JUDICIAL & ADMINISTRATIVE DECISIONS

Neshaminy School District v. Pa. Human Relations Comm., 2021 WL 2307278 (Commw. Ct. 2021)

CIVIL RIGHTS/CONSTITUTIONAL RIGHTS
Pennsylvania Human Relations Act • Jurisdiction • Public Accommodation

The Commonwealth Court reversed the order of the Pennsylvania Human Relations Commission (PHRC) which found that Neshaminy School District (Neshaminy) violated Section 5(i) of the Pennsylvania Human Relations Act (PHRA) based on educational harm caused to non-Native American students. Since the 1930s, Neshaminy has used the name “Redskins” for its sports teams, yearbook and other purposes. The district uses and displays “[l]ogos and generic caricature images of Native Americans” in and around the “High School and near its athletic playing fields.” In the early 2000s, students challenged the continued use of the term “Redskins,” but the name was not changed. In 2012, a district resident and mother of one former student and a current high school student, who is of Cherokee and Choctaw ancestry, complained that the term “Redskins” was a personally offensive racial slur. She expressed her complaint many times in various forums. Neshaminy took no action on the district resident’s complaints. In October 2013, the student editors of the school newspaper sought to ban the use of the term “Redskins.” This created much debate and discussion among the school staff and students, but ultimately, Neshaminy put the ban on hold. In 2014, Neshaminy held a number of public meetings related to revisions to Policy 600 and in June 2014, Policy 600 was revised to state: that “the term ‘Redskins’ when referring to the School District mascot and when used to express the writer’s viewpoint about the term shall not be construed as a racial or ethnic slur and is not intended by the Board of the School Directors as a racial or ethnic slur. Consequently, no student or school official shall censor or prohibit use of the term or of an article or editorial that has been submitted that contains the word.” The student editors expressed their dismay at this policy revision. Ultimately, in the spring of 2016, a student submitted an article for publication in the school newspaper about the “Mr. Redskin” pageant, which had been held since 2010. Two votes occurred on whether to include the full word in the article, one by all school newspaper students – who voted 14-13 to use the full word, and one by only the editorial board, which voted 8-1 to not use the word. Based on the second vote, the editors chose to publish a redacted version of the article online. The author’s parents contacted the school principal, who removed the redacted version from the website, republished the article without redaction, and directed that students only be allowed to upload articles to the website with staff supervision.

In September 2013, the district resident filed a complaint on behalf of her son with the PHRC, alleging ancestry-based harassment of her son. After she withdrew her complaint, the PHRC filed a complaint against Neshaminy. In December 2017, the PHRC asserted two counts against Neshaminy for allegedly violating the PHRA: (1) by denying equal education opportunities because of race/ancestry, (a) to Native American students by creating a hostile racial environment harmful to Native American students, and (b) to non-Native American students by allowing non-Native American students to develop harmful, inappropriate, stereotypical attitudes and beliefs about Native Americans; and (2) through the harassment of Native American students based on their race/ancestry. Neshaminy responded, denying the allegations and challenging, among other things, the PHRC’s jurisdiction over Neshaminy and that the factual claims relied upon by the PHRC occurred outside the PHRA’s statutory limitations period of 180 days. Public hearings before the PHRC’s hearing examiner occurred over a number of days, at which the PHRC and Neshaminy presented testimonial and documentary evidence. After several days of hearings, the PHRC found that Neshaminy violated Section 5(i)(1) of the PHRA through the district’s use of Native American imagery and the term “Redskins” because such use is harmful to non-Native American students, as they create impermissible stereotypes, and this constituted unlawful discrimination. The PHRC also found that the evidence of harassment of, or a loss of educational opportunities to, Native American students was either speculative or insufficient and thus did not support claims of discrimination.

The court started by reviewing whether the PHRC has jurisdiction over Neshaminy. The PHRC argued that it had jurisdiction because Neshaminy is, itself, a public accommodation because the PHRA defines educational institutions as public accommodations. The court determined that the PHRC had jurisdiction. The word “person” in Section 5(i)(1) and the definition of “person” in Section 4(a) should continue to be read in pari materia, not as limiting the PHRC’s jurisdiction, but as describing whose actions (superintendent, agent or employee) may be imputed to the public accommodation for purposes of imposing liability. The inclusion of a school district in the term “employer” in the PHRA does not indicate a lack of jurisdiction over school districts when they are accused of unlawful discrimination in providing a public accommodation, but a recognition that school districts are also employers and cannot engage in unlawful discriminatory practices against their employees. However, the court determined such discrimination does not fall under Section 5(i)(1) of the PHRA. The court also found that the exclusion of schools or school districts from the definition of “political subdivision” does not reflect an intent to limit the PHRC’s jurisdiction but is instead a recognition that schools are already covered by the PHRA’s terms through their inclusion in the definition of both “public accommodation” and “employer.”

