On May 18, 2016, a group of parents and guardians of noncitizen children who had recently arrived in the United States filed this class action suit against the School Board of Collier County, Florida and the Superintendent of the Collier County Public Schools. The claim was filed in the U.S. District Court Middle District of Florida. In September 2016, the United States issued a Statement of Interest in support of the plaintiffs' claim.

The litigation arose out of the defendants' implementation of an amendment to its Policy 5112.01 on August 2013. This policy provides in relevant part:

No person shall be permitted to attend the regular high school program after attaining the age of nineteen (19). Those who attain the age of nineteen during a school year may complete that school year. Persons who are seventeen years old or older and who, by earning eight credits per academic year, cannot meet graduation requirements, including grade point average, prior to the end of the year during which they attain the age of nineteen, shall not be permitted to attend the regular high school program beyond the end of the academic year in which they attain the age of seventeen. Such persons shall be afforded any opportunity to pursue a high school diploma through the Adult High School or General Educational Development (GED) programs of the District.

In May 2016, the School Board shifted enrollment of high school to a centralized location, the Student Relations Department. Whenever a student who is seventeen or older seeks to enroll, an enrollment specialist gathers the academic records and other pertinent records and gives these to the Executive Director for Secondary Programs, Curriculum, and Instruction. The Executive Director then makes the final recommendation as to enrollment. The Executive Director considers certain factors, including the student's English proficiency, as well as whether the student has an interruption or gap in prior education.

The plaintiffs alleged that the noncitizen children were systematically excluded from enrolling in the local public high school because they did not speak English fluently. Instead, plaintiffs claimed that the County was funneling these students into the local technical college, which does not provide instruction in basic subject areas or provide credit towards a high school diploma. Plaintiffs sued under 42 U.S.C. § 1983 alleging violations of the Equal Education Opportunities Act ("EEOA"), Title VI of the Civil Rights Act of 1964 ("Title VI"), along with violations of the Fourteenth Amendment's Equal Protection and Due Process Clauses. The complaint also alleged the defendants were violating the Florida Educational Equity Act ("FEEA"). The plaintiffs were represented by the Southern Poverty Law Center.

After the defendants filed a motion to dismiss, the plaintiffs amended the complaint. The defendants again filed a motion to dismiss on September 9, 2016. The Department of Justified filed a statement of interest and recommended that the court deny the motion. On March 17, 2017, Judge Sheri Polster Chappell granted in part and denied in part the motion. 2017 WL 1050374. Judge Chappell dismissed the Title VI claim against the Superintendent, agreeing with the defendants that the Superintendent could not be sued under Title VI because she was not a recipient of federal funds. The Court also dismissed the § 1983 claims for violations of Equal Protection and Due Process against the Superintendent, finding them duplicative of the claims against the School Board. The Court denied the motion to dismiss all the other claims and permitted the Title VI and § 1983 claims against the School Board to proceed.

On June 21, 2017, the plaintiffs filed a motion for a preliminary injunction requiring the School Board to enroll in school all English Language Learners identified in regular high school.

After the motion was argued before a magistrate, the court denied the motion on March 14, 2018, finding that the plaintiffs failed to demonstrate the irreparable injury needed because they had not established how they or others similarly situated will face actual and imminent injury unless the preliminary injunction issued.

The court first noted that Adult ESOL proves a pathway for student plaintiffs to attain their future goals of pursuing higher education at a college, university, or technical school, or to enter the labor market. The court also reasoned that this was different from cases where other plaintiffs had suffered injury because of denial or effective denial of any public educational opportunity at all. The court looked to whether the challenged practice "significantly interferes" with the exercise of a right to education and found that it did not. The plaintiffs were still receiving English-language instruction at the other schools and still had the ability to obtain a GED, which would empower them to pursue their future goals. Finally, the court noted that the plaintiffs' excessive delay in moving for mandatory preliminary injunctive relief mitigated against finding irreparable harm.

Around the same time, on January 12, 2018, the plaintiffs filed a motion for class certification, which the court granted in part and denied in part on October 17, 2018. The court only granted class certification for the due process claim because it found the remaining claims failed to satisfy the commonality requirement of FRCP Rule 23

The due process claim relied on the alleged total absence of any procedure to contest the denial of enrollment in public high school, and the question of whether defendants had any such procedure is one that applied equally to all putative class members. By contrast, the EEOA claim required to show that the defendant had failed to take "appropriate action" under the statute. In determining this, the court would need to examine each student's relative success or failure in overcoming language barriers to determine if the defendant's action of placing them in ELCAE or Adult ESOL qualified as appropriate action.

As for the remaining claims, commonality failed because each of them required the court to examine why defendants denied a particular student enrollment in regular high school. Because each of the remaining claims had discrimination as one element of proof, and the record demonstrated that defendants actually did conduct individualized reviews of each student before deciding whether to permit enrollment, the court decided that these claims were not capable of classwide resolution.

For the due process claims, the certified class was defined as:

All foreign-born, English Language Learner (ELL) children ages fifteen to twenty-one whose last completed schooling (not including adult education courses) was at a non-U.S. school, and who, after August 1, 2013, while residing in Collier County, sought or will seek to enroll in the Collier County public school system serving grades K-12, and were or will be denied enrollment by the Defendants.

Since then, the parties continued litigating various discovery disputes, and the plaintiffs filed a fourth amended complaint for declaratory and injunctive relief based on the due process claim. On March 12, 2019, the parties held a mediation that resulted in an impasse, and the litigation continued.

The parties participated in a court-ordered settlement conference on May 13, 2019. As a result, the parties reached an agreement and filed approval of their class-action settlement on July 23, 2019. After a fairness hearing on October 8, 2019, the court approved the settlement and dismissed the case with prejudice. The agreement established a notification and administrative appeals process for any student determined to be ineligible for enrollment in the regular high school program.

As of May 26, 2020, there have been no additional entries in the docket to enforce the settlement.

Jamie Kessler - 01/30/2017
Chris Pollack - 03/27/2019
Alex Moody - 05/26/2020


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