JUDICIAL & ADMINISTRATIVE DECISIONS

Scott Clews, et al v. County of Schuylkill, 2021 WL 3852624 (3d Cir. 2021)

EMPLOYEE DEMOTION; DISCIPLINE; EVALUATION; TERMINATION
Fair Labor Standards Act • Personal Staff Exception

Three former deputy coroners claim their employer, the County of Schuylkill (Schuylkill), violated the Fair Labor Standards Act (FLSA), 29 U.S.C. 201, by failing to pay them overtime and then firing them in retaliation for seeking overtime pay. The District Court granted Schuylkill’s summary judgment, concluding that the plaintiffs were personal staff of the county’s elected coroner and cannot bring an FLSA claim. The Third Circuit vacated. All three plaintiffs worked as part-time deputy coroners for Schuylkill and each was concurrently employed in another capacity. As deputy coroners, the plaintiffs were dispatched by the coroner or chief deputy coroner to a scene of death to investigate and determine its cause. Typically, their work involved examining bodies, taking photographs, conducting interviews, attending autopsies, and transporting bodies to and from funeral homes. When on site, they wore professional-looking attire and carried identification badges. After completing an investigation, they called either the coroner or the chief deputy coroner to report their findings. Schuylkill paid deputy coroners a flat rate, which meant that the plaintiffs did not receive overtime pay even if they worked more than 40 hours per week across all their positions for Schuylkill. Ultimately, two of the plaintiffs were terminated ostensibly so that Schuylkill would not need to pay them overtime. In November 2017, the plaintiffs filed a complaint seeking damages for alleged violations of FLSA’s overtime wage and retaliatory discharge provisions.

The Third Circuit determined that while Schuylkill did not forfeit the personal-staff-exception argument, granting summary judgment was premature, as there are still material factual disputes concerning the exception’s applicability to the plaintiffs. The relevant factors are whether the elected official has plenary powers of appointment and removal, whether the person in the position at issue is personally accountable to only that elected official, whether the person in the position at issue represents the elected official in the eyes of the public, whether the elected official exercises a considerable amount of control over the position, the level of the position within the organization’s chain of command, and the actual intimacy of the working relationship between the elected official and the person filling the position. Accordingly, the court determined that it was impossible to conclude that the deputy coroners fall under the personal staff exception based on undisputed facts and vacated the District Court’s decision.

Click here for the opinion.

B.P., et al v. North Allegheny School District, et al, 2021 WL 3782099 (W.D. Pa. 2021)

CIVIL RIGHTS/CONSTITUTIONAL RIGHTS
Fifth Amendment • Masks • Fourteenth Amendment • Due Process

The District Court granted the plaintiffs’ motion for a temporary restraining order (TRO), requiring the school district to adhere to a prior health and safety plan protocol mandating face coverings indoors for students, staff and visitors for grades K-12. The school district had a health and safety plan protocol created by the district superintendent, which provided for mandatory masking indoors for students, staff and visitors. The school district board of directors, at a “special meeting” on August 18, 2021, without any advance notice or opportunity for a hearing, voted to eliminate the universal masking requirement. The plaintiffs, students at a school in North Allegheny School District, brought a due process claim under the Fifth and 14th Amendments, arguing that the vote violated their procedural due process rights and sought a TRO compelling the school district to follow the mask requirement under the health and safety plan until their due process claim could be litigated. The District Court found good cause existed to issue the TRO, specifically that the plaintiffs were likely to, “suffer irreparable injury in light of the fact that the Defendants undertook said August 18, 2021 vote without proper notice and full opportunity for hearing,” that a TRO would, “serve the public interest as well as the health, safety, and welfare of the school students in the district,” and that plaintiffs were likely to succeed on their due process claim. The District Court directed the TRO to remain in effect until further action by the court or until further school board action which complied with all procedural requirements.

Click here for the opinion.

A.F., a minor, by and through his father Antonio Fultz v. Ambridge Area School Dist., 2021 WL 3855900 (W.D. Pa. 2021)

CIVIL RIGHTS/CONSTITUTIONAL RIGHTS
     First Amendment • Speech Not Protected
     Fourteenth Amendment • Due Process • Equal Protection Claim

The District Court denied the plaintiff’s motion for a temporary restraining order (TRO) and preliminary injunction in the matter alleging violations of the First and 14th Amendments. A.F. was removed from the school football team after posting in the team’s Snapchat group a series of threats directed at another student, R.G., and posting a screenshot of himself with what appeared to be a gun in the background. The football coaches brought the messages to the attention of school administration and, after an investigation into the claims and whether there was in fact a gun in the screenshot, the administration concluded A.F.’s conduct was a Level IV offense in the school handbook and removed A.F. from the school football team for one year. A.F. brought a §1983 claim against Ambridge Area School District (Ambridge), alleging a violation of his First Amendment rights, a violation of his 14th Amendment rights and race discrimination in violation of the Civil Rights Act of 1964. He also filed a motion for a preliminary injunction, seeking an order that he be placed back on the football team.

