Issa v. Sch. Dist. of Lancaster, CIVIL ACTION NO. 16-3881
| Decision Date | 26 August 2016 |
| Docket Number | CIVIL ACTION NO. 16-3881 |
| Parties | KHADIDJA ISSA, Q.M.H., a minor, individually, by and through his parent, Faisa Ahmed Abdalla, ALEMBE DUNIA, ANYEMU DUNIA, V.N.L., a minor, individually, by and through her parent, Mar Ki, SUI HNEM SUNG, AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs, v. THE SCHOOL DISTRICT OF LANCASTER, Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
State law guarantees all individuals a "free and full education" until they graduate or turn 21. Federal law requires that schools take "appropriate action to overcome language barriers" so that education is not rendered meaningless. The plaintiffs are six current or prospective students, living within a school district administered by the defendant. The plaintiffs seek a preliminary injunction, allowing them to attend an International School at a regular high school that meets those state and federal requirements, rather than an alternative school that they claim does not, if the defendant chooses to enroll them at all. The defendant maintains that both schools, as well as its enrollment procedures, comply with state and federal law.
The plaintiffs advance numerous legal theories in support of their motion, but the court resolves this motion by answering two questions: (1) can a school district deny an eligible individual enrollment because the district determines the individual will likely not graduate before turning 21; and (2) has a school district taken appropriate action to overcome language barriers when it diverts a student away from its International School to an alternative school where virtually all of a student's courses are taught in a language and manner that the student cannot comprehend? The answer to both questions is no and accordingly, the court will grant the plaintiffs' motion.
Pennsylvania law guarantees a free and full education to all individuals from the age 6 to 21, who have not yet graduated. 24 P.S. § 13-1301. After a new student seeking enrollment submits all requisite paperwork, the school district must enroll the student within five days. 22 Pa. Code § 11.11(b). The Equal Education Opportunity Act is a federal statute. It requires "educational agenc[ies]," such as city school districts, to "take appropriate action to overcome language barriers that impede equal participation by its students in instructional programs."1 20 U.S.C. § 1703(f).
The named plaintiffs are all refugees, ages 17-20, who speak little or no English. See Compl. at ¶¶ 1, 2, Doc. No. 1; Answer at ¶¶ 1, 2, Doc. No. 23. They all escaped violence and tumult in their home and other lands. Now in America, all earnestly seek to learn English, advance their education, and contribute to society. Compl. at ¶ 2; Answer at ¶ 2.
The defendant is the School District of Lancaster ("District"), which administers several schools subject to the laws referenced above. Compl. at ¶ 43; Answer at ¶ 43. Two of the schools are relevant to this case: McCaskey High School ("McCaskey"), which is operated by the District, and Phoenix Academy ("Phoenix"), which is operated by a private, for-profit corporation pursuant to a contract with the District.
McCaskey is a credit to the state. Its campus consists of two smaller schools. One is J.P. McCaskey, which is a traditional public high school with all of the standard and extracurricular programs one might reasonably expect. Compl. at ¶ 45; Answer at ¶ 45. The other is McCaskey East, also known as the International School, which operates a program essentially designed to teach English to those students who speak little English, if any at all. Compl. at ¶ 59; Answer at ¶ 59; Ex. 8. Those students generally attend the International School for one year, receiving focused instruction in the English language and American culture, after which time they attend regular classes with the general population of students. Compl. at ¶ 59; Answer at ¶ 59. New students are enrolled in the International School depending primarily on their ability (or lack thereof) to speak English, so long as they are not also over 17 with no academic credits. Compare Exs. 8, 25 with Notes of Testimony ("N.T."), Jacques Blackman, Aug. 22, 2016, 9:27 AM-12:34 PM, 55:20-56:18.
Phoenix is a little different. It focuses primarily on credit recovery for those students who are overage and under-credit. Ex. 84; Compl. ¶ 47; Answer ¶ 47. Phoenix offers students the opportunity to take an accelerated curriculum, and earn a high school diploma in roughly half the time of a traditional high school. Ex. 84. In Phoenix, a significant portion of a student's grade is based on behavior and attendance, also known as "seat time." See, e.g., N.T., Jandy Rivera, Aug. 18, 2016, 9:42 AM-2:11 PM, 53:18-25, 54:1-8. Phoenix offers someaccommodations for those with limited English proficiency. N.T., Aura Heisey, Aug. 22, 2016, 4:13 PM-5:45 PM, 10:1-14. For those students, they may take a daily English as a Second Language ("ESL") class. Id. All other courses are with the general student population and taught in English. N.T., Khadidja Issa, Aug. 16, 2016, 1:29 PM-5:27 PM, 44:1-21.
