ELC’s 2020 Back-to-School Guide for Pennsylvania Public School Students


The Education Law Center (ELC) has updated our “Back-to-School” guide for families, students, and schools. The information and fact sheets below now include COVID-related considerations for the upcoming school year.

School days during the pandemic may look very different. Students and families face unprecedented challenges. But they continue to have important education rights and protections under state and federal laws that ELC is committed to defending. Our students also remain deserving of equitable, affirming, and culturally responsive school spaces.

Black lives matter! As champions for education justice, we must grapple with the reality that for too many students and families, schools have been places of deep harm, glaring racism, and systemic oppression. Those inequities have grown more visible as schools struggle during the pandemic. At the same time, we are encouraged by increasing public attention to issues of race and disability, as many students are affected by intersectional systems of oppression.

As school resumes, ELC urges our partners, schools, and policymakers to prioritize equity and to confront the legacies of anti-Black racism and other systemic inequities in schools. Our focus is on underserved populations. Our mission is to ensure that all children in Pennsylvania have access to quality public education.

  1. Affirming & Safe Schools, Free from Racism
  2. Student Enrollment
  3. School Discipline
  4. Truancy
  5. Bullying & Harassment
  6. Students with Disabilities – IEP, 504 Plan
  7. Early Childhood Education
  8. Students Involved in Foster Care or Juvenile Justice Systems
  9. Students Experiencing Homelessness
  10. English Learners & Immigrant Students
  11. LGBTQ & Gender Nonconforming Students


1.  AFFIRMING & SAFE SCHOOLS, FREE FROM RACISM

Back-to-School Basics

We know that schools often fail to provide equitable, safe, and affirming environments for all students, particularly students of color. Alarmingly, incidents of racial hate and abuse are on the rise. All schools in Pennsylvania should invest in anti-racist education, develop comprehensive equity policies and practices to enable students to thrive, and ensure that responses to incidents of hate address school climate as a whole. No school community is immune from the systemic and structural racism that pervades our country and culture. Educators and administrators have a legal obligation to speak out and to act to confront and prevent racial discrimination, including racist harassment in schools.

Schools are legally obligated to ensure that students are not being denied opportunities, treated differently, discriminated against, or harassed because of their race, color, national origin, or immigration status. Schools must have policies and practices to prevent and address unequal treatment like discrimination and harassment.

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Say Their Names: Police brutality against Black people and other people of color is longstanding and continues to go unaddressed. But in the wake of horrific police killings of George Floyd, Breanna Taylor, and many others, a longstanding effort by students and community and civil rights groups to remove police from public schools has emerged as a path forward, with dozens of school districts severing ties with police or reducing police presence. More about this work is available from Dignity in Schoolsthe Advancement Project, and ACLU of Pennsylvania.

Impact of COVID-19: Black and Brown communities, hardest hit by the coronavirus, have also borne the brunt of school disruption, receiving diminished educational services. And students in underfunded school districts continue to be subjected to deplorable school building conditions, making those schools unsafe and ill-equipped to safely reopen. See ELC’s publication on toxic schools for related information.

The film “Pushout encourages a robust response to the many ways in which a racist misunderstanding of Black girlhood leads to excessive punitive discipline and criminalization of students by schools. The film builds upon important research on the “adultification” of Black girls — a well-documented finding that Black girls are seen as less innocent and more adult-like than their white peers. This leads to Black girls being devalued, subjected to harsh, disparate treatment, and excluded from educational spaces legally charged with serving them.

Use the resources cited here and in our new fact sheet to engage with your child’s school and ensure that anti-racism, culturally responsive education, and full-school climate interventions are in place. Try to make sure that every member of the school community knows their rights and how to interrupt racism. Together, hold school leaders accountable for making this happen. Urge school and community leaders to invest in our schools, students, and communities, and disinvest from school police and punitive, exclusionary discipline.


2.  STUDENT ENROLLMENT

Back-to-School Basics:

Students have the right to be enrolled in school within five days of submitting only four documents: proof of the child’s age, proof of where the child lives, immunization records, and a sworn statement of disciplinary record.

Due to potential delays in obtaining immunizations during COVID-19, the requirement to show proof of immunizations has been suspended for the first two months of the upcoming school year. Many districts are only accepting online enrollment, which requires internet access, taking pictures of enrollment documents, and uploading them online. Because it may be harder to get required documents during COVID-19 closures, families should ask the school to be flexible in what type of documents to accept and how families can send the documents to school.

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What’s New?

Starting this year, 2020-2021, the compulsory school age has changed, so children must be enrolled in and attending school when they are 6 years old and must attend school until age 18 (or until they graduate, whichever comes sooner).

Virtual learning at your home school or district: With many schools still operating via remote learning for some or all students, ELC has prepared a checklist as a guide to ensure that schools are serving all students equitably.

