PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 16-3528

______

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

______

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

______

Argued December 5, 2016
2

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

(Filed: January 30, 2017)

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

 

* Honorable Michael J. Melloy, Senior Circuit Judge, 

United States Court of Appeals for the Eighth Circuit, sitting 

by designation.
3

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
4

______

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, 
5

have limited or interrupted formal educational backgrounds, 

and have endured stressful experiences causing acculturation 

challenges. The named plaintiffs embody these traits.

Born in January 1998, Khadidja Issa, 19, fled Sudan 

when she was 5 to escape “insecurity” under President Omar 

al-Bashir. J.A. 568–69, 980. Until age 17, she lived in refugee 

camps in Chad where she received her only prior schooling. 

Her native language is Fur. She also speaks Arabic. After 

immigrating here in October 2015, she was resettled with her 

family in Lancaster. When she first arrived, she couldn’t 

speak, read, write, or understand any English. She’s eligible 

to attend public school in Pennsylvania through 2019, the 

year she turns 21.1

Qasin Hassan (or Q. M. H.), 18, was born in Somalia 

in September 1998. When he was 12, al-Shabaab militants 

killed his father. He fled to Egypt. A native Somali speaker, 

he took private lessons at home and learned “a little bit” of 

Arabic, but he wasn’t accepted into Egyptian schools. J.A. 

575. He arrived in Lancaster with his family in September 

2015 speaking only “a few words” of English. Id. Like Issa, 

he’s eligible to attend public school in Pennsylvania through 

2019, the year he turns 21.

 

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). 
6

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 
7

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

 

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, 136 S. Ct. 663, 669 (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.
8

of Pennsylvania, LLC, a private, for-profit company under 

contract with the School District. 

McCaskey High School consists of two smaller 

schools. One is J.P. McCaskey, a traditional public high 

school. The other is McCaskey East, known as the 

International School. The International School is a program 

designed primarily to teach language skills to students who 

speak little, if any, English.3 Those students generally attend 

the International School for one year, after which they join 

J.P. McCaskey’s general population. During that year, they 

receive “intensive ESL” (English as a second language) 

support through two 48-minute ESL courses per day. J.A. 

901, 1071. For “content” classes—science, math, social 

studies, and other “enrichment subjects”—ELLs at the 

International School receive “content-based ESL” teaching 

through a method called “sheltered instruction.” J.A. 901. 

Under that method, ELLs, including SLIFE, are grouped 

together in content courses with other ELLs at comparable

English-proficiency levels. ELLs are hence “sheltered” in 

those classes from other ELLs at higher proficiency levels 

and from native English speakers. To foster English-language 

proficiency, the International School also introduces ELLs to 

new American “cultural values and beliefs” while respecting 

their “cultural diversity” and embraces “close communication 

 

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.
9

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 fouryear 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 
10

about 1,440 more minutes, or twenty-four more hours, of 

instruction per class than do students at Phoenix, the 

equivalent of about thirty more 48-minute class periods per 

class. The upshot is, as one former Phoenix teacher put it, that 

Phoenix’s curriculum must be taught “double time.” J.A. 632.

Phoenix’s program for teaching English to ELLs also 

differs from the International School’s. Phoenix offers ELLs

of all levels, with no special accommodations for SLIFE, one 

80-minute ESL course per day. Otherwise, ELLs, including 

SLIFE, take all their content courses—science, math, social 

studies—with Phoenix’s general population under the 

accelerated model. In those content classes, ELLs aren’t 

sheltered from each other by their English proficiency or from 

native English speakers like they are at the International 

School.

How does the School District empirically evaluate the 

efficacy of Phoenix’s ESL program? It doesn’t. The School 

District does not assess in any measurable way whether 

Phoenix’s program helps ELLs overcome their language 

barriers. It hasn’t attempted to weigh concretely the impact 

Phoenix’s accelerated, non-sheltered program has on ELLs, 

including SLIFE. Raw data about Phoenix’s ESL program 

apparently exists. But the School District doesn’t

disaggregate it from data about the International School’s 

ESL program. Because the two programs rely on different 

ESL teaching methods, commingling the data means the 

School District cannot quantify whether Phoenix’s ESL 

program is successful.

The School District’s Enrollment Policies and Practices

Enrollment in Phoenix rather than McCaskey is 

usually a choice offered to students and their families. But 

one group of prospective students isn’t offered that choice: 
11

new-to-the-District students over age 17 and under-credited. 

For students in that category (which included the plaintiffs), 

the choice is made for them: The School District unilaterally

assigns them to Phoenix and doesn’t allow them to transfer to 

McCaskey. This mandatory enrollment rule applies regardless

of a student’s English proficiency or educational background

and even if the student has several years of public school 

eligibility left under Pennsylvania law. The School District 

does this, it says, because these students represent a higher 

risk of dropping out or aging out at age 21 before earning a 

high school diploma, which is a prerequisite for future 

advancement. But the School District’s funding and 

evaluations also turn, in part, on its graduation rates, which 

decline when students drop out or age out at 21.

