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    Federal class-action lawsuit filed by six refugee students

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    2K views36 pages

    Lawsuit vs. Utica SD

    Uploaded by

    Ruben Johnson
    Federal class-action lawsuit filed by six refugee students

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    of 36
    Case 5:00-8-99999 Document 65 Filed 04/23/15 Page 1 of 36 UNIT! STATES DISTRICT COURT NORTHERN DISTRICTOF NEW YORK PATRICK TUYIZERE, SUK MAYA RAL, BUDDHI BOLON-TAMANG, ALIJANAR, CHO CHO WIN, ADO LAR, on behalfof ‘themselves ad al thers similarly situated, Plants, ee . CLASS ACTION COMPLAINT UTICA CITY SCHOOL DISTRICT BOARD OF EDUCATION, UTICA CITY SCHOOL, DISTRICT, BRUCE 1. KARAM, Superintendent of Utica City School District, in his official capacity, Defendants, x PRELIMINARY STATEMENT |, This action challenges the Defendaris’ policy and practice of excluding limited English proficient CLEP") immigrants aged 17-20 ftom Thomas R. Proctor High Schoot (Proctor High School") in Utica, N.Y. This action is brought on behalf of six refugees, Patrick “Tuyizere, Suk May Rai, Buddhi Bolon-Tamang, Ali JaNar, Cho Cho Win, and Ado Lar, and a lass of similarly situated individuals. 2, Patrick Tuyizere, Suk Maya Rei, Buddhi Bolon-Tamang, Ali JeNar, Cho Cho ‘Win, and Ado Lar are refugees who fled violence and persecution in their home countries. Each came t0 the United Stats longing for freedom and opportunity, only now to be the subject of rational origin discrimination. ‘They want to go to high school, make American friends, and leacn more than just English, But Defendants Utiea City School Distiet Board of Faducation, Utica City School District, and Superintendent Bruce J. Karam have excluded them from high Case 5:00-a1-99999 Document 65 Filed 04/23/15 Page 2 of 36 school and divertd thom instead to altemative programs that provide limited ecatonsl instruction, Their experience is typical among the 17-20 year old refugee population in Utica 3. or the lst 35 years, Utica has served as safe haven for refugoes Mecing violence and persecution in their home counties. The refugee population in Utica is large, comprising nearly I out of every 6 residents. Nicknamed “The Second Chance City in part for the second chance it offers refugees flecing persecution, Utica fas, in many respects, been ‘welcoming of refugees. The exception: For the last 8 years, Defendants have been excluding LEP immigrants (pimarily refugees) aver 16 years of age fom Proctor High School, the only high schoo in Utica, and Jiverting them to altemative education programs. 4. Under New Yor la, individuals have the right to attend high schoo! until they turn 21 or carn high school diploma. The last compulsory age of edvation, i, the age unt which students are re by law to attnd school fll ime, is 16 years od While students cover 16 may choose to ns int alternative education programs, it must be their choice. For the last cight years, however the Defendants have hoon robbing immigrant siden of that choice. [By contest, upon information and belie, Defendants allow non-immigrant students over 16 19 cnrll in Proctor High Sctoo. 5, From 2007 until November 2014, the Defendants diverted LEP immigrants aged 17.20 to the “Newcomsr Progrim,” an alternative education program for newly arived inmigrans in Utica, Foe seven years, the Newcomer Program provided English asa second language CESL") instruction to immigrant students, but no content area insttion, such as tat, scenes, and history. In January 2014, the Newcomer Program began offrng high school equivalency classes, commonly known as GED clases, fo students who test well on an English Case 5:00-21-99999 Document 65 Filed 04/23/15 Page 3 of 26 proficiency exam, while those who do not test well min in clases that tach only English (CESL-only” clases). 