Methelus et al v. The School Board Of Collier County, Florida et al
Filing
166
ORDER adopting 139 REPORT AND RECOMMENDATIONS re Sealed Document, 118 Response to motion filed by Kamela Patton, The School Board Of Collier County, Florida, 87 MOTION for preliminary injunction filed by Lucenie Hilaire D urosier, Emile Antoine, Marta. The Report and Recommendation 139 is ACCEPTED and ADOPTED and the findings are incorporated herein in accordance with this Opinion and Order. The Motion for Preliminary Injunction 87 is DENIED. Signed by Judge Sheri Polster Chappell on 3/14/2018. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
NEHEMY ANTOINE and MARTA ALONSO,
on behalf of I.A., minor; on behalf of
themselves and all others similarly situated,
Plaintiffs,
v.
Case No: 2:16-cv-379-FtM-38MRM
THE SCHOOL BOARD OF COLLIER
COUNTY, FLORIDA and KAMELA PATTON,
Defendants.
____________________________________/
OPINION AND ORDER1
Before the Court is United States Magistrate Judge Mac R. McCoy’s Report and
Recommendation.
(Doc. 139). Judge McCoy recommends denying the Motion for
Preliminary Injunction (Doc. 87) filed by Plaintiffs Marta Alonso and Nehemy Antoine, as
next friend on behalf of I.A. Plaintiffs have filed Rule 72 Objections to the Report and
Recommendation (Doc. 147), to which Defendants the School Board of Collier County,
Florida and Kamela Patton have responded (Doc. 156).
The Report and
Recommendation is ripe for review.
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BACKGROUND
The Report and Recommendation provides the case’s procedural history and
makes factual findings, both of which the Court adopts. Thus, a detailed recap of that
information is unnecessary.
For completeness and context, the Court will highlight
relevant facts below.
Plaintiffs are foreign-born, teenagers who arrived in the United States in 2016 and
2017 at age seventeen.
They live within the Collier County School District, which
Defendants administer. For disputed reasons, Plaintiffs (and others similarly situated)
were denied enrollment in Defendants’ public high school. Plaintiffs instead attended
English for Speakers of Other Languages (“Adult ESOL”) programs at a local career
technical college under the School Board’s authority. The Adult ESOL programs include
English language and literacy immersion classes and eventually GED classes. Plaintiffs
can only earn a GED through the Adult ESOL programs, not a high school diploma. The
classes, activities, and interactions with other students in the Adult ESOL programs differ
from the classes, activities, and interactions with other students enrolled in Collier
County’s public high schools.
Both Plaintiffs aspire to attend college or pursue
professional careers – Antoine wants to be a computer software engineer or an electrician
(Doc. 87-3 at ¶ 39) and I.A. wants to be a nurse (Doc. 87-2 at ¶¶ 6, 41).
Plaintiffs believe that Defendants have an unlawful policy and practice of excluding
foreign-born children from public school. They thus are suing Defendants for violating,
among other laws, the Equal Educational Opportunities Act of 1974, 20 U.S.C. § 1703(f),
and Florida Educational Equity Act, Fla. Stat. § 1000.05(2). (Doc. 76). And they move
for a preliminary injunction that
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direct[s] Defendants to: 1) enroll Plaintiff Children and permit
them to attend regular public school beginning August 16,
2017; 2) assess Plaintiff Children’s language proficiency and
allow them to access the benefits of the Defendants’ ELL
Plan; 3) provide services to compensate for the educational
opportunities that Plaintiff Children were denied; and 4) cease
excluding recently-arrived, foreign-born ELLs aged fifteen and
older from public school.
(Doc. 87 at 2).
The Undersigned referred Plaintiffs’ motion for preliminary injunction to Judge
McCoy for a report and recommendation.2 Judge McCoy held oral argument on the
motion; neither party requested an evidentiary hearing. (Doc. 126; Doc. 127 at 4:245:18); see also M.D. Fla. R. 4.06 (stating, “[a]ll hearing scheduled on applications for a
preliminary injunction will be limited in the usual course to argument of counsel unless the
Court grants express leave to the contrary in advance of the hearing pursuant to Rule
43(e), Fed.R.Civ.P.”). He then issued the Report and Recommendation finding that
Plaintiffs had not satisfied their heightened burden of showing irreparable injury to warrant
a mandatory preliminary injunction. (Doc. 139). The Court now reviews the Report and
Recommendation.
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Plaintiffs allude to the length of time this matter has been pending. The Undersigned
initially scheduled to hear herself Plaintiffs’ motion for preliminary injunction. (Doc. 95).
