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December 3, 2021 | ISSUE #24
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JUDICIAL & ADMINISTRATIVE DECISIONS
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Chad Parker, et al v. Governor of Pa, et al, 2021 WL 5492803 (Third Cir. 2021)
CIVIL RIGHTS/CONSTITUTIONAL RIGHTS
Article III • Mask Mandate - Standing
The Third Circuit upheld the District Court’s denial of a preliminary injunction that would have prevented the defendants from enforcing a contract tracing program and mask mandate. The Commonwealth of Pennsylvania implemented several public health measures to limit the spread of COVID-19. The first public health measure is a contact tracing program, whereby Pennsylvania's Department of Health (DOH) seeks to identify, notify and monitor anyone who came in close contact with a person who tested positive for COVID-19 during the period in which that person was infectious. The Commonwealth of Pennsylvania also sends a letter to potentially infected contacts that directs them to self-quarantine for 14 days after their last contact with someone who was likely infected. If a recipient fails to cooperate, the DOH may petition a court to isolate that person and call upon law enforcement to effectuate the court’s order; the DOH has yet to do so. The other measure challenged in this case was a mask mandate first implemented by an order of the secretary of health on July 1, 2020. The secretary issued this mandate following the suspension of business closure and stay-at-home orders, citing the Centers for Disease Control and Prevention guidance indicating that wearing masks helps to prevent and control further spread of COVID-19. The mandate required Pennsylvanians age 2 and older to wear a face covering in various settings, including indoors or outdoors, where social distancing cannot be maintained. The mandate expired by its own terms on June 28, 2021. The plaintiffs view masks as political symbols expressing that “all people are diseased” and that mask wearers have “surrendered [their] freedom to the government,” and they believe the mandate compels them to express this message even though they disagree with it. They also believe that wearing a mask violates their rights to privacy and personal autonomy. One of the plaintiffs tested positive for COVID-19 in July 2020 and was contacted by the DOH, which asked him questions about his contacts from the previous two weeks, and he was then directed to self-quarantine. The plaintiff found this experience intrusive and now fears he and his family will be subjected to surveillance and a future quarantine. The plaintiffs allege that they have been forced to take costly measures to avoid contact tracing: they now home school their son rather than sending him to public school, “think twice” before seeking medical treatment for minor symptoms, and avoid any businesses or events that may document attendees. The plaintiffs, accordingly, filed this lawsuit seeking an injunction alleging that the mandates violated their First, 14th and Fourth Amendment rights. The District Court denied the motion and this appeal followed.
In upholding the District Court, the Third Circuit reviewed the case-or-controversy requirement set forth in Article III of the U.S. Constitution. Specifically, the court focused on whether the plaintiffs had standing to sue. They also reviewed whether the mootness doctrine applied. The court determined that the plaintiffs lacked standing because they failed to show an injury in fact since the plaintiffs only alleged “self-imposed injuries of making changes in their behavior” for purposes of conferring standing. The court also found that the plaintiffs’ challenge was moot and none of the exceptions to the mootness doctrine applied.
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.
J.S., a minor by his parents, M.S. and D.S. v. Manheim Township School Dist., 2021 WL 5350219 (Pa. Supreme Ct. 2021)
SCHOOL BOARD POLICY
Terroristic Threats • Bullying/Cyberbullying
CIVIL RIGHTS/CONSTITUTIONAL RIGHTS
First Amendment • Speech Protected
The Pennsylvania Supreme Court affirmed the Commonwealth Court decision upholding an order of the Court of Common Pleas of Lancaster County (trial court) that reversed the decision of Manheim’s School Board (Manheim) to expel J.S. J.S. was expelled for two Snapchat memes that he sent to another student (Student One) which made fun of a classmate (Student Two). J.S. and Student One joked that Student Two looked like a school shooter because of his long hair and preference for wearing a “Cannibal Corpse” T-shirt. Cannibal Corpse is a hard metal rock group that uses violent lyrics and graphic imagery drawn from horror fiction and films. This extended conversation about Student Two took place after school, with each participant using a private cell phone in his respective home. Two memes about Student Two were sent by J.S. to Student One and resulted in Manheim expelling J.S. The first meme is a still photograph of Student Two singing into a microphone and is captioned as follows: “I’m shooting up the school this week. I can’t take it anymore I’m DONE!” At the bottom of the meme is a photoshopped image of J.S. wearing large “Elton John” glasses, apparently watching Student Two’s performance. The response of Student One to this meme was “LOL,” which means “laughing out loud.”
