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March 19, 2021 | ISSUE #6



Thomas Ahearn, as parents and natural guardians of Louis Ahern, et al v. East Stroudsburg Area School District, et al, 2021 WL 840917 (3d Cir. 2021)

     Exhaustion of Administrative Procedures/Remedies • Fry Test

The Third Circuit affirmed the Middle District Court’s order granting the motion to dismiss filed by East Stroudsburg School District (East Stroudsburg) and Colonial Intermediate Unit (Colonial). The plaintiffs allege that during the 2013-14 school year, Louis attended East Stroudsburg in an autistic support class conducted by Colonial. The defendants developed a staff action for emergency plan (SAFE PLAN) in order to redirect Louis and keep him on task during the school day. The plaintiffs allege that on one occasion, their son was restrained and placed in handcuffs by a school resource officer at the request of the defendants. On another occasion, he was allegedly locked in a school bathroom (where he caused harm both to himself as well as items in the room). The plaintiffs allege that they were not contacted by the defendants when these events occurred as indicated in Louis’ SAFE PLAN. According to the plaintiffs, these events caused Louis to develop fear, become afraid of strangers, and have an aversion to using restrooms and bathrooms, so the plaintiffs enrolled him in a different school in November 2015. Ultimately, the plaintiffs initiated legal action against the defendants, advancing claims for violation of the 14th Amendment and Section 504 of the Rehabilitation Act. The defendants moved to dismiss the claims because the plaintiffs did not exhaust administrative remedies under the Individuals with Disabilities Education Act (IDEA). The District Court granted the defendants’ motion.
In upholding the decision of the District Court, the Third Circuit reviewed the exhaustion requirements under the IDEA. The plaintiffs argued that Fry v Napolean did not require exhaustion under the IDEA because neither of the incidents had anything to do with Louis’ educational program. Instead, they were seeking redress and money damages under the Rehabilitation Act. However, the Third Circuit disagreed and supported the District Court’s finding that the gravamen of the plaintiffs’ complaint was the denial of a free appropriate public education. Accordingly, the decision of the District Court to grant the motion to dismiss was upheld.
Editor’s Note: Pursuant to its Internal Operating Procedures, the Third Circuit declines to cite “not precedential” opinions in its reported decisions.
Click here for the opinion.

M.T., a minor by and through Amber H. v. Uniontown Area School District, et al, 2021 WL 807713 (W.D. Pa. 2021)

     State-Created Danger • Policy or Custom • Monell Liability

The District Court granted the motion to dismiss filed by Uniontown Area School District (Uniontown) in this § 1983 action, alleging various violations of the 14th Amendment as well as state law claims of assault and battery. M.T. alleges that from April 2019 and continuing through fall 2019, M.T. was a minor student at Uniontown and a member of the high school band. In August 2018, Zachary Dice (Dice) became the high school’s assistant band director. In April 2019, Dice engaged in intimate and inappropriate text messaging with M.T., including repeated requests to engage in sex. On four occasions, after the band returned from an away football game, Dice engaged in improper and illegal sexual activity with M.T. in an unmonitored school stairwell.

Ultimately, M.T. initiated legal action against Dice and Uniontown asserting a due process constitutional claim against Uniontown and two claims against Dice. M.T. alleged that Dice chose the particular stairwell specifically because it was known to be unmonitored. M.T. alleges that Uniontown “had actual knowledge, through its agents and/or representatives, of previous sexual activities performed at the same location on its property as the location of the assaults committed by … Dice” and that Uniontown took no action to prevent further sexual activity from occurring in the unmonitored stairwell, despite having actual knowledge that sexual activity had occurred in that stairwell. As a result, M.T. alleged that “[Uniontown] exposed [M.T.] to foreseeable harm…” Finally, M.T. specifically alleged that Uniontown’s deliberate indifference resulted in the sexual assaults on M.T.
The District Court dismissed the claim against Uniontown, reviewing the claim pursuant to state-created danger and Monell theories of liability. The court determined that M.T. could not meet the first and fourth prongs (foreseeability and affirmative action) of a state-created danger claim. Under M.T.’s allegations, to say that Uniontown was aware that sexual activity occurred anywhere on its property means that any such location would be considered a place where a sexual assault might occur. Such allegations cast too wide a net. Additionally, there were no allegations that Uniontown engaged in affirmative conduct that created or increased the risk of harm to M.T. Accordingly, the state-created danger claim was dismissed as to Uniontown. The District Court also determined that M.T. did not state a municipal liability claim against Uniontown. M.T. alleged deliberate indifference to sexual activity occurring in the unmonitored stairwell but such allegations fell short of alleging that Uniontown established and maintained a policy, practice or custom which directly caused M.T. constitutional harm. Accordingly, M.T.’s municipal liability claim was dismissed. All of the claims against Dice remained and were not dismissed.