6 In November 2014, following complains about the inadequacy of ESL-only insruetion for immigeest students aged 17-20, the Oncida-HerkimerMadison Board of the Cooperative Educational Services (*BOCES"), in consultation and coordination Defendants, created the Alignment of Pathways and Programs for Leamers of English APPLE Program’), Located in New Hartford, N.Y, the APPLE Program provides GED classes for LEP fnnmigrants aged 17-18, The Defendants continue to divest LEP immigrants aged 19-20 to the ‘Newoomer Program, exciding thom from high schoo 7. AGED program is not, in realty, a substitute for @ high school education, Compared to high school, GED instruction inthe core subjects of reading, writing, science, history and math, is eursiy. Students in GED programs are only taught what is necessary to pass the GED exam, In hgh school, nstretion inthe core subjects is more in-epth, students can take advanced courses, and they ean take at, musi, health and physical education clases Thus, a high sehool edeaton is not only more rigorous than a GED program, i is more comprehensive. Asa consequence, the high school diploma provides its recipients with more promising employment opportunites than recipients of GED. Yet, in Utica, LEP immigrants aged 17-20 have been relegated to ether ESL-only classes or GED programs, with no option to attend high school, Morsover, the limited educational programs avilable to these students are not leated at Prostor High School, leaving them completely segregated from her non Snmsigran peers 8 The Defendants have violated and continue to violate the rights of LEP immigrants to equal educational opportunities, to be free of national origin discrimination, and to Case 5:00-a1-99909 Document 65 Filed 04/28/15 Page 4 of 36 tend high schoo! until age 21 under the federal Equal Educational Opportunities Act, Title VI ofthe Civil Rights Act of 1964, the U.S, and New York Constitutions, and New York law. The named plaintiffs and tke class of similarly situated individuals seek a declaration that Defendants’ diseriminatoy poliey and practices are unlawful und an injunction to end those practices PARTIES [The Named Plaintiffs 9, Patrick Tuyizee is an 18-year-old refugee from the Democratic Republic of the Congo. He is # native Kinyarwanda speaker and is not proficient in the English language. efore coming othe Un ted States, Patick and his family lived in refugee camp in Randa, Pati and his family were granted refugee status to come to the United States because they feared violence from the conflict inthe Congo. In October 2014, Patek ad his family aeived in Utica, N.Y, where they continue to live. Patricia student inthe APPLE Program, where he reccives ESL insretion and bese insteution inthe content tea subjects, such as math and selene, which ate tested on the GED exam, Instruction inthe APPLE Program i ess rigorous and les comprehensive than instruction at Proctor High School. Patrick will not have the opportunity tocar his high school diploma inthe APPLE Program. 10, Suk Maya Rai is an 18yearld refugee from Bhutan, She is @ native Nepali speaker and isnot proficient inthe English language. Before coming to the United State, Suk lived in a efuge camp in Nepal. Suk and er family wore granted eefugee tats to come to the United States because they feared persecution ifthey retuned to Bhutan. In February 2014, Suk and hee family arrived in Usa, N.Y., where they continue to live. Sul is @ student in the Case 5:00-a-99999 Document 65 Filed 04/23/15 Page 5 of 36, [Newoomer Program's ESi-ony clases, where she only receives ES. nstraction, does not learn content sreas subjects, sich as science and history, and does nat have the opportunity fo eam a igh schoo! diploma ora GED. 11, Buddhi Belon-Tamang is @ 17yearold refugee fom Bhutan, She i a native ‘Nepali speaker and isnot proficient in the English language. Before coming tothe United States, ‘Bah lived in a refuge camp in Nepal, Buddhi and her family were granted refugee stats (0 come to the United States because they feared perscution i they returned to Bhutan. In exty “March 2015, Budd and her family arsved in Ute, N.Y, where they continue to ive, Budi is cutontly not receiving any education, The Disrit refered Budd tothe GED classes of the Newoomer Progra, whe she will reeive ESL instruction and basic instruction inthe content aca subjects, stich as mith and science, which ar tested onthe GED exam. Instruction in the [Neweomer Program's GED classes is ess igorous and ss comprehensive than instruction at Proctor High School, Buldhi wil ot have the opportanity to eam a igh school diploma in the Newoomer Program. 