Methelus et al v. The School Board Of Collier County, Florida et al
Filing
202
AMENDED OPINION AND ORDER re: 198 Order Adopting Report and Recommendations. Signed by Judge Sheri Polster Chappell on 10/17/2018. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MARTA ALONSO and NEHEMY
ANTOINE, as next friend on behalf of
I.A., 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.
/
AMENDED 1 OPINION AND ORDER 2
Before the Court is United States Magistrate Judge Mac R. McCoy’s Report and
Recommendation (“R&R”). (Doc. 183). Judge McCoy recommends granting in part and
denying in part the Motion for Class Certification filed by Plaintiffs Nehemy Antoine and
Marta Alonzo, on behalf of I.A., a minor. Plaintiffs object to the R&R (Doc. 185), and
Defendants School Board of Collier County, Florida and Kamela Patton have responded
1
The Court amends its previous Opinion and Order (Doc. 198) to correct only a
typographical error in the second paragraph of the ordered clause.
2
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to the objections (Doc. 193). For the following reasons, the Court accepts and adopts the
R&R.
BACKGROUND
The Report and Recommendation makes factual findings and recounts this case’s
procedural history, both of which the Court adopts. A detailed review of that information
is unnecessary. For completeness and context, however, the Court will highlight relevant
facts below.
Plaintiffs are foreign-born, teenagers who want to attend public high school in
Collier County. They allegedly cannot do so because of Defendants’ policy and practice
that denies school enrollment to foreign-born English Language Learner (“ELL”) students
ages fifteen and older. (Doc. 76 at ¶ 47). The challenged policy, called “Policy 5112.01,”
governs the maximum age a student may participate in the regular high school program.
It says, in relevant part, that
to provide reasonable consistency of maturity levels among
students in the regular high school program, 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 (19) during a school year may complete that
school year. Persons who are seventeen (17) years old or
older and who, by earning eight (8) credits per academic year,
cannot meet graduation requirements, including grade point
average (GPA), prior to the end of the school year during
which they attain the age of nineteen (19), 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 (17).
Such persons shall be afforded an
opportunity to pursue a high school diploma through the Adult
High School or General Educational Development (GED)
programs of the District.
(Doc. 152-4 at 2). Policy 5112.01 took effect in August 2013. (Id.).
2
Since May 2016, students enroll in a Collier County public school at a central
location. (Doc. 154-3 at 16; Doc. 155-5 at 3-4). For students seventeen years old and
over, Dr. Leslie Ricciardelli, the Executive Director Secondary Programs, Curriculum, and
Instruction, examines their transcripts and recommends they attend either regular high
school, the English Literacy for Career and Technical (“ELCATE”) program, or another
program. (Doc. 155-1 at 6-7; Doc. 155-5 at 7-8).
Pertinent here, the ELCATE Academy allows students who are between sixteen
and twenty-one years old to earn a GED, enroll in the Adult English Speakers of Other
Languages (“Adult ESOL”) program, and have gaps in their education. (Doc. 118-1 at ¶
7; Doc. 153-2 at 20-22; Doc. 155-5 at 2). According to the ELCATE Academy’s brochure,
the “curriculum is focused on English Literacy, social studies, math, and science in
preparation to attain a high school diploma by passing the GED exam.” (Doc. 152-5 at
3). The ELCATE Academy has six levels of competencies from beginning to advanced,
and a student must show that s/he has mastered at least level five before trying for a
GED, other career-based programs, or employment. (Doc. 118-1 at ¶¶ 10-11).
As stated, Plaintiffs and others like them have been denied enrollment in a public
high school. They want a free public education alongside their peers, the chance to learn
core educational content and skills, and to participate in extracurricular activities. And
they are suing Defendants to achieve this result.
(Doc. 76).
Plaintiffs assert that
Defendants’ policy and practice, namely Policy 5112.01, violates these laws:
•
Count I: Equal Educational Opportunities Act of 1974 (“EEOA”), 20 U.S.C.
§§ 1703(a) and (f);
•
Count II: Section 601 of Title VI of the Civil Rights Act of 1964 (“Title VI”), 42
U.S.C. § 2000d;
3
•
Count III: Equal Protection clause of the Fourteenth Amendment to the United
States Constitution, U.S. Const., amend XIV, § 1;
•
Count IV: Due Process clause of the Fourteenth Amendment to the United
States Constitution, id.; and
•
Count V: Florida Educational Equity Act (“FEEA”), Fla. Stat. § 1000.05.