Considering a cyber charter school for your child? If you have questions about how cyber charters work, check out this recent webinar. Or visit Check Before You Choose: You will find information about teacher certification, performance ratings, supervision, and hours of instruction, and learn ways in which cyber charters differ from brick-and-mortar schools. For example, most cyber charters require a parent or guardian to serve as a learning coach for their child. For K-5, this means supervising the child’s schoolwork for an average of about five hours per day.

Cyber charter schools, like all charter schools, are public schools, required under the law to serve all students, including those with IEPs and English learners. But they may have limited experience doing so. To find out whether a cyber charter school has experience serving English learners, click here, search for the school by name, and click on the tab labeled “School Fast Facts.” To find out whether the cyber charter school serves children with your child’s type of disability, click here, scroll down to the name of the school, and click on the report for the most recent year.


3.  SCHOOL DISCIPLINE

Back-to-School Basics:

Students have important rights and protections when facing exclusionary school discipline (e.g., suspension, expulsion, and disciplinary transfer). These include the right to proper notice, the right to ask questions, the right to an appropriate hearing, and in most cases, the right to receive education services in the interim and after exclusion.

Discipline will likely look different in the era of COVID-19. If your child is learning from home and the school is changing or limiting their online program, you may be entitled to rights and school discipline protections. If your child is sent home from school or told they cannot come back because they did not follow new safety and social distance rules, you still have the rights explained in the fact sheets below.

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What’s New?

See our updated Student Rights to Free Speech and Expression fact sheet for new information and examples. Generally, a school only has the authority to restrict or punish students for speech that happens at school or a school-sponsored event or on the way to or from school. Some recent court decisions reinforced students’ rights to expression outside of school and on social media. What happens if your school is now all online with virtual classes and school-provided computer? These issues have not been directly addressed by the courts yet, but generally the same rules and standards apply to virtual classes and school activities.


4.  TRUANCY

Back-to-School Basics:

Pennsylvania requires that all students go to school from age 6 until age 18 or graduation. This period is called “compulsory school age.” Legal consequences can arise when students have unexcused absences. If a student accrues three unexcused absences, they are considered “truant.” If a student has six or more unexcused absences, they are considered “habitually truant.” Schools must take steps to improve attendance for students who are habitually truant, including holding attendance improvement conferences to identify and address the reason for absences.

During COVID-19, schools are still legally required to take these steps to protect students’ rights and work with families to improve school attendance and participation. If these steps are taken and attendance does not improve, parents and students can face serious legal consequences, including fines and jail time. While ELC disagrees with these consequences, the law allows schools and decision-makers to impose them.

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What’s New?

Changes to Pennsylvania’s compulsory school law go into effect this school year. COVID-19 has not changed this requirement. Schools are taking attendance and tracking participation, even if they are physically closed due to COVID-19. Check out your school’s website for information about how attendance will work during COVID-19 and whether changes have been made due to the pandemic.

The Pennsylvania Department of Education’s reopening guidance tells schools to consider equity and be flexible with attendance to help keep students and staff safe and to monitor for potential exposure.


5.  BULLYING & HARASSMENT

Back-to-School Basics:

Bullying and harassment are serious issues that can significantly affect a child’s ability to learn. All students have the right to be free from bullying and harassment in school ‒ whether it is verbal, written, graphic, physical, or online. Pennsylvania schools are required by law to have written policies against bullying and harassment and must investigate and address complaints. Behavior may qualify as “harassment” if the offensive conduct relates to race, color, national origin/ethnicity, gender, gender identity, sexual orientation, age, disability, or religion. If your child is experiencing bullying or harassment, keep detailed records of each incident and request in writing that the school take action.

Attending a school “session” of virtual instruction while sitting at home during COVID-19 closures is still in-school time; school staff must intervene to interrupt and prevent any bullying or harassment, using developmentally appropriate interventions.

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What’s New?

Though many schools are returning to virtual or online classes in fall 2020, students have the same rights to be free of bullying and harassment, and schools have the same obligation to promptly and effectively intervene to stop the offensive actions. For example, schools need to provide supervision and support in the online chat programs or other communications platforms they provide for accessing instruction, just as they should be supervising and intervening in bullying or harassment that may happen in the hallway or classroom at school. If a student experiences bullying or harassment in their virtual school model, follow the recommendations in our parent’s guide to collect information and report it to the school.


6.  STUDENTS WITH DISABILITIES

Individualized Education Programs (IEPs) 

Back-to-School Basics:

Students who have a disability that impacts their learning have the right to a “free appropriate public education” (commonly called a FAPE), a planned program of education and special services that takes account of a student’s individual needs. Special education and related services must be provided by the school free of charge. Parents have the right to participate in the special education process and consent to or refuse particular services. Students with disabilities cannot be punished for behavior that is caused by or related to their disability.

Students with disabilities and their parents still have all of these rights despite school closures and other changes related to COVID-19. Parents should be included in the creation of individualized plans for their students with disabilities to fully access remote learning, hybrid learning, or whatever plan a school develops in response to COVID-19. Students with disabilities should receive all necessary services, including related services, to address their needs.

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What’s New?