12, Ali JaNar sa 19-year-old refugee from Myanmar (Formerly known a Burma). He 4 native Burmese speaker and isnot profieient in the English language. Before coming to the United States, Ali lied in a refugee camp in Thailand, Ali and his family were granted refigee status to come tothe United States because they feared the Myanmar military would Fharm them if they returned fo Myanmar. In January 2013, Ali and his family avived in Utica, NLY., where they continse to live. Ali is @ student in the Newcomer Program's ESL-only classes, where he only receives ESL instruction, does nat lesen content areas subjects, such as ssience and history, and doesnot have the opportunity to earn a high school diploma or a GED. Case 5:00-899999 Document 65 Filed 04/23/15 Page 6 of 38 13, Cho Cho Win isa 19-year-old refugee from Myanmar: She is «native Burmese speaker and is not proficient in the English language, Before coming to the United Sates, Cho Co lived in a refugee carp in Thailand, Cho Cho and her family were granted refges stats to come to the United States because they feared the Myanmar military would arm them i they returned to Myanmar, InJune 2013, Cho Cho and her family arived in Utica, NY. where they continue to live. Cho Cho i a student inthe Neweomer Program's ESI. only clases, where she does not farm content scas subjects, such as seienee and history, and does not have the opportunity to ear a high schoo! diploma ora GED. 14, Ado Lar isan 18yearold refugoe from Myanmar. He is a native Burmese speaker and isnot profiiet inthe English language. Before coming to the United States, Ado lived in refugee comp in Thailand. Ado and his family were granted refugee status to come to the United States because they feared the Mysnmar military would haem them i they returned to Myanmar, In August 2014, Ado and his family erived in Utes, NY wher they continue to live, Ado is student ir the Neweomer Program's ESL-only classes, where he only reeives ESI instaction, does nt lear content areas subjects, stich a sience and history, and does not have the opportunity fo catn a high schoo! diploma ara GED. I TheDefendants 15, Defendant Utes City School Distist Board of Education (the “Boar” has ener contol, managenent and esponsibility of the Utica City School District and the public schools within that distri, including Proctor High School. ‘The Board isa recipient of federal financial assistance, ‘The Board or its designee evaluates enrollment applications for students centering into grades K-I2 and decides which students can attend public schools within the Case 5:00-a-99999 Document 65 Filed 04/29/15 Page 7 of 36 et. The Board isa State actor and, at all relevant times referenced in this complain, acted under color of State law within the meaning of 2 U.S.C. § 1983. 16, Defendant Utiea City School Distt is the public school district in and for the City of Utica, NY. The Dist ct isa eecipint of federal financial assistance, The Dist isa State ator and tall elvan times referenced inthis complaint, acted under color of State law a8 defined by 42 USC. §1983. 11, Defendant Bruce J. Karam isthe Superintendent ofthe Uiea City School Distt an as such s charged wih the duty to enforce al povisons of law and al ules and regulations relating to the management of the schools, and other educational, social and recreational ‘tives under the dircion of the Board, Superintendent Karam iss State actor and, at all relevant times referenced in this complaint, acted under color of Sate law within the meaning of USC. § 1983. Superintendent Karam issued in his official capacity 1. Phin Patrick Tuyizere 18, Patrick Tuyizere isan 18-year-old refugee. He wes bor in a refugee camp in Rwanda, but he and his Family are from the Democratic Republic of the Congo. His family escaped the decades-old snflict inthe Congo and fled to Rovands, ‘The conflict began inthe 1990s afer the etn Hue rita that fed the genocide against etic Tutsi in Rwanda fed to the Congo and then led raids against the Tutsiled Rwandan government. "Tis conflict has claimed over 54 milion fives, 2.7 million of them chien 19, Patick’s native language is Kinyarwanda, He is not proficient inthe English language Case 5:00-2-99999 Document 65 Filed 04/23/15 Page 8 of 36 20, He and his family ived in a Rwandan refugee camp for approximately 17 years In around August 2014 they learned that they would be abe t goto the United States. 21, In approximately August 2014, Pattick and his family moved to Baltimore, Maryland. When Pati arrived in Baltimore, he was 17 years old, The local school dst in Baltimore admited him to highschool, and Pack began Sth grade classes in September 2014 Patick’s relatives stugeld to find employment in Baltimore, and in early October 2014, he and his family moved to Utica, NY., where they continue tive 22. A church edvocste helped Patric and his family ind an apartment and brought them to the Mohawk Valley Resource Center fr Refugees (Refuges Cente”) to help them pet the resources they needed to stein Utica. ‘The advocate gota school enrollment aplication fiom someone atthe Refugee Center who told him