Among other arguments raised by the parties, the court reviewed whether a finding of harm to non-Native American students could constitute unlawful discrimination. The court recognized that the PHRC found that “[t]he non-Native American student bystanders [were] impacted by the District’s discrimination against Native Americans ....” The court also focused on the fact that the allegations of harm to Native American students were dismissed by the PHRC. The court conducted a statutory construction analysis and reviewed federal cases that were cited by the PHRC in support of its position and held that the establishment of an “unlawful discriminatory practice” under the PHRA required a link to the denial of a public accommodation to the person that is actually the target of the discrimination based on that person’s protected characteristic. Accordingly, the order of the PHRC was reversed. Judge Brobson filed a concurring opinion because he found that the PHRC lacked jurisdiction to adjudicate a complaint against a school district under § 5(i)(1) of the PHRA.

Click here for the opinion.

Lucas M. Ivers v. Brentwood Borough School District, et al, 2021 WL 2116367 (W.D. Pa. 2021)

CIVIL RIGHTS/CONSTITUTIONAL RIGHTS
Fourteenth Amendment • Failure to Train – Deliberate Indifference

The District Court granted the Brentwood Borough School District’s (Brentwood) motion to dismiss the amended complaint filed by Ivers. For purposes of this decision on a motion to dismiss an amended complaint, the District Court was required to accept as true the allegations of the complaint and decide whether to dismiss the amended complaint without considering any evidence or allegations offered by Brentwood. Under the allegations as the court was required to accept them, on June 5, 2018, Ivers and the minor defendant, N.M., were in gym class playing against one another in a basketball game. During the game, N.M. became angry with Ivers and made contact by “slapping,” “elbowing [Ivers] in the ribs,” and “pushing [Ivers] in the face.” When N.M. attempted to slap Ivers again, at approximately 1:00 p.m., Ivers grabbed N.M.’s arm, which caused both boys to fall to the ground. N.M. then “lifted [Ivers] up on his shoulders and said, ‘it’s over.’” He slammed Ivers to the ground and Ivers’ head “forcefully” hit the gym floor. Ivers was unable to move; he could not feel his torso, arms or legs, including his left hand that was lodged underneath his body. The school nurse arrived at approximately 1:15 p.m. and asked Ivers to get up; he responded, “I can’t move.” The nurse told Ivers he was fine and that he could get up from the floor. Ivers was crying. At some point, the nurse “slid” Ivers to the wall with her hand on his back. At no point did the nurse “stabilize or immobilize” Ivers’ spine. When the paramedics arrived, they strapped Ivers onto a stretcher without spinal stabilization. When Ivers’ mother arrived, she expressed concern because his shoulders appeared crooked. Paramedics told her that Ivers was okay, his condition was not serious, and that the nurse had cleared his neck.

Ivers’ mother took him to her vehicle with the assistance of two men and transported him to a nearby MedExpress for treatment. On the way, as Ivers was in and out of consciousness, she determined he needed to go to the hospital instead of MedExpress. She then drove home and got Ivers an ice pack, ibuprofen and water. While she was inside, Ivers slid out of the car and onto the driveway pavement. The paramedics arrived and asked Ivers to hug himself, which he was unable to do. A paramedic took Ivers’ arms and crossed them against his chest. Another paramedic lifted Ivers’ legs while another paramedic lifted Ivers’ arms to place him on a stretcher. Ivers was transported to the emergency room where doctors and staff asked why Ivers’ neck and back were not stabilized, and an argument ensued between them and the paramedics. After much of the initial complaint that Ivers filed was dismissed, this amended complaint was filed essentially asserting a failure-to-train claim against Brentwood.