As schools develop plans for reopening in response to COVID-19, students with disabilities should continue to receive the educational services that are required by their individualized plans or necessary for them to learn. If they do not, they are entitled to compensatory education. For example, if your child is required to receive weekly speech therapy, that service should still be provided weekly. Follow the recommendations in the Resolving Special Education Disagreements fact sheet if you disagree with your child’s plan developed by the school in response to COVID-19.

504 Plans

Back-to-School Basics:

If your child has a health condition, physical, mental, or behavioral impairment that “substantially limits” a “major life activity” and needs help to participate in or benefit from education or extracurricular programs, they may qualify for accommodations in school, called a “504 Plan.” Regardless of whether your child is attending school remotely or in-person due to COVID-19, your child’s 504 Plan should still provide accommodations and services that are necessary to access learning.

Need Help?

What’s New?

If you have questions or concerns about how your child’s 504 Plan is being used during remote or in-person learning, you should contact your school. Use ELC’s toolkit for strategies for requesting a 504 Plan, for guidance in getting a doctor’s letter of support, and for examples of the types of accommodations that can support students with varied health conditions.


7.  EARLY CHILDHOOD EDUCATION

Back-to-School Basics

Children who receive quality early education do better in kindergarten and in school overall. Publicly funded programs such as Head Start, Early Head Start, and Pre-K Counts offer free early childcare and education programs for children from low-income families. The Early Intervention program provides additional services for children with developmental delays and disabilities at no cost to parents, regardless of income.

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What’s New?

Young children with developmental delays and disabilities continue to have a right to early intervention services despite COVID-19 changes. Your child should still have an individualized plan that addresses developmental needs and provides educational services delivered in the appropriate manner so that your child can learn. This may be virtually, in your home, or in an early childhood education center. Learn more about whether your child is eligible for Early Intervention, how to request it, and how to design an appropriate plan by reviewing our Early Intervention FAQ (frequently asked questions).


8.  STUDENTS INVOLVED IN FOSTER CARE OR JUVENILE JUSTICE SYSTEMS

Back-to-School Basics

Children involved in the foster care or juvenile justice systems have the right to a free public education, like all public school students.

Students in foster care have additional rights to ensure their school environment is stable, even if they change living arrangements. The right to “school stability” includes the right to remain in the same school even when youth change living placements, the right to enroll in a new school immediately without the required documents, and the right to have an active, involved education decisionmaker.

Students who are placed by court order in a residential facility – including students “adjudicated delinquent” – are entitled to attend the local public school in the district where the facility is located, unless certain exceptions apply.

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What’s New?

Children and youth in the foster care and juvenile justice systems may need additional help during the COVID-19 crisis, particularly if they are in a residential placement. All youth have the right to a quality education and all the supports, equipment, and supplies needed to learn. Youth in residential facilities may need a change in placement or access to the local public school. Students with disabilities have the right to request IEP Team meetings to ensure they receive the supports and services needed to make meaningful progress and receive a free, appropriate public education. See our fact sheet for more.

Children in foster care continue to have a right to school stability and immediate enrollment, regardless of whether they are attending school in person or through remote learning. For more details, see Tips for Planning the High School Fall Semester for Youth in Foster Care.

ELC continues to advocate for the rights of students in residential placements through our class action lawsuit on behalf of students who were placed at Glen Mills Schools, where they suffered physical and emotional abuse and were deprived of their right to an education. In our case, Derrick v. Glen Mills Schools, the court upheld the right of students in the juvenile justice system to receive an appropriate and meaningful education, and ordered that the lawsuit can move forward on our claims that students were harmed by a systemic and wholesale failure to provide special education services and a legally compliant general education. The complaint contains graphic descriptions that may be hard to read; the litigation is currently in discovery stage.


9. STUDENTS EXPERIENCING HOMELESSNESS

Back-to-School Basics:

Students in all public schools, both district and charter, who are experiencing homelessness or housing instability, are entitled to school stability, and immediate enrollment in school, as well as free transportation to and from school. This includes unaccompanied students experiencing homelessness on their own. A federal law called the McKinney-Vento Act provides students experiencing homelessness a robust array of protections to ensure equal access to an education, from preschool through high school.

These protections do not have a time limit and remain in place until the student is no longer experiencing homelessness, even during COVID-19. McKinney-Vento eligible students have a right to school stability, with transportation provided until the end of the school year in which they secure permanent and adequate housing.

Need Help?

What’s New?

The McKinney-Vento Act remains in full force during the COVID-19 global pandemic.

Education Law Center helped secure and enforce an important victory for students who are experiencing homelessness on their own and have special education needs. These students do not have a way to assert their special education rights without the appointment of a surrogate parent. As a result of an ongoing complaint that ELC filed with Pennsylvania’s Bureau of Special Education, the state ordered the School District of Philadelphia to create a new system to ensure that surrogate parents are promptly appointed to students who are experiencing homelessness on their own. The district must now have a pool of at least 10 surrogate parents to meet the needs of unaccompanied students, which is a best practice used in other states. In addition to changes in Philadelphia, all PA districts have been reminded by the Pennsylvania Department of Education of their legal obligation to promptly appoint surrogate parents.


