JUDICIAL & ADMINISTRATIVE DECISIONS

Joseph P. Moffitt v. Phillip Farr, et al, 2021 WL 3356940 (3d Cir. 2021)

CIVIL PROCEDURE; EVIDENCE; MOTIONS
Issue Preclusion • Collateral Estoppel

The Third Circuit affirmed the District Court’s dismissal of Moffitt’s complaint based on the issue preclusion doctrine. Moffitt was an elementary school principal with the Tunkhannock Area School District (Tunkhannock). In September 2016, Tunkhannock fired him for two driving-under-the-influence incidents. Moffitt received several hearings before his termination. First, Tunkhannock held a predisciplinary hearing. Then Tunkhannock’s Board of School Directors (Board) held two evidentiary hearings where several witnesses testified in support of Tunkhannock. Ultimately, the Board voted to terminate Moffitt’s employment. On appeal, Pennsylvania’s secretary of education affirmed his termination, and the Commonwealth Court of Pennsylvania affirmed the secretary’s decision. Moffitt filed suit in federal court against Tunkhannock. After much of the initial complaint was dismissed, Moffitt filed an amended complaint against the Board member defendants in their individual capacities. The amended complaint asserted four separate counts — two counts alleging violations of Moffitt’s due process and equal protection rights, one count for First Amendment retaliation, and one count for wrongful suspension and termination under state law. Concluding the issue preclusion doctrine bars Moffitt’s amended complaint, the District Court dismissed it and Moffitt filed this appeal.

The Third Circuit applied the issue preclusion doctrine that Pennsylvania courts follow and determined that all of the requirements for applying issue preclusion to this matter were met. The court found that every issue raised in Moffitt’s amended complaint was resolved by the Pennsylvania court. Moffitt argued that issue preclusion was inappropriate because he was required to exhaust his state administrative remedies before filing a federal action, but the Third Circuit disagreed. The court explained that while Moffit could have told the Commonwealth Court he wanted to reserve litigation of his federal claims, he did not. The court also disagreed with Moffitt’s argument that the District Court should have converted Tunkhannock’s motion to dismiss into a motion for summary judgment.

OPINION NOT PRECEDENTIAL

Editor’s Note: Pursuant to its Internal Operating Procedures, the Third Circuit declines to cite “not precedential” opinions in its reported decisions.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.

Aspira, Inc. of Pa. v. The School District of Phila., 2021 WL 3511294 (E.D. Pa. 2021)

CHARTER SCHOOLS
Nonrenewal/Termination • Legal Status of Charters

After a six-day video bench trial, the District Court entered judgment in favor of The School District of Philadelphia (Philadelphia), supporting Philadelphia’s argument that it owed Aspira nothing. Aspira is a nonprofit organization that promotes leadership and education in low-income and Latin communities, and operates numerous programs including youth programs, mentoring, after-school and summer programs, and charter schools. Aspira is a charter management organization for five charter schools in Philadelphia. Two of these charter schools are the subject of this litigation: John B. Stetson Charter School and Olney Charter High School. Philadelphia selected Aspira to serve as a “turnaround team” for the schools, which essentially permitted Aspira to operate and manage them. Philadelphia operates over 200 schools and oversees the management of approximately 86 charter schools. Charter schools are monitored and evaluated by Philadelphia’s Charter School Office (CSO), which creates standards for charter schools and monitors the performance of those schools. In early 2010, Philadelphia implemented the Renaissance School Initiative. The Initiative was intended to help Philadelphia improve chronically underperforming schools (known as “Renaissance Schools”) through restructuring and external partnerships. The policy of the Renaissance Schools Initiative contemplates three models of Renaissance Schools — Innovation, Contract and Charter Schools — each with its own characteristics. In the first and second year of the Renaissance Schools Initiative, Aspira submitted a response to Philadelphia’s Request for Quotes to qualify as a turnaround team under the charter school model. Thereafter, Philadelphia released a Request for Proposals seeking submissions from various turnaround teams, including Aspira. Aspira submitted a response seeking to be paired with three schools. Aspira acknowledged that the charter school model contemplated that any relationship between charter schools and Philadelphia would be “in accordance with the Pennsylvania Charter School Law.” Aspira was granted charters. The charters in this case explicitly stated that they are agreements between Philadelphia and the respective charter school — Stetson or Olney. The charters acknowledge and address the separate Pennsylvania nonprofit corporation that was created to operate the charter schools. The charters also note that the charter schools act through and by their board of trustees. The charters were signed by a Philadelphia representative and the two members of the respective board of trustees. The charters make no mention of Aspira as a party or otherwise, and Aspira did not sign the charters. After Philadelphia issued the charters, the charter schools entered into service agreements with Aspira outlining the terms by which Aspira would deliver its management and operation services for each charter, among other terms.

