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December 17, 2021 | ISSUE #25



R.S., a minor, by his parents, R.S. and A.S. v. Hempfield Area School Dist., 2021 WL 5750686 (Commw. Ct 2021)

     Section 13-1317.2 • Weapons Violation

The Commonwealth Court reversed the order of the trial court that granted an emergency preliminary injunction enjoining Hempfield Area School District (Hempfield) from treating R.S.’s enrollment different from other regular education students. Hempfield sought to place R.S. in a remote cyber learning program based on his previous expulsion for a weapons violation from Greater Latrobe School District (Latrobe). R.S. asserted that Latrobe withdrew the weapons violation after reaching a settlement with R.S. resulting in Hempfield having no basis under the law to deny R.S. in-person instruction. Hempfield responded by stating that R.S. participated in a full disciplinary hearing before Latrobe’s board of school directors, which found that R.S. violated the Latrobe weapons policy. Accordingly, because R.S. was expelled from Latrobe, per § 1317.2 of the School Code, R.S. was assigned alternate education services. At the hearing, the solicitor testified that the resulting settlement agreement dropped the weapons violation but none of the other charges or the term of R.S.’s expulsion were changed. The trial court found that based on the withdrawal of the weapons violation in the settlement agreement, “Latrobe took the matter outside of [Section 1317.2 of the School Code] ....” The trial court then granted a preliminary injunction to enjoin Hempfield from requiring that R.S. be placed in an alternate education arrangement.
The Commonwealth Court reviewed the case on appeal from the perspective of whether the trial court erred in its analysis regarding the grant of a preliminary injunction. After referencing the six essential prerequisites a party must demonstrate to obtain a “prohibitory preliminary” injunction, the court focused on the fourth factor – whether R.S. has a clear right to relief and is likely to prevail on the merits. The court looked at the mandatory expulsion language of § 1317.2(a) in conjunction with the adjudication of the Latrobe School Board and concluded that the Latrobe lacked authority to “unilaterally nullify the adjudication issued by the Latrobe School Board.” The court advised that “[i]f R.S. and Latrobe wanted the adjudicated weapons violation to be removed from R.S.’s record, R.S. could have pursued an appeal to its conclusion or the parties could have attempted to have the adjudication modified or vacated by the Latrobe School Board.” As a result, the court found that the trial court lacked a reasonable basis for the granting of preliminary injunctive relief.
Click here for the opinion.

Jeremy Askin, et al v. School Dist. of Pittsburgh (Dep’t of Ed), 2021 WL 5411133 (Commw. Ct. 2021)

     Section 11-1151 • Demotions

The Commonwealth Court affirmed the decision of the School District of Pittsburgh’s board (Pittsburgh) that concluded that assistant principals were not demoted under § 1151 of the Public School Code. On March 1, 2018, Pittsburgh approved a new five-step compensation plan for any assistant principals hired or promoted after April 1, 2018; all assistant principals hired or promoted prior to April 1, 2018, remained on the old salary schedule. On March 21, 2018, Pittsburgh also changed the assistant principals’ work year, moving them from the 10-month teacher work year of 208 days to the 12-month principal work year of 250 days. However, the board also provided the assistant principals with 25 annual vacation days in addition to the school district’s holidays. Further, those hired from January 1 through June 30 of each year are eligible for a salary step the following January 1. Those hired from July 1 to December 31 each year are eligible for a salary step the second following January 1. The assistant principals appealed the new pay plan to Pittsburgh. The matter was heard by Pittsburgh’s hearing officer and ultimately, the secretary of the Department of Education, with both determining that the assistant principals were not demoted under § 1151. The assistant principals then filed this appeal.
The Commonwealth Court reviewed the claims of the assistant principals that allegedly supported a finding of a demotion. However, the court found that the claims were “premised upon a purported per diem reduction in salary, including the loss of compensation for summer and outside work, and a purported per diem reduction in the value of previously accrued and future fringe benefits in the form of sick and vacation days.” The court found that such purported per diem decreases did not support a finding of a demotion under § 1151 and only a loss in annual salary would support such a determination. The court, accordingly, affirmed the secretary of education’s determination.
Editor’s Note: Unreported decisions of the Commonwealth Court are not intended to have precedential value but may be cited in legal proceedings for persuasive value.
Click here for the opinion.