10. ENGLISH LEARNERS; STUDENTS & FAMILIES FROM LINGUISTICALLY AND CULTURALLY DIVERSE COMMUNITIES

Back-to-School Basics:

English learners have many special protections, including the right to learn English (with language instruction such as English as a Second Language or ESL), the right to supports, modifications, and accommodations in their core classes, and the right to be free from harassment based on their race, immigration status, or national origin. Parents whose first language is not English have the right to receive information about their child’s education in a language they understand.

All students have the right to attend school, regardless of their immigration status. Schools cannot ask about a student’s immigration status and cannot require a birth certificate or Social Security number before enrolling a child in school. Students and families from linguistically and culturally diverse communities should receive language services and accommodations that allow them to participate in education regardless of English proficiency.

For more information about the rights of immigrant, refugee, and asylee students and families, the U.S. Department of Education has a website with translated resources. Two factsheets are available in over ten languages on the rights of English learners to participate in educational programs and the rights of limited English proficient parents and caregivers to receive translation and interpretation for communications with school.

Need Help?

What’s New?

Statewide school closures starting in March 2020 highlighted the ongoing challenges linguistically and culturally diverse communities experience with language access in education. As schools reopen in person, remotely, or a hybrid of both, protections for English learners, students, and families whose first language is not English, remain in force. English learners should receive language instruction to gain proficiency in reading, writing, speaking, and understanding English from certified ESL teachers. Subject teachers should provide accommodations, modifications, and support for English learners that are appropriate to each student’s age and English proficiency.

Students and families should also have information on educational programming, access to technology and meals, and health and safety protocols in languages they understand. Schools should provide interpretation and translation services to students and families whose first language is not English for general information. Schools must provide language access for parents and caregivers of students with disabilities so that parents may participate meaningfully and make educational decisions for their children.


11. LGBTQ & GENDER-NONCONFORMING STUDENTS

Back-to-School Basics:

LGBTQ and gender nonbinary or gender-nonconforming (GNC) students have the same rights as other students, including the right to be out and the right to be free from bullying and harassment. Schools must respect the right of transgender students to access facilities and programs aligned with their gender identity.

With COVID-19 school closures that require students to stay at home for virtual classes, there may be additional challenges for LGBTQ students resulting from limited access to community support, lack of in-school counseling and, in some cases, the difficult circumstances of quarantining with unsupportive family members. Schools have the obligation to support students’ social, emotional, and mental health, including via remote services and virtual meetings for a Gay Sexuality Alliance (GSA) or other student group.

If a student who is transgender, GNC, or nonbinary identifies a chosen name and pronouns, school staff should use that name and pronoun for all interactions, written and verbal, except where required by the law to use a child’s legal name. This includes providing an opportunity to correct the student’s name on any digital platforms a school is using during virtual learning (i.e. display name on Google Classroom). Purposefully and persistently misgendering a student may be harassment under the law.

Need Help?

What’s New?

The rights and protections of LGBTQ people have been clarified and affirmed at the highest level. In June 2020, the U.S. Supreme Court issued its decision in Bostock v. Clayton County, establishing that discrimination on the basis of sexual orientation and gender identity is inherently a form of illegal sex discrimination under Title VII. Courts have long analyzed Title IX about education discrimination in the same way as Title VII about employment discrimination, so this case is a powerful message for schools and LGBTQ and gender-nonconforming students too. Another appellate federal court, directly addressing the question of transgender students’ right to access bathroom facilities, held that “A public school may not punish its students for gender nonconformity. Neither may a public school harm transgender students by establishing arbitrary, separate rules for their restroom use.”


Finally, for everyone involved with public education in Pennsylvania, one of our back-to-school priorities must be to address the state’s inadequate and unfair funding of schools. Far too many children are returning to Pennsylvania schools that are lacking in resources and student supports.

Please participate in PA Schools Work, the statewide campaign for adequate and equitable funding and follow ELC on Facebook and Twitter for updates on our fair funding lawsuit against the state for failure to fund public education under the state constitution.

Please join us on September 24th as we celebrate 45 years of ensuring access to a quality public education for all children in Pennsylvania.


ELC files PDE complaint to remedy deficiencies in transition of students from Early Intervention to Philadelphia elementary schools

ELC filed an administrative complaint with the PA Department of Education (“PDE”) on behalf of three individual children and all others similarly situated who have been deprived of smooth transitions to kindergarten or first grade in the School District of Philadelphia (“District”).  State and federal law mandates that children with disabilities must move from early intervention services to elementary school without disruption of the critical special education services to which they are legally entitled.  However, the District has failed to meet these requirements and ELC has asked PDE’s Bureau of Special Education to investigate and issue corrective action as necessary. Specifically, the District is required to (1) complete a re-evaluation of a child’s eligibility for services within 60 days of receiving signed parental consent, (2) provide a Re-evaluation Report to the parent at least 10 days prior to an IEP meeting, and (3) ensure that an IEP is completed within the 30 days of the IEP meeting. Additionally, federal law requires that children who have limited English proficiency are evaluated in their native language to ensure an accurate re-evaluation. If you or any families you know have had similar issues transitioning from early intervention to the District, please contact Sean McGrath at [email protected].  You can read a copy of ELC’s Complaint here.