Click here for the opinion.

Samantha Simonetta v. Allegheny College, et al, 2021 WL 927534 (W.D. Pa. 2021)

     Title IX • Deliberate Indifference • Retaliation

The District Court granted, in part, and denied, in part, the motion to dismiss filed by Allegheny College (Allegheny) in this Title IX case alleging gender-based abuse, harassment and discrimination by Samantha Simonetta (Simonetta), a former student at Allegheny. Simonetta alleges the following facts in her complaint. While a student at Allegheny, Simonetta joined the college football team. In February 2018, she disclosed to one of the coaches that she was subjected to inappropriate conduct by some of her teammates. The coach assured her that he would address it. When spring football practices resumed in March 2018, Simonetta was provided a practice jersey but was not given access to a locker room, nor was she assigned a jersey number like her male teammates. In April, she notified the coach that she would be forced to miss practice due to a required academic project, but she received no response. In mid-April, the coach notified Simonetta that she was being placed on academic probation and would not be allowed to participate in practice sessions. By late April, Simonetta was notified by the coaches that she was being suspended from the football team as a result of her academic performance and missed practices. When she attempted to speak with one of the assistant coaches during a practice session, he instructed her to follow up with him after she received her grades. After her grades improved, Simonetta sent notice to the coaches that she was ready to return but received no response until late July when the assistant coach asked that she wait until the conclusion of the fall semester to return to the team and suggested that, in the meantime, she serve as a team manager. When she returned to campus in August, she never received any information regarding the football schedule. Ultimately, Simonetta and her parents met with the coaching staff and inquired about the status of her previously reported sexual harassment claims. At this point, the assistant coach acknowledged that he was aware of her claims but failed to report them to anyone. After the meeting, Simonetta was no longer a member of the team. Later, she was inappropriately touched by a former teammate and she reported this to Allegheny’s Title IX coordinator. After an investigation, it was determined that the former player violated Allegheny’s sexual harassment policy. Ultimately, Simonetta filed a complaint alleging gender-based violations of Title IX and retaliation under Title IX.
The court focused first on the gender-based violations of Title IX. Simonetta claimed that Allegheny “was deliberately indifferent to the gender-based abuse, harassment, and discrimination” of which Allegheny allegedly “had actual knowledge.” Allegheny argued that the harassment Simonetta allegedly experienced was neither “severe” nor “pervasive” enough to satisfy the objective standard of a deliberate indifference claim. The court agreed with Allegheny and dismissed Simonetta’s deliberate indifference claim. Turning to Simonetta’s retaliation claim, the court determined that Simonetta pleaded facts sufficient to establish a prima facie case of retaliation under Title IX. The court focused on the list of incidents that allegedly occurred after Simonetta told the assistant coach about the harassment and determined that Simonetta suffered a succession of adverse actions that occurred after and in close proximity to the date that she reported the sexual harassment to the coach. Accordingly, this part of the motion to dismiss was denied.
 Click here for the opinion.

J.L., et al v. Lower Merion School District, 2021 WL 949456 (E.D. Pa. 2021)

     Exhaustion of Administrative Procedures/Remedies • Fry Test
     Right to a Jury Trial • ADA