J.S. then created a short video meme. It depicted Student Two playing guitar music into a microphone and was captioned as follows: “IM READY [Student One] AND MANY MORE WILL PERISH IN THIS STORM. I WILL TRY TO TAKE [Student One] ALIVE AND TIE HIM UP AND EAT HIM.” The quote was attributed to Student Two, who was singing lyrics by Cannibal Corpse. The lyrics of this band employ gory imagery and include references to “eating boys” and “drinking their blood.” Student One then posted the “I can’t take it anymore” meme to his personal Snapchat “story,” where it could be viewed by Student One’s Snapchat “friends.” It was available for approximately five minutes and seen by 20 to 40 other students. One student reported the meme to his parent, who reported the meme to the high school principal. In turn, the principal contacted Manheim’s superintendent and the police. When J.S. learned what Student One had done, he asked Student One to remove the meme from his Snapchat story. Student One did so, stating it was a “[p]robable false alarm, just something [J.S.] sent me.” In the early morning of April 11, 2018, the police arrived at the home of J.S. and interviewed both J.S. and his parents about the meme Student One had posted on his Snapchat story. The police concluded that J.S. had not made a threat and that there was no threat to school safety and reported this to Manheim. Nevertheless, the high school sent an email to all parents stating that there had been a threat. The press then reported that a high school student had been suspended for posting a threat on social media. The high school administration continued to interview J.S., who explained that he intended his online conversation with Student One to be funny and to remain private. On April 12, 2018, Manheim suspended J.S. for three days for making a terroristic threat and for causing serious inconvenience to the school. When the high school later obtained the video meme, it suspended J.S. for seven more days.
On April 12, 2018, Manheim formally charged J.S. with violating Manheim’s policy against terroristic threats (Board Policy No. 218.2). The policy defines “terroristic threat” as “a threat to commit violence communicated with the intent to terrorize another....” On April 16, 2018, Manheim formally charged J.S. with violating its policy against cyberbullying (Board Policy No. 249). No charges were brought against Student One, who posted the meme. Ultimately, Manheim expelled J.S. for “making terroristic threats and engaging in cyber-bullying against another through social media.” J.S. appealed to the trial court, which reversed Manheim’s decision. First, the trial court held that J.S.’s hearing did not comport with due process because Student One did not appear at J.S.’s expulsion hearing. The trial court also held that J.S. did not violate Manheim’s terroristic threats policy. Manheim offered no evidence that J.S. intended the meme to terrorize Student One or to have the meme be seen by the public. The trial court determined that intent is central to the definition of “terroristic threat” in Board Policy No. 218.2. Finally, the trial court held that Manheim did not prove a violation of the antibullying policy, which applies to the school setting. There was no evidence that J.S. created either of the two offending memes in a school, on school grounds, in a school vehicle, at a bus stop, at a school-sponsored activity or by using school equipment. J.S.’s memes were created and sent from his private cell phone to Student One’s private cell phone and after school hours. Manheim appealed to the Commonwealth Court, which affirmed the trial court without further analysis.
Manheim appealed and the Supreme Court granted allocator to consider the due process rights in a student disciplinary proceeding and to address First Amendment applicability where the speech at issue involved a threatened school shooting and caused a substantial disruption. At the outset, the Court believed it “prudent to resolve on this appeal only the First Amendment question.” After a very thorough and compelling analysis of student First Amendment rights, including an analysis of the recent Mahanoy decision in the U.S. Supreme Court, the Court concluded that a reviewing court “should assess whether an expression is a true threat analysis considering the totality of the circumstances.” The Court explained that “in considering the totality of the circumstances, the primary focus must be on the subjective intent of the speaker.” The Court said that “the inquiry is ultimately driven by whether the speaker intended the communication to be a serious expression of an intent to inflict harm.” The Court then created a two-part inquiry for reviewing courts to follow, “[F]irst examining the content of the speech, and then assessing relevant contextual factors surrounding the speech. These factors include, but are not limited to: (1) the language employed by the speaker; (2) whether the statement constituted political hyperbole, jest, or satire; (3) whether the speech was of the type that often involves inexact and abusive language; (4) whether the threat was conditional; (5) whether it was communicated directly to the victim; (6) whether the victim had reason to believe the speaker had a propensity to engage in violence; and (7) how the listeners reacted to the speech.” Secondly, even if it is not a true threat, a school may regulate speech “that causes or foreseeably could cause a substantial disruption to the school environment.” In applying this analysis to this case, the Court found that, “considering the totality of the circumstances, J.S. did not intend to communicate a serious expression of an intent to inflict harm, intimidate, or threaten the recipient of the message.” The court also found that J.S.’s speech did not substantially interfere with the school environment because “he communicated his speech via a personal cell phone, through Snapchat, to an intended audience of one.” While acknowledging Manheim’s interest in preventing bullying, “such interest is weakened by the fact that J.S. communicated off campus and on his own time. Moreover, when J.S. spoke, the school did not stand in loco parentis, and there is no suggestion that J.S.’s parents delegated such authority to the school to regulate J.S.’s behavior in their home.” In the end, the Court determined that J.S. did not create a substantial disruption but that Manheim “created a disruption” by the way it responded to the posts.