 

 

Refugee education lawsuit will cost Lancaster schools more than $600K next year

by Emily Previti, WITF

The city of Lancaster resettles a lot of refugees for a community of its size, and various stakeholders have long collaborated with the district for school-based programs designed to help entire families from this vulnerable population.

So when the School District of Lancaster was sued one year ago, officials argued that they — not the courts — knew best how to deal with their own students.

But Judge Edward G. Smith found last year that the School District of Lancaster had violated the federal Equal Educational Opportunities Act by delaying or denying enrollment of older refugee students and diverting them to a magnet school with less support for English Language Learners than the mainstream high school and its Newcomer Program designed for first-year ELLs (formerly known as the International School).

And now, the School District of Lancaster is looking at spending more than half a million dollars, less than 1 percent of its $208 million annual budget, as a result of the lawsuit, according to school officials.

Read the full article at Newsworks

Appeals Court Upholds Duty of Lancaster School District to Overcome Language Barriers and Provide Equal Educational Opportunities for Older Immigrant Students

FOR IMMEDIATE RELEASE
January 30, 2017

PHILADELPHIA (January 30) – The federal Court of Appeals for the Third Circuit today upheld the rights of immigrant students to receive equal educational opportunities in the School District of Lancaster. The opinion emanates from a federal class action lawsuit, Issa, et al., v. School District of Lancaster challenging the District’s treatment of immigrant students aged 17-21.

“This case is more important now than ever. It affirms the right of immigrant and refugee students to a meaningful education that overcomes language barriers.” said Maura McInerney, senior staff attorney of the Education Law Center and one of the lawyers for the students. “The decision sends a clear and unequivocal message to all public schools that they have a duty to provide sound and effective English language services. Many immigrant students, particularly those newly arrived in the U.S. with limited prior education have unique and significant language needs that must be proactively addressed. They cannot languish in classrooms where they cannot access the curriculum.”

The Third Circuit affirmed the August 26th decision of Judge Edward Smith of the Eastern District of Pennsylvania, which held that the School District violated the civil rights of older immigrant students under the Equal Educational Opportunities Act (EEOA) by diverting them to an inferior, privately operated alternative school, Phoenix Academy, that failed to address their significant language needs. Judge Smith’s order granted a preliminary injunction directing the School District to immediately enroll the student plaintiffs in the regular high school, McCaskey. The School District appealed that order to the Third Circuit.

“Our refugee clients came to America with a vision that a good education is the ticket to success. We are thrilled that the courts have opened the schoolhouse gates for them.” said Vic Walczak, legal director of the ACLU of Pennsylvania who argued the case in the Third Circuit. “We will continue to push the District to extend this relief to all immigrant students in similar circumstances. They are all legally entitled to a meaningful education that permits them to learn English.”

Kathleen Mullen, of counsel with Pepper Hamilton LLP, added, “With this ruling, the Court has plainly rejected the School District’s claim of unfettered decision-making authority when its programs fall short of protections provided by federal law. The School District claimed that it graduates these students as evidence of their success at overcoming language barriers, but the District Court found ample evidence, and the Third Circuit today affirmed, that pushing these students to a quick graduation is not the same as ensuring their right to overcome language barriers.”

The lawsuit was filed in July 2016 by the Education Law Center of Pennsylvania, the ACLU of Pennsylvania and pro bono counsel from Pepper Hamilton LLP on behalf of a group of refugees from Somalia, Sudan, Tanzania, and Burma who had fled violence and persecution before being resettled in the U.S. The lawsuit is a class action lawsuit filed on behalf of the named plaintiffs and all other immigrant and refugee students similarly denied or delayed enrollment to the main high school and diverted instead to Phoenix, which offers inferior English instruction on an accelerated structure.

The action is ongoing before Judge Smith in the District Court for the Eastern District of Pennsylvania.
The students are being represented by Vic Walczak, Molly Tack-Hooper, and Michelin Cahill of the ACLU of Pennsylvania; Maura McInerney, Kristina Moon, and Alex Dutton of the Education Law Center; Kathleen Mullen, Thomas A. Schmidt, III, Megan Morley, Katrina Long, Kaitlin M. Gurney, and Hedya Aryani at the law firm of Pepper Hamilton LLC; and Seth Kreimer of the University of Pennsylvania Law School.

 

Click here to download the Court’s January 30, 2017 decision.

Click here to read more about the case.