he would need to bring the form tothe Distt’ offices 23, In October 2014, the advocate called the District and spoke with Tammy Rightnier, the assistant tc Elizabeth Pal, the Dstect’s Administrator of Special Education. MS. 1 evaluates enrollment applications and decides which LEP immigrant students ean attend Proctor High School, ‘The advocete explained that he would lke to submit enrollment forms for a newly arrived refuge, and Ms, Rightmir sid she would get back to him, 24, After seve days passed, the edvocate again called the District and spoke with Ms. Rightmier, who told the advocate that he had to bring the enrollment forms t the Refugee Center to give them to an academic coach—a District employee, The advocate then met with the academic coach t0 wh he was referred, and the academic coach submited Patrick's enrollment forms to Ms. Paul in Novernber 2014 Case 5:00-a-99999 Document 65 Filed 04/23/15 Page 9 of 36 25. After approximately one week, the advocate asked church member to follow up con the application by going to the Distr’ offices to see whan Patrice would be admited into Proctor High School. The church member then spoke with Ms, Paul, end Ms, Paul old her dat te District would not adit Patrick into Proctor High School because he was to eld, Instead, the District would place Patrick inthe APPLE Programs, Upon information and bli, Ms. Paul placed Patick in the APPLE Program in compliance with the Defendants policy of excluding LEP immigrants aged 1720 from Proctor High School 26. Since approximately December 2014, Patrick has been a student in the APPLE Program. He isnot stsied wih the limited educetion he is receiving inthe APPLE Program, Instretion in the APPLE Program is less rigorous and fess comprehensive than instruction at Proctor High School. etick wants to become a doctor and fel ike he is not learning enough science in his GED clases to prepare him to realize his dteam He is fastested withthe Himited cxluaton serves available to him inthe APPLE Program, Patric is unable to take classes at Proctor High Schoo! or benefit fom any ofthe high schoo'’s instructional services, programs, oF activities. He wants to altend high sehool and be in classes with native English speakers. He ‘ants to eatn a high sehcot diploma, so he can work towards his dream of becoming a doctor. He does not understand why be is nt allowed to goto high school HL, Plaintiff Sule Maya Rat 27. Suk Maya Rai isan 18-year-old refugee. Suk was born in refugee camp in Nepal. She and he fly are members of the Lhotshampe ethnic group fom Bhutan, In the 1990s, the Bhutanese miliary foreibly expelled the Lhotshampe peopl, including Suk’s parents, fiom Bhutan beeause the Lhotshampa people refuse to give up their language and customs 28, Suk’s native language is Nepali, She is not proficient in the English language Case 5:00-at-99999 Document 65 Filed 04/23/15 Page 10 of 36, 2», ‘Suk and er family lived in a refugee camp in Nepal for about 17 years. In 2014, ‘Suk eared that she and Her Family Would ave the opportunity to come tothe United States. 30, In February 2014, Suk and her family arvived in Usiea, NY., where they continue to live, When Suk arrived in Utica, she was assigned a easeworker by the Refugee Center. Upon information and belief, following the Defendans’diectives and policy, the caseworker placed Suk inthe Neweorer Program because she is an LEP immigrant, and, tthe time, was 17 yoats old. After Suk took an English proficiency exam, she was placed nthe Neweomer Program’ BSL-only classes, SI, In February 2014, Suk's older brother, who speaks English, asked her caseworker hy Suk was not placed in high school The caseworker responded that Suk was not eligible for high school. A couple af months later, Suk’s brother asked an academic coach—a District ‘employee—to enroll Suk in high school. ‘The seademie coach responded that the Distriot does rot wart stdents like Sul—which hor brother understood to mean older LEP immigrant. 