(Doc. 76).
Besides compensatory damages, Plaintiffs seek a declaration that Defendants’
acts and omissions violate the rights of Plaintiffs and class members under these laws.
(Id. at 50, 52). They also seek injunctive relief requiring Defendants to, among other
things, (1) “take affirmative steps to enroll Plaintiff Children, and similarly situated
students, in an age-appropriate, public school setting”; (2) “communicate to all class
members . . . that they can enroll in school and can make up any days of school that they
missed as a result of Defendants’ unlawful policy and practice of denying them
enrollment”; and (3) “provide compensatory education to Plaintiff Children to remedy the
harms caused by Defendants’ unlawful policy and practice of denying them enrollment.”
(Id. at 51-52).
At issue now is Plaintiffs’ request to certify a class defined as follows:
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.
(Doc. 152 at 2). They argue all requirements for class certification under Federal Rule of
Civil Procedure 23(a) and (b)(2) are satisfied.
4
The undersigned referred Plaintiffs’ Motion for Class Certification to Judge McCoy
for a report and recommendation. The R&R recommends certifying only Plaintiffs’ due
process claim (Count IV). (Doc. 183). No party objects to this recommendation or the
R&R’s findings on Plaintiffs’ standing and proposed class definition. Plaintiffs object,
however, to the R&R denying class certification for the remaining counts. (Doc. 185).
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). Also, a magistrate judge’s conclusions
of law are reviewed de novo, even in the absence of an objection. See Cooper-Houston
v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994).
CLASS ACTION LEGAL STANDARDS
Federal Rule of Civil Procedure 23 outlines the requirements for class actions.
Under Rule 23(a), the party seeking class certification must prove that “(1) the class is so
numerous that joinder of all members is impracticable; (2) there are questions of law or
fact common to the class; (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and (4) the representative parties will fairly
and adequately protect the interests of the class.” Fed R. Civ. P. 23(a).
5
A proposed class must also satisfy at least one part of Rule 23(b). Plaintiffs here
are seeking to proceed under Rule 23(b)(2), which applies when “the party opposing the
class has acted or refused to act on grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is appropriate respecting the class as
a whole[.]” Fed. R. Civ. P. 23(b)(2).
“The class action is an exception to the usual rule that litigation is conducted by
and on behalf of the individual named parties only.” Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338, 348 (2011) (internal quotations omitted); see also Brown v. Electrolux Home
Products, Inc., 817 F.3d 1225, 1234 (11th Cir. 2016) (stating “the presumption is against
class certification because class actions are an exception to our constitutional tradition of
individual litigation”). “A district court that has doubts about whether ‘the requirements of
Rule 23 have been met should refuse certification until they have been met.’” Brown, 817
F.3d at 1233-34 (citations omitted).
The party seeking class certification has a burden of proof – not a burden of
pleading – to show a proposed class satisfies Rule 23. See Wal-Mart, 564 U.S. at 351
(“Rule 23 does not set forth a mere pleading standard.”). “[T]he entire point of a burden
of proof is that, if doubts remain about whether the standard is satisfied, the party with the
burden of proof loses.” Brown, 817 F.3d at 1234 (internal quotations omitted). It follows
that courts conduct a “rigorous analysis” to decide whether movants carry their burden of
proof. Wal-Mart, 564 U.S. at 350-51. This analysis may “overlap with the merits of the
plaintiff’s underlying claim.” Id. at 351. Courts consider the merits, however, “only to the
extent they are relevant to determining whether the Rule 23 prerequisites for class
6
certification are satisfied.” Brown, 817 F.3d at 1234 (internal quotations and citation
omitted).
Against these principles, the Court will address Plaintiffs’ objections to the R&R.
DISCUSSION
The R&R examines each count under Rule 23(a)’s four requirements – numerosity,
commonality, typicality, and adequate representation. 3 It finds that Counts I, II, III, and V
do not satisfy the commonality and typicality requirements. Although these findings alone
call for denying class certification, the R&R addresses the same counts under Rule
23(b)(2). And it finds that a single injunctive or declaratory judgment on these counts is
not proper for the entire class. The Court will review the R&R’s findings, starting with
Rule 23(b)(2).