The court analyzed the elements of municipal entity liability and particularly a municipality’s liability for failure to adequately train its employees. “A municipality’s failure to adequately train its employees gives rise to a cause of action under Section 1983 if the deficient training reflects a deliberate indifference to an individual’s civil rights, and is ‘closely related to the ultimate injury.’” After applying these elements to Ivers’ allegation, the court dismissed the amended complaint, finding that there were no facts pled as to what training Ivers believed Brentwood should have provided the school nurse. The court asserted that the allegations against Brentwood amounted to little more than a formulaic recitation of the elements of a cause of action, without additional supporting well-pled facts to show how Brentwood could bear constitutional liability.

Editor’s Note: A previous opinion in this case is published at 2021 SLE 5.

Click here for the opinion.

M.T., a minor by and through Amber H. v. Uniontown Area School District, et al 2021 WL 2141508 (W.D. Pa. 2021)

CIVIL RIGHTS/CONSTITUTIONAL RIGHTS
Fourteenth Amendment • Deliberate Indifference

The District Court granted the Uniontown Area School District’s (Uniontown) motion to dismiss the second amended complaint filed by M.T. For purposes of this decision on a motion to dismiss an amended complaint, the District Court was required to accept as true the allegations of the complaint and decide whether to dismiss the amended complaint without considering any evidence or allegations offered by Uniontown. Under the allegations as the court was required to accept them, from April 2019 and continuing through the fall of 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. M.T. filed this second amended complaint alleging that Uniontown acted with willful disregard to take preventative action, thereby establishing that Uniontown was deliberately indifferent to M.T.’s constitutional rights. M.T. also alleged that Uniontown’s deliberate indifference resulted in the sexual assaults on her. In essence, M.T. alleged that Uniontown was aware that Dice “posed a risk of harm to students and that it adopted a pattern, custom or policy of deliberate indifference [to] that known risk, thus rendering Plaintiff’s repeated sexual assaults by Defendant Dice possible.”

The court reviewed the allegations set forth in the complaint and found that the allegations against Uniontown were conclusory and nonspecific. The allegations did not establish that Uniontown was aware of conduct that put them on notice that Dice posed a risk of sexual assault to students. The court also determined that M.T. did not sufficiently plead facts that showed how Uniontown failed to take preventative action with respect to Dice so as to amount to a deliberate indifference to M.T.’s constitutional rights. Accordingly, the complaint was dismissed.

Editor’s Note: A previous opinion in this case is published at 2021 SLE 6.

Click here for the opinion.

Save Our Saltsburg Schools v. Blairsville-Saltsburg School District, 2021 WL 2209294 (W.D. Pa. 2021)

SCHOOL TERRITORY TRANSFER/INDEPENDENT DISTRICTS
     Merger/Closure of Schools • Equal Protection

The District Court granted Blairsville-Saltsburg School District’s (BSSD) motion to dismiss claims related to the Equal Protection Clause and breach of fiduciary duty, filed by Save Our Saltsburg Schools (SOSS). BSSD has two middle high schools, Saltsburg Middle High School (SMHS) and Blairsville Middle High School (BMHS). SOSS alleges that on February 24, 2020, the BSSD school board voted to consolidate the two schools into BMHS, resulting in the closure of SMHS. SOSS filed this legal action seeking to enjoin the merger.

SOSS alleges several purported irregularities in BSSD’s decision-making process, including claims that no alternative plans were considered and allegations that the school board failed to present more detailed information about the proposed merger. SOSS also claims that the merger would burden students due to the increased distance and busing times for some of the students. In seeking this injunction, SOSS argued that BSSD’s decision was made without a rational basis, in a bad-faith manner and in violation of the alleged fiduciary duty owed to SOSS. It also contends that the decision will negatively impact students who attend SMHS and impact their access to education and ability to learn.

The court determined that SOSS failed to plead a plausible equal protection claim. SOSS did not assert that SMHS students are being treated differently than any similarly situated class – including BMHS students – and failed to plead enough to overcome the presumption of rationality afforded to BSSD. The court found that SOSS asserted several areas of disagreement about BSSD’s decision, but none rose above disagreements on matters of prudential judgment and none even remotely approached the level of “irrational and wholly arbitrary.” Accordingly, the equal protection claim was dismissed. This resulted in the dismissal of the breach-of-fiduciary-duty claim since there was no longer federal question jurisdiction over the claim.

Click here for the opinion.

Nadia Sabbah, et al v. Springfield School District, 2021 WL 2138792 (E.D. Pa. 2021)

CIVIL RIGHTS/CONSTITUTIONAL RIGHTS
     Fourth Amendment • Reasonableness of Seizure

     Fourteenth Amendment • Due Process • Equal Protection Claim

The District Court granted Springfield School District’s (Springfield) motion for summary judgment in this case asserting Section 1983 claims from alleged violations of the Fourth, Eighth and 14th Amendments. During the 2017-18 school year, plaintiff H.M. and her two younger siblings were enrolled at Springfield. The family self-identifies as Arab American.