Enrollment in Phoenix, rather than McCaskey, is generally a choice offered to students and their families. N.T., Jacques Blackman, Aug. 22, 2016, 9:27 AM-12:34 PM, 19:11-23. But one group of prospective students is not offered that choice: new-to-the-district students who are over 17 years old and under-credit. Id. at 19:20-20:8. For these students, the choice is made for them, and the District unilaterally assigns them to Phoenix. See, e.g., id. The District adopted this practice primarily due to concerns that those students represent a higher risk of dropping out or "aging out" before earning a high school diploma. See N.T., Damaris Rau, Aug. 19, 2016, 1:29 PM-4:07PM, 39:1-13, 78:5-7; 81:18-22. For a student, a high school diploma is often a prerequisite for future advancement. Moreover, if a student is enrolled in a school, but does not graduate, either because they drop out or they age out, that school's graduation rate drops. Id. at 72:3-15. School funding and evaluations are in part based upon graduation rates, and the reputation of a school with a low graduation rate can suffer in the community. See generally id.
The District's practice of mandatory enrollment in Phoenix applies regardless of a student's proficiency in English. Deposition of Jacques Blackman, 43:2-44:19. When a student with no ability to speak or understand English, such as the plaintiffs, is placed in accelerated classes, the student will cover material twice as fast as a normal school, but that material is also taught in a language that student does not understand. On its face, this practice appears to be counterintuitive; expert testimony confirmed that the practice was unsound. See N.T., Helaine Marshall, Aug. 18, 2016, 9:42AM-2:11PM, 119:1-3 ("[A]n accelerated recovery program istotally inappropriate for this population."). Although the student earns (or at least is issued) a diploma and all of the attendant benefits, the student will likely graduate with limited ability, if any, to converse in English—also often a prerequisite to future advancement—and limited understanding of the content of the courses he actually took.
The practice also runs counter to the District's prior representations on how the International School would be used. Ex. 25. Previously, the District maintained that new students who cannot speak English will be enrolled in the International School for the first year, and, with that baseline education in the English language, would then be placed in McCaskey or, if over 19, placed in Phoenix. Id.
The District also does not evaluate the efficacy of the Phoenix ESL program. N.T., Damaris Rau, Aug. 19, 2016, 1:29 PM-4:07PM, 84:16-85:4, 88:12-89:1. Although the raw data is available, the District does not analyze the Phoenix data on its own. N.T., Amber Hilt, Aug. 19, 2016, 1:29 PM-4:07 PM, 10:7-19. Instead, it combines that data with data from the International School, which uses an entirely different ESL instructional model. See id. at 9:20-10:19. The practical result of commingling the data is that the District cannot quantify whether the ESL program operating at Phoenix is successful. See id.
In addition to the language barriers, enrollment itself has not been a smooth process for the plaintiffs. One plaintiff, Alembe Dunia, 20, today is still not enrolled, despite repeated attempts to enroll dating back to at least January 2015. See N.T., Alembe Dunia, Aug. 17, 2016, 2:06 PM-3:56 PM, 9:16-17, 13:18-23. Because Alembe will age out after the upcoming school year, this delay has greatly prejudiced his ability to receive the education the state promises him. Others experienced significant delays, upwards of five months. See N.T., Q.M.H., Aug. 16, 2016, 1:29PM-5:27PM, 37:23-25. One, Q.M.H., was initially denied enrollment, and only laterenrolled after the District learned that he was 17, not 19, a factor that has no legal significance as to the District's obligations. See N.T., Jacques Blackman, Aug. 22, 2016, 9:27 AM-12:34 PM, 33:24-25, 34:1. And in no case did the District accomplish the enrollment of the plaintiffs within the five-day period mandated by state law.
For those plaintiffs ultimately enrolled in Phoenix, a common complaint is that they did not understand the vast majority of content taught in the non-ESL classes. See, e.g., N.T., Khadidja Issa, Aug. 16, 2016, 1:29 PM-5:27 PM, 25:12-14. Some formally requested transfer to the International School, in order to build a foundation in the English language prior to taking general classes. E.g., Ex. 26. The District did not grant any such request.
One plaintiff, Anyemu Dunia, 18, graduated from Phoenix in the midst of the evidentiary hearing, earning a diploma in just 16 months, despite arriving with no academic credits and little-to-no ability to...
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