on the basis of race, color, sex, or national origin among the schools of such agency than would result if such student were assigned to the school closest to his or her place of residence within the school district of such agency providing the appropriate grade level and type of education for such student;
(d) discrimination by an educational agency on the basis of race, color, or national origin in the employment, employment conditions, or assignment to schools of its faculty or staff, except to fulfill the purposes of subsection (f) below;
(e) the transfer by an educational agency, whether voluntary or otherwise, of a student from one school to another if the purpose and effect of such transfer is to increase segregation of students on the basis of race, color, or national origin among the schools of

such agency; or

(f) 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.

The School District suggests § 1703’s preamble requires the plaintiffs to prove it failed to take appropriate action to overcome their language barriers on account of *139 their national origins under § 1703(f). The School District interprets “on account of” to require a showing of intentional discrimination, contending there’s insufficient evidence the plaintiffs’ national origins “motivated their placement at Phoenix.” Reply Br. 3–4.8 We reject this reading of § 1703.

We start with what § 1703(f) doesn’t require when read together with § 1703’s “on account of” language: a showing of discrimination of any kind, intentional or otherwise, on account of an EEOA-protected characteristic. Congress expressly included the word “discrimination” in § 1703(d) but omitted it from §

1703(f). See Castaneda, 648 F.2d at 1007–08. And in subsections (a) and (e) of § 1703, Congress explicitly required showings of “deliberate” and “purpose[ful]” conduct, but merely required proof of a “fail[ure]” to take

appropriate action under § 1703(f). See id. Where Congress “includes particular language in one section of a statute”—here, the word “discrimination” and language connoting intentional conduct in subsections (a), (d), and (e)—but “omits it in another section of the same Act”—here, subsection (f)—we presume it acted

“intentionally and purposely” in so doing.

Dean v.

United States, 556 U.S. 568, 573, 129 S.Ct. 1849, 173

L.Ed.2d 785 (2009); see Bd. of Trustees of IBT Local 863

Pension Fund v. C & S Wholesale Grocers, Inc., 802 F.3d

534, 545 (3d Cir. 2015). We therefore join the Fifth

Circuit in holding that § 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.” Castaneda, 648 F.2d at 1008. And we add that, because § 1703(f) doesn’t say “discrimination,” there’s no requirement under it to prove discrimination of any kind, including, for example, disparate impact discrimination.9 *140 This reading accords with the Supreme Court’s observation in

Horne, 557 U.S. at 472, 129 S.Ct. 2579, that § 1703(f) requires educational agencies to “tak[e] ‘appropriate action’ to teach English to students who grew up speaking

Issa v. School District of Lancaster, 847 F.3d 121 (2017)
339 Ed. Law Rep. 630
another language,” and with Lau’s “essential holding” that “schools are not free to ignore the need of limited English speaking children for language assistance,”
Castaneda, 648 F.2d at 1008.10
We end with what § 1703(f) does require when read together with § 1703’s “on account of” language: a nexus between the lost educational opportunity alleged and an EEOA-protected characteristic. Stated differently, we hold that 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, like the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. Applying this reading here, we conclude the record fully supports that the plaintiffs’ language barriers, and hence their lost educational opportunities, stem from their national origins.
Thus, the plaintiffs satisfied § 1703(f)’s fourth element, as they were denied equal educational opportunity “on account of” an EEOA-protected characteristic: their national origins. Given the plaintiffs’ successful showings under all four of § 1703(f)’s elements, we agree with the District Court that they demonstrated a likelihood of success on their EEOA claims.
2 We turn now to whether the plaintiffs demonstrated a reasonable probability of success on the merits of their state law claims. Because neither the plaintiffs nor the District Court addressed the threshold question whether the plaintiffs’ state law claims are cognizable, we’ll remand for the District Court to consider that question in the first instance.
In Pennsylvania, every child who hasn’t graduated from high school “may attend” *141 the public schools in her district until the end of the school year in which she turns 21. 24 Pa. Stat. § 13-1301; see 22 Pa. Code §§ 11.12, 12.1(a). “A child’s right to be admitted to school may not be conditioned on the child’s immigration status.” 22 Pa. Code § 11.11(d). A school district “shall normally enroll a child the next business day, but no later than [within] 5 business days of application.” Id. § 11.11(b). The District Court concluded the plaintiffs showed likely violations of these state laws because none was enrolled within five days and one—Alembe Dunia—was “still not enrolled”
when the injunction issued. Issa, 2016 WL 4493202,

at *5.
While the School District’s enrollment delays are indeed troubling, we must conclude the District Court erred as a matter of law in finding that the plaintiffs showed a likelihood of success on their state law claims. Unlike the EEOA, which explicitly grants “individual[s]” the right to “institute a civil action” in court for equitable relief, 20 U.S.C. §§ 1706, 1713, our de novo review reveals nothing in 24 Pa. Stat. § 13-1301 or elsewhere in the Public School Code that expressly grants individuals, like students or their parents, a private cause of action to enforce the statute in court through equitable remedies.11 See 24 Pa. Stat. §§ 1-101 to 27-2702. Likewise, 22 Pa. Code § 11.11(b), a regulation promulgated by Pennsylvania’s State Board of Education, doesn’t expressly grant private litigants a cause of action to remedy enrollment delays or denials in court through equitable relief, assuming a regulation can ever do so under Pennsylvania law.12
In the absence of an express private cause of action under a Pennsylvania statute, we look to whether the statute
“implicitly” creates one. Estate of Witthoeft v. Kiskaddon, 557 Pa. 340, 733 A.2d 623, 626 (1999) (emphasis added). When there’s sufficient indicia of the General Assembly’s intent, Pennsylvania courts have recognized the possibility of implied private causes of action and remedies stemming from state statutes that
don’t expressly provide for them. See, e.g., Schappell v. Motorists Mut. Ins. Co., 594 Pa. 94, 934 A.2d 1184, 1188–90 (2007) (inferring a private cause of action from Pennsylvania’s Motor Vehicle Financial Responsibility
Law); Estate of Witthoeft, 733 A.2d at 625–28 (declining to infer a private cause of action from Pennsylvania’s *142 Motor Vehicle Code and regulations); Solomon v. U.S. Healthcare Sys. of Pa., Inc., 797 A.2d 346, 352–53 (Pa. Super. Ct. 2002) (finding no implied private cause of action under Pennsylvania’s Health Care Act). Here, to the extent Pennsylvania decisions can be read to support an implied private cause of action, they suggest that exhaustion of administrative remedies may be required in the first instance. See Velazquez ex rel. Speaks–Velazquez v. E. Stroudsburg Area Sch. Dist., 949 A.2d 354, 360 (Pa. Commw. Ct. 2008). But neither the District Court nor the parties cited any authority concerning the viability of an administrative exhaustion requirement or an implied private cause of action for equitable relief stemming from the Pennsylvania statute and regulations in issue. The District Court thus implicitly assumed such a private cause of action and remedy may be so inferred without exhaustion

Issa v. School District of Lancaster, 847 F.3d 121 (2017)
339 Ed. Law Rep. 630
of administrative remedies.
Without any briefing on these issues—which appear to be matters of first impression under Pennsylvania law—we decline to resolve them. We’ll leave them for the District Court to address in the first instance on remand, assuming
they’re raised by the parties. See Young v. Martin, 801 F.3d 172, 182 (3d Cir. 2015) (leaving legal questions not reached in the district court and not briefed on appeal “for the District Court to address in the first instance on remand”). Suffice it to say that, without any analysis of whether the plaintiffs can bring private causes of action for equitable relief without exhausting administrative remedies under these state laws, the District Court erred as a matter of law in concluding that the plaintiffs are likely to prevail on their state law claims.
We note, however, that nothing about the District Court’s preliminary-injunction order relies specifically on a conclusion that the plaintiffs proved likely violations of Pennsylvania law. Thus, we need not vacate any part of it on that ground. And even without proving likely violations of state law, the plaintiffs’ successful showings under the EEOA may support a preliminary injunction. See 20 U.S.C. §§ 1712, 1713 (contemplating equitable relief for EEOA violations). We therefore proceed to the next element they must prove to justify one—irreparable harm.
B A plaintiff seeking a preliminary injunction must prove irreparable harm is “likely” in the absence of relief.
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22,
129 S.Ct. 365, 172 L.Ed.2d 249 (2008); see Ferring Pharm., 765 F.3d at 213–14, 217.
We agree with the District Court that without preliminary relief, irreparable harm was likely for these plaintiffs, who would have remained in Phoenix’s accelerated, non-sheltered program for at least the duration of this litigation. The plaintiffs already demonstrated a reasonable probability that Phoenix’s programs are unsound for them and fail to actually overcome their language barriers under the EEOA. And these plaintiffs, all SLIFE, must overcome uniquely difficult challenges to learning. Time is of the essence: Their eligibility to attend public school in Pennsylvania is dwindling. We recognize that a sound educational program has power to “change the trajectory of a child’s life,” G.L. v. Ligonier Valley School District Authority, 802 F.3d 601, 625 (3d Cir.