On November 27, 2017, a sheet of paper entitled “To Kill List” was found on a classroom floor at the middle school. The anonymously authored note, which listed seven names of current students at the school, was brought to the school’s administration. In response, administrators began investigating possible author(s) of the list. Springfield investigated the matter, in part, by collecting and reviewing the journals of students in the classroom where the note was found. While reviewing the students’ journals, the principal noticed H.M.'s journal containing what he described as “concerning” writing and drawings of “what appeared to be knives.” Based on the content in the journal, as well as similarities in handwriting between the journal and the “To Kill List” note, the principal determined it was worth following up with H.M. to express concern for her safety. H.M.’s mother, Mrs. Sabbah, does not dispute that her daughter drew pictures of what look like swords or knives and wrote the words “I want to die” at the bottom of her drawing, but asserts that they are references to anime and a popular song. Springfield staff felt that the content of H.M’s journal merited a follow-up conversation with H.M., outside the presence of her parents. H.M. was asked to provide a handwriting sample of her classmates’ names. She was not shown the “To Kill List” while she wrote out her handwriting sample. When she was asked why her handwriting appeared to be a close match to one of the names on the list, H.M. responded that she wrote “it.” She was never explicitly asked whether her “it” reference meant that she admitted to authoring the entire list or only the seventh name that seemed to be the exemplar match. However, per school officials, H.M. explained that each name on the list was someone who had allegedly wronged her. This explanation is bolstered by the “Incident Report” that H.M. wrote on November 28, in which she explained that she “made the list for people I need to stay away from” and had kept the list since she was in the second grade. After H.M. admitted to writing part of the note, Springfield notified H.M.’s parents. The parties dispute what happened next. Mrs. Sabbah testified that the principal told her that H.M. “will never be accepted in public or private school in the United States” and that her daughter “represents a danger to my school. I have to protect my school from your daughter.” The principal denied that he spoke abruptly with Mrs. Sabbah or told her “you people have anger problems.” There are no allegations that any of the school officials explicitly mentioned H.M.’s ethnicity, race or background.

H.M. was suspended pending an informal hearing. Following the hearing, H.M. received a 10-day suspension, which was later shortened to nine days, to allow her to participate in a school concert. Roughly within a week of these events, Springfield provided H.M.’s parents with a “standard evaluation packet” as part of its “Child Find” obligations to locate students who may need special services. In light of the contents of H.M.’s journal – the drawings of knives and the words “I want to die” – the principal made a referral to Springfield’s Office of Special Education. Additionally, on the evening of November 27, the Springfield administration notified the local police department of the existence of the note. Sometime later, the local district attorney’s office brought juvenile criminal charges against H.M. based on her involvement with the list. The charges were later dismissed by the trial judge. At the end of the school year, H.M. withdrew from the middle school and her younger siblings withdrew from Springfield’s elementary school. Ultimately, H.M, her two siblings and her mother brought suit against Springfield, asserting violation of the Fourth, Fifth, Eighth, and 14th Amendments and Section 1983. The parties later stipulated to dismiss the Fifth Amendment claims.

The court started by analyzing each alleged constitutional violation and quickly dismissed the Eighth Amendment claims since the Eighth Amendment only applies to criminal matters. The court next reviewed the Fourth Amendment claim based on H.M. being “called to the principal’s office,” during which time H.M. admitted to authoring part of the list. The court found the seizure of H.M. to be reasonable in light of the threat and that the nature of the intrusion was justified and granted summary judgment as to the Fourth Amendment claims. The court turned to the 14th Amendment due process and equal protection claims. The court determined that her due process claims failed because she was afforded notice and an opportunity to be heard and was not deprived of a property interest. Regarding the equal protection claim, the court found that Springfield’s decision to investigate and discipline H.M. was not racially motivated. In the court’s opinion, there were no material facts in dispute that would allow a jury to find that Springfield acted with racial animus or that H.M. was treated differently then those who may have been similarly situated to her. Accordingly, Springfield’s summary judgment motion was granted.

