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JUDICIAL & ADMINISTRATIVE DECISIONS
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Brian Shaffer v. Pennsbury School District, 2021 WL 966208 (E.D. Pa. 2021)
CIVIL PROCEDURE; EVIDENCE; MOTION
Attorney-Client Privilege • Waiver
The District Court found a waiver of attorney/client privilege in this matter involving a school principal’s allegations of retaliation against Pennsbury School District (Pennsbury). In a different employment discrimination case involving Pennsbury, counsel for Pennsbury noticed the deposition of a former school board president of the district, Jacqueline Redner. The attorney for Pennsbury in the previous case also represented Pennsbury in this case. Apparently, Redner had, in discussions with third parties, discussed a number of pertinent matters from executive sessions of the school board while serving as president, and those statements found their way into the complaint in previous matter. The primary reason for taking Redner’s deposition in the previous case was to establish that various matters were privileged, and that Redner did not have authority unilaterally to waive any privilege that would have applied to the matters disclosed. During questioning by Pennsbury’s counsel, Redner referenced the substance of various discussions that occurred at executive sessions of the school board, at which attorneys for the school board were in attendance. She also discussed the content of conversations she had with attorneys for the school district outside of those meetings. After Pennsbury’s counsel completed his questioning, counsel for a co-defendant and counsel for the plaintiff proceeded to examine the substance of those and other communications. In the case at bar, the plaintiff requested production of the transcript of that deposition. Pennsbury complied, but initially redacted 45 excerpts on the grounds of attorney-client privilege. The plaintiff moved to compel the production of the redacted excerpts, arguing that many of the redactions would not be subject to attorney-client privilege, and that Pennsbury, acting through its counsel, had waived any privilege by allowing its deponent to disclose them.
The court reviewed the attorney-client privilege doctrine and the circumstances that may result in its waiver. The court focused on Federal Rule of Civil Procedure 502(b) which explains when a disclosure in federal or state court does not operate as a waiver. The court also reviewed the unredacted version of the transcript and determined that “the majority of the redacted portions reflect communications that occurred at executive sessions of the Pennsbury school board, attended by attorneys for the school district. Some of the redacted portions also reflect communications between Redner and those same attorneys that occurred outside of executive sessions.” The court also found that most of the communications would be privileged but that privilege was waived. The court agreed that the attorney-client privilege exists between the school board and its attorney and cannot be waived by individual school board members without the consent of the entire board. But, the court found that the school counsel waived the privilege by failing to prevent disclosure of privileged information when he failed to stop Redner from answering his questions when the answers repeatedly drifted into the zone of privileged communications. The court also found a waiver when no objections were lodged during the line of questioning from counsel for the co-defendant. Accordingly, the disclosure of the unredacted transcript was ordered.
Click here for the opinion.
Kathleen Wright Croft, et al v. Donegal Township, et al, 2021 WL 1110567 (W.D. Pa. 2021)
CIVIL RIGHTS/CONSTITUTIONAL RIGHTS
First Amendment • Retaliation
Fourteenth Amendment • Equal Protection Claim • Due Process
PUBLIC MEETINGS
Sunshine Act
The District Court denied a motion for a preliminary injunction filed by the plaintiffs in this case alleging discrimination under the First Amendment, Equal Protection Clause and the Due Process Clause. The plaintiffs’ claims arise from the fractious relationship between Croft and the alleged “majority” faction of supervisors (the board majority). According to the plaintiffs, after the 2019 election, the defendants formed the “majority” faction of the five-member board, and in conjunction with the township solicitor, used their position to oppress and discriminate against fellow supervisor Croft for publicly disagreeing with them over issues of township governance. Some of Croft’s assertions claim that the oppression consisted of shutting Croft out of board discussions and denying her access to important township information, effectively “depriving” the plaintiffs of their votes by preventing elected representative Croft from participating fully in the affairs of the township. Significantly, Croft was able to go to the township offices, inspect records, discuss issues with her constituents, communicate with township employees, and voice her opinion at public meetings and in executive session. Additionally, township policy, which directed employees to route questions and issues to the board through the supervisor appointed to oversee an employee’s department, did not prevent Croft from speaking with township employees. Additionally, with respect to negotiations between the township and the Donegal Township Police Association regarding renewal of the police union contract, by the time the new contract came up for a vote in December 2020, Croft had been provided with the information she required and sufficient time to study it before casting her vote. Some of Croft’s other claims assert that the board majority intentionally singled her out by depriving her of information.
Despite the fact that procedural issues related to the flow of information – caused, in part, by the abrupt departure of the township’s former secretary/treasurer and the ongoing COVID-19 pandemic – have been experienced by the board generally. These claims and others resulted in Croft seeking a preliminary injunction, in part, enjoining the defendants from excluding Croft “from full participation in the affairs of the Board of Supervisors of Donegal Township; mandating that … all deliberations of the Supervisors, whether in executive and/or in public session, include … Croft;… and declaring that ….Croft, be entitled to enjoy the same rights, privileges and emoluments of her elected office as are the other four members of the Board of Supervisors of Donegal Township.”
