KingSpry Student Refugees Prevail in Third Circuit Placement

Student Refugees Prevail: Third Circuit Affirms New School Placement

Dr. Kathleen Conn

Posted on February 24th, 2017
by Dr. Kathleen Conn

With all the headlines about the current immigration controversy, recent news for some student refugees is welcome. On January 30, 2017, the Third Circuit Court affirmed the district court’s preliminary injunction, allowing the students to remain at the International School in McCaskey High School, Lancaster School District. 

The students, ages 18 to 21, individually fled war, turmoil, and violence in the Middle East, Africa, and Asia in 2014. They were re-settled by international refugee organizations in Lancaster, Pennsylvania, where the school district placed them in its privately operated alternative school Phoenix Academy. None of the students spoke English. Phoenix had no accommodations for non-English speaking students who have a limited or interrupted formal education (SLIFE); the main thrust at Phoenix is to change students’ anti-social behaviors.

Determining Placement for Students

The students sued the district in July 2016, requesting a preliminary injunction that would give them access to the International School at McCaskey High School. The International School program at McCaskey includes two English classes per day, content courses like math, science, and social studies, plus enrichment classes, all delivered in “sheltered instruction,” that is, language-level appropriate classes.

The district court granted the injunction, citing requirements of the Equal Educational Opportunity Act (EEOA) §1703(f), and the students began attending McCaskey. While at the district court level, the students testified through interpreters that they were learning nothing at Phoenix, but they thrived at the International School. However, the district appealed the ruling.

Oral arguments were heard in December 2016 and the Third Circuit affirmed the injunction on January 30, 2017.  The majority noted that they had never before been required to interpret §1703(f), a section of EEOA that provides, “[N]o state shall deny equal educational opportunity to an individual on the basis of his or her race, color, sex, or national origin. . . .”

Relying on the Supreme Court’s 1981 decision in Casteneda v. Pickard, in which Mexican students successfully sued their school district for its failure to implement a bilingual education program, the Third Circuit ruled that the Lancaster School District must make a “genuine and good faith” effort to remedy the language deficiencies of its students. Reiterating Casteneda, the court applied a three-fold analysis, asking, (1) was the district pursuing a program informed by sound educational theory, (2) were the methods actually used by the school district effectively implementing the educational theory adopted, and (3) was the adopted program producing results.

Disaggregated data about the effectiveness of the program at Phoenix Academy was unavailable because the district lumps the Phoenix data with data from the International School. However, at the district court level, the plaintiffs had presented an expert witness and two former Phoenix teachers who testified that the alternative non-sheltered program at Phoenix was unsound for SLIFE. The district did not rebut the witnesses’ testimony.  The Third Circuit found the Lancaster district deficient on both the first and third prongs of its Castaneda analysis. Not only must SLIFE learn English in American schools, the court noted, they must learn “how to learn” [italics in the original].

The Third Circuit sustained the preliminary injunction, and sent the case back to the district court level for further proceedings consistent with its ruling. “Time is of the essence,” the Circuit Court noted, and the plaintiff students must overcome uniquely difficult challenges to learning. However,the court acknowledged that education can change the trajectory of a child’s life.

Bottom Line for Schools

All the talk at the Federal level about immigrants, documented or not, has not changed the obligation districts have to educate children residing in their geographical area without discrimination based on their legal status. If you have a question about this case or related matters, please contact your legal counsel or one of the Education Attorneys at KingSpry.

 

 

School Law Bullets are a publication of KingSpry’s Education Law Practice Group. They are meant to be informational and do not constitute legal advice. John E. Freund, III, is our editor.