The Court can certify Counts I, II, III, and V for class certification under Rule
23(b)(2) only if Defendants acted on grounds that apply generally to the class so injunctive
or declaratory relief is proper for the entire group. Fed. R. Civ. P. 23(b)(2). Regarding
this requirement, the Supreme Court has explained:
[t]he key to the (b)(2) class is the indivisible nature of the
injunctive or declaratory remedy warranted—the notion that
the conduct is such that it can be enjoined or declared
unlawful as to all of the class members or as to none of them
. . . In other words, Rule 23(b)(2) applies only when a single
injunction or declaratory judgment would provide relief to each
member of the class. It does not authorize class certification
when each individual class member would be entitled to a
different injunction or declaratory judgment against the
defendant.
3
No party objects to the R&R’s findings on Plaintiffs’ standing, proposed class definition,
and due process claim (Count IV). Upon a de novo review of the record, parties’ filings,
and applicable law, the Court agrees with, accepts, and adopts these findings as well
reasoned and legally sound.
7
Wal-Mart, 564 U.S. at 360 (internal quotations omitted) (emphasis original); see also
Braggs v. Dunn, 317 F.R.D. 634, 668 (M.D. Ala. 2016) (stating “Rule 23(b)(2) focuses on
the nature of defendants’ acts and omissions and the suitability of class-wide relief, and
does not require that the class-wide relief benefit each class member in precisely the
same way”). Again, Plaintiffs bear the burden under Rule 23(b)(2).
Under the facts presented here, Rule 23(b)(2) class certification is not proper. The
Court cannot fashion a single injunctive or declaratory judgment that gives relief to each
class member. Plaintiffs’ claims, and the injunctive relief demanded, will instead need
individualized inquires as to each class member. Such inquiries defeat the point (and
spirit) of class certification. That said, the Court will address Counts I, II, III, and V in more
detail below.
A. Count I – § 1703(f) of the EEOA
The EEOA prohibits a State from denying equal educational opportunities to
individuals based on their national origin. 20 U.S.C. § 1703. Such a denial occurs when
an educational agency does not “take appropriate action to overcome language barriers
that impede equal participation by its students in its instructional programs.”
Id.
§ 1703(f).
Consistent with the foregoing, Count I alleges that Defendants did not take
appropriate action to overcome language barriers that impede the equal participation of
Plaintiffs and other similarly situated students in Defendants’ programs. 4 (Doc. 76 at 3840). According to Plaintiffs, this claim satisfies Rule 23(b)(2) because Defendants have
4
Count I claims that Defendants violated two subsections of the EEOA – § 1703(a) and
(f). The Court will address § 1703(f) in this section and § 1703(a) in the next.
8
injured all class members in the same way by not enrolling recently-arrived, foreign-born
ELLs in public schools under Policy 5112.01. (Id. at ¶ 138). Plaintiffs thus conclude classwide remedies will give relief to each member. (Doc. 152 at 33).
The Court disagrees with Plaintiffs’ conclusion. To understand why, the Court
starts at the beginning. A plaintiff alleging a § 1703(f) violation must satisfy four elements:
(1) defendant is an educational agency; (2) he faces language barriers that impede his
equal participation in defendant’s instructional programs; (3) defendant failed to take
appropriate action to overcome those barriers; and (4) he was denied equal educational
opportunity because of their national origin. See Methelus v. Sch. Bd. of Collier Cty., Fla.,
243 F. Supp. 3d 1266, 1275 (M.D. Fla. 2017) (citing Issa v. Sch. Dist. of Lancaster, 847
F.3d 121, 132 (3d Cir. 2017)). The third element is problematic here.
The third element focuses on whether a school district took “appropriate action” to
overcome language barriers. The Fifth Circuit’s decision in Castaneda v. Pickard, 648
F.2d 989 (5th Cir. 1981) is the seminal case on this element. 5 The Fifth Circuit created a
three-part “mode of analysis” for courts to use when deciding whether a school’s
“language remediation efforts” are appropriate.
Id. at 1009.
“First, the court must
examine carefully the evidence the record contains concerning the soundness of the
educational theory or principles upon which the challenged program is based.”
Id.
(emphasis added). “The court’s second inquiry would be whether the programs and
practices actually used by a school system are reasonably calculated to implement
effectively the educational theory adopted by the school.” Id. at 1010 (emphasis added).