2015), while even a “few months” in an unsound program can make a “world of difference in harm” to a child’s
educational development, Nieves–Marquez v. Puerto Rico, 353 F.3d 108, 121–22 (1st Cir. 2003) (internal
quotation marks omitted); cf. Plyler v. Doe, 457 U.S. 202, 221, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (noting the “lasting impact of [education’s] deprivation *143 on the life of the child”). In accordance with this injunction, moreover, four named plaintiffs now attend McCaskey, where they say they’re “flourishing.” Appellees’ Br. 45 n.11. Jockeying them back to Phoenix now would thus cause them greater harm, as the School District conceded during oral argument. Given these factors, we are satisfied the plaintiffs showed a likelihood of irreparable harm absent this injunction.
C We must now balance the parties’ relative harms; that is, the potential injury to the plaintiffs without this injunction versus the potential injury to the defendant with it in
place. Novartis Consumer Health, Inc. v. Johnson & Johnson–Merck Consumer Pharm. Co., 290 F.3d 578, 596 (3d Cir. 2002).
We already identified the irreparable harm the plaintiffs would likely suffer absent this injunction. And we agree with the District Court that the School District has “no interest in continuing practices” that violate § 1703(f) of
the EEOA. Issa, 2016 WL 4493202, at *8. The School District argues the plaintiffs fail on this element because the injunction “permits usurpation” of its “decisionmaking authority” to place “older, non-credited students where they can best be educated,” which could lead to “future litigation” in other unspecified “areas of ... discretion” and to the “erosion” of unspecified “authority and funds.” Appellant’s Br. 54. The record before us, however, belies the School District’s contention that Phoenix is where the plaintiffs “can best be educated.” Under the EEOA, we reject an educational agency’s call for unfettered decision-making authority when its programs fall short of § 1703(f)’s mandate. See
Gomez, 811 F.2d at 1041 (“[W]e cannot accord such sweeping deference to state and local agencies that judicial review becomes in practice judicial abdication.”). By the School District’s own representations, we know only eight students transferred from Phoenix to McCaskey after the preliminary injunction issued: four named plaintiffs and four similarly situated students. The School District therefore retains substantial

Issa v. School District of Lancaster, 847 F.3d 121 (2017) 339 Ed. Law Rep. 630

“decisionmaking authority” over the affairs of the vast majority of its students, this injunction notwithstanding. We agree with the District Court that the balance of harms favors the plaintiffs.
D Finally, we must weigh whether the public interest favors this preliminary injunction. Doing so is “often fairly routine.” Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 730 (3d Cir. 2004). If a plaintiff proves “both” a likelihood of success on the merits and irreparable injury, it “almost always will be the case” that the public interest favors preliminary relief. Am. Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 n.8 (3d Cir. 1994). The District Court found that it’s “undeniably in the public interest for providers of public education to comply with the requirements” of the EEOA.
Issa, 2016 WL 4493202, at *8 (internal quotation marks omitted). We agree. Preliminary relief is in the public interest here.
Footnotes

* * *
Because the plaintiffs showed they’re likely to succeed on the merits of their EEOA claims, they’re likely to suffer irreparable harm without relief, the balance of harms favors them, and relief is in the public interest, we hold the District Court did not abuse its discretion in granting *144 their preliminary-injunction motion.13
IV For the reasons explained above, we will affirm the District Court’s preliminary-injunction order and remand for further proceedings consistent with this opinion.
All Citations
847 F.3d 121, 339 Ed. Law Rep. 630

*

Honorable Michael J. Melloy, Senior Circuit Judge, United States Court of Appeals for the Eighth Circuit, sitting by designation.

1

Pennsylvania law provides that “[e]very child” between ages 6 and 21 “may attend the public schools in his district” and that a

child who reaches age 21 “during the school term and who has not graduated from high school may continue to attend the public

schools in his district free of charge until the end of the school term.” 24 Pa. Stat. § 13-1301. “A child’s right to be admitted to

school may not be conditioned on the child’s immigration status.” 22 Pa. Code § 11.11(d).

2

After the preliminary injunction issued, Alembe and Anyemu Dunia decided they no longer wished to attend school in the School

District. Alembe is now 21 and Anyemu already earned a high school diploma at Phoenix, so both “wish to further their education

at community college.” Appellees’ Resp. to Stay Mot. 4 n.2. Though the complaint’s request for “supplemental educational

services” as compensatory relief for the School District’s alleged violations (J.A. 97) might in other circumstances sustain a live

claim, here, the brothers have “chose[n] not to enroll” and disavowed any intention to “further their education” within the

School District. Appellees’ Resp. to Stay Mot. 4 n.2. Their claims for equitable relief are therefore moot. See Campbell–Ewald Co. v. Gomez, ––– U.S. ––––, 136 S.Ct. 663, 669, 193 L.Ed.2d 571 (2016) (“If an intervening circumstance deprives the plaintiff of a personal stake in the outcome of the lawsuit, at any point during litigation, [his or her claims] can no longer proceed and must be dismissed as moot.” (internal quotation marks omitted)). On remand, the District Court should dismiss them as such. Nevertheless, because the brothers’ testimony and other evidence about their experiences with the School District formed, in part, the basis for this preliminary injunction, we consider it on appeal.

3

Under 22 Pa. Code § 4.26, “[e]very school district shall provide a program for each student whose dominant language is not

English for the purpose of facilitating the student’s achievement of English proficiency and the academic standards” of 22 Pa.

Code § 4.12. Programs “shall include appropriate bilingual-bicultural or English as a second language (ESL) instruction.” Id. § 4.26.

4

The District Court found it “unnecessary” to address the plaintiffs’ “Title VI and constitutional claims” because relief granted on

the EEOA and state law claims was “sufficient to resolve” the preliminary-injunction motion. Issa, 2016 WL 4493202, at *4. That conclusion is unchallenged on appeal.

Issa v. School District of Lancaster, 847 F.3d 121 (2017) 339 Ed. Law Rep. 630

5

We note there’s no dispute the plaintiffs are “individuals” under the EEOA, their refugee status notwithstanding. The EEOA was

“enacted pursuant to § 5 of the Fourteenth Amendment,” Horne v. Flores, 557 U.S. 433, 440 n.1, 129 S.Ct. 2579 (2009) (citing 20 U.S.C. § 1702(a)(1), (b)), and entitles “all children enrolled in public schools” equal educational opportunity, 20 U.S.C. § 1701(a)(1) (emphasis added). It is well established that the Fourteenth Amendment guarantees immigrant children, whatever

their legal status, equal access to public education. Plyler v. Doe, 457 U.S. 202, 216–24, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982).

6

The District Court said that to prevail under § 1703(f), a plaintiff need only show “(1) language barriers; (2) defendant’s failure to

take appropriate action to overcome these barriers; and (3) a resulting impediment to students’ equal participation in

instructional programs.” Issa, 2016 WL 4493202, at *5. It relied on a Middle District of Pennsylvania decision to so hold.

Id. (citing

CG v. Pa. Dep’t of Educ., 888 F.Supp.2d 534, 575 (M.D. Pa. 2012)). We affirmed judgment in CG but had no

occasion to reach the EEOA claims at issue there. CG v. Pa. Dep’t of Educ., 734 F.3d 229 (3d Cir. 2013). Addressing § 1703(f)

directly here for the first time, we find this three-element test incomplete. It ignores § 1703(f)’s “educational agency” and “on

account of” language. The four-element test we set forth above gives proper effect to all of § 1703(f)’s text, as required. See

Corley v. United States, 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) (stating that a statute “should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant” (internal quotation marks omitted)).

7

Because the District Court concluded Phoenix’s accelerated, non-sheltered program doesn’t satisfy Castaneda’s first and

third prongs, it didn’t address Castaneda’s second prong—whether the programs and practices actually used by the School District are reasonably calculated to implement effectively the educational theory adopted. This wasn’t error. The District Court

was right that Castaneda’s test is “conjunctive.” Issa, 2016 WL 4493202, at *6. All three prongs must be met for an

educational agency’s program to satisfy § 1703(f)’s “appropriate action” element. See Castaneda, 648 F.2d at 1009–10. While

we thank the United States as amicus curiae for its thoughtful analysis of Castaneda’s second prong, given the plaintiffs’

successful showings under prongs one and three, we need not and do not reach Castaneda’s second prong here.

8

The School District raised this argument only in passing in the District Court and for the first time on appeal in its reply brief. We

could therefore consider it waived. See Prometheus Radio Project v. FCC, 824 F.3d 33, 53 (3d Cir. 2016) (arguments raised for the first time in a reply brief are waived on appeal); P.R.B.A. Corp. v. HMS Host Toll Roads, Inc., 808 F.3d 221, 224 n.1 (3d Cir. 2015) (arguments not squarely put before the district court are waived on appeal). But the School District’s “on account of” argument turns on a pure question of law about a matter of public importance, so we’ll exercise our discretion to consider it. See

Huber v. Taylor, 469 F.3d 67, 74 (3d Cir. 2006); Bagot v. Ashcroft, 398 F.3d 252, 256 (3d Cir. 2005); Loretangeli v. Critelli, 853 F.2d 186, 190 n.5 (3d Cir. 1988).

9

The School District’s argument is premised on the notion that “on account of” in § 1703’s preamble not only modifies the denial

of “equal educational opportunity” but also the particular state action or inaction proscribed in each of § 1703’s subsections. The

statute’s language, however, doesn’t support that reading. The preamble merely states a general prohibition on the denial of

equal educational opportunity “on account of” a protected characteristic violated per se “by” the state acting or failing to act in

accordance with subsections (a) through (f). Each subsection thus creates a separate cause of action for the denial of equal

educational opportunity on account of an EEOA-protected characteristic, and none requires proof that the state’s action or

inaction was itself “on account of” such a characteristic.

The School District’s reading also fails to distinguish between the phrase “on the basis of” a protected characteristic—which

Congress has used traditionally and in this very statute to designate discriminatory intent, see §§ 1702(a)(1), 1703(a), (e)—and

the phrase “on account of” a protected characteristic, which we presume, consistent with basic canons of statutory construction,

Congress used intentionally in § 1703’s preamble to convey a different meaning. See Sosa v. Alvarez–Machain, 542 U.S. 692,

711 n.9, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004); William A. Graham Co. v. Haughey, 568 F.3d 425, 435 (3d Cir. 2009). Further, as applied to § 1703’s other subsections, the School District’s “on account of” interpretation would violate two more canons of construction. First, it would render portions of § 1703(a), (c), and (d) superfluous by requiring a plaintiff to prove that the “segregation” or “discrimination” these subsections already specify was “on the basis of race, color, or national origin” and

“on account of race, color, sex, or national origin.” See Gustafson v. Alloyd Co., 513 U.S. 561, 574, 115 S.Ct. 1061, 131 L.Ed.2d

Issa v. School District of Lancaster, 847 F.3d 121 (2017) 339 Ed. Law Rep. 630

1 (1995); Zimmerman v. Norfolk S. Corp., 706 F.3d 170, 185 (3d Cir. 2013). Second, it would render § 1703(b) and (e) nonsensical by requiring a plaintiff to establish both that the state failed to affirmatively remediate the disparate impact of past discrimination on the basis of race, color, or national origin and that the failure itself was “on account of ... race, color, sex, or
national origin.” See Corley, 556 U.S. at 314, 129 S.Ct. 1558; G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 615 (3d Cir. 2015). We therefore reject the School District’s reading of § 1703’s “on account of” language.