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 the Matter of Arbitration Between The Conneaut Education Association and Conneaut School District

Daniel R. Delaney, Esq., arbitrator

Salary Schedule Placement

This grievance concerning the placement of the grievant on the first step of the Master’s Salary Schedule instead of the Master’s +15 Schedule when the grievant began her employment was denied. The parties are subject to a collective bargaining agreement (CBA) effective July 1, 2017, through June 30, 2022. The grievant was hired by Conneaut School District (Conneaut) on August 28, 2017, and placed on the first step of the Master’s Salary Schedule because she earned her master’s degree in science in speech and language pathology in 2016. She was also granted the Educational Specialist Level I and II certificates by the Pennsylvania Department of Education (PDE). In January 2020, the grievant sought a salary adjustment seeking placement on the salary schedule of the CBA for an earned master’s degree plus 15 credits – the Master’s +15 Schedule. Her adjustment request was rejected because the credit hours earned could not be used for any movement to the Masters +15 Schedule. The union alleges that when the grievant was hired in the summer of 2017, she had the equivalency of the requisite teaching certificate as well as her earned master’s degree, which qualified her for placement on the Masters +15 Schedule.

Conneaut argued that there is no definition of master’s degree in the CBA, and different graduate schools have different requirements of earned credit hours to achieve the degrees conferred by them. In this case, the grievant’s graduate school required 50 credit hours as a requisite for the award of the master’s degree. The grievant did not earn the required additional 15 credit hours after the 50 hours acquired for the degree. She only earned three additional credits beyond the degree requirements. The certificates that the grievant earned from PDE had no bearing on her placement on the respective salary schedules. Conneaut pointed out that grievant did not earn additional credits after her degree was conferred and, accordingly, she could not be placed on the Masters +15 Schedule. The arbitrator agreed with Conneaut, finding that the interpretation of the CBA put forth by the union suggested an expansion of the intent of the CBA. The arbitrator found that the CBA was clear – the parties intended to provide horizontal movement on the salary schedules when the professional employee had attained the identified master’s degree or its equivalency and the 15 additional credits beyond the master’s degree. The grievance was accordingly denied.

Click here for the opinion.

IN OTHER NEWS

The Office of Dispute Resolution added these decisions to its website on May 27, 2021:

The Office of Dispute Resolution added these decisions to its website on June 3, 2021:

MARK YOUR CALENDAR

Register now! Solicitors Symposium: July 8 & 9, 2021
The School Solicitors Symposium is an annual, multiday educational and networking program specially focused on issues and trends having particular impact on legal representation of public school entities. As many aspects of life and law practice begin to return to some semblance of normalcy, we are increasingly eager to resume the informative and collegial gatherings of the PA School Board Solicitors Association. Although the 2021 Symposium will be conducted remotely due to the ongoing pandemic, like the traditional in-person event, it will include networking and brainstorming opportunities in addition to topical presentations, all offered in a relaxed atmosphere. We look forward to “seeing” you there! Attendees can earn seven continuing legal education credits (six substantive, one ethics). Click here to register now! The first 100 registrants will receive a “swag bag” mailed to their home prior to the event.

2021 topics include:

Title IX Update – a look at the future of the 2020 regulations, protection of LGBTQ students and other emerging issues
School Law Update – a lively overview of what’s happening in the courts, new statutes and regulations, and other developments directly impacting public school operations and liability exposures
Achieving a Sane Work-Life Balance (ethics and professionalism)
Reviewing Board Policies with an Equity Lens – the solicitor’s role in identifying potential equity barriers and shortfalls in the way district policies are worded and implemented
Economic Furloughs of Professional Employees – legal requirements and practical considerations involved in preparing for and implementing reductions in force for purely economic reasons
Cybersecurity & Privacy Compliance – what solicitors need to know to help clients ensure that district systems and data are protected from cyber threats and privacy breaches

The program also will include multiple roundtable discussion sessions where attendees can exchange information, ideas and strategies about trends in various focus areas, such as:

Arbitrators and Arbitrations
Pandemic Response and Recovery
Labor Negotiation Trends
Special Education Hotspots
Tax Assessment Litigation Developments
Developing Policies Protecting Transgender Students

Save the Date: School Law Workshop - September 27, 2021
We remain optimistic that the School Law Workshop on Monday, September 27 will be an in-person event, as planned, at Kalahari Resorts & Conventions in the Pocono Mountains. More information to come!

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 Stuart Knade at (800) 932-0588, ext. 3377, or email him at Stuart.Knade@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.

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