In this case, the plaintiffs allege that Lower Merion School District (Lower Merion) failed to provide A.L., the student, with a free appropriate public education (FAPE) in violation of the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act, and state law. Plaintiffs also allege that Lower Merion intentionally discriminated against A.L. in violation of Section 504 and the Americans with Disabilities Act (ADA). The parties dispute whether the plaintiffs’ ADA claim is separate from their IDEA and Section 504 claims. This dispute has practical import because it impacts whether the plaintiffs are entitled to a jury trial on their ADA claim. After reviewing the parties’ arguments, the court determined that the ADA claim was not separate from the IDEA and Section 504 claims and as a result, the plaintiffs were not entitled to a jury trial.
A.L., now 19 years old, is nonverbal and began communicating using a letterboard and communication support person in the summer of 2017, just before entering 11th grade. Prior to using the letterboard to communicate, A.L. studied in an autistic support classroom with “a life skills curriculum,” but after he began using the letterboard, he was placed “in some grade level regular education classes.” However, despite his desire to use the letterboard “throughout the school day” and his parents’ repeated requests throughout mid- to late-2017 that Lower Merion incorporate the letterboard into his individualized education program (IEP) and train district staff on how to use it, Lower Merion did not change A.L.’s IEP. During this time, A.L.’s parents also sent Lower Merion officials videos of A.L. using the letterboard to communicate, including to complete homework assignments.
After many discussions regarding A.L. using the letterboard in some of his classes and numerous requests from the parents regarding the training of Lower Merion staff, the district held a three-day preliminary training session with some school personnel on how to serve as a communication support person to an individual using a letterboard. Thereafter, Lower Merion issued a revised IEP for A.L., in which the district concluded that the training did not support A.L.’s use of the letterboard in school because there was no research demonstrating the effectiveness of this communication technique in a school setting. Eventually, A.L. visited a psychiatrist to address his increased anxiety. The psychiatrist recommended that A.L.’s parents remove him from school because without “an effective way to communicate,” A.L.’s mental health would “further deteriorat[e],” potentially leading to “worsening aggression and self-injurious behaviors.” The next day, November 6, 2018, A.L.’s parents withdrew A.L. from school and informed Lower Merion that “they would seek reimbursement from the district for the cost of appropriate educational programming for” A.L. Thereafter, Lower Merion revised the IEP but the parents, concerned about A.L.’s mental health, did not send him back to school and, instead, elected to homeschool him. The parents filed a due process complaint and the hearing officer determined that Lower Merion had provided A.L. with a FAPE. The hearing officer also found that the plaintiffs were not entitled to reimbursement for the expenses of privately educating A.L. and concluded that the plaintiffs had failed to demonstrate that A.L. was discriminated against in violation of Section 504 or the ADA. In reaching the latter decision, the hearing officer assumed, but did not decide, that he did not have jurisdiction over plaintiff’s ADA claim. But he alternatively ruled that if he did have jurisdiction over the plaintiffs’ ADA claim, Lower Merion did not violate the ADA.
The plaintiffs advanced three claims in their district court complaint. First, they argued that the hearing officer erred in denying and dismissing their claim that Lower Merion denied A.L. a FAPE. Second, they claimed that the hearing officer erred in concluding that Lower Merion had not discriminated against A.L. in violation of Section 504. Finally, they maintained that Lower Merion discriminated against A.L. in violation of the ADA. The court determined that the allegations in the complaint rarely implied that Lower Merion’s refusal to allow A.L. to use a letterboard or to pay for a communication support person prevented A.L. from being able to access the school, as opposed to preventing him from accessing his education. Under the Fry framework, the plaintiffs’ complaint alleges “grievances [that] all stem from [Lower Merion’s] alleged failure to accommodate [A.L.’s] condition and fulfill his educational needs.” Based on this finding, the court concluded that the ADA and Section 504 claims had to be exhausted before the hearing officer. After determining that the ADA claims were successfully exhausted and concluding that the ADA claim was, in essence, a denial of a FAPE, the court concluded that the plaintiffs were not entitled to a jury trial.
Click here for the opinion.

Rose Tree Media School District v. Unemployment Comp. Bd of Review, UCBR Decision No. B-622720 (October 5, 2020)

     Academic Term Employees • Reasonable Assurance

The claimant is a full-time bus driver for the Rose Tree Media School District (Rose Tree Media). Her work is defined in the applicable collective bargaining agreement as commencing at the beginning of the academic year and terminating at the end of the academic year. Over the past several years, she elected to work during the summer (outside of the academic year) as a bus driver but, because of the pandemic, there was no bus driver work available during the summer of 2020. The claimant applied for and received unemployment compensation. The matter was heard before an unemployment compensation referee and thereafter, appealed to the Unemployment Compensation Board of Review (UCBR). The issue that was heard and appealed was whether the claimant was an academic-term employee or full-year employee.
The hearing officer reviewed § 402.1(2) of the Unemployment Compensation Law which provides that “benefits shall not be paid on the basis of [services performed in a non-academic capacity] to any individual for any week which commences during a period between two successive academic years or terms…” The referee found that the claimant was a year-round employee rather than an academic-term employee and determined that the claimant was not subject to the reasonable assurance doctrine making the claimant an ordinary unemployed person. In reaching this decision, the referee relied on the Scotland School case, which involved individuals who were scheduled to work during the summer and did not elect to work during the summer months. The UCBR adopted the referee’s findings, conclusions and reasoning. This decision is currently being appealed to the Commonwealth Court.
Click here for the referee’s opinion and the Petition for Review.