10

The School District says the Eighth Circuit’s 2010 decision in Mumid v. Abraham Lincoln High School, 618 F.3d 789, controls

this issue. It doesn’t. Specifically, the School District points to Mumid’s statement that a “policy that treats students with

limited English proficiency differently than other students ... does not facially discriminate based on national origin.” Id. at

795. The School District omits, however, that the Eighth Circuit said that in addressing Title VI claims, not EEOA claims. See id.

at 793–95. When the Court of Appeals dealt with the students’ EEOA claims in Mumid, it did so on standing grounds, noting expressly that it would “assume” without deciding that evidence of the school’s failure to take appropriate action to overcome language barriers “could support a finding that the District denied equal educational opportunity ‘on account of ... national

origin.’ ” Id. at 795–96 (emphasis added). Mumid therefore doesn’t support—and actually hurts—the School District’s position.

11 In its entirety, 24 Pa. Stat. § 13-1301 states that [e]very child, being a resident of any school district, between the ages of six (6) and twenty-one (21) years, may attend the public schools in his district, subject to the provisions of this act. Notwithstanding any other provision of law to the contrary, a child who attains the age of twenty-one (21) years during the school term and who has not graduated from high school may continue to attend the public schools in his district free of charge until the end of the school term. The board of school directors of any school district may admit to the schools of the district, with or without the payment of tuition, any non-resident child temporarily residing in the district, and may require the attendance of such non-resident child in the same manner and on the same conditions as it requires the attendance of a resident child.

12 In its entirety, 22 Pa. Code § 11.11(b) states that [a] school district or charter school shall normally enroll a child the next business day, but no later than 5 business days of application. The school district or charter school has no obligation to enroll a child until the parent, guardian or other person having control or charge of the student making the application has supplied proof of the child’s age, residence, and immunizations as required by law. School districts and charter schools receiving requests for educational records from another school district or charter school shall forward the records within 10 business days of receipt of the request.

13 Though we will affirm this preliminary-injunction order, we recognize that significant administrative and budgetary implications may arise when a federal court orders the transfer of students across a school district. We note the School District wasn’t given the opportunity to propose its own remedy before the injunction issued. While the timing of the injunction right before the start of the school year may have made alternative relief impracticable at that time, the District Court should allow the School District an opportunity to propose a legally compliant solution, among other alternatives considered by the Court, before the issuance of
any permanent injunction, if the plaintiffs ultimately succeed on the merits of their EEOA claims. See Horne, 557 U.S. at 454, 129 S.Ct. 2579 (stating that the EEOA, “while requiring a State to take ‘appropriate action to overcome language barriers,’ ” leaves state and local educational authorities a “ ‘substantial amount of latitude in choosing’ how this obligation is met” (quoting
Castaneda, 648 F.2d at 1009)).

End of Document

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

Issa v. School District of Lancaster, 847 F.3d 121 (2017) 339 Ed. Law Rep. 630

 
 Case: 5:16-cv-3881 As of: 11/02/2017 11:11 AM EDT 1 of 15
CLOSED,A/R,STANDARD
United States District Court Eastern District of Pennsylvania (Allentown) CIVIL DOCKET FOR CASE #: 5:16−cv−03881−EGS

ISSA et al v. THE SCHOOL DISTRICT OF LANCASTER Assigned to: HONORABLE EDWARD G. SMITH Referred to: MAGISTRATE JUDGE MARILYN HEFFLEY (Settlement) Case in other court: USCA, 16−03528 Cause: 42:2000 Job Discrimination (Public Accomodations)
Plaintiff

Date Filed: 07/19/2016 Date Terminated: 06/29/2017 Jury Demand: Defendant Nature of Suit: 448 Civil Rights: Education Jurisdiction: Federal Question

KHADIDJA ISSA

represented by ERIC J. ROTHSCHILD SENIOR LITIGATION COUNSEL AMERICANS UNITED 1310 L STREET NW SUITE 200 WASHINGTON, DC 20005 202−466−3234 Fax: 215−981−4750 TERMINATED: 09/16/2016

HEDYA ARYANI PEPPER HAMILTON LLP 3000 TWO LOGAN SQUARE 18TH & ARCH STREETS PHILADELPHIA, PA 19103−2799 215−981−4011 Email: aryanih@pepperlaw.com ATTORNEY TO BE NOTICED

KAITLIN M. GURNEY PEPPER HAMILTON LLP 3000 TWO LOGAN SQUARE EIGHTEENTH & ARCH STS PHILADELPHIA, PA 19103−2799 215−981−4990 Email: gurneyk@pepperlaw.com ATTORNEY TO BE NOTICED

KATHLEEN A. MULLEN PEPPER HAMILTON LLP 100 MARKET STREET SUITE 200 P.O. BOX 1181 HARRISBURG, PA 17108 717−255−1155 Email: mullenk@pepperlaw.com ATTORNEY TO BE NOTICED

KRISTINA MOON EDUCATION LAW CENTER 1315 WALNUT ST SUITE 400 PHILADELPHIA, PA 19107 215−346−6907 Email: kmoon@elc−pa.org ATTORNEY TO BE NOTICED

MAURA I. MCINERNEY EDUCATION LAW CENTER 1315 WALNUT STREET SUITE 400

Case: 5:16-cv-3881 As of: 11/02/2017 11:11 AM EDT 2 of 15

PHILADELPHIA, PA 19107 215−789−2661 Fax: 215−772−3125 Email: mmcinerney@elc−pa.org ATTORNEY TO BE NOTICED

MOLLY M. TACK−HOOPER ACLU OF PENNSYLVANIA PO BOX 60173 PHILADELPHIA, PA 19102 215−592−1513 Email: mtack−hooper@aclupa.org ATTORNEY TO BE NOTICED

SETH KREIMER 3400 CHESTNUT STREET PHILADELPHIA, PA 19104 215−898−7447 Email: skreimer@law.upenn.edu ATTORNEY TO BE NOTICED

WITOLD J. WALCZAK ACLU OF PENNSYLVANIA − PITTSBURGH CHAPTER 313 ATWOOD STREET PITTSBURGH, PA 15213 412−681−7864 Email: vwalczak@aclupa.org ATTORNEY TO BE NOTICED

Plaintiff
Q.M.H. A MINOR, INDIVIDUALLY BY AND THROUGH HIS PARENT, FAISA AHMED ABDALLA

represented by ERIC J. ROTHSCHILD (See above for address) TERMINATED: 09/16/2016
HEDYA ARYANI (See above for address) ATTORNEY TO BE NOTICED

KAITLIN M. GURNEY (See above for address) ATTORNEY TO BE NOTICED

KATHLEEN A. MULLEN (See above for address) ATTORNEY TO BE NOTICED

KRISTINA MOON (See above for address) ATTORNEY TO BE NOTICED

MAURA I. MCINERNEY (See above for address) ATTORNEY TO BE NOTICED

MOLLY M. TACK−HOOPER (See above for address) ATTORNEY TO BE NOTICED

SETH KREIMER (See above for address) ATTORNEY TO BE NOTICED

WITOLD J. WALCZAK

Case: 5:16-cv-3881 As of: 11/02/2017 11:11 AM EDT 3 of 15

(See above for address) ATTORNEY TO BE NOTICED

Plaintiff ALEMBE DUNIA

represented by ERIC J. ROTHSCHILD (See above for address) TERMINATED: 09/16/2016

HEDYA ARYANI (See above for address) ATTORNEY TO BE NOTICED

KAITLIN M. GURNEY (See above for address) ATTORNEY TO BE NOTICED

KATHLEEN A. MULLEN (See above for address) ATTORNEY TO BE NOTICED

KRISTINA MOON (See above for address) ATTORNEY TO BE NOTICED

MAURA I. MCINERNEY (See above for address) ATTORNEY TO BE NOTICED

MOLLY M. TACK−HOOPER (See above for address) ATTORNEY TO BE NOTICED

SETH KREIMER (See above for address) ATTORNEY TO BE NOTICED

WITOLD J. WALCZAK (See above for address) ATTORNEY TO BE NOTICED

Plaintiff ANYEMU DUNIA

represented by ERIC J. ROTHSCHILD (See above for address) TERMINATED: 09/16/2016

HEDYA ARYANI (See above for address) ATTORNEY TO BE NOTICED

KAITLIN M. GURNEY (See above for address) ATTORNEY TO BE NOTICED

KATHLEEN A. MULLEN (See above for address) ATTORNEY TO BE NOTICED

KRISTINA MOON (See above for address) ATTORNEY TO BE NOTICED

MAURA I. MCINERNEY (See above for address) ATTORNEY TO BE NOTICED

Case: 5:16-cv-3881 As of: 11/02/2017 11:11 AM EDT 4 of 15

Plaintiff V.N.L. A MINOR, INDIVIDUALLY BY AND THROUGH HER PARENT, MAR KI
Plaintiff SUI HNEM SUNG AND ALL OTHERS SIMILARLY SITUATED