32, Since Febwary 2014 Suk has been student in the Newcomer Programs ESL= only classes. She isnot stsied withthe limited edvation she is resiving in the Neweomer Program’s ESL-ony clases, She has no opportunity to carn he high shoo! diploma or a GED. In he refugee camp in Nepal, Suk was taught six subjects in school. In the Neweomer Progran’s ESL-only classes, she is omly taught English. Sho is upsct hat, for over a year, she has only boon able fara English, Suk is unable to take clases at Proctor High School or benef from any ofthe high schools instructional services, programs, oF activites. She dreams of aending college and becoming a nurse, but she knows she cannot do so without learning ‘more than just English. She would like the opportunity to enn high schoo! diploma to work towards hee dreams, Case 5:00-a4-99999 Document 65 Filed 04/23/15 Page 11 of 36, ML Pla if Badal folon-Tamang, 33. Buddhi Belon-Tamang isa 17-year-old refugee. She was bor in a refugee camp in Nepal. She and her family are members of the Lhotshampa ethnic group from Bhutan. In the 1990s, the Bhutanese military forcibly expelled the Lhotshampa people, including Buddhi’s parents and grandparents, fom Bhutan because the Lhotshampe people refused to give up their language and customs 34. Bud tative language is Nepali, Shei not proficient in the English language. 35. Budi and her family lived ina refugee camp in Nepal for about 17 yeats. In 2015, Budd earned tha she and her Family would have the opportunity to cams othe United Stats. 36. On March 6, 2015, Buddhi and her family rived ia Usie, N.Y, where they contnacto live, When Buddhiartived in Utica, she was assigned a caseworker bythe Refugee Center. Upon information and blithe caseworker colleted Buddhi's information and sent it to the District for enrllsnt. Approximately few wosks later, Budd recived eter from Procioe High School, referring her to the Newcomer Progra’s GED clasts. Buddhi then brought the letter to an aeademie coach Disrstemployeeto ask why she was not admitted in Proctor High School. The academie coach told Buddhi that she was 100 old to go to high school. Buddhi continued to as questions and the academic coach sid he would speak to his boss at the Distt. The academic coach then asked Bhi foe her 198 frm (a U.S. Customs and Border Protection form showing a foreigners arivaldpature record) and her alien registration numbor—which schoo! districts are prohibited from requesting to avoid intimidating undocumented immigrants from enrolling in school. Since that meeting, Buddhi has not received a response to het enrollment request Case 6:00-at 99999 Document 65 Filed 04/28/15 Page 12 of 36 37. Buddhas not boon admited into Proctor High School, She will soon be admitted into the GED dasses ofthe Newcomer Program. But she woud like to go © high school. Insttion in the Newcomer Program’s GED classes is less rigorous and less ‘comprchensive than insietion at Proctor High School. Buddhi is unable to take classes at Proctor High Schoo! or benefit fom any ofthe igh school’s instructional serves, progsams, of setvities. Buddhis graniparents are disabled and she would like 1 Become a doctor to help lisbted people ike her grandparents. She would lke to learn challenging subjects and ean her high school diploma, so sie coud work towards her dream of becoming # doctor. IV, Plaintiff Ali JaNor 38, Ali JaNar isa 19-year-old refugee. He was bom in a refugee camp in Thailand, but he and his family are tom Myanmar, Myanmar is the largest soures of refugees in Southeast Asia due tothe government's persecution of ethnic minorities. Before he was bor, his family {led Myanmar to escape ehnie persecution by the Myanmar military, 39, Ali's native language is Burmese. He is aot proficient inthe English language 40, Ali and his family fived in a refugee camp in Thailand for about 17 years. The refugee camp was located in the jungles of Thailand. tn 2012, he and his family learned that they would have the oppatnity to come tothe United States 441, m January 17, 2013, he and his family reved in Utica, NY. where they continue 0 lve, When Ali arived in Usie, he was asigned a caseworker by the Refugee Centr. Upon information and belie, following the Defendants’ directives and policy, the caseworker placed Ali inthe Newcomer Program because he isan LEP immigrant, and a the time, was 17 yeas old. Al's caseworker told him he was not eligible for high school because he Case 5:00-at99999 Document 65 Filed 04/23/15 Page 13 of 36 was already 17. Ali then began atending clases a the Neweomer Program, where he was only taught ESL. In approximately April or May 2013, Ali and frend of is, who speaks English and was atznding Proctor High School, went to Proctor High School to atlempt to get Al acid. Ali and his fend spoke toa school oficial at Proctor High School who tld them that Ali could not attend high school because of his age 42, Ali contimes to take ESL-only classes atthe Newcomer Program, He is not satisfied with the Timited education he is receiving in the Neweomer Program's ESL-only classes. He hes no opportunity to earn his high schol diploma