Issa v. Sch. Dist. of Lancaster

• Decision Date: 30 January 2017
• Docket Number: No. 16-3528,16-3528
• Citation: 847 F.3d 121
• Parties: 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
• Court: U.S. Court of Appeals — Third Circuit

847 F.3d 121

Khadidja ISSA; Q.M.H., a minor, individually by and through his parent, Faisa Ahmed Abdalla; Alembe Dunia; Anyemu Dunia; V.N.L.; Sui Hnem Sung, and All Others Similarly Situated

v.The SCHOOL DISTRICT OF LANCASTER, Appellant

No. 16-3528

United States Court of Appeals, Third Circuit.

Argued December 5, 2016

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, Kathleen A. Mullen, Thomas B. Schmidt, III, Pepper Hamilton, 100 Market Street, P.O. Box 1181, Suite 200, Harrisburg, PA 17108, Eric J. Rothschild, 217 Ryers Avenue, Philadelphia, PA 1012, Molly M. Tack-Hooper, American Civil Liberties Union of Pennsylvania, P.O. Box 60173, Philadelphia, PA 19106, Witold J. Walczak [ARGUED], American Civil Liberties Union of Pennsylvania, 313 Atwood Street Pittsburgh, PA 15213, Counsel for Appellees.

Tovah R. Calderon, Erin H. Flynn, United States Department of Justice, Civil Rights Division, Appellate Section, P.O. Box 14403, Ben Franklin Station, Washington, DC 20044, Counsel for Amicus Appellee.

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

OPINION OF THE COURT

FISHER, Circuit Judge.

School-age refugees facing language barriers asked the District Court for a preliminary injunction compelling the School District of Lancaster to allow them to transfer from Phoenix Academy, an accelerated credit-recovery high school, to McCaskey High School's International School, a program designed principally to teach language skills to English language learners, or ELLs. The District Court granted that request, finding likely violations of Pennsylvania law and a provision of a federal statute we've never addressed—the Equal Educational Opportunities Act of 1974 (EEOA), 20 U.S.C. § 1703(f). The School District appeals, asking us to vacate that order. We will affirm based on the EEOA violations but not on the state law violations.

I

A

The named plaintiffs, now the appellees, are immigrants, ages 18 to 21. They fled war, violence, and persecution in their native countries to come to the United States, arriving here since 2014. International refugee agencies resettled them in Lancaster, Pennsylvania. None are native English speakers. As students, all fall within a subgroup of ELLs called SLIFE—students with limited or interrupted formal education. SLIFE are English language learners who are two or more years behind their appropriate grade level, possess limited or no literacy in any language, have limited or interrupted formal educational backgrounds, and have endured stressful experiences causing acculturation challenges. The named plaintiffs embody these traits.

Born in January 1998, Khadidja Issa, 19, fled Sudan when she was 5 to escape "insecurity" under President Omar al-Bashir. J.A. 568–69, 980. Until age 17, she lived in refugee camps in Chad where she received her only prior schooling. Her native language is Fur. She also speaks Arabic. After immigrating here in October 2015, she was resettled with her family in Lancaster. When she first arrived, she couldn't speak, read, write, or understand any English. She's eligible to attend public school in Pennsylvania through 2019, the year she turns 21.¹

Qasin Hassan (or Q.M.H.), 18, was born in Somalia in September 1998. When he was 12, al-Shabaab militants killed his father. He fled to Egypt. A native Somali speaker, he took private lessons at home and learned "a little bit" of Arabic, but he wasn't accepted into Egyptian schools. J.A. 575. He arrived in Lancaster with his family in September 2015 speaking only "a few words" of English. Id. Like Issa, he's eligible to attend public school in Pennsylvania through 2019, the year he turns 21.

Sisters Sui Hnem Sung and Van Ni Iang (or V.N.I.), born in October 1996 and October 1998, fled Burma when their father was forced into labor there. Sung, 20, and Iang, 18, arrived with their family in Lancaster in November 2015. By then, Sung had completed ninth grade and Iang eighth, but neither spoke or understood any English. Their native language is Hakha Chin. Sung is eligible to attend public school in Pennsylvania through 2017, the year she turns 21, and Iang is eligible through 2019, when she turns 21.

