Vol. 53, No. 6
Bridges v. Scranton School District, 2016 WL 953003 (3rd Cir. 2016). OPINION NOT PRECEDENTIAL.
In this case involving allegations of student-on-student bullying, teacher-on-student bullying, and race discrimination, the court affirmed summary judgment in favor of the school district.
Student-on-Student • Teacher-on-Student
During first grade, D.B. was physically bullied and harassed by other students. The principal investigated the matter and changed his classroom, which resolved some of the bullying. D.B. transferred to another district elementary school for second grade because his parents moved to a new home. The bullying continued, and on one occasion, D.B. fought off his attackers. As a result he received detention, but the other students involved did not receive detention. D.B. also alleged that his teacher, Mrs. Wilcha, verbally abused him, bullied him, threw or flung his desk on the floor on a number of occasions, and treated him different than other students. The principal denied a request to change classrooms. Consequently, D.B.’s parents withdrew him from school and enrolled him in a cyber charter school.
D.B.’s parents (“Appellants”) filed suit against the district alleging race discrimination and a violation of his due process rights. The District Court granted summary judgment in favor of the district on both claims.
On appeal, the court addressed the bullying by students in first grade and the verbal abuse by his second grade teacher separately. Generally, “a state’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” However, there are two exceptions: (1) the “special relationship” exception and (2) the “state-created danger” exception. Citing a recent en banc decision, Morrow v. Balaski, for support, the court concluded that the District Court properly found: “that the School District did not have a duty, under the special relationship exception, to protect D.B. from other students’ harmful action” and that “Appellants failed to establish a claim under the state-created danger theory.” The court did note with regard to the district’s actions, that the principal went out of her way to investigate the situation and make D.B. comfortable. With regard to the teacher-on-student bullying and verbal abuse, the court concluded that the District Court correctly found that the appellants could not recover under a due process theory or a failure to train theory, since there was no constitutional violation.
The appellants’ racial discrimination claim failed as well because they failed to show that D.B.’s teacher did or said anything that could reasonably be construed as racially motivated.
Editor’s Note: Pursuant to its Internal Operating Procedures, the Third Circuit will not cite “not precedential” opinions in their reported decisions.
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Rose Tree Media Secretaries & Educational Support Personnel Association - ESPA, PSEA-NEA v. Rose Tree Media School District, 2016 WL 1084163 (Pa. Cmwlth. 2016).
Essence Test • Public Policy Exception
Commonwealth Court affirmed the trial court’s decision upholding an Arbitration Award, which reinstated a one-on-one special education aide terminated for the mistreatment of a special needs student.
S.M., employed by the district since 2000, began working as a one-on-one special education aide in 2002. In November 2011, the district assigned S.M. to work with L.M., a special education student with Down syndrome. On their first day together, L.M. refused to enter his classroom – he dropped to the ground and lay on the floor in a prone position – so, S.M. pulled L.M. by his arm to his desk, a total distance over 20 feet. Neither the classroom teacher nor the reading interventionist who witnessed the incident intervened; however, the incident did get reported to the principal. The principal met with S.M., who apologized and expressed remorse, and talked to her about alternative approaches she could employ in a similar situation. The principal placed the student back in S.M.’s care for the rest of the day. Afterwards, the HR director placed S.M. on unpaid leave and advised her and her union representatives that discharge had been recommended. In March 2012, the Board of School Directors discharged S.M, and arbitration followed.
Before the arbitrator, the district argued that S.M.’s “failure to nurture and assist a special needs child, instead of dragging him on the floor, reflects a clear neglect of duty.” The association argued that S.M.’s dismissal “constituted a grossly disproportionate response to this one incident.” The arbitrator determined that the district failed to meet its burden of establishing just cause for her discharge, and recognized that the penalty of discharge was not commensurate with the proven conduct. In reaching this determination, the arbitrator noted the following: she had an unblemished work record; she was immediately forthcoming, apologetic and remorseful about her conduct; and the student was unharmed. Ultimately, the arbitrator converted the discharge to a five-day suspension.
The district appealed the arbitrator’s award to the local trial court. On appeal, the district argued that the award failed to draw its essence from the collective bargaining agreement (CBA) and the mistreatment of the student constituted a clear violation of public policy. The district urged the trial court to review the transcript from the arbitration hearing in order to review the particular circumstances. The court denied the request to review the transcript, and concluded that the arbitrator’s award drew its essence from the CBA and the reinstatement did not violate any public policy concerning the protection of students from violence on school property.
On appeal to Commonwealth Court, the district argued that the trial court erred when it denied the request to review the hearing transcript. In support of its argument, the district argued that because the arbitrator’s award implicates the public policy exception, the trial court erred when it refused to review this case de novo. On this issue, the court opined that “there is usually no reason for a reviewing court to reexamine the transcript of the arbitrator’s hearing and reevaluate the facts. Rather, only the award itself, and the legal authority supporting the implication of the public policy, are relevant to a public policy exception inquiry.”
Commonwealth Court also addressed the contention that the arbitrator’s award violates a well-defined and dominant public policy, specifically, the protection and safety of students. The court concluded that the district’s public policy argument lacks merit, noting that the conduct did not harm the student and the five-day suspension was sufficient to ensure that S.M. would not repeat her misconduct.
Thus, the trial court did not err or abuse its discretion by affirming the arbitrator’s award.
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School District of Pittsburgh v. Provident Charter School for Children with Dyslexia, 2016 WL 756689 (Pa. Cmwlth. 2016).
Commonwealth Court affirmed the Charter School Appeal Board’s (Appeal Board) decision to grant a charter to Provident Charter School for Children with Dyslexia (Provident).
