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 OT HERS 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, 20162 Before: FISHER, KRAUSE and MELLOY, * Circuit Judges

.

(Filed: January 30, 2017 )

Sharon M. O’ Donnell Marshall Dennehey Warner Coleman & Goggin 100 Corporate Center Dr ive, 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
Phil adelphia, PA 1012

Seth Kreimer University of Pennsy lvania School of Law
3400 Chestnut Street Philadelphi a, 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 118 1
Suite 200
Harrisbur g, 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. Wal czak [ ARGUED ]
American Civil Liberties Un ion of Pennsylvania
313 Atwood Street Pittsburgh, PA 15213 Counsel for Appellee s

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
Counse l for Amicus Appellee4 ______

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 Ac ademy, 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 violat ions of Pennsylvania law and a provision of a federal s tatute 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 o n the
EEOA v iolations but not on the state law violations.

I

A
The named plaintiffs, now the appellee s, 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. Internatio nal refugee agencies resettled them in Lancaster, Pennsylvania. None are native English speaker s . As students, all fall within a subgroup of ELLs called SLIFE

— students with limited or interrupted formal education. SLIFE are English language
learners who ar e 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 plainti ffs embody these traits.
Born in January 1998, Khadidja Issa, 19, fle d 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 schoolin g. 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 could n’ t speak, read, write, or understand any English. She’s eligible to attend publ ic school in Pennsylvania through 2019, the year she turns 21. 1

Qasin Hassan (or Q. M. H.), 18, was born in Somalia in Sept ember 1998. When he was 12, a l

- Shabaab militants killed his father. He fled to Egypt. A native Somali speaker, he took private lesson s at home and learned “a li ttle bit” of Arabic, but he wasn’t accept ed 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 i n 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 a ge 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 ter m. ” 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 S isters 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 La ncaster 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 2 1, 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. 6 15

– 16, 618. Native Swahili speakers, they were taught in Portuguese until the eighth or ninth grade when they could no longer afford schooling. With7 their family, they arrived in Lancaster in November 2014 speaking “just basic” English, like “hello” and “h i.” 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 Ac ademy, operated by Camelot School s

2 A fter the preliminary injunction issued, Alembe and Anyemu Dunia decided they no longer wished to at tend 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 e ducation at community college.” Appellees’ Resp. to Stay Mot. 4 n.2. Though the complaint’s request for “supple mental 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 edu cation”

w ithin the School District. Appellees’ Resp. to Stay Mot. 4
n.2. T heir 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)). O n remand

, the District Court should dismiss them

as such . Nevertheless, be cause 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 McCa skey 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 whi ch 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 com parable English

- proficiency levels. ELLs are hence “sheltered” in those classes from other ELLs at higher pro ficiency levels
and from native Eng lish speakers. To foster English

- language proficiency, the International School also introduces ELLs to
new Amer ican “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 pr ogram for each student whose dominant language is not English for the purpose of facilita ting the student’ s achievement of English proficiency and the academic
standards ” of 22 Pa. Code § 4.12. Programs “ shall include appropriate bilingual

- bicultural or En glish 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
S tudents” over

- age for their grade, under

- credit ed , and in danger of not graduating high school be fore 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
si gnificant 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 chang e students’ “anti

- social”
behavior s , 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. A ll 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 4 8

- minute classes per day, generally completing each class in a full academic year (180 days).
Under these different schedules, McCaskey students receive10 about 1,440 more minutes, or twenty