But the parties quibbled over Defendants’ deadline to respond to the motion. During their
back and forth exchange, the Undersigned was presiding over a multi-defendant criminal
retrial and had other criminal trials and motions on deck. The Undersigned thus referred
the motion for preliminary injunction and ancillary requests to Judge McCoy. The
Undersigned has been the only active district judge in the Fort Myers Division since June
2015, and will likely continue to be so for the near future. If the parties wish to advance
this case faster so as not to compete with criminal matters, they may consent to Judge
McCoy handling any specific motion and/or this entire case.
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STANDARD OF REVIEW
In reviewing a report and recommendation, the district court “may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3). When a party makes
specific objections to a magistrate judge’s report, the district court engages in de novo
review of the issues raised. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). A de
novo review means the district court “give[s] fresh consideration to those issues to which
specific objection has been made by a party.” Jeffrey S. v. State Bd. of Educ. of Ga., 896
F.2d 507, 512 (11th Cir. 1990) (citation omitted).
DISCUSSION
After an independent review of the complete record, parties’ briefs, and applicable
case law, the Court finds the Report and Recommendation to be well reasoned, thorough,
and legally sound. The Court thus accepts it. Plaintiffs raise several objections to the
Report and Recommendation, none of which warrants rejecting or modifying it.
Expansion on Plaintiffs’ objections follows.
Preliminary injunctive relief “is an extraordinary and drastic remedy” that courts
grant only in limited circumstances. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir.
2000); Powers v. Sec’y, Fla. Dep’t of Corr., 691 F. App’x 581, 583 (11th Cir. 2017) (“A
preliminary injunction is the ‘exception rather than the rule’” (citation omitted)). District
courts have wide discretion to grant or deny a preliminary injunction. See United States
v. Jefferson Cty., 720 F.2d 1511, 1519 (11th Cir. 1983) (“The grant or denial of a
preliminary injunction is a matter within the discretion of the district court, reviewable only
for abuse of discretion or if contrary to some rule of equity.”). To get injunctive relief the
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movant must clearly show (1) a substantial likelihood of success on the merits; (2) she
will suffer an irreparable injury without the injunction; (3) the threatened injury outweighs
whatever damage the proposed injunction may cause the opposing party; and (4) the
injunction would not adversely affect the public interest if issued. See Hamm v. Comm’r,
Ala. Dep’t of Corr., -- F. App’x -- 2018 WL 1020051, at *3 (11th Cir. Feb. 22, 2018); see
also Powers, 691 F. App’x at 583 (stating the movant must “clearly establish the burden
of persuasion as to each of the four prerequisites” (internal quotations omitted)).
At issue today is only the irreparable injury prong.3 Plaintiffs argue that being
denied the chance to earn a high school diploma irreparably harms them and that Judge
McCoy’s finding otherwise is wrong. (Doc. 147 at 13-21).
A showing of irreparable injury is “the sine qua non of injunctive relief.” Siegel, 234
F.3d at 1176 (internal quotations omitted). A court need not address the other elements
of a preliminary injunction when “no showing of irreparable injury was made.” Ne. Fla.
Chapter of the Ass’n of Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d 1283,
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The Report and Recommendation analyzed only the irreparable injury prong because
the other elements turned on resolving disputed facts that needed an evidentiary hearing
to decide credibility. (Doc. 139 at 9). But neither party requested an evidentiary hearing,
moved for leave to question the opposing side’s witnesses, or asserted that live testimony
would be needed to decide the motion for preliminary injunction. And no hearing was
requested even when, about four weeks before oral argument, Judge McCoy’s Order
stated “the hearing will be limited to argument of counsel because neither party has
sought leave to the contrary pursuant to Fed. R. Civ. P. 43.” (Doc. 105 at 3). Judge
McCoy also clarified at oral argument that both parties agreed witness testimony was
unnecessary. Thus, to the extent Plaintiffs object to Judge McCoy not holding an
evidentiary hearing, the Court is not persuaded. See FTC v. Vylah Tec LLC, -- F. App’x
-- 2018 WL 1211948, at *2 (11th Cir. Mar. 8, 2018) (“To the extent Appellants contend the
district court should have required Appellees to present live testimony, they have not
provided, nor have we found, any binding authority to that effect.” (footnote omitted)). The
parties opted to rely on their briefs, supporting documents, and arguments. Plaintiffs
cannot now use that choice to contest the Report and Recommendation because they
are unhappy with the result.
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1285 (11th Cir. 1990); see also Siegel, 234 F.3d at 1176 (“[T]he absence of a substantial
likelihood of irreparable injury would, standing alone, make[s] preliminary injunctive relief
improper” even if the plaintiff shows a likelihood of success on the merits (citations
omitted)).