Justice Saylor filed a concurring opinion agreeing with the outcome but based on different rationale postulating, among other points, that Manheim did not follow its own policies with regard to how this matter was handled. Justice Dougherty dissented because the court declined to address the due process rights of students facing school discipline.
Editor’s Note: The Commonwealth Court decision is published at 57 SLIE 11.
Editor’s Note: PSBA participated as amicus curiae in this case.
Click here for the majority opinion.
Click here for Justice Saylor's concurring opinion.
Click here for Justice Dougherty's dissenting opinion.
Blackhawk School District v. Public School Employees’ Retirement Bd., 2021 WL 5411131 (Commw. Ct. 2021)
PUBLIC SCHOOL EMPLOYES’ RETIREMENT SYSTEM
Subject Matter Jurisdiction • Independent Contractor Status Review
The Commonwealth Court vacated the Public School Employees’ Retirement Board’s (Board) March 12, 2021 opinion and order that sustained the Public School Employees’ Retirement System’s (PSERS) preliminary objection that the Board lacks subject matter jurisdiction over Blackhawk School District’s (Blackhawk) appeal, denied Blackhawk’s request to classify the school psychologist as an independent contractor for the 2010-11 through 2016-17 school years, and dismissed Blackhawk’s appeal. The psychologist provided services to Blackhawk from 2010 through the fall of the 2016-17 school year. For each of the subject school years, Blackhawk and the psychologist entered into an employment contract wherein the psychologist agreed to provide services to Blackhawk on a per diem basis, on days the superintendent designated. On January 17, 2017, the psychologist accepted employment as a school psychologist with Blackhawk from January 3, 2017, through June 30, 2020, subject to the Blackhawk Board of Directors’ and the superintendent’s authority and supervision with a salary and benefits, including being eligible for service credit as of January 3, 2017. In 2019, the psychologist requested that PSERS grant him service credit under the Retirement Code as a school district employee for the 2010-11 through 2016-17 school years. By the January 7, 2020 letter, PSERS informed the psychologist that, at its November 26, 2019 meeting, PSERS “granted [his] request based on the language of the signed [Prior] [E]mployment [C]ontracts under which [he] provided paid services to the [ ] School District.” On February 4, 2020, Blackhawk appealed PSERS’ decision to the Board and requested a hearing, arguing that “[t]he contracts under which [the psychologist] operated for the ... 2010-11 through 2016-17 [school years] specified that he was considered an independent contractor,” and “[a]s an independent contractor, [he] was not entitled to membership in[ ] PSERS[,] and the [School] District does not owe any [ ] salary contribution.” On February 24, 2020, PSERS filed preliminary objections to Blackhawk’s appeal. On March 11, 2020, the Board granted the petition to intervene filed by the psychologist. The matter was referred to a hearing examiner to address, but because this matter was before the Board on preliminary objections, no fact-finding took place. On August 13, 2020, the hearing examiner issued a Proposed Opinion and Recommendation on Preliminary Objections, recommending that the Board sustain PSERS’ First Preliminary Objection and dismiss Blackhawk’s appeal. On March 12, 2021, the Board sustained PSERS’ First Preliminary Objection, denied PSERS’ request to have the psychologist classified as an independent contractor for the 2010-11 through 2016-17 school years, and dismissed Blackhawk’s appeal. An appeal to the Commonwealth Court followed.
