People ex rel. Schneiderman v. Utica City Sch. Dist.

177 F.Supp.3d 739

People of the State of New York by Eric T. Schneiderman, Attorney General of the State of New York, Plaintiff,

v.Utica City School District, Utica City School District Board of Education, and Bruce Karam, Superintendent of Utica City School District, in his official capacity, Defendants.

6:15-CV-1364

United States District Court, N.D. New York.

Signed April 18, 2016

HON. ERIC T. SCHNEIDERMAN, New York Attorney General, OF COUNSEL:

AJAY P. SAINI, ESQ., DIANE O. LUCAS ESQ., JUSTIN A. DEABLER, ESQ., Ass't Attorneys General, 120 Broadway, New York, NY 10271, Attorneys for Plaintiff.

OFFICE OF DONALD R. GERACE, OF COUNSEL: DONALD R. GERACE, ESQ., 2615 Genesee Street, Utica, NY 13501, Attorneys for Defendants.

MEMORANDUM–DECISION and ORDER

DAVID N. HURD, United States District Judge

I. INTRODUCTION

On November 17, 2015, plaintiff Office of the Attorney General of the State of New York (‘OAG‘) filed this action against defendants Utica City School District (the ‘District‘), the District's Board of Education (the “Board”), and Bruce J. Karam in his official capacity as District Superintendent (“Superintendent Karam”) (collectively “defendants”).

The OAG's operative complaint alleges defendants have deliberately denied immigrant students aged 17–20 the opportunity to enroll at Thomas R. Proctor High School if they have, or are perceived to have, a limited ability to speak English. According to the complaint, District officials have instead systematically diverted these so-called Affected Immigrant Students into alternative education programs that do not, and cannot, result in the kind of high school diploma conferred on graduates of Proctor High School, the District's only high school.

The OAG brings claims pursuant to 42 U.S.C. § 1983 for violations of the Equal Protection and Due Process clauses of the Fourteenth Amendment as well as claims under the Equal Educational Opportunities Act of 1974 (“EEOA”) and Title VI of the Civil Rights Act of 1964 (“Title VI”). The complaint also enumerates pendent state law claims pursuant to New York Education Law §§ 3201 –3202(1) and the New York State Constitution's Due Process Clause.

Defendants have moved to dismiss the OAG's complaint in its entirety. The motion has been fully briefed and oral argument was heard on March 30, 2016 in Utica, New York. Decision was reserved.

II. BACKGROUND¹

The New York State Constitution promises all students the opportunity to receive a free education from the State's public school system. Compl. ¶ 19 (citing N.Y. CONST. art. XI, § 1 ). The broad sweep of this simple assurance is reflected in New York's education law, which entitles any person over 5 and under 21 years of age who has not yet received a high school diploma to attend the public school located in their district for free, even if that person has already obtained a high school equivalency or general educational development diploma elsewhere. Id. (citing N.Y. EDUC. LAW § 3202 ). State education law also explicitly prohibits public school officials from refusing admission to an otherwise eligible student on account of race, creed, color, national origin, or gender. Id. (citing N.Y. EDUC. LAW §§ 3201, 3201–A ).

Of course, these basic guarantees apply with equal force to students who are, or are perceived to be, limited in the ability to speak English. Compl. ¶ 23. These limited English proficient (“LEP”) students, often the children of immigrants, are entitled to equal access to all programs, extracurricular activities, and other services offered by the local public school, including English language instruction and grade- and age-level instruction in core curriculum subjects, such as math, science, and social studies. Id.

In fact, New York law specifically requires that suspected LEP students be identified and assessed using certain state-approved proficiency exams to determine whether, and to what extent, they require additional language support services from the school district. Compl. ¶ 23. And related provisions of the State's education law even prohibit school officials “from inquiring about citizenship or immigration status of students or their parents or guardians, as well as requesting information which would tend to reveal immigration status, such as Social Security numbers, visa documentation, or I–94 forms” during the enrollment process. Id. ¶ 25.

Simply put, these provisions of New York law work to ensure that immigrant students, LEP or otherwise, are entitled to an opportunity to achieve “the same educational goals and meet the same standards as the general student population.” Compl. ¶ 23.