John Doe #1, in his own capacity and as parent of child DOE 1, et al v. Delaware Valley School Dist., 2021 WL 5239734 (M.D. Pa. 2021)

     Fourteenth Amendment • Due Process
     State-Created Danger • Mask Requirements
     Americans with Disabilities Act • Masks
     Section 504-Rehabilitation Act • Masks

The District Court denied the plaintiffs’ motion for preliminary injunctive relief seeking, among other prayers for relief, to set aside the Delaware Valley School District’s (Delaware Valley) current optional masking policy, declare Delaware Valley’s Health and Safety Plan void, and to declare that the policy of Delaware Valley is in contradiction of various government guidelines and orders. The court issued a temporary restraining order on October 20, 2021, enjoining and restraining Delaware Valley from “failing or refusing to comply with the Pennsylvania Department of Health August 31, 2021 Order requiring universal masking with identified exceptions ...and the September 21, 2021 Directive from the Pennsylvania Department of Education reinforcing with school districts that parents do not have an option to except their children from the Department of Health Order unless the parental waiver form is supported by medical documentation which provides verifiable medical proof that the student requires an accommodation from a health risk to the student cause[d] by mask wearing.” Thereafter, the court held an evidentiary hearing. Finding that as of the date of this opinion, the Department of Health order was still in effect, the court focused on the plaintiffs’ motion for a preliminary injunction.
The court started by reviewing the various orders and guidances that have been issued by the Centers for Disease Control and Prevention and the Pennsylvania Departments of Health and Education. The court also reviewed the procedural history of the Delaware Valley board regarding the various meetings and decisions that were rendered by the board pertaining to the various orders and guidances. The court next summarized the record created during the evidentiary hearing. After finding that the plaintiffs had standing, the court turned to the merits of the plaintiffs’ allegations. The plaintiffs asserted that they have “constitutionally protected interests in the benefits that come from the universal mask policy” that Delaware Valley rescinded. The court analyzed whether the plaintiffs had a substantive due process right and assumed that the plaintiffs properly asserted a nonfundamental, constitutionally protected interest, including their right to a public education and specifically a right to an education in a “safe and healthy environment." Accordingly, the court applied the rational basis test – whether the actions of Delaware Valley were rationally related to some legitimate government purpose. The court specifically focused on the propriety of Delaware Valley’s “adoption of a resolution purporting to implement and comply with the Pa. DOH Order regarding masking and, in particular, its application of the Order’s language set forth in § 3.B which provides for an exception ‘[i]f wearing a face covering would either cause a medical condition, or exacerbate an existing one, including respiratory issues that impede breathing, a mental health condition or a disability.’” After an extensive review, the court found that Delaware Valley’s “resolution and the medical exception request form that it has generated, while subject to legitimate criticism that it is not the most prudent or the safest application of the Pa. DOH Order, cannot be said to be in violation of the Order’s mandate or the exceptions set forth therein to the face covering mandate. To be sure, the Order of the DOH Secretary requires a determination that wearing a face covering would ‘cause’ a medical condition or ‘exacerbate’ an existing one, a determination that is best made, and in some circumstances can only be made, by a licensed medical provider.” However, the court found that the plaintiffs’ likelihood of success on the merits of their substantive due process claim was not shown.
The court next considered the plaintiffs’ state-created-danger claim and found that none of the harms alleged by the plaintiffs “have actually occurred.” Additionally, the court did not find that Delaware Valley was deliberately indifferent when it passed its masking resolutions. Accordingly, because the plaintiffs did not demonstrate that any actual harm was the result of Delaware Valley’s action or that Delaware Valley acted with a degree of culpability that shocks the conscience, this claim was not entitled to preliminary injunctive relief either.
The court next reviewed whether the plaintiffs’ Americans with Disabilities Act (ADA) and Rehabilitation Act (RA) claims were likely to succeed. The discriminatory action alleged by the plaintiffs for both the ADA and RA claim is Delaware Valley’s vote allowing students to obtain an exception from mandatory masking without supporting documentation. However, under the ADA, the allegations in the complaint and evidence adduced at the preliminary injunction hearing do not establish a showing significantly better than negligible that the plaintiff was discriminated against when Delaware Valley passed the resolution at issue, or that a cause of Delaware Valley’s decision and its implementation thereof was due to disability as defined under the ADA and RA.
Finally, the court found “that it is not more likely than not that plaintiffs will suffer imminent and irreparable harm in the absence of preliminary relief.” The court recognized that there was no harm to Delaware Valley if a preliminary injunction were granted. However, when weighed against “the public interest in enforcing the lawful decisions of a community’s elected officials as well as the strong public interest in recognizing, and respecting, a parent’s right to make decisions concerning their child’s health and safety,” the court declined to grant the plaintiffs’ motion for a preliminary injunction.
Editor’s Note: This decision was issued prior to the Pennsylvania Supreme Court’s December 10 decision lifting the automatic supersedeas related to the appeal of Commonwealth Court’s decision that declared the statewide mask order “void ab initio” – invalid from its inception.
Click here for the opinion.