 

Important Victory for Parents with Limited English Proficiency and their Children with Disabilities, as Lawsuit against the School District of Philadelphia Moves Forward

December 2, 2016

Philadelphia, Pa. –  A federal class action lawsuit challenging the failure a major school district to provide translation and interpretation services to limited English proficient parents of children with disabilities is moving forward.  This week a federal judge soundly rejected a request by the School District of Philadelphia to throw out any of the seven claims asserted against them in a case involving more than a thousand children with disabilities whose parents speak little or no English. The case will now proceed with fact discovery and class certification proceedings.

The lawsuit filed in 2015 by the Public Interest Law Center, the Education Law Center-PA, and Drinker Biddle & Reath LLP alleges that parents and their children are illegally denied the opportunity to participate in the special education process and receive critical services because they don’t understand or speak English and are provided with documents in English that they don’t understand. The U.S. Department of Justice (DOJ) filed a brief in support of the plaintiffs’ claims of national origin discrimination.

Under federal disability law, children with disabilities are entitled to an educational planning process, including meetings and Individualized Education Programs (IEPs), to ensure they receive a free and appropriate public education. The complaint alleges that the School District refuses to sufficiently interpret the meetings or translate the documents related to this process in a timely manner, preventing parents from meaningfully participating in making informed decisions regarding educational placements and services. The complaint further alleges that as of the 2013-14 school year, there were 1,500 students learning English who received special education services, and 1,887 students with IEPs who spoke a language other than English at home.

The School District sought to dismiss every count of the complaint, including claims brought under laws protecting children with disabilities and those protecting against discrimination based on national origin. The Court denied the motion in its entirety, holding that the plaintiffs had stated valid legal claims.

“This decision is a profoundly moving one for me,” said Anna Perng, an activist in the Asian American community who assists limited English proficient parents. “I grew up with a learning disability. My immigrant parents were not able to get me services and supports due to lack of interpretation and translation in the IEP process. Today, I run a monthly support group for immigrant parents to help them advocate for their children with disabilities. I applaud the Public Interest Law Center, Education Law Center and Drinker Biddle & Reath for fighting to ensure that all students with disabilities receive a free and appropriate public education. We are one step closer to realizing the promise of federal special education law: all means all.”

“This decision stands for a proposition enshrined in the civil rights laws of our country, that parents and children who do not speak English have the same rights to participate in our education system as those who do, ” said Michael Churchill, of Counsel at the Public Interest Law Center.

“This case is about the critical need for translation and interpretation services during the special education process,” said Chanda A. Miller, a Drinker Biddle attorney who argued the case before the Court in September. “We are pleased that the Court has ordered this case to go forward, so that one day all parents in the School District of Philadelphia, regardless of their English proficiency, may have the same opportunities to participate in their children’s special education plans.”

The U.S. Department of Education is closely following the case and previously issued a “Dear Colleague” letter in response to DOJ’s filing, clarifying that state educational agencies and school districts have “independent responsibilities to provide LEP parents of children with disabilities meaningful access through timely and complete translation and oral interpretation.”

“This is a potentially precedent-setting case that is being watched in other jurisdictions,” said Maura McInerney, Senior Attorney at Education Law Center-PA. “The Court’s ruling sends an important message that our disability and civil rights laws create enforceable protections and that all parents — including those with limited English proficiency — have an unequivocal right to meaningful participation in the special education process.  They cannot be discriminated against on the basis of language and national origin and their children have a right to equal educational opportunities.”

The lawsuit builds from two administrative special education hearings during which the hearing officer found that the District had violated the rights of the students and parents to meaningfully participate in their children’s education. However, the hearing officer stated that he lacked the authority to order systemic change to remedy the situation.

The complaint asks the Court to order the District to provide complete and timely translations of special education documents; to notify parents that they are entitled to such documents in their native language; to provide sufficient oral interpretation services for key encounters pertaining to special education services; and to provide bilingual evaluations for all students who need them.

Parents of children with disabilities who have not had educational documents translated for them should contact the Education Law Center at 215-346-6905 or the Public Interest Law Center at 215-627-7100.

 

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The Public Interest Law Center uses high-impact legal strategies to improve the well-being and life prospects of vulnerable populations by ensuring they have access to fundamental resources including a high-quality public education, access to health care, employment, housing, safe and healthy neighborhoods and the right to vote. For more information visit http://www.pubintlaw.org or on Twitter @PubIntLawCtr.

The Education Law Center-PA works to ensure that all children in Pennsylvania have access to a quality public education, including children living in poverty, children of color, children in the foster care and juvenile justice systems, children with disabilities, English language learners, and children experiencing homelessness. For more information, visit https://elc-pa.orgor follow @edlawcenterpa on Twitter.

We’re committed to protecting students’ civil rights

November, 2016

The Education Law Center-PA (ELC) is deeply concerned by ongoing racist, homophobic, xenophobic, and misogynistic rhetoric and incidents in schools. We assure our partners across the state that we will continue holding school districts to their legal obligations to maintain a school atmosphere where students can thrive and do not face fears of violence or discrimination.