MOLLY M. TACK−HOOPER (See above for address) ATTORNEY TO BE NOTICED
SETH KREIMER (See above for address) ATTORNEY TO BE NOTICED
WITOLD J. WALCZAK (See above for address) ATTORNEY TO BE NOTICED
represented by ERIC J. ROTHSCHILD (See above for address) TERMINATED: 09/16/2016
HEDYA ARYANI (See above for address) ATTORNEY TO BE NOTICED
KAITLIN M. GURNEY (See above for address) ATTORNEY TO BE NOTICED
KATHLEEN A. MULLEN (See above for address) ATTORNEY TO BE NOTICED
KRISTINA MOON (See above for address) ATTORNEY TO BE NOTICED
MAURA I. MCINERNEY (See above for address) ATTORNEY TO BE NOTICED
MOLLY M. TACK−HOOPER (See above for address) ATTORNEY TO BE NOTICED
SETH KREIMER (See above for address) ATTORNEY TO BE NOTICED
WITOLD J. WALCZAK (See above for address) ATTORNEY TO BE NOTICED
represented by ERIC J. ROTHSCHILD (See above for address) TERMINATED: 09/16/2016
HEDYA ARYANI (See above for address) ATTORNEY TO BE NOTICED
KAITLIN M. GURNEY (See above for address) ATTORNEY TO BE NOTICED
KATHLEEN A. MULLEN

Case: 5:16-cv-3881 As of: 11/02/2017 11:11 AM EDT 5 of 15
(See above for address) ATTORNEY TO BE NOTICED
KRISTINA MOON (See above for address) ATTORNEY TO BE NOTICED
MAURA I. MCINERNEY (See above for address) ATTORNEY TO BE NOTICED
MOLLY M. TACK−HOOPER (See above for address) ATTORNEY TO BE NOTICED
SETH KREIMER (See above for address) ATTORNEY TO BE NOTICED
WITOLD J. WALCZAK (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
THE SCHOOL DISTRICT OF LANCASTER

represented by SHARON M. O'DONNELL MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 100 CORPORATE CENTER DR SUITE 201 CAMP HILL, PA 17011 717−651−3503 Email: smodonnell@mdwcg.com ATTORNEY TO BE NOTICED

Date Filed 07/19/2016
07/19/2016 07/19/2016
07/20/2016 07/21/2016 07/22/2016

# Docket Text
1 COMPLAINT against THE SCHOOL DISTRICT OF LANCASTER ( Filing fee $ 400 receipt number 143831.), filed by SUI HNEM SUNG, KHADIDJA ISSA, Q.M.H., ANYEMU DUNIA, V.N.L., ALEMBE DUNIA. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Civil Cover Sheet)(rt) (Entered: 07/19/2016)
Summons Issued as to THE SCHOOL DISTRICT OF LANCASTER. One Given To: Counsel on July 19, 2016 (rt) (Entered: 07/19/2016)
2 MOTION to Certify Class filed by ALEMBE DUNIA, ANYEMU DUNIA, KHADIDJA ISSA, Q.M.H., SUI HNEM SUNG, V.N.L..Memorandum in Support, Certificate of Service. (Attachments: # 1 Exhibit)(GURNEY, KAITLIN) (Entered: 07/19/2016)
3 Declaration of Service of Complaint by ALEMBE DUNIA, ANYEMU DUNIA, KHADIDJA ISSA, Q.M.H., SUI HNEM SUNG, V.N.L.. (GURNEY, KAITLIN) (Entered: 07/20/2016)
4 NOTICE of Appearance by WITOLD J. WALCZAK on behalf of ALEMBE DUNIA, ANYEMU DUNIA, KHADIDJA ISSA, Q.M.H., SUI HNEM SUNG, V.N.L. (WALCZAK, WITOLD) (Entered: 07/21/2016)
5 NOTICE of Appearance by MOLLY M. TACK−HOOPER on behalf of ALEMBE DUNIA, ANYEMU DUNIA, KHADIDJA ISSA, Q.M.H., SUI HNEM SUNG, V.N.L. (TACK−HOOPER, MOLLY) (Entered: 07/22/2016)

Case: 5:16-cv-3881 As of: 11/02/2017 11:11 AM EDT 6 of 15

07/22/2016 07/22/2016 07/22/2016 07/22/2016 07/22/2016 07/22/2016 07/25/2016 07/25/2016 07/25/2016
08/01/2016 08/01/2016 08/02/2016 08/04/2016 08/04/2016

6 NOTICE of Appearance by SETH KREIMER on behalf of ALEMBE DUNIA, ANYEMU DUNIA, KHADIDJA ISSA, Q.M.H., SUI HNEM SUNG, V.N.L. (KREIMER, SETH) (Entered: 07/22/2016)
7 MOTION for Preliminary Injunction filed by ALEMBE DUNIA, ANYEMU DUNIA, KHADIDJA ISSA, Q.M.H., SUI HNEM SUNG, V.N.L..Memorandum, Certificate Of Service. (Attachments: # 1 Exhibit 1−8)(GURNEY, KAITLIN) (Entered: 07/22/2016)
8 MOTION to Expedite Discovery filed by ALEMBE DUNIA, ANYEMU DUNIA, KHADIDJA ISSA, Q.M.H., SUI HNEM SUNG, V.N.L..Memorandum,Certificate Of Service. (Attachments: # 1 Exhibit A−C)(GURNEY, KAITLIN) (Entered: 07/22/2016)
9 ORDER THAT THE COURT WILL HOLD A TELEPHONE CONFERENCE ON MONDAY, JULY 25, 2016, AT 10:00 A.M. TO DISCUSS (AT LEAST PRELIMINARILY) THE AFOREMENTIONED MOTIONS, ETC. SIGNED BY HONORABLE EDWARD G. SMITH ON 7/22/16. 7/22/16 ENTERED AND COPIES MAILED TO UNREP, E−MAILED.(er, ) (Entered: 07/22/2016)
10 NOTICE of Appearance by SHARON M. O'DONNELL on behalf of THE SCHOOL DISTRICT OF LANCASTER, THE SCHOOL DISTRICT OF LANCASTER with Certificate of Service(O'DONNELL, SHARON) (Entered: 07/22/2016)
11 MOTION for Extension of Time to File Answer re 1 Complaint, filed by THE SCHOOL DISTRICT OF LANCASTER.Certificate of Service. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Non−Concurrence)(O'DONNELL, SHARON) (Entered: 07/22/2016)
12 NOTICE of Appearance by KATHLEEN A. MULLEN on behalf of ALEMBE DUNIA, ANYEMU DUNIA, KHADIDJA ISSA, Q.M.H., SUI HNEM SUNG, V.N.L. with Certificate of Service(MULLEN, KATHLEEN) (Entered: 07/25/2016)
13 Minute Entry for proceedings held before HONORABLE EDWARD G. SMITH: Telephone Conference held on 7/25/16. Court Reporter: None. (er, ) (Entered: 07/25/2016)
14 ORDER THAT THE MOTION TO EXPEDITE DISCOVERY (DOC. NO. 8) IS GRANTED, AND THE PARTIES SHALL PROCEED WITH DISCOVERY PURSUANT TO THE TERMS OF THIS ORDER. THE PARTIES SHALL RESPOND TO AND PRODUCE DOCUMENTS RESPONSIVE TO DISCOVERY REQUESTS BY AUGUST 5, 2016. THE PARTIES SHALL CONDUCT DEPOSITIONS DURING THE WEEK OF AUGUST 8, 2016. THE PARTIES SHALL EXCHANGE ANY EXPERT REPORTS BY AUGUST 12, 2016. THE COURT WILL HOLD AN EVIDENTIARY HEARING REGARDING THE PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION (DOC. NO. 7) BEGINNING ON AUGUST 16, 2016, AT 9:30 A.M. AT THE HOLMES BUILDING, 101 LARRY HOLMES DRIVE, 4TH FLOOR, EASTON, PENNSYLVANIA 18042. SIGNED BY HONORABLE EDWARD G. SMITH ON 7/25/16. 7/25/16 ENTERED AND COPIES E−MAILED, MAILED.(er, ) Modified on 7/25/2016 (er, ). (Entered: 07/25/2016)
15 RESPONSE in Opposition re 7 MOTION for Preliminary Injunction filed by THE SCHOOL DISTRICT OF LANCASTER. (Attachments: # 1 Text of Proposed Order Order)(O'DONNELL, SHARON) (Entered: 08/01/2016)
16 Memorandum of Law Contra re 7 MOTION for Preliminary Injunction filed by THE SCHOOL DISTRICT OF LANCASTER. (O'DONNELL, SHARON) (Entered: 08/01/2016)
17 NOTICE of Appearance by HEDYA ARYANI on behalf of ALEMBE DUNIA, ANYEMU DUNIA, KHADIDJA ISSA, Q.M.H., SUI HNEM SUNG, V.N.L. with Certificate of Service(ARYANI, HEDYA) (Entered: 08/02/2016)
18 RESPONSE in Opposition re 11 MOTION for Extension of Time to File Answer re 1 Complaint, filed by ALEMBE DUNIA, ANYEMU DUNIA, KHADIDJA ISSA, Q.M.H., SUI HNEM SUNG, V.N.L.. (GURNEY, KAITLIN) (Entered: 08/04/2016)
19 ORDER THAT THE MOTION FOR ENLARGEMENT OF TIME (DOC. NO. 11) IS GRANTED IN PART AND THE DEFENDANT SHALL HAVE UNTIL AUGUST

Case: 5:16-cv-3881 As of: 11/02/2017 11:11 AM EDT 7 of 15

08/08/2016
08/09/2016 08/11/2016 08/15/2016 08/15/2016 08/15/2016 08/17/2016 08/17/2016 08/19/2016 08/19/2016
08/23/2016
08/24/2016 08/25/2016 08/25/2016