- four more hours, of instruction per class than do students at Phoen ix, 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
differ s fr om 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 gene ral 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 eva luate the efficacy of Phoenix’s ESL program? It do es n’t. T he School District does not assess in any measurable way whether Phoenix’s program helps ELLs overcome their language
barriers. It ha s n’ t attempted to weigh concretely the impact Phoenix’s accelerat ed, 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 differe nt 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 off

ered to students and their families. But

one g roup of prospective students isn’ t offered that choice:11 new

- to

- the

- District students over age 17 and under

- credit ed

. For students in that category (which included the plaintiffs),
the choice is made for them: T he School District unilaterally

a ssigns them to Phoenix and doesn’ t allo w 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 say s , 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 futur e 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 enrol lment at Phoenix hasn’t been a smooth

process for the se plaintiffs. While the S chool 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 : I n “ 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 S ung were not permitted to start at Phoenix until December 2015 and February 2016, though t hey
enrolled in November 2015. Issa en rolled in November 2015 but wasn’ t allowed to start at Phoenix until February 2016. Hassan was initially denied enrollment outri ght. 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, desp ite12 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
“c ommon complaint” was that they didn’ t understand the

“ vast majority ” of c ontent taught in their non

- ESL classes.
Issa , 2016 WL 4493202, at *3. The plaintiffs all testified

— through interpreter s

— that Phoenix’s accelerated curriculum moved too quickly for them to grasp. Apart from their Phoenix ESL courses, the plaintiffs explaine d, 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 s he 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 o nly in English, which she couldn’ t understand. Nevertheless, she was promoted to the next grade. O f eighty

- four students in her class, she was
ranked fi rst.

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.

T hrough 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 six teen months.
He did so al though 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 dif

ficulties 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 E astern District of Penn sylvania 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 Fourteen th 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’ prel iminary

- 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 likely14 violations of the EEOA and state l aw. Issa , 2016 WL 4493202; see Order, 2 016 WL 4493201. 4 On the plaintiffs’
EEOA claim s , the District C ourt 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 mat ter, the
school dis trict 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 ad equate 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 sta ndards, and interpretation and translation services, as required by law, to enable the plaintiffs and their parents to

4 T he District Court found it “unnecessary ” to address the plaintiffs’ “ Tit le VI and constitutional claims ” b ecause relief granted on the EEOA and state law claims was “sufficient to resolve” the p reliminary

- injunction motion.
Issa , 2016 WL 4493202, at *4. That conclusion is unchallenged on appeal.15 meaningfully part icipate in education decisions;

3. Ensure that the plaintiffs have equal access to the full range of educational opportu nities provided to their peers, including curricular
and non

- curricul ar programs and activities;
and

4. The plaintiffs shall post a n ominal 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 Di strict 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

—

ex cluding 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 support ing 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 preli minary

injunction order, findings of fact are assessed for clear error, legal conclusions are reviewed de novo , and the ultimate decision to grant relief is re vi ewed for abuse of discretion. Del. Strong Families v. Attorney Gen. of Del. , 793 F.3d 304, 308 (3d Cir. 2015)

. A finding of fact i s 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). A n a buse o f discretion occurs only if the decision reviewed rests upon a clearly

erroneou s 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, w e turn to the legal standards for the issuance of a preliminary injunc tion.

II I
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 merit s 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 a17 “certainty ” she’ll win. Highmark, Inc. v. UPMC Health Plan,
Inc. , 276 F.3d 1 60, 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 mar ks 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 provi sion we’ ve never addressed and that the Supreme Court and our fellow Courts of Appeals have infrequently applied. W e start where we always do when interpreting a statute: with its text. Passed in 1974 as a floor amendment to the Elementary and Secondary Ed ucation 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 appropriat e 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 part ies, and for such relief, as may be18 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 (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
elemen ts: (1) the defendant must be an educational agency

, (2) the plaintiff must face language barriers impeding her equal participati on 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 est ablished 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 nationa l 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 do es not quibble with the District Court’s conclusion that it is an “ educat ional

agency ” under § § 1703(f) and 1720(a)

. S ee Issa , 2016 WL 4493202, at *1 & n.1 . We see no reason to dis turb that conclusion on appeal, as the EEOA expressly contemplates “local educational agencies,” like the School District, in defining an “ educationa l 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 on ly 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 D istrict 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 insignific ant ” (in ternal 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. A ll testified through interpreter s 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 Dis trict’s inst ructional

programs, satisf

ying § 1703(f)’s second element. See Issa

, 2016 WL 4493202, at *7 n.5 (stating that the parties “ do not dispute ” the pl aintiffs’ language barriers and crediting the plaintiffs’ testimony that “thei r participation was impeded”).