ELC remains steadfast in our commitment to ensuring that all children in Pennsylvania have access to quality public education. We advocate on behalf of our most vulnerable students, including children living in poverty, children of color, children with disabilities, English Language Learners, and LGBTQ students, to ensure that prejudice and bigotry do not impede their civil rights. We have been privileged to spend the last 41 years working on behalf of students and families and will continue to adapt to whatever challenges are to come.

We are reminded that the road to educational equity is a marathon, not a sprint, and we promise to continue working in the courtroom and in the community to protect the following rights of Pennsylvania’s schoolchildren:

EDUCATION LAW CENTER’S STATEMENT OF STUDENT RIGHTS

The right to be free from discrimination or harassment based on race

Students have the right to attend schools free of discrimination and harassment based on their race, color, or national origin.

The right to be free from discrimination based on disability

Students with disabilities have the right to a free appropriate public education and to be educated in the regular education classroom to the maximum extent appropriate for the student with the disability. Students have the right to accommodations in school and cannot be punished for behavior related to their disability.

The right to be free from discrimination based on religion and to wear religious clothing in school

Students have the right to practice their religion in school and must be allowed to wear religious clothing and head coverings.

The right to be free from discrimination based on immigration and/or English Language Learner status

Students have the right to enroll in public school regardless of immigration or citizenship status. Students who are English Language Learners have the right to programming that helps them overcome language barriers.

The right to be free from discrimination based on gender and gender identity

Gender discrimination and sexual harassment are illegal. Students also have the right to wear clothing consistent with their stated gender. Some Pennsylvania school districts have adopted policies to expressly protecting rights based on gender identity. Litigation is ongoing to protect the right of students to use restrooms and locker-rooms that are consistent with their gender identity.

The right to be treated equally regardless of sexual orientation

Lesbian, gay, bisexual and queer students have the same right to be free of discrimination and harassment as other students.

The right to be emotionally and physically safe in school

Students have the right to be free from bullying by students and adults, and students cannot be retaliated against for reporting bullying.

The right to freedom of expression

Students have the right to free speech and cannot be censored unless the speech is obscene, creates an imminent threat, or is significantly disruptive. This includes the right to publish articles in a school paper, to refuse to salute the flag, and to wear political armbands.


The Education Law Center-PA (“ELC”) is a non-profit, legal advocacy organization dedicated to ensuring that all children in Pennsylvania have access to a quality public education. Through legal representation, impact litigation, trainings, and policy advocacy, ELC advances the rights of vulnerable children, including children living in poverty, children of color, children in the foster care and juvenile justice systems, children with disabilities, English language learners, LGBTQ students, and children experiencing homelessness. Every situation is different. If questions remain about how the law applies to a situation or if you think your rights have been violated, contact us by visiting www.elc-pa.org/contact or by calling 215-238-6970 (Philadelphia) or 412-258-2120 (Pittsburgh).

Click here to download a PDF version of this statement. 

Emergency Motion Filed to Force School District of Lancaster to Comply with Court Order to Transfer Immigrant Students from Alternative School

LANCASTER, PA – Three weeks after a federal judge ordered the School District of Lancaster to transfer six refugee students from one of the district’s alternative schools, attorneys for the students filed an emergency motion today asking for protection for all English Language Learner immigrant students aged 17-21 against the district’s continuing practice of delaying the enrollment of older immigrant students and denying them admission to the district’s regular high school.

On August 26, after a week-long trial, Judge Edward Smith of the U.S. District Court for the Eastern District of Pennsylvania ruled that the school district had violated “clear law” by denying or delaying enrollment to older immigrants and by placing them in Phoenix Academy, a privately run alternative school with inadequate English language instruction instead of allowing them to attend the regular high school in the district, McCaskey.  Evidence at trial showed that more than 90 Phoenix students were English Language Learners.  The district has appealed the August 26 ruling and asked the court of appeals to expedite the appeal and to issue an order immediately blocking the injunction while the appeal proceeds.

Although the August 26 preliminary injunction order “encouraged” the district to apply the court’s interpretation of the law to all similarly situated students, plaintiffs’ motion filed today presents evidence that the school district has decided not to do so.  In an email conversation with a staffer at a local refugee resettlement agency cited in today’s filing, a senior school district official stated that, “At this point, transfers [to McCaskey] are being offered to students who were at Phoenix at the time of the [court] order. With all other students, we are proceeding status quo until our appeal is heard.”  Other email chains presented to the court showed that the district had refused transfers to several Phoenix students.

The plaintiffs argue in the emergency motion that “[i]t is now clear that the District has not honored, and has no intention of honoring, the Court’s legal reasoning” with respect to other immigrants, who continue to suffer “irreparable harm” caused by enrollment delays and exclusion from the regular high school. “The potential for harm . . .  is just as real” for other students as it was for the six named plaintiffs, the motion argues.

The plaintiffs’ emergency motion asks the court to certify the lawsuit as a class action while litigation proceeds, expressly extend the injunction to cover similarly situated immigrant English Language Learners so they can attend McCaskey, and order the district to share with plaintiffs’ lawyers information about other affected students.