The Commonwealth Court first turned to the Statutory Construction Act for purposes of interpreting the Retirement Code and the School Code. The court reviewed § 8327(a) of the Retirement Code, which mandates that each school district make payments to PSERS for its employees. The court also referenced § 8301 of the Retirement Code and the PSERS regulation that explains mandatory membership in PSERS as well as the exceptions to that membership. Blackhawk argued that, because the School Code does not expressly include school psychologists among the necessary qualified professional employees which § 1106 of the School Code directs that it shall employ, the Board erroneously concluded that it lacked the authority to analyze whether the psychologist was an independent contractor for the 2010-11 through 2016-17 school years. Accordingly, the court also reviewed what the definition of “school employee” is by reviewing § 8102 of the Retirement Code and § 211.2(b) of the PSERS regulations. Additionally, caselaw and the Pennsylvania Department of Education’s Certification Staffing Policy Guidelines were referenced by the court. In the end, the court agreed that school psychologists are among the professional employees referenced in § 1106 of the School Code. However, the court found that the Board had not established that the School Code superseded or otherwise limited the Board’s jurisdiction or authority under the Retirement Code to determine whether the psychologist was a school employee entitled to PSERS service credit. “Moreover, this Court is not convinced that Section 1106 of the School Code precludes a school district from retaining a school psychologist as an independent contractor.” The matter was then remanded with instructions that the Board conduct a hearing.
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.
Editor’s Note: PSBA participated as amicus curiae in this case.
Click here for the opinion.
Douglas Marshall, et al v. Peter C. Amuso, et al, 2021 WL 5359020 (E.D. Pa. 2021)
SCHOOL BOARD POLICY
Sunshine Act • Public Comment Restrictions
CIVIL RIGHTS/CONSTITUTIONAL RIGHTS
First Amendment • Viewpoint Discrimination
The District Court granted a preliminary injunction preventing the enforcement of Pennsbury School Board (Pennsbury) Policies 903 and 922 and enjoining the address announcement requirement at school board meetings. Pennsbury’s Policy 903 governs public participation in school board meetings and Policy 922 applies to all school activities. Any taxpayer, school employee or student is allowed five minutes to make a comment, subject to certain requirements and restrictions. Speakers “must preface their comments by an announcement of their name, address, and group affiliation if applicable.” Pennsbury’s presiding officer may interrupt or terminate public comments deemed “too lengthy, personally directed, abusive, obscene, or irrelevant” and may also “[r]equest any individual to leave the meeting when that person does not observe reasonable decorum.” The presiding officer may “[r]equest the assistance of law enforcement officers to remove a disorderly person when that person’s conduct interferes with the orderly progress of the meeting.” Similarly, “offensive, obscene or otherwise inappropriate banners or placards, or those that contain personal attacks” are prohibited. In 2020, the COVID-19 pandemic temporarily shifted Pennsbury meetings to a virtual setting. The board received written submissions from “speakers” in advance of each virtual meeting and they were screened for violations of Policy 903. Commentators were notified via email if their comments were rejected for any violation. Acceptable written comments were posted on Pennsbury’s website.
In March 2021, Marshall gave a public comment without interruption. After the meeting video from that board meeting was posted on the district’s website, Pennsbury decided to take the video off the website to remove the comments Pennsbury deemed after-the-fact to be in violation of Policy 903. Two weeks after the board-edited video was posted, it was replaced with the full, unedited version. At the May 2021 board meeting, three of the plaintiffs claimed five minutes each in order to speak. Each was interrupted by the assistant solicitor for violations of Policy 903. At the June 2021 meeting, the school board required each speaker to state their home address at the beginning of their remarks. At this meeting, one of the plaintiffs, Campbell, criticized Policy 903 and the school board’s implementation of it. He finished his remarks, but the solicitor interrupted a portion of Campbell’s allotted speaking time to state that personal insults or personally directed comments would lead to his comments being terminated. The other plaintiffs, Abrams, Marshall and Daly, also spoke for their full five minutes. Daly, Abrams and Campbell each spoke at the August 2021 meeting and none were interrupted for violations of Policy 903. There was a police presence at this meeting. Ultimately, the plaintiffs filed litigation seeking to enjoin Pennsbury from enforcing: (1) Policy 903’s prohibitions of speech deemed “personally directed,” “abusive,” “irrelevant,” “offensive,” “otherwise inappropriate” or “personal attacks”; (2) Policy 922’s similar prohibitions of speech deemed “offensive,” “inappropriate,” “intolerant,” “disruptive” and “verbally abusive”; and (3) Policy 903’s address announcement requirement.