Actual enrollment at Phoenix hasn’t been a smooth 

process for these plaintiffs. While the School District 

unilaterally assigned them to Phoenix under the mandatory 

enrollment rule, their actual placement there proved far more 

difficult. They experienced significant delays between when 

they applied for enrollment and when they were either 

allowed to attend Phoenix or denied enrollment outright. The 

District Court said it well: In “no case” did the School District 

“accomplish the enrollment of the plaintiffs within the fiveday 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
12

his “repeated attempts to enroll dating back to at least January 

2015.” Id.

How Attending Phoenix Affected the Plaintiffs

For those plaintiffs ultimately admitted to Phoenix, a 

“common complaint” was that they didn’t understand the 

“vast majority” of content taught in their non-ESL classes.

Issa, 2016 WL 4493202, at *3. The plaintiffs all testified—

through interpreters—that Phoenix’s accelerated curriculum 

moved too quickly for them to grasp. Apart from their 

Phoenix ESL courses, the plaintiffs explained, they couldn’t 

understand most of what their teachers and classmates were 

saying. Despite these difficulties, they accrued credits and 

advanced to higher grade levels. 

Through her interpreter, Issa testified that Phoenix’s 

classes went “very fast” and she didn’t “understand 

anything.” J.A. 572–73. She felt she wasn’t “benefiting” there 

and wanted to attend a school “slower in pace.” J.A. 573. 

When asked, she couldn’t explain what two of her classes 

were about. In those classes, she said, her teachers and

classmates spoke and wrote only in English, which she 

couldn’t understand. Nevertheless, she was promoted to the 

next grade. Of eighty-four students in her class, she was 

ranked first.

Hassan testified through his interpreter that learning at 

Phoenix was “impossible” and he only understood his ESL 

teacher. J.A. 580. He couldn’t understand his content-class 

teachers or classmates. 

Through their interpreter, Iang and Sung explained

they too had great difficulty understanding their content 

classes at Phoenix because they were all taught in English. 
13

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 fiveday 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 
14

violations of the EEOA and state law. Issa, 2016 WL 

4493202; see Order, 2016 WL 4493201.4 On the plaintiffs’

EEOA claims, the District Court held that the School District 

failed on prongs one and three of the three-part test penned in

Castaneda v. Pickard, 648 F.2d 989, 1009–10 (5th Cir. 1981), 

a case we discuss in detail below. On their state law claims, 

the District Court found likely violations of the Public School 

Code and regulations in light of the School District’s 

enrollment delays. It entered the following order:

[P]ending final resolution of this matter, the 

school district shall:

1. Enroll and permit the school-age plaintiffs, 

who so wish, to attend the main high school, 

McCaskey, beginning on August 29, 2016;

2. Ensure that all plaintiffs are properly 

assessed for language proficiency and receive 

an appropriate and adequate program of 

language instruction, including assignment to 

the International School if appropriate, ESL 

instruction, modifications in the delivery of 

instruction and testing to facilitate their 

achievement of English proficiency and state 

academic standards, and interpretation and 

translation services, as required by law, to 

enable the plaintiffs and their parents to 

 

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.
15

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 preliminaryinjunction 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).
16

At the outset, we underscore the School District’s 

heavy burden on appeal. In reviewing a preliminaryinjunction 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.” 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 
17

“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. 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 
18

appropriate.”5Id. § 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 (2009) (quoting 20 U.S.C. § 1712). 

Based upon these provisions, we hold that an 

individual alleging a violation 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 

 

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 (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 (1982).
19

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).

 

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 (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)).
20

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 (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. Those

students filed suit, alleging violations of Title VI, which 

restricts federal funding for entities that discriminate based on 

race, color, or national origin. Id. at 565. Finding adequate 

proof of a Title VI violation, the Court stressed the 

importance of language instruction in American education.
21

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 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. 

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 (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.
22

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.
23

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 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 educational theory recognized 

as sound by some experts in the field or, at 

least, deemed a legitimate experimental 

strategy.

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 
24

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, 

though it did not adopt the Fifth Circuit’s test explicitly, id. at 

458 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 

plaintiffs’ language barriers under § 1703(f), we agree with 
25

the District Court: The School District foundered on 

Castaneda’s first and third prongs. We explain why below.7 

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 

 

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. 
26

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 

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 
27

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 higherlevel 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, 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 
28

“didn’t work” for newly arrived ELLs. Id. Phoenix’s leadESL 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). 
29

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 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 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 
30

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, 
31

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 

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 
32

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.

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, 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; 
33

(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 
34

(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 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 § 

 

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).
35

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 (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 This reading

 

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 
36

 

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 

(2004); William A. Graham Co. v. Haughey, 568 F.3d 425, 

435 (3d Cir. 2009). 
37

accords with the Supreme Court’s observation in Horne, 557 

U.S. at 472, that § 1703(f) requires educational agencies to 

“tak[e] ‘appropriate action’ to teach English to students who 

grew up speaking another language,” and with Lau’s 

“essential holding” that “schools are not free to ignore the 

 

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 (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; 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. 
38

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

 

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. 
39

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” 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 
40

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 

 

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 twentyone (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.
41

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, 733 

A.2d 623, 626 (Pa. 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., 934 A.2d 1184, 1188–

90 (Pa. 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 Motor Vehicle 

 

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.
42

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 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 
43

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 (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 (1982) (noting the “lasting impact of 

[education’s] deprivation on the life of the child”). In 
44

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 
45

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 “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.

* * *

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 
46

Court did not abuse its discretion in granting 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. 

 

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 (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)).