Myron Moskowitz v. Neshaminy School Dist., 2021 WL 5639570 (E.D. Pa. 2021)

     Americans with Disabilities Act • Essential Functions – Instructional Ass’ts
     Pennsylvania Human Relations Act • Essential Functions – Instructional Ass’ts

The District Court granted the motion to dismiss that was filed by Neshaminy School District (Neshaminy) in this matter involving the Americans with Disabilities Act (ADA) and the Pennsylvania Human Relations Act (PHRA). The plaintiff worked at Neshaminy as an instructional assistant in October 2018. Throughout his employment, the plaintiff suffered from diabetes, hypertension, heart conditions and chronic obstructive pulmonary disease, which resulted in issues walking and catching his breath at times. He alleges that he experienced two “flare-ups” of his medical conditions “where he felt light-headed and needed to obtain medical treatment for same” in October 2019. Then, on January 8, 2020, he informed the teacher he was assisting that he was not feeling well and began to leave but collapsed as he began to walk down the stairs. He was hospitalized for two days and, at some point before he could return to work, he was informed that Neshaminy did not want him to return due to his “issues” happening “more than once this school year.” Thereafter, the plaintiff initiated litigation under the ADA and the PHRA, asserting claims for disability discrimination, retaliation and failure to accommodate. Neshaminy moved to dismiss for failure to state a claim, arguing that the plaintiff did not introduce factual allegations sufficient to support his claim that he is able to perform his job’s essential functions. Neshaminy also asserted that the plaintiff did not request an accommodation.
The court started by reviewing whether the plaintiff could perform the essential functions of his position. Neshaminy argued that because the plaintiff could not be reliably present at his job, he could not establish that he is otherwise qualified to perform the essential functions of his job. The plaintiff did not dispute that regular attendance was an essential function of his job. In dismissing the plaintiff’s claim for discriminatory termination, the court found that the plaintiff failed to “assert sufficient factual material to support a plausible claim.” Further, the court found that the plaintiff did not allege any facts that supported his claim that he requested a “reasonable accommodation,” and the court dismissed this claim. As a result, because the plaintiff did not establish that he is a qualified individual or that he requested an accommodation, his claim of retaliation failed resulting in the court granting Neshaminy’s motion to dismiss.
Click here for the opinion.
John Kowal v. Ferndale School Dist., et al, 2021 WL 5605257 (W.D. Pa 2021)