The District Court reviewed each of the four factors that must be met before a court grants a preliminary injunction. The plaintiffs argued that the application of Policy 903 and Policy 922 to interrupt or terminate their public comment time violated their free speech rights and constituted viewpoint discrimination. Pennsbury argued that the application did not constitute viewpoint discrimination because each plaintiff was able to provide opinions in opposition to the same agenda items on a variety of occasions. The court focused on the term “disruptive” in the policies and determined that this term was being applied to “disruptive ideas rather than disruptive conduct,” thereby constituting viewpoint discrimination. The court also found the terms “personally directed,” “abusive,” “offensive,” “otherwise inappropriate,” “personal attack,” “inappropriate” and “intolerant” to be unconstitutionally vague and overbroad. The court determined that the policies were overbroad because they prohibit a broad array of constitutionally protected speech. Turning to the address announcement requirement, the court concluded that this requirement is facially invalid since it has a “chilling effect on protected speech.” Based on all of this, the court held that Pennsbury had “not met its burden to demonstrate that it is likely to succeed on the merits” regarding the challenged policies or the address announcement requirement. The court found that there was a risk of irreparable harm to the plaintiffs but not to Pennsbury because the “loss of First Amendment freedoms, for even minimal periods of time unquestionably constitutes irreparable injury.” Accordingly, the District Court granted the preliminary injunction finding that it “will serve the public interest by protecting First Amendment free speech rights.”
Editor’s Note: PSBA Policy Guide 903 - Public Participation in Board Meetings is currently under review. Any updates to the policy will be issued through the Policy News Network (PNN) to members of PSBA’s Policy Service. Please also note that Policy 922 - Civility is a locally developed policy that was adopted by the Pennsbury School Board. PSBA will not be reviewing Policy 922.
Click here for the opinion.
Jamarr Billman v. Easton Area School District, 2021 WL 5448963 (E.D. Pa 2021)
EMPLOYMENT DISCRIMINATION
Race Discrimination • Title VII / PHRA
Hostile Work Environment • Title VII / PHRA
Retaliation • Title VII / PHRA
The District Court denied Easton Area School District’s (Easton) summary judgment motion in this matter where the plaintiff alleges that he was unlawfully terminated from employment based on race and subjected to retaliation for engaging in protected activity. Easton Area School District hired the plaintiff as its varsity head wrestling coach in 2016, reporting to the athletic director. During the plaintiff’s time as head wrestling coach, four incidents involving family members of wrestling students took place wherein family members of wrestlers allegedly assaulted and threatened the plaintiff with violence and called him derogatory names. Shortly after one tournament where the plaintiff was physically and verbally assaulted by a wrestler’s family member, the plaintiff was notified that his contract would not be renewed and that he was fired. A few days after that, the plaintiff was notified that his contract was actually being renewed. Both the athletic director and an assistant superintendent received letters of reprimand for the nonrenewal incident from the superintendent. Additionally, after a family member attempted to choke the plaintiff, that family member was banned by Easton from school events for the year. According to the plaintiff, there was no other action by Easton to address the problematic family members. In May 2018, the plaintiff filed an internal complaint of harassment with Easton’s human resource office. In August 2019, the plaintiff filed a discrimination complaint with the Equal Employment Opportunity Commission (EEOC) and the Pennsylvania Human Relations Commission. Thereafter, in September 2019, Easton assigned a new supervisor to the plaintiff, who attended wrestling practices weekly and prepared a set of observations for the athletic director. After she submitted her observations to the athletic director, a call was scheduled between her, the athletic director and the assistant superintendent during which the new supervisor was directed to revise her observations, including deletion of certain portions. The “revised” (less positive) observations were incorporated into a 2019-20 performance evaluation that, for the first time, rated the plaintiff as “needs improvement.” In May 2020, the plaintiff’s attorney reached out to Easton to resolve the EEOC and Pennsylvania Human Relations Act (PHRA) claims. The plaintiff was terminated shortly thereafter. The plaintiff filed this litigation raising claims for race discrimination under Title VII of the Civil Rights Act of 1964 and the PHRA, harassment/hostile work environment under Title VII and the PHRA, retaliation under the Title VII and the PHRA, and violations of §§ 1981 and 1983. Easton filed a motion for summary judgment.