Charter Application • Charter School Appeal Board
Provident submitted a charter application to the Board of Directors of the School District of Pittsburgh in November 2013. The district denied Provident’s application in February 2014 on several grounds relating to the Charter School Law. In response, Provident submitted a revised application in March 2014; however, the district again denied the application after a second public hearing in late April 2014, stating that the charter application was deficient in the following areas: community support; expanded choices; considering all information requested in Section 1719-A and conforming to legislative intent outlined in Section 1702-A; and, meeting the needs of all students. The district additionally concluded that Provident’s admission policy was discriminatory because its pre-enrollment form included a question of “whether special programs are required” for the potential student.
Provident appealed to the Appeal Board, which reversed the district’s denial of Provident’s application. The Appeal Board reasoned that Provident had satisfied the requirements of the Charter School Law; accordingly, the Appeal Board rejected all five of the district’s reasons for denial.
On appeal, the district challenged each of the Appeal Board’s conclusions. Commonwealth Court addressed each conclusion separately and found:
1) A charter application must show “demonstrated, sustainable support for the charter school plan … ,” which is measured in the aggregate, not by individual categories. Provident demonstrated sustainable support in the form of multiple petition signatures, letters of support, and speakers at public hearings; therefore, Provident met its burden of demonstrating sustainable support from the community.
2) To satisfy the Charter School Law, a proposed charter school must provide substantial evidence of its uniqueness in its learning environment. Provident met this requirement via a proposed educational program featuring, but not limited to, teacher looping; the Orton-Gillingham approach to language arts; a 6:1 student-to-adult ratio; and, a Tae Kwon Do program to develop self-discipline.
3) Section 1719-A requires only that “general, forward-looking information on the manner in which the community will be involved in school planning” be provided by the charter school applicant. Because it is unreasonable and unrealistic to expect the proposed charter school to include specific information before becoming established, Provident met its burden by providing a statement of intent and manner for how it will involve community groups in its planning process.
4) The district based its initial denial of Provident’s application on Section 1717-A(e)(2)(ii) of the Charter School Law; however, before the court, the district’s argument that Provident must show how it will meet the needs of all of its students rests upon Section 1702-A(2). Since the district failed to cite Section 1702-A(2) in its initial denial, it waived this argument.
5) Provident did not violate the Pennsylvania Fair Education Opportunities Act when it questioned “whether special programs are required” for the student applicant on its pre-enrollment form. Provident explained that the information would not determine eligibility of admission but would assist Provident in preparing its intended special instructional programs.
The court held that there was no error when the Appeal Board found that Provident met its burden and satisfied the Charter School Law. Consequently, the court affirmed the order of the Appeal Board.
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Wray v. School District of Philadelphia, 2016 WL 427058 (E.D. PA 2016). The court granted the school district’s motion for summary judgment in this case involving allegations of race discrimination. The School Reform Commission (SRC) terminated plaintiff, Odell Wray, for trespassing, inappropriate behavior, and allowing an unauthorized guest to enter the school building. Wray filed suit against the district alleging racial discrimination under Title VII of the Civil Rights Act. In the suit, he claimed that he was fired because the school principal disapproved of his interracial relationships. Although the principal started the termination process by notifying her supervisors about a police report related to the trespassing and inappropriate behavior, an independent investigation followed and the SRC’s decision to terminate Wray was based on many types of evidence. Since Jones did not proximately cause Wray’s termination, the court concluded that the district was entitled to summary judgment.
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PSBA Legal Services Team Update
PSBA’s annual Spring Legal Roundup workshop is being offered at locations throughout Pennsylvania in March, April and May. The workshop provides important updates on significant developments in school law over the last year. Spring Legal Roundup offers three substantive CLE credits. Topics, registration information, and a complete list of dates and locations can be found here.
In Other News
The U.S. Department of Education recently proposed a new rule to improve equity in the Individuals with Disabilities Education Act (IDEA).
On March 2, 2016, the U.S. Department of Education (ED) published a Notice of Proposed Rulemaking regarding the establishment of a standard methodology for states to use in addressing disproportionality under the IDEA.
The proposal applies to Part B of the IDEA governing the Assistance to States for the Education of Children with Disabilities program and the Preschool Grants for Children with Disabilities program. The proposed rule would require states to implement a standard approach to compare racial and ethnic groups, with thresholds for determining when disparities have become significant. A district identified as having a significant disproportionality must set aside 15% of its IDEA, Part B funds to provide comprehensive coordinated early intervening services. Further, the policies, practices, and procedures of the district must be reviewed, and, if necessary, revised to ensure compliance with IDEA.
The proposal would broaden the allowable uses of the 15% set aside, currently used to fund early intervening services, to include services to students with and without disabilities, from ages 3 through grade 12. Currently, identified districts may only use these funds to support students without disabilities, and only in grades K-12.
Click here to read the Press Release.
Mark Your Calendars
March-May 2016 – Spring Legal Roundup, various locations
July 14-15, 2016 – Solicitors’ Symposium, State College, PA
Thursday, Oct. 14, 2016 – School Law Workshop, Hershey, PA
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For questions about this publication, contact Katherine Fitz-Patrick, Tel: (717) 506-2450, ext. 3414
School Board Solicitors Association Officers
Legal Services Team:
Carl N. Moore Esq., Erie, President
Patrick J. Fanelli Esq., Duncansville, President-Elect
Erin D. Gilsbach Esq., Bethlehem, Secretary
Kristine Marakovits-Roddick Esq., Bethlehem, Immediate Past President
Stuart L. Knade, General Counsel
Emily J. Leader, Senior Deputy General Counsel
Katherine M. Fitz-Patrick, Deputy General Counsel, Member Services