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October 1, 2021 | ISSUE #20



John McGee v. Township of Conyngham, et al, 2021 WL 4315936 (3d Cir. 2021)

     First Amendment • Retaliation

The Third Circuit affirmed, in part, and vacated, in part, the summary judgment motion that was granted by the District Court in this matter involving claims of First Amendment retaliation and deprivation of substantive due process rights under the Fifth and 14th Amendments. McGee is a businessman and landlord who has lived in Conyngham Township, Pennsylvania (Township) since 2002. In February 2017, he grew suspicious of the Township’s finances and submitted a Right-to-Know request to the Township, seeking, among other things, time records, payment records, daily schedules and expense reimbursements made to the Township’s secretary, who was also a supervisor. The Township provided McGee a partial response. Later, McGee sent a second request, again seeking the Township’s payroll and reimbursement information. McGee had also been asking questions about such records at Township meetings. After receiving the second request, the Township sent a Right-To-Know request to McGee, seeking tax records for his businesses and receipts for repairs done to his rental properties. The Township’s secretary testified that she prepared and handed the request to McGee because she “got tired of getting a Right to Know off of him every time I was out of the office.” She did not, however, “expect the [requested] documents to come back.” The named requesters on the form were “Conyngham Township Authority and Conyngham Township.” When McGee received the Township’s request, he did not respond, retain a lawyer or contact the Township. Later, at a Township meeting, he asked the supervisors why they wanted his personal and business information, and they refused to explain. A reporter who had written critical articles about the Township also received a request from the Township seeking information on the reporter’s meetings with McGee. Eventually, McGee was elected to the Township’s board as a write-in candidate, and the Township’s secretary was voted out in November 2017 and investigated by law enforcement, who determined that she had stolen more than $180,000 from the Township. She was charged with various crimes. Shortly before the election, however, McGee had sued the Township and its then-supervisors for violating his rights under the First, Fifth, and 14th Amendments. He also brought claims for defamation and intentional infliction of emotional distress. The District Court granted summary judgment for the Township and the supervisors on McGee’s § 1983 claims and his claim for intentional infliction of emotional distress. The District Court also granted summary judgment for the Township, but not the supervisors, on McGee’s claim for defamation. Later, however, the supervisors won on that claim at trial. McGee appealed only the summary judgment ruling with respect to his § 1983 claims.
The Third Circuit immediately recognized that McGee’s due process claim was not supported because he failed to allege that he experienced a “depriv[ation] ... of life, liberty, or property[.]” The court found more merit in the First Amendment retaliation claim. According to the court, there was no dispute that McGee engaged in constitutionally protected speech and there was evidence of a causal link between his speech and the Right-to-Know request the Township’s secretary gave him. The sole question was whether McGee adduced enough evidence to allow a rational jury to find that a “person of ordinary firmness” would have been deterred from criticizing the Township board after receiving the Right-to-Know request that the Township’s secretary handed him. The court found that there was enough evidence, despite the fact that there was no legal ground for giving McGee a request for his business information. Additionally, the request was framed to focus on McGee’s business activity, thereby targeting his livelihood. Accordingly, the Third Circuit vacated summary judgment on the First Amendment retaliation claim.
Editor’s Note: Pursuant to its Internal Operating Procedures, the Third Circuit declines to cite “not precedential” opinions in its reported decisions.
Click here for the opinion.

Alicia Geerlings, et al, v. Tredyffrin/Easttown School Dist., 2021 WL 4399672 (E.D. Pa. 2021)

     First Amendment • Free Exercise of Religion
     Food, Drug and Cosmetic Act • Medical Devices – Masks
     Disease Prevention and Control Law • Secretary of Health Authority

The District Court denied the plaintiffs’ motion for emergency injunctive relief, which if granted, would have prohibited Tredyffrin/Easttown School District (Tredyffrin) from implementing the requirements of the Pennsylvania secretary of health’s order (Order) regarding masks in K-12 schools. Acknowledging that the precise legal theories that were postulated by the plaintiffs were “vague,” the court determined that the plaintiffs were asserting first, that the Order infringes on their constitutional right to practice their religious beliefs pursuant to the First Amendment. Second, the plaintiffs argued that Tredyffrin could not require students to wear masks because, under the Food, Drug and Cosmetic Act, 21 U.S.C. § 301 et seq., (FDA Act) masks are “medical devices,” which have not been approved by the Food and Drug Administration (FDA). Third, the plaintiffs insisted that Tredyffrin’s policy was unenforceable because the Pennsylvania secretary of health lacked authority to issue the Order that Tredyffrin is implementing.
Questioning why the secretary of health was not a party to this lawsuit, the court held a hearing related to the plaintiffs’ allegations. After reviewing the evidence that was presented, the court turned to the legal standard for granting injunctive relief and decided that the plaintiffs were not entitled to the “extraordinary remedy” of a preliminary injunction. Turning to the claims for religious discrimination, the court determined that although each of the four plaintiffs has a passionate objection to wearing masks, none of them had a belief that warrants First Amendment protection. The court next reviewed the FDA argument put forth by the plaintiffs and determined that the plaintiffs are unlikely to succeed on this argument. The court found that the FDA Act did not limit the ability of Tredyffrin to require that students wear masks mainly because they are not engaged in manufacturing, marketing or selling masks, making the restrictions set out in the FDA Act inapplicable. With regard to the third claim that the secretary of health lacked authority to issue the Order, the court pointed out that even if the court delved into whether the Order was invalid, the authority to prohibit Tredyffrin from enforcing it was lacking. Accordingly, the plaintiffs were denied a preliminary injunction.
Click here for the opinion.