The Stetson charter expired on June 30, 2015, and the Olney charter expired on June 30, 2016. In January 2015, the CSO recommended Stetson’s charter be renewed for one year with conditions, but no agreement was reached regarding the one-year renewal, and the charter was not renewed. Both charters were up for review in 2016 and on April 11, 2016, the CSO recommended to the School Reform Commission that the Stetson and Olney charters not be renewed. The CSO’s nonrenewal recommendation was premised on organization compliance deficiencies and concerns with financial stability. After negotiations between Philadelphia and Aspira were unsuccessful, the nonrenewal process resulted in a hearing officer recommending nonrenewal of the Stetson and Olney charters, which was ultimately adopted by Philadelphia’s Board of Education. In the end, Aspira initiated litigation against Philadelphia alleging that it had a contract with Philadelphia and a property interest in the contract that was protected by due process of the law. Aspira also alleged that it was deprived of its liberty interest in its reputation, alleging that Philadelphia made false statements about it. The District Court determined that Aspira did not establish that it had a contract with Philadelphia, meaning that Aspira was unable to establish it had a protectable property interest for its due process claim. The court did find the charters to be valid contracts but noted that Aspira is not a party to them. The plain language of the charters stated that they were agreements between Philadelphia and each respective charter school. Not only was Aspira not a party to the charters, but Aspira was not, by any legal means, the same entity as the charter schools. Each charter school is an independent nonprofit corporation governed by its board of trustees pursuant to § 17-1703-A of the Charter School Law. As a matter of law, Aspira was not the charter school, and the charter school was not Aspira. Because Aspira did not prove a meeting of the minds for any other agreement, and there was no contract between Philadelphia and Aspira, the court entered judgment in favor of Philadelphia. The court also dismissed Aspira’s allegations regarding its reputation, finding that Aspira did not fully establish the claim.

Click here for the opinion.

Williamsport Area School Dist. v. Williamsport Area Education Support Professionals Assoc., 2021 WL 3439695 (Cmwlth Ct 2021)

COLLECTIVE BARGAINING; ARBITRATION; LABOR
Essence Test • Rationally Related

The Commonwealth Court affirmed the Lycoming County Court of Common Pleas’ decision that granted the Williamsport Area School District’s (Williamsport) petition to vacate an arbitration award, finding that the award violated the second prong of the essence test. On August 15, 2017, Williamsport and the Association entered into a collective bargaining agreement (CBA) effective July 1, 2017, through June 30, 2022, which contained provisions regarding the filling of vacancies. Article 8 specifically explained, “All vacancies shall be filled by awarding the position to the most senior eligible qualified bidding employee, except where qualified employees are on a recall list as defined in Article 8-7 below ....” The grievant was employed as a full-time custodian at Williamsport. In late 2018, the head custodian position was up for bid and the grievant submitted an application. The grievant was the most senior applicant who passed the test for the head custodian position, having been employed Williamsport for more than 21 years. Ultimately, the grievant was informed via email that Williamsport determined that he was not qualified for the head custodian position because of one written disciplinary warning that he received for tardiness, as well as his most recent performance evaluation in which he received a “needs improvement.” The grievant filed a grievance that was sustained by the arbitrator. In sustaining the grievance, the arbitrator noted that the language in Article 8 is typically referred to as a “modified seniority/sufficient ability clause,” under which it must merely be determined whether the most senior employee can do the job. This determination was based on the arbitration’s finding that Williamsport gave little to no weight to the fact that the grievant was the most senior bidder when determining whether he simply possessed the minimum qualifications necessary to perform the position of head custodian. The trial court granted the petition to vacate the arbitration award which Williamsport filed, finding that the arbitrator substituted his own judgment for that of Williamsport. The trial court specifically focused on the arbitrator’s definition of “qualified” as being “minimally qualified.” This was contrary to the CBA, which defined “qualifications as inclusive of work attendance, disciplinary history, credentials and other job specific qualifications” and vested the power to determine such qualifications with Williamsport. This appeal followed.