     Age Discrimination • Retaliation

The District Court granted the defendants’ (collectively Ferndale) motion for summary judgment in this matter involving an employee alleging retaliation in violation of the Age Discrimination in Employment Act (ADEA) and the Pennsylvania Human Relations Act (PHRA). Kowal was employed as a business manager by Ferndale from 1987 until his retirement on September 12, 2017. While employed by Ferndale, Kowal received benefits tied to an Act 93 Agreement that permitted Act 93-covered individuals to apply unused accumulated sick days toward health care coverage in retirement through a program called the Sick Leave Upon Retirement Incentive (Sick Leave Incentive Program). If an employee was qualified to participate in the Sick Leave Incentive Program by meeting the criteria listed within the Act 93 Agreement, the employee was then permitted to choose one of several options when applying their unused accumulated sick days towards their health care coverage in retirement. At the time of his retirement on September 12, 2017, Kowal was 66 years old, enrolled in Medicare for over a year and had accumulated 353.5 unused sick days. Disputes between Kowal and Ferndale arose regarding his eligibility for the Sick Leave Incentive Program. There were several meetings between Kowal and various officials at Ferndale culminating in settlement discussions designed to provide some post-retirement healthcare benefits to Kowal. In the throes of these discussions, Kowal contacted the Equal Employment Opportunity Commission (EEOC) and filed a Charge of Discrimination against Ferndale, alleging it had violated the ADEA. Kowal dual-filed his charge with the Pennsylvania Human Relations Commission (PHRC). Thereafter, settlement discussions between Kowal and Ferndale officials continued with Kowal providing specific information about the status of his filings with the EEOC. Eventually, a few months later, after a Right-to-Sue Letter was issued by the EEOC, Kowal decided to accept what Ferndale was offering, but it was well past the deadlines for acceptance and the Ferndale board decided not to reinstate the settlement offer. This resulted in Kowal making many communications to the school board, but the school board was not interested in exploring with Kowal any type of retirement incentive that included paid health coverage. Kowal then filed his second Charge of Discrimination with the EEOC and PHRC on June 18, 2018. Ultimately, Kowal filed this litigation and, after several motions, the claims pending before the court were Kowal’s claims for discrimination in violation of the ADEA and retaliation under the PHRA. 
The court focused on Kowal’s retaliation claims under the ADEA and PHRA and reviewed the McDonnell Douglas framework. Based on this framework, the court concluded that Kowal did not show that Ferndale retaliated against him for engaging in protected activity – filing Charges of Discrimination with the EEOC. The court found that Ferndale did not engage in adverse action when it declined to meet with Kowal or when Ferndale refused to reinstate the settlement offers. Further, even if Kowal can show an adverse action occurred, he cannot show that a sufficient causal connection between the alleged adverse actions and his protected activity is present. Finally, even if these steps can be satisfied, Ferndale has shown legitimate, nonretaliatory reasons for the actions that it took. The court concluded its analysis by finding that Kowal was unable to show that the reasons given by Ferndale for its actions were actually a pretext for retaliation. Accordingly, Ferndale’s motion for summary judgment was granted.
Click here for the opinion.

Linda Spruill, as personal representative of the Estate of Phillip Spruill v. The School Dist. of Philadelphia, 2021 WL 5040283 (E.D. Pa 2021)

     Title IX • Gender Discrimination
     State-Created Danger • Bullying
     Political Subdivision Tort Claims Act • Wrongful Death

The District Court denied in part and granted in part the School District of Philadelphia’s (Philadelphia) motion to dismiss the complaint brought by Linda Spruill on behalf of her minor son, alleging gender discrimination under Title IX, a 14th Amendment due process violation under §1983 and a Pennsylvania wrongful death claim. The facts alleged by the plaintiff in her complaint allege that Spruill’s son was an 11-year-old boy with behavioral and learning disabilities who had been the victim of student bullying for years while at two elementary schools in Philadelphia. During the individualized education program (IEP) evaluation process, Philadelphia acknowledged that the plaintiff’s son’s violent and disruptive behavior was a direct result of provocation by his peers, and that there was significant likelihood of self-harm given his disabilities. The IEP was developed in the 2016-17 academic year but not implemented until March 2019, and then only in part. During this time, Spruill alleged that her son was the victim of bullying with no intervention or protection from school personnel. Further, when he tried to protect himself, Philadelphia repeatedly suspended him for conflict with other students, leading to an environment where his harassers felt secure in their abuse and believed they could act with impunity. In April 2019, Spruill alleged that her son asked to speak to the WES Health System counselor at his elementary school but was turned away. Later that day, the plaintiff’s son was found by his brother, hanging by a belt wrapped around his neck. Spruill rushed her son to the hospital, but he could not be revived and was declared dead. Spruill sued Philadelphia and WES Health, alleging various federal and state law claims, including claims under Title IX of the Educational Amendments of 1972 (Title IX).
The court began by reviewing Title IX and concluded that the plaintiff had adequately alleged a Title IX violation because the complaint plausibly stated gender discrimination, i.e., the plaintiff’s son was harassed because he failed to conform to how a boy should look and act, and therefore the complaint pleaded that he was harassed on the basis of sex. Further, the court found that Philadelphia was, at least, aware of the abuse, occurring every day over several years, as was acknowledged by the school in its IEP evaluation forms. Therefore, the court denied the defendant’s motion to dismiss on this count. Spruill also alleged a substantive due process claim based on the state-created danger theory. The court noted that Philadelphia knew that the plaintiff’s son was subject to severe bullying, and, instead of taking action to stop the bullying, emboldened the bullies by punishing the plaintiff’s son when he sought to defend himself. In doing so, the court reasoned that Philadelphia created an environment that was dangerous for the plaintiff’s son. Therefore, the court concluded that the plaintiff had plausibly pleaded her §1983 claim and denied the defendant’s motion to dismiss this count of the complaint. Finally, the court granted the defendant’s motion to dismiss the plaintiff’s final claim in her complaint, which was brought under Pennsylvania’s Wrongful Death and Survival Act. The court concluded that Philadelphia was entitled to governmental immunity on this count because the plaintiff did not plausibly plead the acts were intentional or willful and none of the nine exceptions to the statute applied.
Click here for the opinion.