5
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as precedent the decisions of the former Fifth Circuit rendered
prior to October 1, 1981.
9
Third, “[i]f a school’s program, although premised on a legitimate educational theory and
implemented through the use of adequate techniques, fails . . . to produce results
indicating that the language barriers confronting students are actually being overcome,
that program may, at that point, no longer constitute appropriate action as far as that
school is concerned.” Id. Castaneda’s three-prong test is conjunctive, meaning “[a]ll
three prongs must be met for an educational agency’s program to satisfy § 1703(f)’s
‘appropriate action’ element.” Issa, 847 F.3d at 134 n.7.
The crux of the R&R is that § 1703(f) is not suited for Rule 23(b)(2) class
certification because no common relief can be given. The R&R finds so because the
Court will need to make individualized inquiries into each class members’ progress to
decide whether Defendants’ programs are overcoming language barriers. (Doc. 183 at
46). Plaintiffs object to this finding.
Plaintiffs contend that Defendants have equally harmed them and class members,
namely not enrolling them in public high school, under Policy 5112.01. (Doc. 185 at 20).
Consequently, Plaintiffs say injunctive or declaratory relief will help all class members.
They also criticize the R&R for focusing on all three of Castaneda’s prongs. They posit,
for the first time, that Defendants’ failure to fulfill any of the prongs, standing alone,
triggers a violation § 1703(f). And because Plaintiffs say they will win on either the first
or second prong, the R&R did not need to consider the third prong, which is fatal to class
certification. (Id. at 20-21). In order words, Plaintiffs contend the third prong is irrelevant.
Finally, they argue the R&R’s analysis on the third prong erroneously focuses on students’
individualized progress in overcoming language barriers. What matters, according to
Plaintiffs, is whether challenged program as a whole overcomes the barriers. (Id. at 21).
10
Plaintiffs’ objections miss the mark. They want this Court to ignore Castaneda’s
three-prong conjunctive test to find that a single declaratory or injunctive relief can work
for the entire class. But the Castaneda mode of analysis binds this Court – all three
prongs. The Court cannot choose which prongs to consider to certify Plaintiffs’ desired
class. And Plaintiffs cite no case law in which a court has certified a class action with
less. Also, under Plaintiffs’ logic, the order of Castaneda’s prongs matters. Plaintiffs’
argument would be turned on its head if the Court examined the third element first.
Ignoring Castaneda’s third prong is also problematic at this procedural stage. The
Court is not deciding the merits of Plaintiffs’ § 1703(f) claim (nor does it have any evidence
before it to do so). Although Plaintiffs may argue they can win under Castaneda’s first or
second prongs, that position is better suited for a summary judgment motion or trial – not
class certification. The Court is hard-pressed to find the magistrate judge in the R&R was
mistaken to examine all three prongs.
Boiled down, the Court cannot examine whether Defendants’ programs overcome
language barriers without considering – at least to some extent – the individual students’
progress.
The proposed class members are different.
They will succeed or fail
academically for reasons unique to them and outside the soundness or effective
implementation of Defendants’ programs. As the R&R recognized, the unique individual
circumstances include “their individual learning ability, interest level, effort, ambition,
family support, economic demands, personal distractions, outside interests, behavioral
issues, social influences, personal priorities, attendance record, and motivation.” (Doc.
183 at 25-26). What is more, students enter the ELCATE Academy at different levels of
competencies and move through the program at varying speeds. Because students
11
achieve different results (including Plaintiffs), the reasons for class members’ success or
failure is relevant to examining Defendants’ program as a whole. See, e.g., Issa, 847
F.3d at 137 (considering plaintiffs’ testimony that “they couldn’t understand what their
teachers and classmates were saying in their content classes at Phoenix” to find that
plaintiffs showed a likelihood of success on the matters on Castaneda’s prong three). To
ignore the class members’ individuality to force common relief is counter-intuitive and
goes against the essence of § 1703(f).
Also, the differences between class members matters given Plaintiffs’ requested
relief.
For example, Plaintiffs ask for “injunctive relief in the form of: (1) Requiring
Defendants to take affirmative steps to enroll Plaintiff Children, and similarly situated
students, in an age-appropriate, public school setting.” (Doc. 76 at 51). To decide the
affirmative steps a class member needs and his/her age-appropriate school setting will
require individual inquires and individually crafted relief. (Doc. 183 at 46). A one-size fits
all solution is not possible. And Plaintiffs do not explain how a single injunction or
declaratory judgment could be crafted to provide the same.