The court turned first to the alleged discriminatory termination under Title VII and the PHRA and determined that the plaintiff had set forth sufficient facts to establish a prima facie case of termination based on race, finding that the plaintiff was treated differently than other coaches who are white. The court pointed to inconsistent application of Easton’s employment policies to the plaintiff as well as the inconsistent reasons for the plaintiff’s termination. The court turned to the plaintiff’s hostile work environment claim and did not dismiss it, based, in part, on the multiple parent assaults or threats against him. The court additionally found that the retaliation claim should stand since the plaintiff’s termination occurred in close proximity to his termination. The court concluded by declining to dismiss the § 1983 claim.
Click here for the opinion.
Cecily Ridgeway v. Chester Charter Community School, et al, 2021 WL 5040267 (E.D. Pa 2021)
EMPLOYMENT DISCRIMINATION
Title IX • Protected Activity
Defamation • Employment History Review
The District Court denied the defendants’ motions to dismiss the plaintiff’s complaint alleging an unlawful firing in violation of Title IX for reporting student-on-student sexual conduct and alleging that the defendants committed defamation by making knowingly false statements harmful to plaintiff’s reputation and teaching career. The plaintiff was a second grade teacher at Chester Charter Community School (Chester) in Chester, PA. In May 2019, a student told the plaintiff that three male students forced a female student to perform sexual acts during a May 16 field trip and picnic and the same students were involved in another incident in the classroom at dismissal on the same day. The plaintiff contacted Chester’s dean for guidance and called the principal to report the incidents. The following day, she was called into a meeting with the principal and an assistant human resources director and told she was going to be fired for inadequately supervising her students. Her letter of termination stated that Chester had “completed the investigation” of the incident, but the plaintiff was never told she was the subject of an investigation or provided any procedural protections. Subsequently, the plaintiff applied for a new job at a school in New Jersey. This school contacted Chester asking three questions about the plaintiff regarding whether she had been the subject of any child abuse or sexual misconduct investigation or whether she was ever disciplined or discharged while allegations of child abuse were pending or under investigation. Chester indicated “yes” to both questions. The plaintiff sued Chester, its management company, CSMI, and the assistant human resources director, alleging a violation of Title IX for the retaliatory firing and for making knowingly false statements harmful to her reputation and career.
The District Court concluded that the plaintiff plausibly alleged she engaged in protected activity under Title IX, as she was in the best position to vindicate the female student-victim’s Title IX rights. There was no need for the plaintiff to submit a formal written report, it was enough to bring the incident to the attention of Chester officials. The defendants conceded that the firing was an adverse action under Title IX, but the management company, CSMI, which administered the human resources department, argued that it could not be held vicariously liable for the actions of Chester. The court found that CSMI was sufficiently involved in the hiring and subsequent making of defamatory statements, and at least participated in, if not precipitated, the adverse action taken against the plaintiff. The District Court next addressed the plaintiff’s defamation claim and concluded that the plaintiff plausibly alleged the necessary elements of a defamation claim.
Click here for the opinion.
Theodore Federoff, et al v. Geisinger Clinic, et al, 2021 WL 5494289 (M.D. Pa 2021)
CIVIL RIGHTS/CONSTITUTIONAL RIGHTS
Pennsylvania Constitution • Free Exercise Clause
First Amendment • Free Exercise of Religion
Fourteenth Amendment • Equal Protection Claim
Pennsylvania Human Relations Act • Vaccine Mandates
The District Court denied the request from a preliminary injunction that certain employees at Geisinger Health (Geisinger) sought. On November 8, 2021, just over 100 healthcare workers sued Geisinger and its various affiliates over Geisinger’s COVID-19 vaccination policy. The employees were given conditional religious exemptions to Geisinger’s COVID-19 vaccination requirement, with the caveat that these unvaccinated employees submit to COVID-19 tests twice a week, beginning November 9, 2021, or risk losing their jobs. The employees, in turn, asked for a religious exemption to the testing requirement, which Geisinger rejected. The employees initiated litigation alleging that Geisinger’s failure to provide an exemption to the testing requirement violated their rights under the United States Constitution, federal civil rights law and the Pennsylvania Human Relations Act. The employees requested that the testing requirement apply equally to all vaccinated staff.