Rowan L., et al v. Radnor Township School Dist., 2021 WL 4989768 (E.D. Pa 2021)

      Compensatory Education

The District Court denied two motions to supplement the administrative record on the parents’ appeal of a hearing officer’s decision and order. The parents of Rowan, a former student at Radnor Township School District (Radnor), filed a due process complaint alleging that Radnor failed to provide their son an appropriate educational program over the course of more than two years. The hearing officer who heard their complaint agreed with their claim and awarded the child 15 hours of compensatory education. The parents believed that this award was grossly inadequate for the two-plus years of inadequate education. They appealed the decision to the District Court, and both the parents and Radnor filed motions to supplement the administrative record. The parents sought to add a report compiled by a psychologist, and Radnor sought to add an affidavit from Radnor’s special education director and an October 2019 individualized education program (IEP) reevaluation report.
Rowan’s parents sought to supplement the administrative record with a private psychologist’s report containing six sections. The District Court evaluated each section to determine whether to admit it. The first two sections were summaries of the psychologist’s interviews with Rowan’s mother and Rowan. The District Court found that these were unreliable in terms of summarizing the statements of the interviewees but agreed to allow Rowan’s mother and Rowan to be deposed because their testimony would be helpful and instructive, particularly as it related to Rowan’s educational performance after the period of alleged free-and-appropriate-public-education (FAPE) violations and Rowan’s own beliefs about his educational needs and goals. The third section contained input from another of Rowan’s private psychologists who testified at trial. His testimony was the only testimony found to be unreliable by the hearing officer. The District Court determined that this section of the report would not be useful, would risk rendering the due process hearing a formality, and was generally cumulative of the interview sections with Rowan’s parents and Rowan, and therefore concluded it should not be admitted. The next two sections were titled, “record review” and “hearing officer summary” and were summaries of the evidence in the record and the findings of the hearing officer. The District Court concluded these sections were cumulative of prior evidence and not useful and declined to admit these sections as well. The final section was the psychologist’s own recommendations as to an appropriate remedy, but it was provided without explanation or justification. The District Court found this information useless and not relevant and did not allow its admittance.
Radnor sought to supplement the record with an affidavit from the special education director, describing how students are placed into special education courses and that certain skill development courses were taught by special education teachers. The District Court found this evidence cumulative since there was already sufficient evidence in the record describing Radnor’s skill development courses. Further, the District Court found that this evidence was offered to clarify already existing evidence, not to provide additional evidence relevant to the issue. The District Court declined to admit this evidence. Finally, since both parties stipulated to admitting the October 2019 IEP reevaluation report, the District Court agreed to admit this additional evidence offered by Radnor.
Click here for the opinion.


Thank you to all who plan to or who have contributed recent or older but useful arbitration opinions and awards.


Supreme Court rejects religious challenge to vaccine mandate
On December 13, 2021, the U.S. Supreme Court turned down two requests to block New York’s vaccine mandate for health care workers. The mandate is being challenged based on the constitutional right to freely exercise religion. Three justices dissented from the decision to not put a hold on the mandate while litigation continues. Click here for a copy of the decision.

Pennsylvania Supreme Court affirms Commonwealth Court in School Mask Mandate Case
On December 10, 2021, the Pennsylvania Supreme Court affirmed the decision of the Commonwealth Court in Corman, et al v. Acting Secretary of the Pennsylvania Dep’t of Health. The court vacated its November 30, 2021 order that allowed the mask mandate to remain in place while the Wolf administration appealed the Commonwealth Court ruling. 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, with “COVID information” in the subject line.


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!


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


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

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
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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
Copyright © 2021 Pennsylvania School Boards Association, All rights reserved.
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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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