ora GED. He i upset hat, for over two yeas, he has only been able to lear English, He is unable to take clases at Proctor High School or benefit from any of the high school's instructional serves, programs, or activities. Ali wants the test chanes to sueceed in life, and he knows a high school education ean ive him that chance, V. _ Phantff Cho Cho Win 43. Cho Cho Win isa 19-year-old refugee. She ss bor in a refugee camp in Thailand, but she and fer family a from Myanmar. Before she was bor, her family led ‘Myanmar to escape eth persecution by the Myanmar nilitary 44. Cho Cho's native language is Bumese. She is not proficient in the English language 45. Cho Cho end her family lived in refugee camp in Thailand for about 17 years “The refugee camp was loated in the jungles of Thailand, In 2013, Cho Cho leamed that she and hee family would have the opportunity to come to the United States. 1B Case 5:00-at 99999 Document 65 Filed 04/28/15 Page 14 of 36, 446, — InJune 2013, Cho Cho and her family rived in Uti, N.Y. whee they continue tolive. When Cho Cho arived in Ua, she was assigned a caseworker by he Refugee Center {Upon information and belie, following the Defendants? directives and policy, the caseworker placed Cho Cho in the Newcomer Program's ESL-only classes at the Refugee Center because she is an LEP immigrant and, atthe time, was 17 years ld. The caseworker told Cho Cho that she was not eligible to ated the Distet’s high school eeause of her age. 47, Since 2013, Cho Cho has boca a student inthe Neweomer Program's ESL-oaly classes. She is not satisfied withthe limited education she is receiving in the Neweomer Programs ESL-only clases, ‘She is unable to take clases at Proctor High School o benefit from any oF the high sens instructional service, programs, o activites. She is upset that, for bout two year, she has only been able to learn English She dreams of attending college and becoming an elementary schoolteacher, but she cannot eam a high schoo! diploma to work towards her dreams, Vi. Plaintiff Ado Lar 48, Ado Lar isan 18-year-old refuge. He was hor in refugee camp in Theiland, tout he and his family are from Myanmar. Before he was bor, his Family fled Myanmar (0 escape ethnic persecution by the Myanmar military 49, Ado's mative language is Burmese He isnot proficient inthe English language. 50, Ado and hs family lived in refugee camp in Thailand for about 17 years. ‘The refugee camp was located inthe jungles of Thailand. In 2014, Ado leamed that he and his family would have the opportunity to come to the United States. ‘Case 5:00-a'99999 Document 65 Filed 04/23/15 Page 15 of 36 51. In August 2014, Ado and his family arsived in Utica, N.Y., where they continue to live. When Ado arrive in Utica, he was assigned a caseworker by the Refuges Center, Upon information and boi, lowing the Defendants’ directives and policy, the caseworker placed ‘Ado in the Newcomer Program's ESL-only clases at the Refugee Center because he isan LEP. immigrant, and, st the time, was 17 yeas old, The caseworker told Ado that because he had already tumed 17, he wasnt eligible to attend the Distic’s high schol 52, Since 2014, Ado has boon a student in the Newcomer Program's ESL-only classes, He is not satisfied with the limited eduestion he is reeiving in the Neweomer Program's ESL-ony cases, Ado wants to lara more subjects. He is unable to take clasts at Proctor High School or benefit from any of the high schoo! instructional serves, programs, setvitis, He is upset tat, for almost one year, he hes only been able to Learn English, He dreams of tending college and bocoming an engineer, but he cannot carn high schoo iploma to work towards his dreams, VIL Background 53, The stories of Patrick, Suk, Buddhi, Ali, Cho Cho, and Ado, are typical in Utica, NAY. Their stores are just the latest examples of the Defendants’ eight-year practice of ‘excluding LEP immigrants aged 17-20 fiom high school and diverting them to alternative ‘uation programs. While the programs have changed over the years, Defendants policy and practi of excluding cenain immigrants from high school has not Defendants continue to prevent LEP immigrans: aged 17-20 fiom submiting earoliment applications, deny their enrollment requests, and even ignore enrollment requests entirely. Case 5:00-at'99999 Document 65 Filed 04/23/15 Page 16 of 36 ‘The Legal Right to Equa! Education 54, The right free public education is rooted in Article 11, § 1 ofthe New York Constitution, Under New York Education law § 3202(1), all individual regardless of