The court reviewed the four factors that courts in the Third Circuit must consider when ruling on a request for injunctive relief. Then, the court broke the five claims espoused by the employees into two categories: (1) claims under federal and state antidiscrimination law; and (2) constitutional claims. The court found that the claims “fail across the board.” The court found that Geisinger was not a state actor for purposes of the constitutional claims. Additionally, regarding the claims under federal and state antidiscrimination laws, the employees did not express what their religious belief was such that discrimination could be construed. Further, the employees failed to exhaust their claims before the Equal Employment Opportunity Commission (EEOC) or the Pennsylvania Human Relations Commission. The employees also failed to show that they would suffer irreparable harm, discounting the two arguments put forth by the employees that they would lose their jobs and career and the loss of their constitutional rights. The court conducted in-depth analysis of each claim, concluding each time that the claims “have zero chance of success on the merits.” Accordingly, the request for a preliminary injunction was denied.
Click here for the opinion.
Jordan & Alissa Zahler, individually and on behalf of their minor children R.Z. and E.Z. v. Pen Argyl Area School Dist., No. C-48-CV-2021-08031 (Northampton Co. C.C.P. 2021)
CIVIL RIGHTS/CONSTITUTIONAL RIGHTS
Disease Prevention and Control Law • Masks
PENNSYLVANIA PUBLIC SCHOOL CODE
Masks • Religious/Philosophical Objections
The Northampton Court of Common Pleas denied the plaintiffs’ motion for a preliminary injunction related to the Pennsylvania Department of Health’s (DOH) masking order (Order) and the Centers for Disease Control and Prevention's requirement that students wear masks on school buses. On August 31, 2021, DOH issued an order that imposed a masking requirement on all teachers, students, school staff and visitors within Pennsylvania’s schools. The plaintiffs sought a medical exception for their children, which was denied because they provided no medical documentation to support their request. Their children were sent home from school for not wearing masks. Thereafter, the plaintiffs removed their children from in-person education, opting for virtual schooling. The plaintiffs then initiated this litigation seeking declaratory relief and mandamus to compel Pen Argyl School District (Pen Argyl) to follow the exception process set forth in the Order. They also sought a declaration that Pen Argyl “must allow and honor exceptions for religious and/or philosophical objections to the masking requirements in accordance with the Public School Code.” The plaintiffs were also seeking an injunction preventing Pen Argyl from enforcing and implementing any policy or practice that “fails to allow mask exemptions when an individual ‘states’ that wearing a mask would ‘cause’ or exacerbate’ a mental health or physical condition…(2) fails to allow religious and/or philosophical exceptions to mask requirements; and (3) requires the wearing of masks on school buses.”
The court started by reviewing the “essential prerequisites” that a party must establish for purposes of obtaining injunctive relief and determined that the plaintiffs failed to meet their burden. The plaintiffs presented no evidence to establish that the mask requirements have harmed their children. The father “stated that neither of the children have been diagnosed with any disabilities nor did he detail any health conditions affecting his children.” The court stated that it was the parents’ decision to remove the children from in-person learning and they presented no evidence that the children were failing academically as a result of this decision. The court also discounted the plaintiffs’ argument that the Order requires the granting of an exception to the mask mandate if the student merely “states they have a medical condition, mental health condition, or disability that make it unreasonable for the person to maintain a face covering.” The court found that the plaintiffs reading of the Order didn’t comport with the wording of Sections 3 and 4 of the Order. “The interplay between Sections 3 and 4 of the Order is subject to interpretation and must be left to another day… .” Accordingly, the preliminary injunction was denied.
Click here for the opinion.
In the Matter of Heather Barrett v. Downingtown Area School Dist., Docket No. AP 2021-1975 (Office of Open Records, Oct. 28, 2021)
RIGHT-TO-KNOW LAW; PUBLIC RECORDS
Exemptions • Records Don’t Exist
The Office of Open Records (OOR) denied the appeal of Heather Barrett (Barrett), who was seeking information related to exemptions granted by Downingtown Area School District (Downingtown), pursuant to its COVID-19 Health and Safety Plan, from wearing masks. Barrett submitted five Right-to-Know Law (RTKL) requests seeking, among other items, information related to the number of mask exemptions approved by Downingtown along with a list of reasons for the exemptions and a list of the doctors who wrote an exemption. Downingtown denied the requests, stating that the district does not maintain records responsive to the requests. To the OOR, Downingtown again asserted that the district does not possess records responsive to the requests and even if it did, the records would be exempt from disclosure because they would contain information on children 17 years of age or younger as well as personal medical information. Downingtown also explained that the records would be exempt from disclosure under numerous laws including the Family Educational Rights and Privacy Act and the Health Insurance Portability and Accountability Act.