12, 2016 TO RESPOND TO THE COMPLAINT. SIGNED BY HONORABLE EDWARD G. SMITH ON 8/4/16.8/4/16 ENTERED AND COPIES MAILED, E−MAILED.(er, ) (Entered: 08/04/2016)
20 REPLY to Response to Motion re 7 MOTION for Preliminary Injunction /REPLY TO DEFENDANTS MEMORANDUM OF LAW CONTRA PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION filed by ALEMBE DUNIA, ANYEMU DUNIA, KHADIDJA ISSA, Q.M.H., SUI HNEM SUNG, V.N.L.. (ROTHSCHILD, ERIC) (Entered: 08/08/2016)
21 MOTION to Dismiss (Partial Dismissal) filed by THE SCHOOL DISTRICT OF LANCASTER.Memorandum, Certificate of Service. (Attachments: # 1 Memorandum, # 2 Text of Proposed Order)(O'DONNELL, SHARON) (Entered: 08/09/2016)
22 NOTICE of Appearance by KRISTINA MOON on behalf of ALEMBE DUNIA, ANYEMU DUNIA, KHADIDJA ISSA, Q.M.H., SUI HNEM SUNG, V.N.L. with Certificate of Service(MOON, KRISTINA) (Entered: 08/11/2016)
23 ANSWER to 1 Complaint, with Affirmative Defenses by THE SCHOOL DISTRICT OF LANCASTER.(O'DONNELL, SHARON) (Entered: 08/15/2016)
24 NOTICE of Appearance by MAURA I. MCINERNEY on behalf of ALEMBE DUNIA, ANYEMU DUNIA, KHADIDJA ISSA, Q.M.H., SUI HNEM SUNG, V.N.L. (MCINERNEY, MAURA) (Entered: 08/15/2016)
25 RESPONSE in Opposition re 2 MOTION to Certify Class filed by THE SCHOOL DISTRICT OF LANCASTER. (Attachments: # 1 Text of Proposed Order, # 2 Memorandum in Support of Response in Opposition to Plaintiffs' Motion for Class Action Certification)(O'DONNELL, SHARON) (Entered: 08/15/2016)
26 Minute Entry for proceedings held before HONORABLE EDWARD G. SMITH: Motion on Preliminary Injunction Hearing held on 8/16/16: MOTION for Preliminary Injunction filed by V.N.L., KHADIDJA ISSA, ALEMBE DUNIA, SUI HNEM SUNG, ANYEMU DUNIA, Q.M.H. Court Reporter: ESR. (er, ) (Entered: 08/17/2016)
27 Minute Entry for proceedings held before HONORABLE EDWARD G. SMITH: Motion Hearing held on 8/17/16 Re: MOTION for Preliminary Injunction. Witness sworn. Exhibits admitted. Court Reporter: ESR. (er, ) (Entered: 08/17/2016)
28 Minute Entry for proceedings held before HONORABLE EDWARD G. SMITH: Hearing on Motion for Preliminary Injunction (7) held on 8/18/16. Witnesses sworn and testified. Exhibits admitted into evidence. Court Reporter: esr. (er, ) (Entered: 08/19/2016)
29 Minute Entry for proceedings held before HONORABLE EDWARD G. SMITH: Motion Hearing held on 8/19/16 Re: (7) MOTION for Preliminary Injunction filed by V.N.L., KHADIDJA ISSA, ALEMBE DUNIA, SUI HNEM SUNG, ANYEMU DUNIA, Q.M.H. Witnesses sworn and testified. Exhibits admitted into evidence with no objection. Court Reporter: ESR. (er, ) (Entered: 08/22/2016)
30 Minute Entry for proceedings held before HONORABLE EDWARD G. SMITH: Motion Hearing held on 8/22/16 for MOTION for Preliminary Injunction (7) filed by V.N.L., KHADIDJA ISSA, ALEMBE DUNIA, SUI HNEM SUNG, ANYEMU DUNIA, Q.M.H. Witnesses sworn and testified. Exhibits P1 and P4 admitted into evidence. Court Reporter: ESR. (er, ) (Entered: 08/23/2016)
31 MOTION to Amend/Correct 23 Answer to Complaint filed by THE SCHOOL DISTRICT OF LANCASTER.Brief, Certificate of Service. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order, # 3 Brief in Support of Defendant's Motion for Leave to Amend)(O'DONNELL, SHARON) (Entered: 08/24/2016)
32 Memorandum re 7 MOTION for Preliminary Injunction Defendant's Proposed Findings of Fact, Conclusions of Law and Supporting Memorandum of Law filed by THE SCHOOL DISTRICT OF LANCASTER. (Attachments: # 1 Text of Proposed Order)(O'DONNELL, SHARON) (Entered: 08/25/2016)
33 PLAINTIFFS POST−HEARING FINDINGS OF FACT AND CONCLUSIONS OF LAW by ALEMBE DUNIA, ANYEMU DUNIA, KHADIDJA ISSA, Q.M.H., SUI

Case: 5:16-cv-3881 As of: 11/02/2017 11:11 AM EDT 8 of 15

08/25/2016 08/26/2016 08/26/2016
08/26/2016
08/26/2016 08/30/2016 08/30/2016 08/30/2016 09/02/2016 09/06/2016 09/09/2016 09/16/2016

HNEM SUNG, V.N.L.. (ROTHSCHILD, ERIC) (Entered: 08/25/2016)
34 EXHIBIT A to Defendant's Proposed Findings of Fact, Conclusions of Law and Supporting Memorandum of Law by THE SCHOOL DISTRICT OF LANCASTER.. (O'DONNELL, SHARON) (Entered: 08/25/2016)
35 MEMORANDUM OPINION. SIGNED BY HONORABLE EDWARD G. SMITH ON 8/26/16. 8/26/16 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 08/26/2016)
36 ORDER THAT THE PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION (DOC. NO. 7) IS GRANTED IN PART AND, PENDING FINAL RESOLUTION OF THIS MATTER, THE SCHOOL DISTRICT SHALL: ENROLL AND PERMIT THE SCHOOL−AGE PLAINTIFFS, WHO SO WISH, TO ATTEND THE MAIN HIGH SCHOOL, MCCASKEY, BEGINNING ON AUGUST 29, 2016, ETC. SIGNED BY HONORABLE EDWARD G. SMITH ON 8/26/16. 8/26/16 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 08/26/2016)
37 ORDER THAT THE COURT WILL HOLD A PRELIMINARY PRETRIAL CONFERENCE ON SEPTEMBER 22, 2016, AT 11:00 A.M., AT THE HOLMES BUILDING, 101 LARRY HOLMES DRIVE, 4TH FLOOR, EASTON, PENNSYLVANIA 18042. THIS CASE IS REFERRED TO UNITED STATES MAGISTRATE JUDGE MARILYN HEFFLEY FOR A SETTLEMENT CONFERENCE. THE SETTLEMENT CONFERENCE WILL BE HELD ON SEPTEMBER 27, 2016, AT 9:30 A.M., BEFORE MAGISTRATE JUDGE HEFFLEY. SIGNED BY HONORABLE EDWARD G. SMITH ON 8/26/16. 8/26/16 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 08/26/2016)
The sum of $1 deposited into the Registry of the Court. (rf, ) Modified on 8/29/2016 (rf, ). (Entered: 08/29/2016)
38 ORDER THAT SETTLEMENT CONFERENCE SET FOR 9/27/2016 09:30 AM. SIGNED BY MAGISTRATE JUDGE MARILYN HEFFLEY ON 8/30/16. 8/30/16 ENTERED AND COPIES EMAILED.(rf, ) (Entered: 08/30/2016)
39 NOTICE OF APPEAL as to 36 Order (Memorandum and/or Opinion), by THE SCHOOL DISTRICT OF LANCASTER, Certificate of Service. Filing Fee Not Paid. Copies to Judge, Clerk USCA, Appeals Clerk. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(O'DONNELL, SHARON) Modified on 8/30/2016 (md). (Entered: 08/30/2016)
USCA Appeal Fees received $ 505 receipt number PPE146009 re 39 Notice of Appeal, filed by THE SCHOOL DISTRICT OF LANCASTER (rf, ) (Entered: 08/31/2016)
NOTICE of Docketing Record on Appeal from USCA re 39 Notice of Appeal, filed by THE SCHOOL DISTRICT OF LANCASTER. USCA Case Number 16−3528 (dmc, ) (Entered: 09/02/2016)
40 Minute Entry for proceedings held before HONORABLE EDWARD G. SMITH: Telephone Conference held on 9/6/16 Court Reporter: None. (er, ) (Entered: 09/06/2016)
41 MOTION FOR LEAVE TO WITHDRAW APPEARANCE OF ERIC ROTHSCHILD AS COUNSEL FOR PLAINTIFFS filed by ALEMBE DUNIA, ANYEMU DUNIA, KHADIDJA ISSA, Q.M.H., SUI HNEM SUNG, V.N.L..Certificate of Concurrence and Certificate of Service. (Attachments: # 1 Text of Proposed Order)(ROTHSCHILD, ERIC) (Entered: 09/09/2016)
42 Emergency MOTION to Certify Class (Provisional) and Entry of Preliminary Injunction Protecting Similarly−Situated Students filed by ALEMBE DUNIA, ANYEMU DUNIA, KHADIDJA ISSA, Q.M.H., SUI HNEM SUNG, V.N.L..Memorandum of Law in Support, Certificate of Service. (Attachments: # 1 Text of Proposed Order, # 2 Memorandum in Support, # 3 Exhibit 1−10)(MULLEN, KATHLEEN) (Attachment 3 replaced on 9/16/2016) (fb). Modified on 9/16/2016 (fb). (Entered: 09/16/2016)

Case: 5:16-cv-3881 As of: 11/02/2017 11:11 AM EDT 9 of 15

09/16/2016
09/16/2016 09/19/2016 09/19/2016
09/20/2016 09/20/2016
09/20/2016 09/22/2016 09/22/2016 09/26/2016 09/28/2016 09/28/2016 09/28/2016