The court reviewed the arbitration award applying the two-prong “essence test” and found that the arbitrator’s interpretation could not be rationally derived from the CBA. The court agreed with the trial court that the arbitrator substituted his own definition of “qualified” in Article 8 of the CBA. The court pointed out that contrary to the arbitrator’s definition, the express language of Article 8 confers upon Williamsport the authority to determine the qualifications for a position and does not prohibit Williamsport from treating various disciplinary infractions as disqualifying. Accordingly, the court affirmed the trial court.

OPINION NOT REPORTED

Editor’s Note: Unreported decisions of the Commonwealth Court are not intended to have precedential value but may be cited in legal proceedings for persuasive value.

Click here for the opinion.

A.C. & D.C., Parents on behalf of Minor Plaintiff, C.C. v. Owen J. Roberts School District, 2021 WL 3562850 (E.D. Pa. 2021)

SPECIAL EDUCATION; SECTION 504; ADA; GIFTED EDUCATION
FAPE • Section 504 • No loss, exclusion or denial of benefits

The District Court granted the summary judgment motion filed by the Owen J. Roberts School District (Owen Roberts), determining that the plaintiffs failed to show that Owen Roberts denied C.C. a free appropriate public education (FAPE). C.C. is a gifted child with complex medical conditions that manifest with both physical and behavioral symptoms. C.C. sometimes missed school, either for medical treatment or because he refused to attend. C.C. had a gifted individualized educational plan (GIEP) in place, as well as an individual health plan and an emergency care plan. During C.C’s sixth grade year, the parents and Owen Roberts agreed upon a plan under Section 504 setting out accommodations to be provided at school. In the summer of 2017, the parents disagreed with the results of an evaluation and with Owen Roberts’ proposed individualized educational plan (IEP) for C.C. The parties also did not agree upon a new Section 504 Plan. In October of 2017, Owen Roberts unilaterally discontinued the March 2017 Section 504 Plan. In response, the parents filed an administrative complaint with the U.S. Department of Education, Office for Civil Rights (OCR). The resolution of the OCR complaint provided that Owen Roberts would “implement all disability-related plans for which it has necessary parental consent,” which at a minimum would “include the Student’s most recently agreed upon Section 504 Plan and Individual Health Plan.” Owen Roberts further agreed to meet and review whether C.C. “suffered an educational loss due to the District’s failure to provide appropriate regular and/or special education or related aids/services to the Student from May 2017 to the present,” including disability-related services under Section 504. Owen Roberts then reimplemented the March 2017 Section 504 Plan, which had not been in effect for almost all of C.C’s seventh grade year. After being unable to reach common ground during C.C.’s eighth grade year, the parents filed a due process complaint. During C.C.’s ninth grade year, C.C. and the parents moved out of the Owen Roberts district.

The hearing officer concluded that C.C. was not denied a FAPE despite Owen Roberts’ unilateral decision to discontinue the Section 504 Plan because the parents had not established that there was a loss, exclusion or denial of benefits. The District Court agreed with this conclusion, citing Third Circuit precedent. The Third Circuit has held that a procedural violation constitutes denial of a FAPE “only if it results in a loss of educational opportunity for the student, seriously deprives parents of their participation rights, or causes a deprivation of educational benefits.” In this case, because the parents have not shown that C.C. was denied meaningful benefits, FAPE was not denied. The court also did not find that Owen Roberts discriminated against C.C. in violation of Section 504 with regard to homebound instruction.