The court started by analyzing Croft’s First Amendment retaliation claim and determined that the First Amendment prohibits retaliation against elected officials for speech pursuant to their official duties when the retaliation interferes with their ability to adequately perform their elected duties. In this case, Croft did not show that her ability to perform her elected duties was hindered. The court next reviewed Croft’s Equal Protection clause claim under the class-of-one theory. The court rejected this claim because the disputes in question are political ones and Croft provided no basis “to conclude that it is irrational that a politician would treat a political ally differently than a political opponent.” Similarly, the court found that Croft did not allege a valid Due Process Clause claim when she alleged that the defendants’ retaliatory conduct “effectively denied [Croft her] vote.” The court concluded its analysis by focusing on the various state law claims, namely the Sunshine Act, raised by Croft. The court reviewed numerous actions and policies of the township and determined that Croft’s state law claims did not have a likelihood of success. Accordingly, because none of Croft’s claims had a likelihood of success, the motion was denied.
Click here for the opinion.
Gwendolynne S through her Parents Judy S. and Geoff S. v. West Chester Area School District, 2021 WL 949483 (E.D. Pa. 2021)
SPECIAL EDUCATION; SECTION 504; ADA; GIFTED EDUCATION
Evaluation • Child Find • Compensatory Education
The District Court affirmed the decision of the hearing officer in this action filed by the plaintiffs alleging that Gwendolynne was denied a free, appropriate public education (FAPE) when West Chester School District (West Chester) determined that she was not eligible for special education services. The plaintiffs felt that Gwendolynne was eligible for special education and made their first request for an evaluation in the fall of 2015 when she enrolled in West Chester for second grade. After the first request was denied, the plaintiffs made a second request to have Gwendolynne evaluated to determine if she had a specific learning disability that required special educational services and accommodations. An evaluation was conducted by a team of professionals and they concluded that Gwendolynne did not have a learning disability and was, therefore, not entitled to special services or accommodations. This conclusion was contested by the plaintiffs, who hired their own team of specialists and based on the specialists’ reports, the plaintiffs filed a due process complaint. The hearing officer found in favor of the school and ruled that Gwendolynne was not eligible for special education services. The plaintiffs filed this action in the district court and both parties filed cross motions for judgment on the administrative record. The plaintiffs also requested that the administrative record be reopened raising seven discrete areas in which they felt the hearing officer’s decision was erroneous and should, therefore, be set aside.
The court reviewed the factual findings of the hearing officer, which included details regarding the evaluation conducted by West Chester. The hearing officer’s legal conclusion that the evaluation conducted by West Chester was “comprehensive and thorough” and “consistent with all of the requirements specified by the IDEA” was also reviewed by the court. The court then took each of the seven discrete areas raised by the plaintiffs and applied them to the hearing officer’s decision. Based on this, the court found that the hearing officer did not preclude evidence based on a misapplication of the statute of limitations. The court also did not permit the plaintiffs to reopen the record to supplement it with live testimony, finding that the supplemental evidence was already presented at the due process hearing. The court also concurred with the hearing officer’s finding that West Chester did not violate its “Child Find” obligations particularly because Gwendolynne’s developmental English language skills were extensively tested and monitored. The court further concluded that the plantiffs were not entitled to financial reimbursement for the independent evaluation that they privately funded because they failed to establish that they followed proper procedure for requesting an independent evaluation. In the end, the court found that Gwendolynne was not denied a FAPE and granted West Chester’s motion for judgment on the administrative record.
Click here for the opinion.
Shemeca Crenshaw, Ed.D. v. Pittsburgh Public Schools, 2021 WL 796665 (Commw. Ct. 2021)
EMPLOYEE DEMOTION; DISCIPLINE; EVALUATION; TERMINATION
Breach of Contract • Act 93 Employees
The Commonwealth Court affirmed the decision of the Allegheny County Court of Common Pleas sustaining the preliminary objections filed by Pittsburgh Public Schools (Pittsburgh). This is a mandamus action filed by the plaintiff seeking payment of $42,000 and an injunction prohibiting Pittsburgh from requiring her to provide services that are outside of her regular day-to-day duties as principal. Crenshaw is employed by Pittsburgh as principal of its online academy and is an Act 93 employee. She asserted that Pittsburgh promised to pay her $42,000 for assuming teaching duties, which went beyond the scope of her role as a principal. In the 2015-16 school year, Crenshaw performed grading and instructional support for over 180 students in grades 4-12 due to a shortage of teaching staff. Crenshaw continued to provide these same kinds of services in school years 2016-17, 2017-18 and 2018-19. Crenshaw asserts that Pittsburgh owes her $10,500 for the duties she performed in each of the aforementioned school years, for a total of $42,000. She filed a suit alleging a breach of contract action based on an oral agreement she made with Pittsburgh, which she alleged entitled her to the $42,000. Pittsburgh responded by filing preliminary objections asserting that Crenshaw failed to state a violation of applicable law and failed to state a claim upon which mandamus relief could be granted.