The case is Issa v. School District of Lancaster. The students are being represented by Walczak, Molly Tack-Hooper, and Michelin Cahill of the ACLU of Pennsylvania; Maura McInerney, Kristina Moon, and Alex Dutton of the Education Law Center; Kathleen Mullen, Thomas A. Schmidt, III, Megan Morley, Katrina Long, Kaitlin M. Gurney, and Hedya Aryani at the law firm of Pepper Hamilton LLC; and Seth Kreimer of the University of Pennsylvania Law School. More information about the case, including a copy of the complaint and today’s motion, can be found at www.aclupa.org/issa.

More information about plaintiffs’ counsel can be found at:

www.aclupa.org

www.elc-pa.org

www.pepperlaw.com

Federal Judge Orders Lancaster School District to Immediately Transfer Refugee Students from Alternative School

August 26, 2016

LANCASTER, PA – Following a five-day trial, a federal judge ruled today that the School District of Lancaster (SDOL) violated the civil rights of older immigrant students with limited English proficiency (LEP) when it diverted them to an inferior, privately operated alternative school, Phoenix Academy, rather than allowing them to attend the district’s regular high school, McCaskey. The court ruled that it was bound to apply “clear law to clear facts,” and ordered SDOL to immediately transfer eligible plaintiffs to the International School at McCaskey in time for the beginning of the school year on Monday, August 29, 2016. Judge Smith explained: “The plaintiffs are not seeking the creation of a new entitlement, or new and better schools. The plaintiffs are seeking admittance into a program that currently exists, and that is specifically designed for students with their unique language needs.”

The decision resulted from a lawsuit brought by the ACLU of Pennsylvania, the Education Law Center of Pennsylvania, and pro bono counsel Pepper Hamilton LLP on behalf of a group of refugees from Somalia, Sudan, Tanzania, and Burma who have fled war, violence, and persecution in their native countries.

“Our refugee clients have lived lives of unimaginable hardship, and they are way overdue for a break,” said Witold Walczak, legal director of the ACLU of Pennsylvania and one of the lawyers for the students.  “We are thrilled the court recognized that school districts have a legal obligation to provide refugees and other immigrants with equal educational opportunities until age twenty-one.”

In addition to transferring plaintiffs Khadidja Issa, Qasin Hassan, Sui Hnem Sung, and Van Ni Iang to the International School at McCaskey, the school district must assess the students’ language and core content proficiencies the first week of school and place them in appropriate ESL and core content classes.

“These students were thrown into a fundamentally inappropriate alternative accelerated program where they languished in classes they didn’t understand. One of our clients was pushed through four years of high school in 18 months, without learning English or acquiring basic skills,” said Maura McInerney, senior staff attorney at the Education Law Center. “This decision will change their life trajectories by giving them what they were always legally entitled to: the opportunity to learn English and gain the knowledge they desperately need for a successful life.”

“The great thing for these kids is that SDOL already has the kind of program they need to provide a successful and welcoming education – it’s just at McCaskey, the school that Judge Smith has ordered they be sent to, rather than the alternative school that they have been going to,” said Eric Rothschild, one of the attorneys for the students.

The problem of school districts refusing to enroll students with limited English proficiency or placing them in sub-standard programs appears to be increasing around the country. This is the third federal lawsuit filed on this issue in the past fifteen months, with earlier cases filed against school districts in Utica, New York, and Collier County, Florida. The Lancaster case is the first case to go to trial.

The case is Issa v. School District of Lancaster. The students are being represented by Walczak, Molly Tack-Hooper, and Michelin Cahill of the ACLU of Pennsylvania; McInerney, Kristina Moon, and Alex Dutton of the Education Law Center; Rothschild, Kathleen Mullen, Megan Morley, Katrina Long, Kaitlin M. Gurney, and Hedya Aryani at the law firm of Pepper Hamilton LLC; and Seth Kreimer of the University of Pennsylvania Law School.

More information about the case, including a copy of the complaint, can be found at www.aclupa.org/issa or www.elc-pa.org/cases/issa-v-school-district-of-lancaster/ 

More information about plaintiffs’ counsel can be found at:

www.aclupa.org

www.elc-pa.org

www.pepperlaw.com

ACLU and Education Law Center Sue School District of Lancaster for Illegally Denying Immigrant Youth an Education

July 19, 2016

LANCASTER, PA – The ACLU of Pennsylvania, the Education Law Center, and pro bono counsel Pepper Hamilton LLP filed a federal lawsuit today alleging that the School District of Lancaster (SDOL) has been illegally refusing to enroll older immigrant students with limited English proficiency (LEP) or diverting them to an inferior, privately operated disciplinary school, rather than allowing them to attend the district’s regular high school. The plaintiffs include six refugees aged 17-21 from Somalia, Sudan, Democratic Republic of Congo, and Burma who have fled war, violence, and persecution in their native countries. Continue reading