their national origin, have the ight to atten the highschool within thir schoo! distit until they ten 21 years of age or rosie high school diploma, While the age of compulsory education ends at 16, no one may be precluded from a public schoo! solely because he 55, or she has passed the compulsory age. Even students who have eared a GED Aiploma, continue to be ented to a fee highschool education until they reach 21 years of age 56, Rederal ard state Jaw mandate that stidents with limited English proficiency (otherwise known as Engish Language Leamers) are entitled to equal access tll public soo programs and services ofered by their school district. To ensure their equal acess, both federal and state law require schoo! distiets to provide LEP stents with programs and services signed to overcome language bariers by helping stants gain English proficiency while alo leaming content are subjets, sch as math, science, and history 57. Students sgpected of being limited English proficient must undergo an English language assessment (0 cetermine whether, based on State proficeney exams they ate infact limited Bn ish proficient. Under New York Education Law § 3204 and Section 154-1.3 of the Regulations of the Commissioner of the NY State Education Department NYSED"), LEP students ae entitled to Eaglish instuction and grade and age level appropriate instruction in the required subjects, ike scence, math, and history, Under Section 14-13 ofthe Regulations of the Commissioner, if ther: are 20 or more LEP students who speak the sme native language, are at same grade level, and are inthe same building, those students are entitled to grade and age level appropriate instucton in the required subjets in a bilingual eduation program. If there Case 5:00-at99999 Document 65 Filed 04/29/15 Page 17 of 96 are not enough students fora bilingual education program, LEP student are entitled to grade and age level appropriate instruction in the required subjects in an English second language rogram, Once placed incther a bilingual program or BSL program, students must undergo an annual English language assessment to determine whether they continue to be limited English roficient 458, Under Title I of the Elementary and Secondary Education Act, federal funds are ovided to schoo! distri on the condition that school districts use these funds to help LEP students learn English and meet state academic content and achievement standards. The Board and the District rece ce Title Il funding and other federal funding to provide instructional programs and other services to individuals eligible to attend the pubic schools within the school district. 59, The problem of schoo! districts refusing to educate immigrant children is not a ew one for New York o fr this county. Congress passed the Faual Educational Opportuniti ‘Actin 1978 co protect inmigrams, among others, from school districts that were sepresating them fom non-immigrant students and filing t0 provide them with adequte instructional services. ‘The US. Depinment of Justice (“DOS") and the US. Deparment of Fduation’s Office for Civil Rights regulary issue letters and memos to schoo! distits to remind them of their obligation to provie all children, regardless oftheir ational origin or Enis proficiency, ‘wth qual access ta publi cation 60, Moreover, in December 2014, ater school disticts in New York denied unaccompanied minors (Le, children immigrating to the US. without parent oF guardian) sccess to public edueaticn, the New York Attorney General's office and the NYSED revised Section 100.2(9) of the Regulations of the Commissioner to provide greater procedural ” Case 6:00-at99999 Document 65 Filed 04/28/15 Page 18 of 36 rtcctons to children, Now when stents submit enrollment applications oa school dsc, the Regulations ofthe Commissioner rquite the schoo! district to admit the student while the istrict evaluates the stunts enrollment application. School distiets now must also decide whether a child is ened to ated the schools in its distriet within three business days after the childs inl eplicaton to enrol 61, Newcomer schools also are not new concern inthe United States. In 1990, the USS. Department of Education's Office for Civil Rights issued guidance as to how a Neweomer School for LEP immigrant students could comply with Tile VL. ‘The Office for Civil Rights found Newcomer schoc in California tobe in compliance with Tide VI because, among other reasons: @) enrollment in the Newcomer school was voluntary, meaning the sehool district informed students’ paren