Thank you to all who plan to or who have contributed recent or older but useful arbitration opinions and awards. PLEASE KEEP THEM COMING!

In re: Kiski Area Education Association and Kiski Area School District

Gerald Kobell, Esq., arbitrator
  1. Involuntary Transfer
This grievance, concerning two involuntary transfers, was denied. The parties are subject to a collective bargaining agreement (CBA) effective August 25, 2015, through August 24, 2020. Two grievants filed grievances protesting their involuntary transfers from the school in which they were situated to another school in Kiski Area School District (Kiski). One grievant is a teacher and the other is a school nurse. After an investigation found that the teacher conducted a meeting of employees gathered to speak about school discipline, where Family Educational Rights and Privacy Act student records were discussed, the teacher was suspended for a total of 13 days. The meetings were conducted on April 5 and April 10, 2019. The nurse was present at the meeting. She served as secretary to the teacher when he was president of the union and also served in this position for the next president and later as building representative. She was not disciplined for attending the meeting.

At the end of 2018-19 school year, the teacher was involuntarily transferred to another school in Kiski. The transfer was initiated because the teacher had the established expertise and success that was needed at the other school to improve the computer technology classes. Similarly, after a vacancy occurred at another school, the nurse was involuntarily transferred there. This decision was made because of her considerable experience that assured any issues at the other school that arose would be handled with expertise. None of the transfers were based on union activity or were disciplinary.

The union argued that the transfers were arbitrary and capricious and there was no just cause justifying the transfers. The union also argued that the timing of the transfers was highly suspect and the decisions related to the transfers lacked credible evidence and a reasonable basis to justify the transfers. The arbitrator determined that there was no evidence linking the teacher’s or nurse’s union involvement to the involuntary transfers. Additionally, there was no statement from Kiski that the transfers were retaliatory or for reasons other than those stated in the letters that each grievant received related to the transfers. Additionally, the positions to which they were transferred were at the same pay level and identical benefits. In fact, the arbitrator found that the “generous praise tendered to both [the teacher] and [the nurse] in their assignment letters and more importantly at the hearing displayed nothing but respect for their expertise, achievements, and service to [Kiski] and beyond. To [the arbitrator], it was impressive.” Accordingly, the grievance was denied. 

Click here for the opinion.


Biden administration orders Department of Education to review Title IX rule
President Biden signed an executive order on March 8, 2021, directing the U.S. Department of Education to examine existing regulations, orders, guidance and other activities for consistency with the administration’s policy to guarantee an education free from sexual discrimination.

Click here for a copy of the executive order.


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The Solicitors Association is looking forward to the upcoming year of programs and dissemination of information regarding legal developments in school law. If you have ideas for legal programs, please send the ideas to your regional director or Stuart Knade or Linda Randby.

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REGISTER NOW! Spring Legal Roundup
This year, due to the COVID-19 pandemic, Spring Legal Roundup will be virtual on March 24, 2021. Click here to register via the continuing legal education portal on the PSBA website.

SAVE the DATE! Solicitors Symposium: July 8 & 9, 2021
Network with other school attorneys and enjoy an informative and relaxed training opportunity online. This day-and-a-half program focuses on topics of special legal significance, featuring Pennsylvania’s best-known experts in various areas of school law practice. Registration coming soon!


The Continuing Legal Education (CLE) Distance Learning area of the PSBA website and distance learning platform has gone live and is now available here! PSBA recently concluded a 12-week series of CLE webinars for attorneys. Recordings of these webinars can be accessed at any time, at the convenience of the participant. Most recorded programs provide one CLE credit hour. A list of currently available programs that can be purchased for viewing and credit can be found here.

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Linda J. Randby, Esq.
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