Be cause elements one and two of § 1703(f) ’s prima
facie case are met, we move to § 1703(f)’s more difficult
third and fourth element s

. 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 Cong ress 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

prog ram, 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. B ecause 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 on e 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 A l exander 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 spe aking 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 distric t, 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 choos e 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. Accordingl y, 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 “delibe rately 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,

co nfronted 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 branch es 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 th e 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 knowled ge of educators.” Id. That “mode of ana lysis

, ” 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 co urse, 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 le gitimate 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 e ffectively

- implemented

program fails to “ produce results ” indicating that language
barriers are “actually being overcome,” it may “no l onger 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 school24 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. , 6 18 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), 5 57 U.S. at 440

– 41, 454

– 55, though it did not adopt the Fifth Circu it’s test explicitly, i d. at 458 n.8 (expressing no view on “whether or not this test provides much concrete gui dance regarding the meaning of ‘appropriate action’”). Given these de cisions a nd 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.

Ap plying Castaneda here to resolve whether the School District took “appropriate action” to overcome the plaintiffs’ language barriers under § 1703(f), we agree with25 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 proba bility of success. Their expert, Dr. Marshall, testified consistently and at length that Phoenix’s accelerated, non

- sheltered program
for ELLs is un sound for SLIFE (again, students with limited or interrupted formal education )

. The plaintiffs and two
forme r Phoenix teachers corroborated her testimony . T he
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 actuall y 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 . A ll three prongs must be met for an educational agency’s
program to satisfy § 1703(f) ’s “appropriate action” element

. S ee Castaneda , 648 F.2d at 1009

– 10. While we thank the
United States as amicus curiae for its t houghtful analysis of
Castaneda ’ s second prong , g iven 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 SLIF E 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. Mars hall opined that
Ph oenix’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. S he was unaware of any contrary res earch , 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 wa ys in order for them to learn it, and not to go at double time .” I d. (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 abou t accelerating.”). No evidence was presented that an27 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
Intern ational School, are “needed” for SLIFE, J.A. 661

– 63, 667, and that Phoenix’s commingling of SLIFE wi th 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 tail ored to them.”); J.A. 669 (“[W]hen [SLIFE are] in their content

c lasses 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 mate rial.”). Here too, n o evidence was adduced that accelerated, unsheltered instruction is accepted as sound educational theory for SLIFE. T he plaintiffs’ own testimony, cited extensively above, confirmed their great difficulty in understanding their accelera ted , 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

- shelter ed 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 m aster th e material”; and that in her experience, Phoenix’s program28 “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 f

or enter ing students” because it’ s not “accelerated” and gives ELLs “sheltered [instructi on] 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
understan d 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” techniq ue is a sound theory generally for overcoming language barriers, but nothing persuasive to the c ourt to contradict Dr. Marshall’ s testimony that this technique was not recognized as sound for an accelerated,
credit

- recovery program. The Phoenix model of

ac celerated 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 point s 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 say s 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 say s 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 4 4.
But when we consider the record en bloc , these alleged
b lemishes 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. T he evidence shows that the School District doesn’ t keep separate data on the30 eff icacy of Phoenix’s ES L program . This render ed 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 , un challenged on appeal, that
[u]ndisputed testimony offered in court shows
that the District does not evaluate whether the “language barriers confronting students are
actual ly 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 t o 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 me asure of “overcoming language ba rriers”

— was far worse than McCaskey’s.