43 ORDER THAT PLAINTIFFS' MOTION FOR LEAVE TO WITHDRAW APPEARANCE OF ERIC ROTHSCHILD AS COUNSEL FOR PLAINTIFFS, AND GOOD CAUSE HAVING BEEN SHOWN IS GRANTED, AND ERIC ROTHSCHILD IS HEREBY WITHDRAWN AS COUNSEL OF RECORD FOR PLAINTIFFS. SIGNED BY HONORABLE EDWARD G. SMITH ON 9/16/16.9/16/16 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 09/16/2016)
44 LETTER re Request to Reschedule Preliminary Pretrial Conference by THE SCHOOL DISTRICT OF LANCASTER. (O'DONNELL, SHARON) Modified on 9/19/2016 (md). (Entered: 09/16/2016)
45 LETTER re Objections by ALEMBE DUNIA, ANYEMU DUNIA, KHADIDJA ISSA, Q.M.H., SUI HNEM SUNG, V.N.L. to 44 Letter to Reschedule Preliminary Pre−trial Conference. (WALCZAK, WITOLD) Modified on 9/20/2016 (md). (Entered: 09/19/2016)
46 ORDER THAT THE COURT WILL HOLD A TELEPHONE CONFERENCE ON MONDAY, SEPTEMBER 19, 2016, AT 4:30 P.M. TO DISCUSS THE DEFENDANTS REQUEST TO RESCHEDULE THE PRELIMINARY PRETRIAL CONFERENCE CURRENTLY SCHEDULED FOR SEPTEMBER 22, 2016,. SIGNED BY HONORABLE EDWARD G. SMITH ON 9/19/16. 9/19/16 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 09/19/2016)
47 Minute Entry for proceedings held before HONORABLE EDWARD G. SMITH: Telephone Conference held on 9/19/16. Court Reporter: None. (er, ) (Entered: 09/20/2016)
48 ORDER THAT THE INITIAL PRETRIAL CONFERENCE SCHEDULED FOR SEPTEMBER 22, 2016 IS CANCELED. THE COURT WILL HOLD A JOINT INITIAL PRETRIAL CONFERENCE AND HEARING ON THE PLAINTIFFS' EMERGENCY MOTION FOR PROVISIONAL CLASS CERTIFICATION AND ENTRY OF PRELIMINARY INJUNCTION (DOC. NO. 42) ON SEPTEMBER 28, 2016, AT 9:30 A.M., AT THE HOLMES BUILDING, 101 LARRY HOLMES DRIVE, 4TH FLOOR, EASTON, PENNSYLVANIA 18042. THE DEFENDANTS SHALL FILE A RESPONSE TO THE PLAINTIFFS EMERGENCY MOTION BY SEPTEMBER 26, 2016, AT 4:00 P.M. SIGNED BY HONORABLE EDWARD G. SMITH ON 9/20/16. 9/20/16 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 09/20/2016)
Set/Reset Deadlines as to 42 Emergency MOTION to Certify Class (Provisional) and Entry of Preliminary Injunction Protecting Similarly−Situated Students. RESPONSES DUE BY 9/26/2016. (er, ) (Entered: 09/20/2016)
49 Minute Entry for proceedings held before MAGISTRATE JUDGE MARILYN HEFFLEY Settlement Conference via TELEPHONE held on 9/22/16. (jl, ) (Entered: 09/22/2016)
50 Minute Entry for proceedings held before MAGISTRATE JUDGE MARILYN HEFFLEY Settlement Conference held on 9/21/16. (rf, ) (Entered: 09/22/2016)
51 RESPONSE in Opposition re 42 Emergency MOTION to Certify Class (Provisional) and Entry of Preliminary Injunction Protecting Similarly−Situated Students filed by THE SCHOOL DISTRICT OF LANCASTER. (Attachments: # 1 Exhibit A)(O'DONNELL, SHARON) (Entered: 09/26/2016)
52 Minute Entry for proceedings held before MAGISTRATE JUDGE MARILYN HEFFLEY Settlement Conference held on 9/27/16. (rf, ) (Entered: 09/28/2016)
53 Minute Entry for proceedings held before HONORABLE EDWARD G. SMITH: Motion Hearing held on 9/28/16 re Emergency MOTION FOR CLASS CERTIFICATION AND PRETRIAL CONFERENCE. Exhibits admitted. Court Reporter: ESR. (er, ) (Entered: 09/28/2016)
54 ORDER THAT THE COURT WILL HOLD A TELEPHONE CONFERENCE ON OCTOBER 5, 2016, AT 11:30 A.M. TO DISCUSS THE ISSUES RAISED AT THE HEARING, ETC. SIGNED BY HONORABLE EDWARD G. SMITH ON 9/28/16. 9/28/16 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 09/28/2016)

Case: 5:16-cv-3881 As of: 11/02/2017 11:11 AM EDT 10 of 15

10/04/2016 10/05/2016 10/06/2016
10/11/2016 10/12/2016 10/12/2016 10/12/2016 10/12/2016

55 RESPONSE in Opposition re 42 Emergency MOTION to Certify Class (Provisional) and Entry of Preliminary Injunction Protecting Similarly−Situated Students (Supplemental Response) filed by THE SCHOOL DISTRICT OF LANCASTER. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A, # 3 Exhibit B)(O'DONNELL, SHARON) (Entered: 10/04/2016)
56 Minute Entry for proceedings held before HONORABLE EDWARD G. SMITH: Status Conference held on 10/5/16. Court Reporter: esr. (er, ) Modified on 10/11/2016 (md). (Entered: 10/05/2016)
57 ORDER THAT THE PLAINTIFFS SHALL HAVE UNTIL NOVEMBER 21, 2016, TO FILE A RESPONSE TO THE DEFENDANT'S MOTION TO DISMISS. THE PARTIES SHALL COMPLETE ALL DISCOVERY RELATED TO CLASS CERTIFICATION BY DECEMBER 5, 2016. THE PLAINTIFFS SHALL FILE AN AMENDED MOTION FOR CLASS CERTIFICATION BY DECEMBER 9, 2016. THE DEFENDANT SHALL FILE A RESPONSE TO THE PLAINTIFFS AMENDED MOTION FOR CLASS CERTIFICATION BY DECEMBER 16, 2016. THE COURT WILL HOLD A HEARING ON THE PLAINTIFFS' AMENDED MOTION FOR CLASS CERTIFICATION ON DECEMBER 21, 2016, AT 9:30 A.M. AT THE HOLMES BUILDING, 101 LARRY HOLMES DRIVE, 4TH FLOOR, EASTON, PENNSYLVANIA. SIGNED BY HONORABLE EDWARD G. SMITH ON 10/5/16. 10/6/16 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 10/06/2016)
58 ORDER THAT THE PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (DOC. NO. 2) IS DENIED WITHOUT PREJUDICE TO THE PLAINTIFFS' ABILITY TO FILE AN AMENDED MOTION AFTER THE COMPLETION OF CLASS−RELATED DISCOVERY. IT IS FURTHER ORDERED THAT THE DEFENDANT' S MOTION TO AMEND THEIR ANSWER TO THE COMPLAINT (DOC. NO. 31) IS GRANTED. THE DEFENDANT SHALL FILE AN AMENDED ANSWER WITHIN 14 DAYS OF THIS ORDER. SIGNED BY HONORABLE EDWARD G. SMITH ON 10/11/16.10/11/16 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 10/11/2016)
59 TRANSCRIPT of Preliminary Injunction held on 8/16/16, before Judge SMITH. Court Reporter/Transcriber VERITEXT NATIONAL COURT REPORTING COMPANY. 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.. Redaction Request due 11/2/2016. Redacted Transcript Deadline set for 11/14/2016. Release of Transcript Restriction set for 1/10/2017. (rf, ) (Entered: 10/13/2016)
60 TRANSCRIPT of Preliminary Injunction Hearing held on 8/16/16, before Judge SMITH. Court Reporter/Transcriber VERITEXT LEGAL SOLUTIONS. 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.. Redaction Request due 11/2/2016. Redacted Transcript Deadline set for 11/14/2016. Release of Transcript Restriction set for 1/10/2017. (rf, ) (Entered: 10/13/2016)
61 TRANSCRIPT of Preliminary Injunction held on 8/17/16, before Judge SMITH. Court Reporter/Transcriber VERITEXT NATIONAL COURT REPORTING COMPANY. 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.. Redaction Request due 11/2/2016. Redacted Transcript Deadline set for 11/14/2016. Release of Transcript Restriction set for 1/10/2017. (rf, ) (Entered: 10/13/2016)
62 TRANSCRIPT of Preliminary Injunction Hearing held on 8/17/16, before Judge SMITH. Court Reporter/Transcriber VERITEXT LEGAL SOLUTIONS. 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.. Redaction Request due 11/2/2016. Redacted Transcript Deadline set for 11/14/2016. Release of Transcript Restriction set for 1/10/2017. (rf, ) (Entered: 10/13/2016)

Case: 5:16-cv-3881 As of: 11/02/2017 11:11 AM EDT 11 of 15

10/12/2016 10/12/2016 10/12/2016 10/12/2016 10/12/2016 10/12/2016 10/12/2016 10/12/2016 10/12/2016