Crenshaw argued that mandamus action is appropriate to enforce the provisions of the School Code. She asserted that the courts have recognized “the appropriateness of a mandamus action for school employees to recover compensation owed.” She also disputed the trial court’s finding that there was no available remedy at law for breach of contract on the basis that “there is no enforceable contract unless by vote of a majority of [Pittsburgh’s board]” because, she alleged, it is Pittsburgh’s superintendent, and not the board, who is responsible for compensating Act 93 staff. Among its arguments in response to Crenshaw, Pittsburgh asserted that “Crenshaw asks the Court to rewrite the law of mandamus and order [Pittsburgh] to vote to create a new policy that provides compensation for Act 93 administrators who perform duties that are outside the scope of their typical job duties.”
The court started its analysis by acknowledging that Crenshaw was an Act 93 employee who was not covered by the terms of a collective bargaining agreement or the subsequent memorandum of understanding between Pittsburgh and the teacher’s union. The analysis turned to whether there was an actual agreement between Crenshaw and Pittsburgh and whether mandamus was available to require Pittsburgh to pay Crenshaw the $42,000. The court found that Crenshaw did not plead facts sufficient to support the existence of an agreement. The court also found that mandamus relief was not available. Accordingly, the decision of the trial court was affirmed.
OPINION NOT REPORTED
Editor’s Note: Unreported decisions of the Commonwealth Court are not intended to have precedential value but may be cited in legal proceedings for persuasive value.
Click here for the opinion.
Carrie Hahn v. Lawrence County, OOR Docket No. AP 2020-2540 (March 22, 2021)
RIGHT-TO-KNOW LAW; PUBLIC RECORDS
Exemptions • Legal Research Required
Carrie Hahn’s appeal of the agency decision to deny her request for records surrounding the closure of the county courthouse was denied by the Office of Open Records (OOR). Hahn was seeking “a copy of the statute, order, or mandate which grants the … County Board of Commissioners the legal authority to close the County Government Building from November 30, 2020 through January 8, 2021, due to COVID-19.” On appeal, the county’s solicitor submitted an affidavit affirming that responding to Hahn’s request would require the county to perform legal research. The OOR reviewed Commonwealth Court precedent which has found that “[a] request that explicitly or implicitly obliges legal research is not a request for a specific document; rather it is a request for someone to conduct legal research with the hopes that the legal research will unearth a specific document that the fits the description of the request.” The OOR determined that the request would require the county to make legal judgments about what constitutes the proper legal authority and what statutes apply to the County Board of Commissioners. Accordingly, the OOR found that the request was not for any specific existing record and denied the appeal.
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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Philadelphia School Board sued over changes to public comment policy
On March 19, 2021, the American Civil Liberties Union (ACLU) initiated legal action on behalf of UrbEd alleging that the Philadelphia School District’s new public comment policy violates the Sunshine Act. Specifically, the ACLU alleges that the policy violates the Sunshine Act by “foreclosing the public from meaningfully participating in government operations.”
Click here to read the Philadelphia Inquirer article.
Click here for a copy of the complaint.
Click here for a copy of the letter that the ACLU sent to the school district.
Click here for a copy of the school district’s response to the letter.
Eighth Circuit decision grants qualified immunity to a school resource officer
The Eighth Circuit reversed a district court decision which found that a school resource officer violated the Fourth Amendment when a student was escorted to a school office to be questioned by two city police officers. The Eighth Circuit reversed after finding that the SRO had qualified immunity.
Click here for a copy of the opinion.
School District settles transgender bias case over student locker room access
A Minneapolis school district has agreed to pay $300,000 in the case of a transgender student who was barred from using the boys’ locker room while competing on the high school swim team. The state’s largest district also is enacting several important reforms in the wake of alleged discrimination against the former student, his supporters said during a news conference on March 23, 2021.
Click here to read the article in the Minneapolis Star-Tribune.
Tennessee’s transgender athlete ban signed into law
Tennessee’s transgender athlete ban was signed by the governor on March 26, 2021. The law effectively bars transgender students from competing in middle and high school sports under their gender identity.
Click here to the article in the Tennessean.
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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 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.
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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MARK YOUR CALENDAR
Spring Legal Roundup: School Directors - April 28
This event designed for school leaders provides an expert overview of the significant developments in school law impacting decision-making. PSBA's Spring Legal Roundup: School Directors will be held via Zoom on April 28 from 1:30-4:45 p.m. See the website for a complete list of topics and to register. Note: This event is designed for school directors. Please note that although attorneys are welcome to participate, we are not offering continuing legal education credit for this presentation.
SAVE the DATE! Solicitors Symposium: July 8 & 9, 2021
Network with other school attorneys and enjoy an informative and relaxed training opportunity online. This day-and-a-half program focuses on topics of special legal significance, featuring Pennsylvania’s best-known experts in various areas of school law practice. Registration coming soon!
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REGISTER NOW FOR 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! PSBA recently 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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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.
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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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