Notably, state law does permit school districts to create “alternative programs” for students determined to be LEP. Compl. ¶ 26. But these programs must provide equal access to the educational and recreational opportunities offered to non-LEP students within the district. Id. Even more importantly, these alternative programs must only operate as “a bridge to general education classrooms”; that is, “they must function as a pipeline to integrated educational services provided by the school district, rather than as an educational dead-end.” Id. ¶ 28.

According to the OAG, the equal education mandates set forth above have not been achieved in Utica's school district, where twenty-five percent of the City's 60,000 residents speak a language other than English at home. Compl. ¶ 2. Indeed, data from the most recent Census reveals that the Utica CSD serves “one of the largest proportions of [LEP] households in New York, with one in ten households having no member over the age of 14 who speaks English ‘very well.’ ” Id.

The policy and practice at issue in this case began in 2007, when senior District personnel, including Superintendent Karam, approved the “Newcomer Program,” a mandatory “English as a second language” (“ESL”) program for immigrant students aged 17–20. Compl. ¶ 30. That spring, District officials began systematically diverting any immigrant student aged 17–20 who sought to enroll at Proctor High School into this Newcomer Program, regardless of whether or not the student expressed a wish to attend “regular” high school. Id.

At the same time, District personnel “refrain[ed] from entering information” into the District's student databases about immigrant students who attempted to enroll. Compl. ¶ 31. Among other things, this “no-records” companion practice permitted the District to avoid conducting the English language proficiency testing on these students that would otherwise be required by state law.² Id.

The OAG alleges that this Newcomer Program was not designed as a temporary measure to eventually acclimate Affected Immigrant Students into integrated classrooms at Proctor High School; rather, the District implemented it as a permanent program into which these students would be funneled. Compl. ¶ 80.

Equally troublesome, the OAG claims that the Newcomer Program did not offer these Affected Immigrant Students anything approaching an education on equal terms with the non-immigrant and non-LEP students enrolled at Proctor High School—instruction in math, science, and social studies was not even originally offered through the program, and students received little more than basic instruction in the English language.³ Compl. ¶ 76.

This unwritten policy of diverting LEP immigrants into the Newcomer Program without recording their attempts to enroll at Proctor High School continued in one form or another until the fall of 2014, when the Oneida–Herkimer–Madison Board of Cooperative Educational Services began offering a more comprehensive high school equivalency program named “APPLE,” or “Alignment of Pathways and Programs for Learners of English.” Compl. ¶ 56.

Once the APPLE program became functional in the fall of 2014, the District essentially codified its then-unwritten policy of diversion into a “unique set of written enrollment procedures for immigrant students that were different from those applied to the general student population in the District.” Compl. ¶ 59.

For example, a document entitled “Procedures for Referring New Arrivals Who Are Under Age 21 to ESL Programming” explicitly instructs District officials to divert Affected Immigrant Students into two different channels: first, those aged 19 or 20 are automatically referred directly to a high school equivalency program (such as APPLE); second, those aged 17 or 18 are referred to other District officials for “further consideration”—the very same officials who had been already involved in preventing the enrollment of LEP immigrant students at Proctor High School since 2007. Compl. ¶ 60.

Both of these channels, as well as the unwritten diversionary practices that came before them, result in the educational dead-ends forbidden by law. Compl. ¶¶ 76–81. Additional allegations in the OAG's complaint outline how the District has allegedly refused to allow these Affected Immigrant Students to attend gym, art, or music classes with non-immigrant students as well as how the District has systematically segregated these immigrant students into off-campus programs, such as APPLE. Id. ¶¶ 64–70. According to the OAG, none of these policies or practices were applied to non-immigrant or English proficient students aged 17–20 who sought to enroll at Proctor High School. Id. ¶ 61.

III. LEGAL STANDARDS

A. Subject Matter Jurisdiction

“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000).⁴

“The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir.2005). “In determining the existence of subject matter jurisdiction, a district court may consider evidence outside the pleadings.” Saleh v. Holder, 84 F.Supp.3d 135, 137–38 (E.D.N.Y.2014) (citing Makarova, 201...