“An injury is ‘irreparable’ only if it cannot be undone through monetary
remedies.” Ne. Fla. Chapter, 896 F.2d at 1285. “Mere injuries, however substantial, in
terms of money, time and energy necessarily expended in the absence of a stay, are not
enough.” Id. And a movant’s alleged irreparable injury “must be neither remote nor
speculative, but actual and imminent.” Siegel, 234 F.3d at 1176-77 (internal quotations
and citations omitted).
Plaintiffs maintain they are “getting older” and will miss their window of opportunity
to earn a high school diploma if the Court does not direct Defendants to enroll them now
in public high school. (Doc. 127 at 57). According to Plaintiffs, a high school diploma will
allow them to continue their education or find a career. (Doc. 87-2 at 9; Doc. 87-3 at
¶¶ 43-44). Without that diploma, Plaintiffs argue they are irreparably harmed. The Court
disagrees.
The alleged negative impact to Plaintiffs’ future education and job opportunities
are perceived injuries that are remote and speculative, not actual and imminent. It is
undisputed that I.A. is advancing through the English-language immersion part of the
Adult ESOL program and, upon becoming proficient in English, she can move to GED
classes. Antoine has finished the language immersion and is currently working on her
GED. A GED will not prevent Plaintiffs from applying to colleges, universities, or technical
colleges and pursue professional careers. (Doc. 119-1 at 5; Doc. 87-5 at ¶ 26). Plaintiffs
have presented no evidence that they (1) are not on track to succeed in the Adult ESOL
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program; (2) will not succeed in obtaining a GED; and (3) with a GED in hand, will not (or
cannot) be admitted to college, technical school, a career, or other employment,
depending on the specific path Plaintiffs choose. They thus have not shown an actual
and imminent injury if the Court does not direct Defendants to enroll them immediately in
public school.
Plaintiffs present no binding or persuasive case law to find otherwise. They rely
primarily on Supreme Court and Eleventh Circuit decisions that endorsed preliminary
injunctions targeting Texas and Alabama laws that prohibited undocumented schoolaged, immigrant children from attending public school. See Plyler v. Doe, 457 U.S. 202
(1982); Certain Named and Unnamed Non-Citizen Children and their Parents v. Texas,
448 U.S. 1327 (1980) (vacating the appellate court’s stay, pending appeal, of a
preliminary injunction); Hispanic Interest Coal. of Ala. v. Governor of Ala., 691 F.3d 1236
(11th Cir. 2012). Two cases challenged the same Texas law that withheld state funds
from school districts for educating children not “legally admitted” to the United States and
that allowed the districts to deny such children enrollment in public schools. Plyler, 457
U.S. at 205; Certain Named, 452 U.S. 937, 937 (1981) (consolidating case with Plyler v.
Doe, 451 U.S. 968). The Alabama law also targeted children because of their immigration
status. It required enrolling students to present their birth certificates so schools could
determine if the student was legally or illegally in the United States. See Hispanic Interest
Coal., 691 F.3d at 1240-41. If a student was foreign born, his parent or guardian had to
tell the school of the child’s citizenship or immigration status under federal law. Id. at
1241. Failure to do so resulted in the school presuming the student to be unlawfully in
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the country. Id. It is against this backdrop the courts made remarks like the following on
education:
The Texas law “imposes a lifetime hardship on a discrete class of children not
accountable for their disabling status. The stigma of illiteracy will mark them
for the rest of their lives. By denying these children a basic education, we deny
them the ability to live within the structure of our civic institutions, and foreclose
any realistic possibility that they will contribute in even the smallest way to the
progress of our Nation.” Plyler, 457 U.S. at 223;
“The harm caused these [undocumented] children by lack of education needs
little elucidation. Not only are the children consigned to ignorance and illiteracy;
they are also denied the benefits of association in the classroom with students
and teachers of diverse backgrounds.” Certain Named, 448 U.S. at 1333; and
“Given the important role of education in our society, and the injuries that would
arise from deterring unlawfully present children from seeking the benefit of
education, we conclude that the equities favor enjoining this provision.”
Hispanic Interest Coal., 691 F.3d at 1249.
This case differs from Plyler, Certain Named, and Hispanic Interest. In those
cases, Texas law foreclosed undocumented children from attending public schools, while
Alabama law left children fearful to enroll because of their immigration status.