63 TRANSCRIPT of Preliminary Injunction Hearing held on 8/17/16, before Judge SMITH. Court Reporter/Transcriber VERITEXT LEGAL SOLUTIONS. 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.. Redaction Request due 11/2/2016. Redacted Transcript Deadline set for 11/14/2016. Release of Transcript Restriction set for 1/10/2017. (rf, ) (Entered: 10/13/2016)
64 TRANSCRIPT of Preliminary Injunction held on 8/18/16, before Judge SMITH. Court Reporter/Transcriber VERITEXT LEGAL SOLUTIONS. 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.. Redaction Request due 11/2/2016. Redacted Transcript Deadline set for 11/14/2016. Release of Transcript Restriction set for 1/10/2017. (rf, ) (Entered: 10/13/2016)
65 TRANSCRIPT of Preliminary Injunction Hearing held on 8/18/16, before Judge SMITH. Court Reporter/Transcriber VERITEXT LEGAL SOLUTIONS. 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.. Redaction Request due 11/2/2016. Redacted Transcript Deadline set for 11/14/2016. Release of Transcript Restriction set for 1/10/2017. (rf, ) (Entered: 10/13/2016)
66 TRANSCRIPT of Preliminary Injunction held on 8/19/16, before Judge SMITH. Court Reporter/Transcriber VERITEXT LEGAL SOLUTIONS. 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.. Redaction Request due 11/2/2016. Redacted Transcript Deadline set for 11/14/2016. Release of Transcript Restriction set for 1/10/2017. (rf, ) (Entered: 10/13/2016)
67 TRANSCRIPT of Preliminary Injunction Hearing held on 8/19/16, before Judge SMITH. Court Reporter/Transcriber VERITEXT LEGAL SOLUTIONS. 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.. Redaction Request due 11/2/2016. Redacted Transcript Deadline set for 11/14/2016. Release of Transcript Restriction set for 1/10/2017. (rf, ) (Entered: 10/13/2016)
68 TRANSCRIPT of Preliminary Injunction held on 8/19/16, before Judge SMITH. Court Reporter/Transcriber VERITEXT LEGAL SOLUTIONS. 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.. Redaction Request due 11/2/2016. Redacted Transcript Deadline set for 11/14/2016. Release of Transcript Restriction set for 1/10/2017. (rf, ) (Entered: 10/13/2016)
69 TRANSCRIPT of Preliminary Injunction held on 8/22/16, before Judge SMITH. Court Reporter/Transcriber VERITEXT NATIONAL COURT REPORTING COMPANY. 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.. Redaction Request due 11/2/2016. Redacted Transcript Deadline set for 11/14/2016. Release of Transcript Restriction set for 1/10/2017. (rf, ) (Entered: 10/13/2016)
70 TRANSCRIPT of Preliminary Injunction Hearing held on 8/22/16, before Judge SMITH. Court Reporter/Transcriber VERITEXT NATIONAL COURT REPORTING COMPANY. 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.. Redaction Request due 11/2/2016. Redacted Transcript Deadline set for 11/14/2016. Release of Transcript Restriction set for 1/10/2017. (rf, ) (Entered: 10/13/2016)
71 TRANSCRIPT of Preliminary Injunction held on 8/22/16, before Judge SMITH. Court Reporter/Transcriber SMITH. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of

Case: 5:16-cv-3881 As of: 11/02/2017 11:11 AM EDT 12 of 15

10/12/2016 10/14/2016 11/14/2016 11/21/2016 11/21/2016 11/23/2016 11/28/2016 11/29/2016 11/29/2016
12/02/2016

Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 11/2/2016. Redacted Transcript Deadline set for 11/14/2016. Release of Transcript Restriction set for 1/10/2017. (rf, ) (Entered: 10/13/2016)
72 Notice of Filing of Official Transcript with Certificate of Service re 65 Transcript − PDF, 64 Transcript − PDF, 61 Transcript − PDF,, 63 Transcript − PDF, 60 Transcript − PDF, 62 Transcript − PDF, 59 Transcript − PDF,, 71 Transcript − PDF, 69 Transcript − PDF,, 66 Transcript − PDF, 67 Transcript − PDF, 70 Transcript − PDF,, 68 Transcript − PDF, 10/12/16 Entered and Copies Emailed and Mailed.. (rf, ) (Entered: 10/13/2016)
73 ORDER THAT THE PLAINTIFFS' EMERGENCY MOTION (DOC. NO. 42) IS DENIED WITHOUT PREJUDICE TO REFILING AFTER THE THIRD CIRCUIT HAS CONCLUDED ITS REVIEW OF THIS MATTER. SIGNED BY HONORABLE EDWARD G. SMITH ON 10/14/16.10/14/16 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 10/14/2016)
74 AMENDED ANSWER to 1 Complaint, with Affirmative Defenses by THE SCHOOL DISTRICT OF LANCASTER.(O'DONNELL, SHARON) (Entered: 11/14/2016)
75 ORDER THAT ALL DISCOVERY ISSUES IN THIS MATTER ARE REFERRED TO UNITED STATES MAGISTRATE JUDGE MARILYN HEFFLEY FOR RESOLUTION. SIGNED BY HONORABLE EDWARD G. SMITH ON 11/21/16. 11/21/16 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 11/21/2016)
76 Memorandum Of Law In Opposition re 21 MOTION to Dismiss (Partial Dismissal) filed by ALEMBE DUNIA, ANYEMU DUNIA, KHADIDJA ISSA, Q.M.H., SUI HNEM SUNG, V.N.L.. (MULLEN, KATHLEEN) (Entered: 11/21/2016)
77 REPLY to Response to Motion re 21 MOTION to Dismiss (Partial Dismissal) filed by THE SCHOOL DISTRICT OF LANCASTER. (O'DONNELL, SHARON) (Entered: 11/23/2016)
78 ORDER THAT THE COURT WILL HOLD ORAL ARGUMENT ON THE DEFENDANTS MOTION TO DISMISS ON DECEMBER 21, 2016, AT 9:30 A.M. AT THE HOLMES BUILDING, 101 LARRY HOLMES DRIVE, 4TH FLOOR, EASTON, PENNSYLVANIA. SIGNED BY HONORABLE EDWARD G. SMITH ON 11/28/16. 11/28/16 ENTERED AND COPIES E−MAILED.(mas, ) (Entered: 11/28/2016)
79 MOTION to Amend/Correct 57 Order,, filed by ALEMBE DUNIA, ANYEMU DUNIA, KHADIDJA ISSA, Q.M.H., SUI HNEM SUNG, V.N.L..Memorandum of Law in Support, Certificate of Service.(MULLEN, KATHLEEN) (Entered: 11/29/2016)
80 ORDER THAT PLAINTIFFS REQUEST THAT THE COURT REQUIRE DEFENDANT TO RESPOND TO PLAINTIFFS 10.3.16 INTERROGATORY NO. 5, INCLUDING SUBPARTS (a) THROUGH (c) IS GRANTED. DEFENDANTS OBJECTION THAT "THE INFORMATION SOUGHT IN PLAINTIFFS INTERROGATORY NO. 5 IS AN INAPPROPRIATE INQUIRY FOR INFORMATION UNDER RULE 23(a)(b)" SHALL NOT BE RELIED UPON AS THE BASIS FOR REFUSAL TO ANSWER THE INTERROGATORY. DEFENDANT SHALL PROVIDE PLAINTIFFS WITH SUPPLEMENTAL RESPONSES TO PLAINTIFFS 10/3/16 INTERROGATORY NO. 5 ON OR BEFORE 12/5/16. PLAINTIFFS, REQUEST THAT THE COURT REQUIRE DEFENDANT TO RESPOND TO PLAINTIFFS 10/3/16 DOCUMENT PRODUCTION REQUEST IS GRANTED. DEFENDANT SHALL RESPOND TO PLAINTIFFS 10/3/16 DOCUMENT PRODUCTION REQUEST ON OR BEFORE 12/5/16. SIGNED BY MAGISTRATE JUDGE MARILYN HEFFLEY ON 11/29/16. 11/29/16 ENTERED AND COPIES EMAILED.(rf, ) (Entered: 11/29/2016)
81 ORDER THAT THE COURT WILL HOLD A TELEPHONE CONFERENCE TO DISCUSS THE MOTION ON TUESDAY, DECEMBER 6, 2016 AT 2:00 P.M., ETC. SIGNED BY HONORABLE EDWARD G. SMITH ON 12/2/16. 12/2/16 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 12/02/2016)

Case: 5:16-cv-3881 As of: 11/02/2017 11:11 AM EDT 13 of 15

12/05/2016 12/06/2016 12/06/2016
12/06/2016 12/06/2016 12/20/2016 12/21/2016
01/19/2017 01/20/2017 02/08/2017