After initially determining that Barrett was seeking records, the OOR turned to the merits of the appeal. The OOR reviewed the affidavit submitted by Downingtown explaining that the district does not “maintain statistical, aggregate or compiled data in a report, document or database tracking the information requested.” The OOR stated that the OOR has no authority to determine whether records should exist or how they should be compiled in a way that certain stats can be extracted, only whether Downingtown possesses them. Since Downingtown has presented evidence that the district does not have the records, the appeal was denied.
Click here for the opinion.
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PUBLIC SECTOR ARBITRATION
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Thank you to all who plan to or who have contributed recent or older but useful arbitration opinions and awards.
PLEASE KEEP THEM COMING!
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Supersedeas Reinstated: Corman, et al v. Acting Secretary of the Pa. Dep’t of Health
On November 30, 2021, the Pennsylvania Supreme Court vacated the order of the Commonwealth Court, which had lifted the automatic supersedeas that had kept the Pennsylvania Department of Health’s masking order in place pending appeal to the Pennsylvania Supreme Court. The Supreme Court's order now effectively keeps the masking order in place during the pendency of the appeal. Oral argument on the appeal is scheduled for December 8, 2021. Click here for a copy of the order.
Petition for Allowance of Appeal Granted: Central Dauphin v. Hawkins
On November 30, 2021, the Pennsylvania Supreme Court granted Central Dauphin School District’s Petition for Allowance of Appeal. The court will consider whether the Commonwealth Court committed reversible error by ordering disclosure and redaction of a student education record – in this case a video of an incident that occurred on a school bus – that is exempt under Family Educational Rights and Privacy Act and the Right-to-Know Law. Click here for a copy of the order.
COVID 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. Several solicitors have already shared copies of complaints and other pleadings as well as court decisions, including litigation related to masks. All of the information is uploaded to the COVID Clearinghouse.
You can upload any information that you wish to share or email it to LegalServices@psba.org, with “COVID information” in the subject line.
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MARK YOUR CALENDAR
NEW! School Solicitors Monthly Exchange
PSBA initiated a new complimentary networking program for members of the Pennsylvania School Board Solicitors Association that provides a convenient, regular opportunity for solicitors to “gather” virtually to brainstorm and compare notes on school law issues they are dealing with. These sessions take place on the third Wednesday of each month, 12:30-1:15 p.m. via Zoom. At the November 17 session, we were joined by John Callahan, PSBA chief advocacy officer, who provided legislative updates on at least a dozen House/Senate bills on topics such as school vouchers, school bus driver shortages, seizure training, school board emergency powers, mandatory curriculum posting, telemedicine, home school access to district/CTE programs and work permits for minors. Attendees also discussed the latest Commonwealth Court ruling on masking as well as updates on cases involving protected speech and Right-to-Know requests. The next session will be held January 19, 2022. Click here to register for any/all of the upcoming sessions. We hope you will join us!
Save the Date: Spring Legal Roundup and Solicitors Symposium
Information about our upcoming events, Spring Legal Roundup in April and Solicitors Symposium in July, will be coming in the new year. Please plan to join us!
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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! In the spring of 2021, 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.
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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.
Have you changed your email address, mailing address, or phone number? Please let us know. For questions about this publication, contact Linda Randby (717) 506-2450, ext. 3378. |
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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., Chief Legal Officer
Linda J. Randby, Esq., Senior Director of Legal Services
Jo Mundis, Legal Services Coordinator
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Copyright © 2021 Pennsylvania School Boards Association, All rights reserved.
No claim of copyright to information on other websites or to original U.S. Government Works.
The School Law EDition is a biweekly publication of the Pennsylvania School Board Solicitors Association (PSBSA) and the Pennsylvania School Boards Association (PSBA). This publication is distributed to members of the Solicitors Association and administrators who have purchased the comprehensive subscription package. Except for distribution within the school entity or law office, no part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or otherwise, without the prior written permission of PSBA. This material cannot be shared with other school entities or law firms. All inquiries about reprint permission should be sent to Linda Randby, Editor.
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