The court started by analyzing the standard for granting a preliminary injunction. With respect to his First and 14th Amendment claims, the District Court found that A.F. failed to show a reasonable likelihood of success on the merits to warrant a preliminary injunction. A.F. argued that the recent Supreme Court decision in Mahoney Area Sch. Dist. v. B.L., dealing with a school’s discipline of a cheerleader’s off-campus Snapchat posts, controls his case and stands for the proposition that the First Amendment protects his off-campus Snapchat posting. The District Court, however, found a distinct difference between the cheerleader’s snapchat post (“fuck school fuck softball fuck cheer fuck everything [sic]”) and A.F.’s posts (“I’ll grab a fucking bottle and bash that shit on your face till I see your brain bitch”), which were actual threats of physical harm directed at a specific student. The District Court held that A.F.’s statements were fighting words and fell inside the right of a school to regulate them. Mahoney, the District Court noted, did not disturb prior First Amendment case law that held, “free speech protections do not extend to modes of expression such as obscenity, defamation and fighting words.” A.F. likewise failed to show a reasonable likelihood of success on the merits regarding his allegation that the school’s policy on conduct constituting a Level IV infraction was unconstitutionally vague, which was caged as a 14th Amendment claim. The speech at issue in this case was not hypothetical speech but a series of actual communications that had been introduced into evidence and discussed at length. They were direct and implicit threats that fall outside the scope of speech protected by First Amendment. The court explained that it did not need to look to protected speech that might be punished by the student handbook when the actual speech in this case was simply not protected and was subject to the authority of the school to impose discipline. Therefore, A.F. did not demonstrate a reasonable likelihood of success on this claim.

The District Court also found no reasonable likelihood of success on the merits with respect to A.F.’s race discrimination claim under the 14th Amendment, §1983, and Title VI of the Civil Rights Act of 1964. A.F. argued that the disparate treatment between A.F., an African American student, and R.G., a white student, established a reasonable likelihood of success on the merits. A.F. claimed that R.G. made similar threatening statements to A.F. yet did not receive the same discipline. However, the District Court found that based on the evidence introduced by A.F., he was not reasonably likely to be able to prove disparate treatment. Unlike A.F.’s statements, R.G.’s statements were through the video communication capability in Snapchat and expired after a period of time, meaning the administration was not able to review them and the only evidence of what they contained was through A.F.’s testimony. Moreover, the District Court found that Ambridge had substantial grounds to discipline A.F. The District Court did not find any evidence that established Ambridge was presented with similar evidence about what R.G. said, or that Ambridge had similar concerns with R.G.’s conduct. Therefore, A.F. failed to show a reasonable likelihood of success on his race discrimination claims. As a result, A.F.’s motion for a preliminary injunction was denied by the District Court.

Click here for the opinion.

MP by and through her guardian VC et al v. Parkland School District, et al, 2021 WL 3771814 (E.D. Pa. 2021)

SPECIAL EDUCATION; SECTION 504; ADA; GIFTED EDUCATION
     Discrimination • ADA • FAPE • Section 504

The District Court affirmed a hearing officer’s decision and granted summary judgment in favor of Parkland School District (Parkland), finding Parkland did not discriminate against MP based on a disability and that Parkland provided MP a free and appropriate education. However, the court reversed and granted summary judgment in favor of MP on the claim that Parkland failed to appropriately respond to a request for an independent education evaluation (IEE) and awarded reasonable attorney’s fees to MP on that issue. MP filed a complaint in federal district court, challenging the hearing officer’s decision and alleging that 1) Parkland failed to provide MP with a free and appropriate public education (FAPE); 2) Parkland’s actions amounted to discrimination on the basis of MP’s disability in violation of the both the Individuals with Disabilities Education Act (IDEA) and the Americans with Disabilities Act (ADA); and 3) Parkland failed to respond appropriately to MP’s request for an IEE.