Issa , 2016 WL 4493202, at *6. T he 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 S chool District argues Phoenix’s ESL
instruction “is and continues to be successful.” Appellant’s
Br. 44 . To bolster that point

, it note s that one named plaintiff,31 Anyemu Dunia, graduated fro m Phoenix and read an essay aloud in court, while “man y” other unspecified ELLs have gone on to college after graduating Phoenix. Id. (citing J.A. 627). T hough he could read an essay aloud in court , the
Distri ct Court found that Anyemu had “ readily apparen t diff iculties 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 suffi cient 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 co nclusion 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 arg ument therefore fail s to show
clear error.

We also find unavailing the Scho ol District’s
contention , in its papers and at oral argument, that a n 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 gradu ating from Phoenix’s accelerated , non

- sheltered program and ELLs actually overcoming their language
barriers there

. On the contrary, there is ample evidence support ing 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. W e therefore conclude that32 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 pro ng.

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 1 703(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.

T he 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 Co urt 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, colo r, sex, or national origin, by

— (a) the deliberate segregation by an educational agency of students on the basis of race, color, or national o rigin among or within schools;33 (b) the failure of an educational agency which has formerly practiced such deliberate segregation to take aff irmative steps, consistent with part 4 of this subchapter, to
remove the ves tiges 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 schoo l 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 pur poses 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; or34 (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.

T he School District suggests § 1703’s preamble requires the plaintiffs to prove it failed to take appropriate
action to overcome their language barriers on acc ount of their national origin s under § 1703(f). T he School District interpret s “on account of” to require a showing of intentional
discrimination , contending there’s insufficient evidence the plaintiffs’ national origins “motiv ated their placement at
Phoen ix. ” 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

- protecte d characteristic. Congress expressly included the word “discrimination” in §

8 T he 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 t herefore 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 “pur pose[ful]” conduct

, but merely required proof of a “fail [ure] ” to take appropriate action under § 1703(f)

. See id.
W here 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’ languag e 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 require ment under it to prove disc rimination of any kind , including, for example, disparate impact discrimination

. 9 This reading

9 T he School District’ s argument is premised on the notion that “on account of” in § 1703’s pream ble n ot 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

gen eral prohibition on the denial of equal educational opport unity “on account of” a protected characteristic
violated per se “by” the state acting or failing to act in
accordance with subsections (a) through (f)

. E ach subsection36 thus creates a separate cause of action for the denial of equal
education al opportunity on accoun t of an EEOA

- protected characteristic, and no ne requires proof that the state ’s action
or inaction was itself “on account of” such a characteristic.
The School District’ s reading also fai ls 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)

, 170 3(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 co nvey a different meaning. See Sosa v. Alvarez

- Machain , 5 42 U.S. 692, 711 n.9 (2004); William A. Graham Co. v. Ha ughey , 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 Eng lish to students who

gre w 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, i t would render portions of § 1703(a), (c)

, and (d) supe rfluous by requirin g a plaintiff to prove that the “segregation” or “discrimination”
these s ubsections 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 C o. , 513 U.S. 561, 574 (1995); Zimmerman v. Norfolk S. Corp. , 7 06 F.3d 170, 185 (3d Cir. 2013). S econd, it would render § 1703(b) and (e) nonsensical by requiring a plaintiff to establish both
that the state failed to affirmatively remediate the disparate
i mpact of past discrimination on the basis of r ace, color, or national origin and that the failure itself was “ on account of

. . . r ace, 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 §
1 703(f) ’s case , the language barr ier 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 remedi al scheme

, like the Individuals

w ith Disa bilities Educati on Act, 20 U.S.C. § 1400 et seq. Applying this reading h ere, we conclude the record fully supports that the plaintiffs’ language barriers, and hence the ir

10 The School District says the Eight h Circuit’s 2010
decision in Mumid v. Abraham Lincoln High School

, 618 F.3d 789, controls this issue. It doe sn’t. Specifically, the School District points to Mumid ’s statement that a “ policy that treats students with limited Englis h proficiency differently than other students . . . does not facially discriminate based on national origin.” Id. at 795 . The School
District omit s , however, that the Eight h Circuit said that in
address ing 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 w ould “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 7 95

– 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 § 1 703 (f) ’s fourth
element

