Appeals Court Backs Injunction for ELL Program Sought by Refugee Students

By Mark Walsh — January 31, 2017 3 min read

A federal appeals court has upheld an injunction allowing refugee students with limited English proficiency in a Pennsylvania school district to transfer from an alternative school for underachievers to a regular high school with special help for English-language learners.

A three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, unanimously ruled for a group that includes students with limited or interrupted formal education, or SLIFE, who had fled war and violence in countries including Burma, Mozambique, Somalia, Sudan, and Tanzania.

The Lancaster school district assigned the students, who were generally 18 to 21 years old, to the Phoenix Academy, an alternative school run by a for-profit provider focusing on “accelerated credit recovery” but which court papers say focused on seat time, stringent security measures, and a strict dress code. English-language learners at the academy take one English-as-a-second-language class but otherwise learn all their other subjects with the general population.

The Lancaster district argued, among other things, that it believed Phoenix Academy to be more appropriate for older, non-credited high school students.

The refugee students were backed by the Education Law Center of Philadelphia, the American Civil Liberties Union of Pennsylvania, and a friend-of-the-court brief filed by President Barack Obama’s administration when the case was argued in December.

The students sought the injunction to attend McCaskey High School, a traditional public school that includes a program for English-language learners called the International School. Such students generally attend that program for one year, where they receive intensive ESL and receive “content-based ESL” teaching using “sheltered instruction” in subjects such as math and science.

The refugee students claim in court papers that Phoenix Academy’s accelerated curriculum was too difficult for them to grasp and they couldn’t understand what most of their teachers and classmates were saying.

The students sued the Lancaster district, alleging that the district’s refusal to allow them to enroll at McCaskey High violated, among other things, a federal statute called the Equal Educational Opportunities Act of 1974 and the Pennsylvania public school code.

A federal district court granted the injunction on the basis of the federal and state law.

In its Jan. 30 decision in Issa v. School District of Lancaster, the 3rd Circuit court upheld the injunction based on the EEOA but sent the state-law claims back for further development.

The EEOA says that “no state shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, by . . . the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.”

The 3rd Circuit panel applied a key legal test drawn from the U.S. Court of Appeals for the 5th Circuit’s 1981 ruling in Castenada v. Pickard, which requires school districts to take appropriate action to remedy language deficiencies among their students.

The 3rd Circuit said “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” the appropriate legal test.

Also, “the plaintiffs showed a likelihood that Phoenix’s program fails to produce results indicating that their language barriers are actually being overcome,” the appeals court said.

“The record before us ... belies the school district’s contention that Phoenix is where the plaintiffs ‘can best be educated,’” the appeals court concluded. “Under the EEOA, we reject an educational agency’s call for unfettered decision-making authority when its programs fall short of [the statute’s] mandate.”

A version of this news article first appeared in The School Law Blog.

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