In conclusion, assessing whether Defendants’ programs produce results showing
they overcome language barriers will require individualized inquiries on whether each
class members are obtaining results and, if not, why. And the vast differences between
individual students means tailored injunctions will be needed to address their specific
situation. Accordingly, because Plaintiffs have not carried their burden to satisfy Rule
23(b)(2), the Court overrules their objections and denies class certification as to § 1703(f).
12
B. Counts I, II, III, and V – § 1703(a), Title VI, Equal Protection Clause, and FEEA
The Court next addresses Rule 23(b)(2) for the other claims: § 1703(a) of the
EEOA, Title VI, Equal Protection, and FEEA. Because the R&R grouped these counts
together so too will the Court.
To prevail on these claims, the R&R explained that Plaintiffs must show
Defendants unlawfully discriminated against them and class members by not enrolling
them in regular high school. From there, the R&R said that Defendants’ reasons for
denying enrollment will need individualized inquiries into each student’s education
background, English proficiency, and other factors like age. (Doc. 183 at 47). Because
of the individualized inquires, the R&R finds that Plaintiffs cannot show that Defendants
acted or refused to act on grounds that apply generally to the class so injunctive or
declaratory relief is appropriate for the entire class. (Id. at 48).
Plaintiffs object to this finding. Focusing first on the claims under § 1703(a), Title
VI, and Equal Protection clause, Plaintiffs argue the R&R rests on a “flawed legal
conclusion on [Rule 23(a)’s] commonality.” (Doc. 185 at 21). It is their position that “if
the Court finds that Board Policy 5112.01 has had a disparate impact on foreign-born
ELLs that may be traced to a discriminatory purpose, declaratory and injunctive relief will
apply to the class as a whole, irrespective of factual variations in the class members’
backgrounds.” (Id.). But Plaintiffs offer nothing to support this conclusory argument.
Without more explanation, the Court will not reject the R&R’s sound analysis on these
claims.
Plaintiffs’ objection to the FEEA claim fares no better. Plaintiffs say if the Court
finds that Policy 5112.01 had a disparate impact on their and class members’ national
13
origin, a single injunction against Defendants applying the Policy will allow class members
to enroll in public school. (Id.). Even accepting Plaintiffs’ disparate impact theory on the
FEEA claim, their objection glosses over a glaring defect. That defect is Defendants will
have to make individualized assessments on where to place Plaintiffs and class members
in public school because of their different educational experiences and ages. Indeed, as
Plaintiffs themselves admit, class members will need to be assessed per Defendants’ ELL
Plan and offered an individualized ELL student plan. That assessment will include the
student’s English language skills and academic level. 6 (Doc. 76 at ¶¶ 36-38). No matter
how Plaintiffs couch the discrimination theory, they cannot overcome that a single
injunction or declaratory relief is unachievable with the differences between the Plaintiffs
and class members.
In conclusion, the Court denies class certification on Counts I, II, III, and V because
Plaintiffs have not satisfied Rule 23(b)(2)’s requirements. And because the Court can
deny class certification on this basis alone, it need not address Plaintiffs’ objections on
Rule 23(a). 7
Accordingly, it is now
ORDERED:
(1) United States Magistrate Judge Mac R. McCoy’s Report and Recommendation
(Doc. 183) is ACCEPTED and ADOPTED and the findings incorporated herein.
6
Under Defendants’ ELL Plan, they “assess an ELL students’ academic level using
testing and previous school records, and, in the absence of such records, using interviews
of the student and parents and other assessment tools.” (Doc. 76 at ¶¶ 36-38).
7
Because the R&R provides common reasons to deny class certification under Rule 23(a)
and (b)(2) for each count, and because Plaintiffs’ objections on both rules overlap, the
Court’s findings on Rule 23(b)(2) likely also apply to Rule 23(a).
14
(2) Plaintiffs’ Motion for Class Certification (Doc. 152) is GRANTED in part and
DENIED in part. The motion is granted on the due process claim (Count IV)
and denied on all other claims.
DONE and ORDERED in Fort Myers, Florida this 17th day of October 2018.
Copies: All Parties of Record
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