, as they were denied equal educational opportunity “on account of” a n EEOA

- protected characteristic: their national origin s

. Given the plaintiffs ’ successful showings under all four of § 1703(f)’s elements, we agree with the
Distric t 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 Pe nnsylvania, every child who hasn’ t graduated from high school “may att end” 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. Co de § 11.11(d). A
school district “ shall normally enroll a child the next business day, but no later than [within] 5 business days of appli cation.”
Id. § 11.11(b). The District Court concluded the plaintiffs
showed likel y violations of these state laws because n one was

enro lled within five day s 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 erred40 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. §§ 1 706, 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 re medies

. 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 twent y

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.41 remedy enrollment delays or denials in cour t 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. Ki skaddon , 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 W

itthoeft , 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. C ode § 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 pare nt, 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 reco rds 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 Pennsylvan ia’s Health Care Act). Here, to the extent Pennsylvania decisions can be read to support a n implied private cause of action

, they suggest that exhaustion of administrative remedies may be required in the first instance. See Velazquez ex rel. Speaks

- Velazqu ez 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 a n implied private cause of action
for equitable relie f stemming from the Pennsylvania statute and regulations in issue

. The District Court thus implicitly

assum ed such a private cause of action and remedy may be so inferred without exhaustion of administrative remedies

. Without any briefing on these issue s

— which appear to
be matter s of first imp ression 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. Marti n , 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 plain tiffs 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 plain tiffs are likely to prevail on their state law claims.

We note, however, that n othing about the District
Court’s preliminary

- injunction order relies specifically on a
conclusion that the plaintiffs proved likely violations of43 Pennsylvania law. Thus, we nee d not vacate any part of it on that ground. And even wi thout 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 elemen t they must prove t o justify one

— irreparable harm.

B
A plaintiff seeking a preliminary injuncti on 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 hav e remained in Phoenix’s accelerated, non

- sheltered program for at least the duration of this litigation . The pl aintiffs 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 t hese plaintiffs, all SLIFE, must overcome uniquely difficult challenges to learni ng. 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 “ c hange the trajectory of a child’s life,” G.L. v. Ligonier Valley School District Authority , 802 F.3d 601, 625 (3d Cir. 2015), while e ven 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 omit ted); cf. Plyler v.
Doe , 457 U.S. 202, 221 (1982) (noting the “lasting impact of [education’s] deprivation on the life of the child”). In44 accordance with this injunction, moreover, four named plaintiffs now attend McCaskey, where they say they’re “flourish ing.” Appellees’ Br. 45 n.11. J ockey ing them back to
Phoenix now would thus cause them greater harm, as the
School District conceded during oral argument. Given these factors, w e are satisfied the plaintiffs showed a likelihood of irreparable harm absent t his injunction.

C

W e must now balance the parties’ relative harm s ; 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

- Me rck
Consumer Pharm. Co. , 290 F.3d 578, 596 (3d Cir. 2002).

W e 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 p ractices” that violate § 1703(f) of the
EEOA. Issa , 2016 WL 4493202, at *8. T he 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
Distr ict’s contention that Phoenix is where the p laintiffs “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 School45 District’s own representations, we know only eight students transferred from Phoenix to McCaskey after th e 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 70 0, 730 (3d Cir. 2004). I f 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 . P reliminary

r elief 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
i rreparable harm without relief, the balance of harms favors them, and re lief is in the public interest, we hold the District46 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 T hough we will affirm this preliminary

- injunction
order , we recognize that significant administrative and budgetary implicatio ns may arise when a federal court orders
the transfer of students across a school district . We note the
Schoo l 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 claim s

. See Horne , 557 U.S. at 454 ( stating that the EEOA

, “ while requir ing a State to take

‘ appropriate action to overcome language barriers ,’” leaves

s tate and local educational authorities a “‘ substantial amount of latitude in choos ing’ how this obligation is met ” (quoting
Castaneda

, 648 F.2d at 1009 ) ).