For
instance, the children in Certain Named had not been able to attend any Texas public
school for five years. 448 U.S. at 1332. This is not the situation here. Plaintiffs are
receiving an education, albeit not how they want. I.A. is in the midst of her English
language instruction and working her way to GED classes. And Antoine is attending GED
classes. For purposes of a preliminary injunction’s irreparable injury inquiry, Plaintiffs’
instruction aligns with the principle that “education has a fundamental role in maintaining
the fabric of our society.” Plyler, 457 U.S. at 221. What is more, Plaintiffs move for a
preliminary injunction under their EEOA and FEEA claims, not their Equal Protection
claims as in Plyler, Certain Named, and Hispanic Interest. And that distinction makes a
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difference. In short, Plaintiffs are not suffering an injury to warrant granting them the
extraordinary and drastic relief of a preliminary injunction.
Plaintiff’s reliance on Ray v. The School Bd. of DeSoto Cty., 666 F. Supp. 1524
(M.D. Fla. 1987) fares no better. In Ray, the school district denied three school-aged
brothers with HIV enrollment in regular public school. It offered them instead indefinite
enrollment in a home program or “separate but equal full-time, isolated instruction.” 666
F. Supp. at 1528. The brothers sued for civil rights and constitutional violations (not EEOA
claims like at issue here) and moved for a preliminary injunction. The court granted the
injunction, finding irreparable injury to the brothers’ mental well-being and educational
potential from being denied access to a traditional, integrated classroom because of their
illness. It also found money and prevailing on the merits would not compensate the
brothers for their injury. In the end, it stated,
[t]he reality is that the [brothers] have already been dealt a
hand not to be envied by anyone. The boys at their young
ages are having to face two potentially life-threatening
diseases. This is more than most people face in their entire
adult lives. Denial of the opportunity to lead as normal an
educational and social life as possible is adding insult to injury.
Unless and until it can be established that these boys pose a
real and valid threat to the school population of DeSoto
County, they shall be admitted to the normal and regular
classroom settings, to which they are respectively
educationally entitled.
Id. at 1535.
Ray is nothing like this case. It was decided in 1987 during the height of the AIDS
epidemic when information on the disease was slight.
The brothers faced a life-
threatening disease that many thought was highly contagious. In that context, the court
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found irreparable harm to their mental state if they were further ostracized from school.
For obvious reasons, the brothers’ plight in Ray is incomparable to Plaintiffs’ situation.
Plaintiffs’ strongest case is Issa v. School Dist. of Lancaster, 847 F.3d 121 (3d Cir.
2017). Not only is this case not binding authority, but it also is distinguishable. In Issa,
refugees aged eighteen to twenty-one with language barriers moved for a preliminary
injunction to compel the school district “to allow them to transfer from Phoenix Academy,
an accelerated credit-recovery high school, to McCaskey High School’s International
School, a program designed principally to teach language skills to English language
learners, or ELLs.” 847 F.3d at 125. Phoenix was an alternative education program
designed for at-risk students over-age for their grade, under-credited, and in danger of
not graduating high school before they aged out of public-school eligibility.4 New-to-thedistrict students over age seventeen and under-credited – regardless of English
proficiency or educational background – were enrolled automatically in Phoenix and could
not transfer to McCaskey.
All Phoenix students, including ELLs like the plaintiffs, took an accelerated
curriculum that earned them a high school diploma in about half the time of a traditional
public high school. ELLs took science, math, and social studies with Phoenix’s general
population, and not with other ELLs at comparable English-proficiency levels like at
McCaskey. The general population included other ELLS at higher proficiency levels and
native English speakers. For the plaintiffs who attended Phoenix, they complained that
they could not comprehend the content taught because the accelerated curriculum moved
Pennsylvania law guarantees a public school education to “[e]very child, being a resident
of any school district, between the ages of six (6) to twenty-one (21) years[.]” 24 P.S.
§ 13-1301.
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too quickly and they could not understand what their teachers and classmates were
saying. Nevertheless, they accrued credits and advanced to higher-grade levels.
When deciding the motion for a preliminary injunction, the Third Circuit found
“without preliminary relief, irreparable harm was likely for these plaintiffs, who would have
remained in Phoenix’s accelerated, non-sheltered program for at least the duration of this
litigation.” 847 F.3d at 142. It said, “[t]ime is of the essence: Their eligibility to attend
public school in Pennsylvania is dwindling. We recognize that a sound educational
program has power to ‘change the trajectory of a child’s life, . . . while even a ‘few months’
in an unsound program can make a ‘world of difference in harm’ to a child’s educational
development.’” Id. (citations omitted).