War forced brothers Alembe and Anyemu Dunia, ages 21 and 19, to flee "very bad" circumstances in Tanzania to Mozambique, where life in refugee camps remained "very bad" and "very difficult." J.A. 615–16, 618. Native Swahili speakers, they were taught in Portuguese until the eighth or ninth grade when they could no longer afford schooling. With their family, they arrived in Lancaster in November 2014 speaking "just basic" English, like "hello" and "hi." J.A. 618.²

The International School and Phoenix Academy

The School District of Lancaster, the appellant in this case, administers numerous schools. Two are relevant here: McCaskey High School, which the School District operates directly, and Phoenix Academy, operated by Camelot Schools of Pennsylvania, LLC, a private, for-profit company under contract with the School District.

McCaskey High School consists of two smaller schools. One is J.P. McCaskey, a traditional public high school. The other is McCaskey East, known as the International School. The International School is a program designed primarily to teach language skills to students who speak little, if any, English.³ Those students generally attend the International School for one year, after which they join J.P. McCaskey's general population. During that year, they receive "intensive ESL" (English as a second language) support through two 48-minute ESL courses per day. J.A. 901, 1071. For "content" classes—science, math, social studies, and other "enrichment subjects"—ELLs at the International School receive "content-based ESL" teaching through a method called "sheltered instruction." J.A. 901. Under that method, ELLs, including SLIFE, are grouped together in content courses with other ELLs at comparable English-proficiency levels. ELLs are hence "sheltered" in those classes from other ELLs at higher proficiency levels and from native English speakers. To foster English-language proficiency, the International School also introduces ELLs to new American "cultural values and beliefs" while respecting their "cultural diversity" and embraces "close communication with families" and "access to appropriate translation services." Id.

Phoenix Academy is, as the District Court said, "a little different." Issa v. Sch. Dist. of Lancaster , No. 16–3881, 2016 WL 4493202, at *2 (E.D. Pa. Aug. 26, 2016). It's an "alternative education program" intended to serve "at-risk Students" over-age for their grade, under-credited, and in danger of not graduating high school before they age out of public-school eligibility at 21. J.A. 904, 910. Phoenix's principal missions are to ensure that students accumulate enough credits to graduate and to change students' negative behaviors—not to further their academic proficiencies. A significant portion of grading is therefore based on students' behavior and attendance, known as "seat time." J.A. 544, 639. In step with its mission to change students' "anti-social" behaviors, J.A. 1039, Phoenix enforces stringent security measures not in effect at McCaskey, including daily pat-down searches. Phoenix bars its students from bringing in or out any personal belongings, like backpacks, food, books, and even homework. And a strict dress code is in place. Based on a hierarchical system, students are rewarded with different colored shirts as they demonstrate improved behavior.

Teaching is also different at Phoenix. All Phoenix students, including ELLs, take an accelerated curriculum allowing them to earn a high school diploma in roughly half (but sometimes less than half) the time of a traditional four-year high school, like McCaskey. Phoenix students take five 80-minute classes per day, generally completing each class in half an academic year (90 days). McCaskey students, in contrast, take seven 48-minute classes per day, generally completing each class in a full academic year (180 days). Under these different schedules, McCaskey students receive about 1,440 more minutes, or twenty-four more hours, of instruction per class than do students at Phoenix, the equivalent of about thirty more 48-minute class periods per class. The upshot is, as one former Phoenix teacher put it, that Phoenix's curriculum must be taught "double time." J.A. 632.

Phoenix's program for teaching English to ELLs also differs from the International School's. Phoenix offers ELLs of all levels, with no special accommodations for SLIFE, one 80-minute ESL course per day. Otherwise, ELLs, including SLIFE, take all their content courses—science, math, social studies—with Phoenix's general population under the accelerated model. In those content classes, ELLs aren't sheltered from each other by their English proficiency or from native English speakers like they are at the International School.

How does the School District empirically evaluate the efficacy of Phoenix's ESL program? It doesn't. The School District does not assess in any measurable way whether Phoenix's program helps ELLs overcome their language barriers. It hasn't attempted to weigh concretely the impact Phoenix's accelerated, non-sheltered program has on ELLs, including SLIFE. Raw data about Phoenix's ESL program apparently exists. But the School District doesn't disaggregate it from data about the International School's ESL program. Because the two programs rely on different ESL teaching methods, commingling the data...