MP was a 12th grade student enrolled in Parkland, who was identified as having a disability needing specially designed instruction and was assigned to the multiple disabilities support-functional classroom at Parkland. Since enrolling at Parkland in 2017, MP had three individualized education program (IEP) evaluations over the course of a year. Progress on IEP goals was hindered, however, by MP’s repeated absences from school during that time. Then, MP’s guardian, VC, removed MP from school in November 2018 and MP was absent until May 2019. In April 2019, VC emailed Parkland requesting an IEE. Parkland’s counsel responded by asking if VC would withdraw the IEE request considering MP’s voluntary withdrawal and prolonged absence from Parkland. VC did not respond to that question and Parkland did not file a due process complaint or provide MP an IEE. In August 2019, VC initiated a due process complaint on behalf of MP, alleging 1) Parkland did not provide MP a FAPE; 2) Parkland discriminated against MP in violation of the IDEA and ADA; and 3) Parkland violated 34 C.F.R. § 300.502(b)(1), which requires a school district to provide an IEE if a parent requests one or to initiate a due process proceeding to show its IEP evaluation was adequate. The hearing officer found that Parkland provided MP with a FAPE and did not discriminate against MP under the IDEA or ADA. The hearing officer found, however, that Parkland failed to respond appropriately to VC’s request for an IEE and instructed Parkland to provide training to staff who are involved in responding to IEE requests. VC filed a complaint in federal district court, challenging the hearing officer’s findings, alleging again that Parkland did not provide MP a FAPE, discriminated against MP in violation of the IDEA and ADA, and that Parkland failed to respond appropriately to an IEE request.

The District Court agreed with the hearing officer that the IEP evaluative tests used were appropriate given MP’s disability, the IEP goals were reasonable and provided a meaningful education value to MP, that VC was included and an active participant in all IEP discussions and Parkland provided a translator for VC when needed, and that MP’s IEP was implemented in school through one-on-one nursing and a nutritional program. With respect to the claim that a FAPE was denied because educational services were not provided in the home, the District Court agreed with the hearing officer that Parkland, in denying in-home services, did not deny MP a FAPE because that denial was based on medical provider recommendations that MP be educated in school and Parkland had attempted to address the prolonged absenteeism through an IEP meeting with VC. The District Court granted Parkland’s motion for summary judgment on the FAPE claim. VC’s next claim was that Parkland discriminated against MP in violation of the IDEA and ADA. VC asserted the ADA claim was “premised on the same facts as the FAPE claim.” The District Court found, for the same reasons it rejected VC’s FAPE claim, that there was no ADA violation and granted Parkland’s motion for summary judgment on that issue. VC’s last claim was that Parkland failed to respond appropriately to VC’s request for an IEE. 34 C.F.R. §300.502(b)(1) allows a parent to receive an IEE at public expense when the parent disagrees with a school district’s evaluation. Under 34 C.F.R. § 300.502(b)(2), when a parent requests an IEE, the school district must, “without unreasonable delay, either (1) provide the IEE at public expense or (2) file a due process complaint to request a hearing to show that its evaluation was appropriate.” The District Court affirmed the hearing officer’s findings that Parkland violated these statutory provisions by failing to provide the IEE or file a due process complaint. The District Court, however, reversed the hearing officer’s decision that this violation was harmless and ordered Parkland to provide MP with an IEE at public expense and awarded MP reasonable attorney’s fees on this issue.

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

Proposed Charter Schools and Cyber Charter Schools regulations published
The Pennsylvania Department of Education’s proposed changes to the Charter Schools and Cyber Charter Schools regulation under 22 Pa. Code Part XX were published in the September 18, 2021 Pennsylvania Bulletin in proposed form. Public comments are due on October 18, 2022. Click here for a copy of the proposed regulations.

The EEOC sues for disability discrimination
The Equal Employment Opportunity Commission (EEOC) filed its first lawsuit related to an Americans with Disabilities Act accommodation related to COVID-19. The matter involves an employee who requested to work remotely due to her pulmonary condition that caused her to have difficulty breathing and also placed her at a greater risk of contracting COVID-19. Click here for a copy of the complaint and cover letter.

The Office of Dispute Resolution added these decisions to its website on August 26, 2021:

Department of Education releases new Q&A on IDEA responsibilities
On August 24, 2021, the U.S. Department of Education of Special Education and Rehabilitative Services (OSERS) sent a letter that outlines a series of questions and answers focusing on topics to help ensure that, regardless of the COVID-19 pandemic, children with disabilities receive a free, appropriate public education. The Q&A guidance document is part of the Department of Education’s “Return to School Roadmap.” Click here for a copy of the letter and the Q&A.

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 who test positive or have symptoms to stay home, or similar issues arising from the 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 or relevant documents. 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 clearinghouse information” in the subject line.

MARK YOUR CALENDAR

NEW! School Solicitors Monthly Exchange
PSBA is initiating a new complimentary networking program for members of the Pennsylvania School Board Solicitors Association that will provide a convenient, regular opportunity for solicitors to “gather” virtually to brainstorm and compare notes on school law issues they are dealing with. These sessions will take place on the third Wednesday of each month, 12:30-1:15 p.m. via Zoom. There was great positive feedback about the value of the mass brainstorming session held in August to discuss potential litigation over masking, and many expressed a desire for a regular opportunity for such conversations. The next session will be held October 20, 2021. Click here to register for any/all of the upcoming sessions. We hope you will join us!

2021 School Law Workshop - October 27

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.

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.

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

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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