The reasoning in Issa does not apply here because the Phoenix education
program differs fundamentally from Defendants’ Adult ESOL programs. The Issa plaintiffs
were rushed through their high school without any meaningful regard to their ability to
overcome their language barriers, to speak English, or to understand the classes they
took. The opposite situation presents itself here. Plaintiffs achieve English language
proficiency before they continue to GED classes. And there is no evidence that Plaintiffs,
like their counterparts in Issa, may earn a GED “with limited ability, if any, to converse in
English – also often a prerequisite to future advancement – and limited understanding of
the content of the courses [they] actually took.” Id. at 138 (citation omitted).
One last point on irreparable harm. Plaintiffs’ unnecessary delay in moving for
preliminary injunctive relief is another factor weighing against irreparable harm. They filed
this suit in May 2016 and waited over a year to move for an injunction. An entire school
term lapsed during that period. Plaintiffs defend the delay, stating they were waiting for
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the Court to decide Defendants’ motion to dismiss and they believed the Court would set
the trial in 2018. Neither excuse is persuasive. If Plaintiffs were suffering an irreparable
injury with each passing day they were not in public school, a decision on the pleadings
and a trial term in 2018 matters little. Neither the motion to dismiss nor case management
deadlines prevented Plaintiffs from seeking preliminary injunctive relief to address their
alleged irreparable harm. Plaintiffs also maintain that I.A. entered this case only about a
month before they filed the preliminary injunction. But that argument neglects to mention
that Antoine has been in this case since the beginning and waited. (Doc. 30). Although
the delay alone does not warrant a showing of irreparable harm, it strongly cuts against
the opposite conclusion.
Allowing an entire school year to lapse before seeking a
preliminary injunction is a fact the Court cannot ignore. In sum, Plaintiffs have not
sustained their burden of presenting the requisite proof of an irreparable injury.
Plaintiffs’ objections do not end with irreparable injury. They also object to the
Report and Recommendation characterizing their preliminary injunction relief as
“mandatory” instead of “prohibitory.” Generally, the purpose of a preliminary injunction is
to preserve the status quo until the court reaches a final decision on the merits. See
Haddad v. Arnold, 784 F. Supp. 2d 1284, 1295 (M.D. Fla. 2010). To maintain the status
quo, injunctions typically prohibit certain conduct by a defendant. An injunction that
requires the defendant to act affirmatively alters the status quo and is thus mandatory.
And “[m]andatory preliminary relief, which goes well beyond simply maintaining the status
quo[,] is particularly disfavored, and should not be issued unless the facts and law clearly
favor the moving party.” Powers, 691 F. App’x at 583 (citation omitted). In other words,
courts should exercise more caution when the preliminary injunction sought is mandatory.
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Here, Plaintiffs do not want to freeze the existing situation, i.e., remain in the Adult
ESOL programs. Just the opposite. They want the Court to direct Defendants to enroll
them in regular public high school, afford them testing, and provide services to
compensate them for denied educational opportunities while this case continues. (Doc.
87 at 2). This is the quintessential mandatory preliminary injunction.
Plaintiffs argue, “[t]he distinction between a ‘mandatory’ and ‘prohibitory’
preliminary injunction is not nearly as clear as the report suggests.” (Doc. 147 at 6). This
argument is a nonstarter. Plaintiffs cite two cases from the Seventh and Ninth Circuits in
which the courts rejected or criticized the distinction between mandatory and prohibitory
injunctions. (Doc. 147 at 6 n.5). Neither case binds this Court. And neither is persuasive
because the Eleventh Circuit recently affirmed a district court’s denial of a mandatory
preliminary injunction. See Powers, 691 F. App’x at 583-84. Because Plaintiffs seek a
mandatory preliminary injunction, their motion faces a heightened burden.
Finally, Plaintiffs argue Judge McCoy failed to consider the Court’s legal standard
for an EEOA claim. Even accepting Plaintiffs argument, it goes nowhere. The standard
for an EEOA claim concerns whether Plaintiffs showed a substantial likelihood of success
on the merits. Neither Judge McCoy nor the Undersigned need to reach any conclusion
on that element because Plaintiffs have not shown irreparable harm. The same reasoning
rings true for the material facts that Plaintiffs claim are undisputed that Judge McCoy did
not find in the Report and Recommendation.
(Doc. 147 at 7-13). Even accepting
Plaintiffs’ material facts, they do not persuade the Court to find an irreparable injury.
In conclusion, the Court accepts the Report and Recommendation in accordance
with this Opinion and Order.
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Accordingly, it is now
ORDERED:
(1) The Report and Recommendation (Doc. 139) is ACCEPTED and ADOPTED
and the findings are incorporated herein in accordance with this Opinion and
Order.
(2) The Motion for Preliminary Injunction (Doc. 87) is DENIED.
DONE and ORDERED in Fort Myers, Florida this 14th day of March 2018.
Copies: All Parties of Record
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