Click here for the opinion.

PUBLIC SECTOR ARBITRATION

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 OTHER NEWS

Pennsylvania Will Offer Voluntary COVID-19 Testing in K-12 Schools
The Department of Health’s COVID-19 school testing program is free and voluntary and is available for all K-12 schools. Ginkgo Bioworks was awarded an $87 million contract to run the program for the upcoming school year. The funds are coming from Pennsylvania’s share of the federal coronavirus relief bill. There is no cost to schools that opt into the program.

Click here for a copy of the letter that was sent to all Pennsylvania schools.
Click here for a copy of the Statement of Assurances that must be completed by the schools so they can participate.
Click here for a copy of the Pennsylvania Department of Health order directing vaccine providers to support vaccination clinics at schools.

COVID Litigation Information Clearinghouse
If legal actions are filed against your client districts related to masking requirements or absence of masking mandates, enforcement of masking, vaccine mandates for staff, requiring students testing positive or having symptoms to stay home, or similar issues arising from implementation of district health and safety plans, please keep us informed (to the extent you are able, consistent with client preferences), and provide us with copies of any such complaints. We would then use and share the information to keep the solicitor community abreast of such developments. Please email this information to LegalServices@psba.org, with “COVID litigation information” in the subject line.

COVID Litigation Strategy Council
We are assembling a team of consulting attorneys who can serve as a back-room caucus and sounding board for any of our colleagues who end up defending COVID-related litigation or are threatened with it. Mostly via email, but also using conference call or Zoom as needed or appropriate, this team will review filed or threatened claims, provide feedback and brainstorm potential strategies. If you are willing to contribute time and expertise to this effort, please email us at LegalServices@psba.org, with “Strategy Council” in the subject line.

MARK YOUR CALENDAR

2021 School Law Workshop - New date/time!

School Law Workshop now will be held from 8:30 a.m.-4:15 p.m. on October 27 at PSBA headquarters in Mechanicsburg. Based on School Leadership Conference registration numbers and feedback, it is clear that a significant portion of PSBA members are not yet ready to return to in-person gatherings. The PSBA Governing Board reluctantly concluded that it is prudent to convert the scheduled School Leadership Conference to a series of virtual offerings in late October. Consequently, although the events held in conjunction with the conference will still be in person, including School Law Workshop, they have been rescheduled for October. Registration is still open, and capacity is limited to 75 attendees for this in-person event, so sign up now! Solicitor attendees may earn up to 5.5 continuing legal education credits. The PSBSA Annual Business Meeting and Award Presentation will also take place. This year's presentations include:

COVID Round 2 Roundtable
Developments in Responding to Right-to-Know Law Requests
In the Wake of Mahanoy: What we’ve learned about responding to off-campus student speech and rules for participation in extracurricular activities
School Law Update

CONTINUING LEGAL EDUCATION WEBINARS

The Continuing Legal Education (CLE) Distance Learning area of the PSBA website and distance learning platform has gone live and is now available here! This spring, PSBA 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.

Questions? Contact PSBA Legal Services staff at clelegal@psba.org.

INFORMATION FROM PSBSA

For questions about Pennsylvania School Board Solicitors Association (PSBSA) membership status and dues invoices, as well as about the PSBSA officers, board of directors, bylaws and other governance information, please call Jo Mundis at (717) 590-5645, or email her at jo.mundis@psba.org.

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.

Let us Know
Got a tip, a link, a correction, a question, a comment, an observation, a clarification, a wisecrack, an idea you’d like to see addressed? We are always glad to hear from you.

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School Board Solicitors Association Officers

John G. Audi, Esq., President
Rachel K. Lozosky, Esq., President-Elect
Benjamin L. Pratt, Esq., Secretary
Vincent L. Champion, Esq., Immediate Past-President

Legal Services Team

Stuart L. Knade, Esq.
Linda J. Randby, Esq.
Jo Mundis

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