that students can enroll in their home school or the Neweomer school; (i) attendance in the Neweomer school as fi ited to one yea, aller which students return to their home schools and (i) the Neweomer school flies, courses, and extracuriular setvitis were comparabie tothe school distri’ other schools, Though the Office for Civil Rights issued this guidance on newcomer schools 25 years ago, since 2007 Defendants have been excluding newly arsved immigrants aged 17-20 fom high schoo ants Aged 17-20 VIII, ‘The Defendants’ Poliey and Practice of Excluding LEP tim from Proctor High School 62, Since 2007, LEP immigrants aged 17-20 who have ative in Utica with hopes of | attending high school have instead been excluded, These immigrants came to the United States for the promise of opportunity for those who study and work hard, but that opportunity has been taken avay from them bythe Defendants as «result oftheir discriminatory poliey and practice, Case 6:00-a'99999 Document 65 Filed 04/23/15 Page 19 of 36, 63. Since 2007, Defendants have had a poliey and practice of excluding LEP immigrants aged 17-20 fom high school and diverting them to cither the Neweomer Program or the APPLE Program, While the dots of how LEP migrant students aged 17-20 are divertod to alters ive programs hive changed overtime, the Defendants’ policy of diverting them away from high schoo! has not even though such students have a tight attend Proctor High Schoo! ‘under New York law, ana right under federal and state law, to educational opportunites equal to those available to theirnon-immi ant pers (4. In approxinately 2007, Superintendent Karam, who atthe ine held the positon of Director of Secondary Edation for the Distt, created the Neweomer Program. Superintendent Karam dicted District employees to enoll LEP immigrants aged 17-20 in the ‘Newcomer Program rather than Proctor High Schoo. 65, From 2007 to 2013, the District managed the Neweomer Program. It provided two ESL teachers, textbooks, security and other resources for students inthe program, Students inthe Newcomer Progran were physically separated ffom thet nonimmigrant pees at Proctor High School, ‘The Newecme Program was fst loated inthe Distiet’s administrative building, and, ltr, it was moved into classiooms atthe Westminster Presyterian Church, The 060 teachers inthe program only taught students Bglish as «second language. There was no formal coun (6. When they operated the Newcomer Program, the Defendants did not test LEP immigrant students aged 17-20 to dotrmine thei lvel of English profiieney before placing tem inthe Newcomer Progrim. Instead, Defendants automatically placed such students in the "Newcomer Program and exced them from Proctor High School. None ofthe student had the Case 6:00-2t99999 Document 65 Filed 04/23/15 Page 20 of 36, option to transfer ftom the Newcomer Program into high school, even if their English proficieney improved. Alternative Programs Change, But Defendants’ Diseriminatory Practice Stays the Same 67, In 2013, the Defendants disclaimed responsibilty forthe Newcomer Program. ‘They transfered dhe Newcomer Program's ESL teaches to elementary schools operated by the District and stopped providing any instructional services to students in the Neweomer Program, leaving approximately 60 students to fend fr themselves. The Defendants id not offer students in the Neweomer Program the option t transfer to Proctor High Schoo 68. Once the Defendants abandoned the Newcomer Program, the Refugee Center took over. It has operated the Newcomer Program continuously since then. Ultimately, the Refugee Center rlacted the Newcomer Program into its building at 309 Genesee Street in sia, nasty two miles avay fom Proctor High Schoo. 69, Due to ts imited resoures, the Ketugee Center provides for only one teacher teach approximately 30 students inthe Newcomer Program's ESL-ony class. The Refugee Center eis on private donations for textbooks and other supplies for stdents inthe Neweomer Program. The Refugee Center is unable to provide students with either breakfast or lunch, which are provided to financially eligible students at Proctor High School. Sometimes volunteers donate rice to feed Newcomer students, Bul, mostly, students who do not bring lunch from home go without lunch or the schoo! day. The District provides no funding oF resources for students nthe Newcomer Program's ESt-only class atthe Refugee Center 70, Students inthe Neweomer Program's ESL-only class cannot eam high school

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