82 RESPONSE in Opposition re 79 MOTION to Amend/Correct 57 Order,, filed by THE SCHOOL DISTRICT OF LANCASTER. (Attachments: # 1 Text of Proposed Order)(O'DONNELL, SHARON) (Entered: 12/05/2016)
83 Minute Entry for proceedings held before HONORABLE EDWARD G. SMITH: Telephone Conference held on 12/6/16. Court Reporter: None. (er, ) (Entered: 12/06/2016)
84 ORDER THAT THE MOTION TO AMEND THE CLASS CERTIFICATION SCHEDULING ORDER (DOC. NO. 79), IS GRANTED. THE SCHEDULING ORDER REGARDING CLASS CERTIFICATION DISCOVERY (DOC. NO. 57) IS HEREBY AMENDED AS FOLLOWS: THE PARTIES SHALL COMPLETE ALL DISCOVERY RELATED TO CLASS CERTIFICATION BY FEBRUARY 10, 2017. THE PLAINTIFFS SHALL FILE AN AMENDED MOTION FOR CLASS CERTIFICATION BY FEBRUARY 17, 2017, ETC. THE COURT WILL HOLD A HEARING ON THE PLAINTIFFS' AMENDED MOTION FOR CLASS CERTIFICATION AND ORAL ARGUMENT ON THE DEFENDANT'S MOTION TO DISMISS ON MARCH 2, 2017, AT 10:00 A.M. AT THE HOLMES BUILDING, 101 LARRY HOLMES DRIVE, 4TH FLOOR, EASTON, PENNSYLVANIA. SIGNED BY HONORABLE EDWARD G. SMITH ON 12/6/16. 12/6/16 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 12/06/2016)
DISCOVERY DUE BY 2/10/2017. MOTIONS DUE BY 2/17/2017. (er, ) (Entered: 12/06/2016)
Set/Reset Deadlines as to 21 MOTION to Dismiss (Partial Dismissal). MOTION HEARING SET FOR 3/2/2017 10:00 AM IN COURTROOM BEFORE HONORABLE EDWARD G. SMITH. (er, ) (Entered: 12/06/2016)
85 ORDER THAT DEFENDANT SHALL HAVE UNTIL 1/6/17 TO PROVIDE COMPLETE RESPONSES TO PLAINTIFFS OUTSTANDING INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS AS IDENTIFIED IN MS. MCINERNEY'S 12/13/16 LETTER. SIGNED BY MAGISTRATE JUDGE MARILYN HEFFLEY ON 12/20/16. 12/20/16 ENTERED AND COPIES EMAILED.(rf, ) (Entered: 12/20/2016)
86 ORDER THAT IT IS UNCLEAR FROM THE PARTIES SUBMISSIONS THAT DEFENDANT INTENTIONALLY DISCLOSED CONFIDENTIAL SETTLEMENT COMMUNICATIONS. THE PARTIES, HOWEVER, ARE ADMONISHED THAT COMPLIANCE WITH E.D.PA.R.53.3(3) REGARDING THE CONFIDENTIALITY OF ALTERNATIVE DISPUTE RESOLUTION ("ADR") COMMUNICATION IS MANDATORY. SPECIFICALLY, E.D.PA.R.53.3(3) REQUIRES THAT ADR PROCESSES, INCLUDING SETTLEMENT CONFERENCES, "SHALL BE CONFIDENTIAL, AND DISCLOSURE BY ANY PERSON OF CONFIDENTIAL DISPUTE RESOLUTION COMMUNICATIONS IS PROHIBITED UNLESS CONFIDENTIALITY HAS BEEN WAVED BY ALL PARTICIPANTS IN THE ADR PROCESS, OR DISCLOSURE IS ORDERED BY THE ASSIGNED JUDGE FOR GOOD CAUSE SHOWN" DEFENDANTS REQUEST FOR A RULE TO SHOW CAUSE PURSUANT TO FED.R.CIV.P.11(c)(3) IS DENIED. SIGNED BY MAGISTRATE JUDGE MARILYN HEFFLEY ON 12/21/16. 12/21/16 ENTERED AND COPIES EMAILED.(rf, ) (Entered: 12/21/2016)
87 STIPULATED Proposed Protective Order Regarding Discovery filed by ALEMBE DUNIA, ANYEMU DUNIA, KHADIDJA ISSA, Q.M.H., SUI HNEM SUNG, V.N.L.(MOON, KRISTINA) (FILED IN ERROR BY ATTY; COPY FORWARDED TO JUDGE FOR APPROVAL) Modified on 1/20/2017 (md). (Entered: 01/19/2017)
88 STIPULATED PROTECTIVE ORDER. SIGNED BY HONORABLE EDWARD G. SMITH ON 1/20/17. 1/20/17 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 01/20/2017)
89 MOTION to Continue 3/2/17 Argument to Court's Next Available Date filed by THE SCHOOL DISTRICT OF LANCASTER.Certificate of Service. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A, # 3 Exhibit B)(O'DONNELL, SHARON) (Entered: 02/08/2017)

Case: 5:16-cv-3881 As of: 11/02/2017 11:11 AM EDT 14 of 15

02/14/2017
02/14/2017 02/16/2017
02/21/2017 03/29/2017 04/07/2017 05/03/2017 05/10/2017
05/11/2017 05/23/2017 06/08/2017 06/13/2017 06/20/2017 06/28/2017

90 ORDER THAT THE HEARING SCHEDULED FOR MARCH 2, 2017 IS CANCELED AND THE DEADLINES IN THE COURT'S AMENDED CLASS CERTIFICATION SCHEDULING ORDER (DOC. NO. 84) ARE STAYED PENDING FURTHER ORDER OF THE COURT. SIGNED BY HONORABLE EDWARD G. SMITH ON 2/14/17. 2/14/17 ENTERED AND COPIES MAILED, E−MAILED.(er, ) (Entered: 02/14/2017)
91 ORDER SETTLEMENT CONFERENCE SET FOR 4/4/2017 09:30 AM. SIGNED BY MAGISTRATE JUDGE MARILYN HEFFLEY ON 2/14/17. 2/14/17 ENTERED AND COPIES E−MAILED.(rf, ) (Entered: 02/14/2017)
92 ORDER THAT THE MOTION TO DISMISS (DOC. NO. 21) IS DENIED WITHOUT PREJUDICE TO THE DEFENDANT RAISING ITS ARGUMENTS IN A MOTION FOR SUMMARY JUDGMENT. SIGNED BY HONORABLE EDWARD G. SMITH ON 2/16/17.2/16/17 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 02/16/2017)
93 ORDER of USCA THAT ORDER OF DISTRICT COURT ENTERED 8/26/16 BE AND THE SAME IS HEREBY AFFIRMED AND THE MATTER REMANDED FOR FURTHER PROCEEDINGS. COSTS TAXED AGAINST APPELLANT.(rf, ) (Entered: 02/21/2017)
94 ORDER THAT SETTLEMENT CONFERENCE SET FOR 4/4/17 IS RESCHEDULED TO 4/10/2017 AT 02:00 PM. SIGNED BY MAGISTRATE JUDGE MARILYN HEFFLEY ON 3/29/17. 3/29/17 ENTERED AND COPIES EMAILED.(rf, ) (Entered: 03/29/2017)
95 ORDER THAT SECOND SETTLEMENT CONFERENCE SET FOR 5/3/2017 09:30 AM. SIGNED BY MAGISTRATE JUDGE MARILYN HEFFLEY ON 4/7/17. 4/7/17 ENTERED AND COPIES EMAILED.(rf, ) (Entered: 04/07/2017)
96 Minute Entry for proceedings held before MAGISTRATE JUDGE MARILYN HEFFLEY Settlement Conference held on 5/3/17. (rf, ) (Entered: 05/03/2017)
97 ORDER THAT A TELEPHONE CONFERENCE HAS BEEN SCHEDULED FOR 5/12/2017 AT 10:30 AM BEFORE THE HONORABLE EDWARD G. SMITH. COUNSEL FOR THE PLAINTIFFS WILL INITIATE THE TELEPHONE CONFERENCE BY CONTACTING JUDGE SMITH'S CIVIL DEPUTY CLERK AT 610−333−1833 AFTER ALL PARTIES ARE PRESENT ON THE CALL. SIGNED BY HONORABLE EDWARD G. SMITH ON 5/10/17. 5/10/17 ENTERED AND E−MAILED.(sres, ) (Entered: 05/10/2017)
98 ORDER THAT THE TELEPHONE CONFERENCE CURRENTLY SCHEDULED FOR MAY 12, 2017, IS RESCHEDULED TO TUESDAY, MAY 23, 2017, AT 9:30 A.M., ETC. SIGNED BY HONORABLE EDWARD G. SMITH ON 5/11/17. 5/11/17 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 05/11/2017)
99 Minute Entry for proceedings held before HONORABLE EDWARD G. SMITH: Telephone Conference held on 5/23/17 Court Reporter: None. (er, ) (Entered: 05/23/2017)
100 ORDER THAT THE COURT WILL HOLD A TELEPHONE CONFERENCE ON TUESDAY, JUNE 13, 2017, AT 3:30 P.M., ETC. SIGNED BY HONORABLE EDWARD G. SMITH ON 6/8/17. 6/8/17 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 06/08/2017)
101 ORDER THAT THE TELEPHONE CONFERENCE CURRENTLY SCHEDULED FOR JUNE 13, 2017, IS RESCHEDULED TO FRIDAY, JUNE 16, 2017, AT 10:00 A.M., ETC. SIGNED BY HONORABLE EDWARD G. SMITH ON 6/13/17. 6/13/17 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 06/13/2017)
102 Minute Entry for proceedings held before HONORABLE EDWARD G. SMITH: Telephone Conference held on 6/16/17. Court Reporter: None. (er, ) (Entered: 06/20/2017)
103 Proposed Consent Decree by ALEMBE DUNIA, ANYEMU DUNIA, KHADIDJA ISSA, Q.M.H., SUI HNEM SUNG, V.N.L., with Stipulated Proposed Protective Order. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5

Case: 5:16-cv-3881 As of: 11/02/2017 11:11 AM EDT 15 of 15

06/29/2017 06/29/2017 07/05/2017

Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Attachment To Exhibit H)(MULLEN, KATHLEEN) (FILED IN ERROR BY ATTY; COPY FORWARDED TO JUDGE FOR APPROVAL) Modified on 6/29/2017 (md). (Entered: 06/28/2017)
104 CONSENT DECREE ORDER. SIGNED BY HONORABLE EDWARD G. SMITH ON 6/29/17. 6/30/17 ENTERED AND COPIES EMAILED.(rf, ) Modified on 6/30/2017 (rf, ). (Entered: 06/30/2017)
105 STIPULATED PROTECTIVE ORDER IN CONNECTION WITH CONSENT DECREE. SIGNED BY HONORABLE EDWARD G. SMITH ON 6/29/17. 6/30/17 ENTERED AND COPIES EMAILED.(rf, ) (Entered: 06/30/2017)
106 STIPULATION AND ORDER THAT BY CONSENT OF THE PARTIES IN THE ACTION, THROUGH THEIR RESPECTIVE COUNSEL, THAT THE ACTION BE HEREBY DEEMED RESOLVED BY THE PARTIES. THE CASE IS DISMISSED WITH PREJUDICE WITH REGARD TO ALL CLAIMS ASSERTED IN THE COMPLAINT; HOWEVER, THE COURT SHALL RETAIN JURISDICTION OF THIS CASE SOLELY FOR THE PURPOSE OF ENFORCING COMPLIANCE WITH THE CONSENT DECREE. THE PARTIES ARE BARRED FROM RELITIGATING ANY CLAIMS RAISED IN THIS LITIGATION OR ANY CLAIMS RELEASED BY MEANS OF THE CONSENT DECREE; ETC. AS HEREIN. SIGNED BY HONORABLE EDWARD G. SMITH ON 6/28/17. 7/6/17 ENTERED AND COPIES E−MAILED.(mas, ) (Entered: 07/06/2017)