Lloyd Smith v. Unemployment Comp. Bd of Rev., 2021 WL 4096622 (Commw. Ct. 2021)

     Voluntary Resignation • Workers’ Compensation Settlement

Smith petitioned the Commonwealth Court for review of an order of the Unemployment Compensation Board of Review (Board), which reversed an unemployment compensation referee’s (Referee) decision and denied Smith unemployment compensation benefits because he voluntarily left work without cause of a necessitous and compelling nature. Smith was employed as a supplemental custodian by the Bethlehem Area School District (Bethlehem) until August 21, 2019. On that date, Bethlehem suspended Smith without pay pending school board action and informed Smith by letter that a recommendation was being made to the school board that he be terminated and that he could request a hearing on the matter before the school board. Smith elected not to request a hearing and, prior to any school board vote to terminate his employment, Smith submitted a letter of resignation as part of a workers’ compensation settlement. He then applied for unemployment compensation benefits.
The central issue before the Referee was whether Smith resigned or whether he was discharged. The Referee determined that Smith was discharged but awarded compensation benefits because Bethlehem failed to establish that Smith engaged in willful misconduct. The Board reversed, finding that Smith voluntarily resigned when he signed the resignation form as part of the workers’ compensation settlement. On appeal to the Commonwealth Court, Smith argued that the Board erred in finding that he voluntarily resigned as opposed to having been discharged from employment. The Commonwealth Court affirmed the Board’s decision. The court determined that Smith did not resign to avoid an imminent termination. Instead, he opted to be terminated because he “wasn’t really enthused about going back to work,” and because he felt that going through the hearing process was not worth it. Smith’s resignation, therefore, was done for the sole purpose of settling a workers’ compensation claim with Bethlehem and not to avoid being fired.
 Click here for the opinion.
New Castle Area School Dist. v. Unemployment Comp. Bd of Rev., 2021 WL 4314087 (Commw. Ct. 2021)

     Willful Misconduct • No Dispositive Evidence of Guilt

New Castle Area School District (New Castle) appealed a decision of the Unemployment Compensation Review Board (Board) awarding compensation benefits to the claimant, a former employee of the school district. In doing so, the Board reversed an Unemployment Compensation Referee’s (Referee) decision to deny the claimant benefits because the Referee found that New Castle had met its burden of showing willful misconduct. New Castle’s board voted to terminate the claimant’s employment after the claimant was charged by the New Castle Police Department with allegedly using his access to the school to obtain funds from a parent-teacher organization to pay his personal utility bills. Ultimately, the claimant enrolled in the Accelerated Rehabilitative Disposition (ARD) program for purposes of getting the charges dismissed. The claimant also applied for unemployment compensation benefits, alleging he was terminated based on a wrongful accusation.
The Referee denied the claimant unemployment compensation benefits, finding that the evidence presented by New Castle supported a conclusion that the claimant did, in fact, take the funds and theft was per se willful misconduct under § 402(e). The claimant appealed to the Board, which reversed the Referee’s decision and concluded that New Castle had not met its burden to prove the claimant had engaged in willful misconduct. The Board noted that participating in an ARD program is not an admission of guilt, that the witnesses presented by New Castle had no first-hand knowledge of the theft, and the claimant never admitted to or stipulated to his guilt.
New Castle appealed to the Commonwealth Court, arguing the Board erred in granting unemployment benefits to the claimant. On appeal, the Commonwealth Court only considered New Castle’s argument that the Board capriciously disregarded two pieces of evidence: 1) the claimant’s testimony before the school board hearing; and 2) the claimant’s stipulation to the police complaint, which was an exhibit at the school board hearing. The Commonwealth Court found all other arguments brought by New Castle waived due to the school district’s failure to develop them properly in its brief. With respect to the claimant’s own testimony at the school board hearing, the court found it was properly considered by the Board and concluded it was not dispositive proof of guilt. Regarding the claimant’s stipulation to the police complaint at the school board hearing, the court concluded that the Board also properly considered this as well and again concluded it was not dispositive proof of guilt. Accordingly, the court affirmed the decision of the Board, finding that the Board did not capriciously disregard evidence in the record. Judge Covey filed a dissent, asserting that the order of the Board should be reversed because the Board did capriciously disregard evidence that supported a finding of willful misconduct.
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.


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


Roger V. Wiest, Esquire 1940-2021
We are saddened to learn of the passing of our colleague Roger Wiest, of Sunbury, Northumberland County, on June 19, 2021, at the age of 80. Roger was a member of the Pennsylvania School Board Solicitors Association since the Association’s earliest years and served as solicitor to the Line Mountain School District for more than 34 years. Please join us in offering our condolences to his family and law partners. To learn more about Roger’s life and career, his obituary can be found at this link.

U.S. Department of Education opens investigation into Texas’ statewide mask ban
The U.S. Department of Education (ED) opened a civil rights investigation into Texas’ ban on school mask mandates. The ED previously announced that its Office of Civil Rights (OCR) was investigating Iowa, Florida, Oklahoma, South Carolina, Tennessee and Utah. The letter sent to Texas, like the ones to the other states, said that the bans on mask mandates “may be preventing schools in Texas from meeting their legal obligations not to discriminate based on disability and from providing an equal educational opportunity to students with disabilities who are at heightened risk of severe illness from covid-19.” Click here for a copy of the letter.

The Office of Dispute Resolution added these decisions to its website on September 21, 2021: 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. 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 Virtual School Law Workshop - October 27
School Law Workshop now will be held from 8:30 a.m.-4:15 p.m. on October 27 via Zoom. The event format has been changed to all-virtual with no in-person option. Registration is still open -- 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


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


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, ext. 3426 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
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., 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.
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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