There has been an increase in the number of unaccompanied teens entering the United States, many of whom are English-language learners (ELLs) and/or refugees. Some of these students have faced challenges when trying to enroll in school. In one district, for example, the board adopted a policy to deny enrollment to those who were 16 or older and who were behind academically. This can run up against state laws, many of which encourage students who are 16 or older to remain in high school. This conflict and others have raised some legal concerns.
For instance, in Arizona the American Civil Liberties Union filed a formal complaint against a school district, alleging that school officials refused to enroll a 19-year-old Salvadoran refugee in high school. Despite all of the necessary enrollment documents, the school had a practice of not admitting students who were 17 years or older and who were not proficient in English. School officials had also requested the student submit to a psychological evaluation (perhaps in violation of the Rehabilitation Act of 1973) prior to enrollment, and declined to register the student because it was unlikely that he would graduate before he turned 21.
Likewise, a district in California did not permit two female Afghan students to enroll in one of its high schools. The school stated that, according to a school board policy, 18-year-old students who lack credits to graduate should enroll in adult education to earn a diploma. The adult education program that had been offered to the two female students did not have accredited online science or fine arts classes, so the students would not have been able to attend a four-year university upon completion. One of the female students was admitted to the high school after lawyers intervened.
There are several recent legal cases and disputes involving ELL students who have been denied enrollment in high schools due to age or language requirements. We offer guidance for school leaders on how to avoid enrollment practices that might be considered discriminatory toward ELLs.
Relevant Laws
Schools need to fulfill their educational obligations to ELLs under Title VI of the Civil Rights Act of 1964 and the Equal Educational Opportunities Act of 1974 (EEOA). Title VI and the EEOA jointly prohibit public institutions receiving federal financial assistance and states from discriminating against individuals—or denying equal educational opportunities—based on race, sex, color, religion, or national origin. These two federal laws also require that state education agencies must take “appropriate action” in “addressing any language barriers,” so that English-language learners may participate meaningfully in schools’ education programs. The 14th Amendment’s Equal Protection and Due Process clauses are often at issue as well.
Current Legal Cases
There have been three federal courts that have recently examined illustrative cases related to ELLs—where districts have allegedly refused to enroll the students in the traditional high school or placed them in substandard programs. One case involved several families in Florida who tried to enroll their children, but were told that they were eligible to attend only the technical center (ITech) for adult ELLs. There was a pre-existing policy in the district that required students to graduate by age 19. Concern arose around this practice, as ELLs who attend ITech are segregated from their English-speaking peers, denied access to high school extracurricular activities, and are unable to earn credit toward a high school diploma. The Southern Poverty Law Center filed a lawsuit in federal court on behalf of the parents and minors who were denied enrollment. The plaintiffs asserted that the district was denying their immigrant ELL children equal educational opportunities based on national origin, including foreign birth and limited English proficiency, in violation of the EEOA, Title VI, the 14th Amendment, and Florida law. According to district officials, the students were not eligible for high school because they could not have graduated by age 19 (they were ages 15–17). The school district’s motion to dismiss was denied with regard to the EEOA, Title VI, and the 14th Amendment (both equal protection and due process).
Similarly, in Pennsylvania, teenage refugee ELL students were denied enrollment at a high school and instead were told to enroll in an accelerated credit-recovery high school, Phoenix Academy—a privately operated, for-profit company under contract with the district. Enrollment at Phoenix Academy had traditionally been a choice; however, new-to-the-district students older than age 17 and undercredited were not given a choice, but were automatically sent to Phoenix Academy. Under Pennsylvania law, every child age 6 to 21 has the right to a free public education. As a result, the American Civil Liberties Union, the Education Law Center, and a law firm filed a federal lawsuit against the district. The plaintiffs were able to establish that they were likely to prevail on their claims that the district violated the EEOA, and their motion for a preliminary injunction was granted. Specifically, the plaintiffs demonstrated that the school district did not take appropriate action to address language barriers, and the court compelled the district to transfer the students from the credit-recovery program to a program designed to address language skills.
Finally, in New York, teenage refugees were denied enrollment at a regular public high school, allegedly due to their ages and their lack of English proficiency. The district’s policy was to place refugees who were older than 16 into alternative programs, such as a GED program for only ELLs. Subsequently, in November 2015, the Office of the Attorney General (OAG) of the State of New York filed a lawsuit in federal court against the district. The OAG’s lawsuit asserted that the school district’s policy deliberately denied immigrant students ages 17–20 the opportunity to enroll at the regular public high school because of the students’ lack of English proficiency, which is in violation of Title VI, the EEOA, the 14th Amendment, and New York’s education law. The school district’s motion to dismiss was denied.
Recommendations for School Leaders
It is imperative that school leaders understand federal and state laws that protect the educational rights of ELLs. Title VI and the EEOA—among other statutes and constitutional provisions—provide ELLs specific protections in K–12 schools; namely, ELLs are to be afforded an equal educational opportunity to participate in academics and extracurricular activities just like any other non-ELL student. The three illustrative cases highlight why school districts should be aware of this emerging issue. Of course, as with any legal challenge, much will depend on the facts of the case and the jurisdiction where the issue arises.
Emma Everson is an associate instructor of education law and a PhD student at Indiana University in Bloomington. Suzanne E. Eckes, PhD, JD, is a professor at Indiana University, a co-author of Principals Avoiding Lawsuits, and president of the Education Law Association.
References
Carlson, K. (2018, March 22). Afghan girls rejected again by Modesto City Schools. Is case headed for courtroom? The Modesto Bee. Retrieved from www.modbee.com/latest-news/article206406994.html.
Equal Educational Opportunities Act of 1974, 20 U.S.C. §1703(f).
Issa v. Sch. Dist. of Lancaster, 847 F.3d 121 (3d Cir. 2017) (unpublished).
Lhamon, C. E., & Gupta, V. (2015, January 7). Dear colleague letter. U.S. Dep’t of Educ. Retrieved from www2.ed.gov/about/offices/list/ocr/letters/colleague-el-201501.pdf.
Methelus v. Sch. Bd. of Collier Cty., 243 F.Supp.3d 1266 (M.D. Fla. 2017).
New York v. Utica City Sch. Dist., 177 F. Supp. 3d 739 (N.D.N.Y. 2016).
Polletta, M. (2018, April 4). Civil-rights complaint: Glendale school district refused to enroll Salvadoran refugee. The (Arizona) Republic. Retrieved from www.azcentral.com/story/news/local/glendale-education/2018/04/04/civil-rights-glendale-school-district-refused-enroll-salvadoran-refugee-aclu-arizona/426780002.
Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq.