JUDICIAL & ADMINISTRATIVE DECISIONS

Jacob Doyle Corman, III, et al v. Acting Sec. of the Pa. Dep’t of Health, 2021 WL 5227124 (Commw. Ct. 2021)

SCHOOL BOARD POLICY
Mask Mandate • Authority of Dep’t of Health

The Commonwealth Court granted the petitioner’s Application for Summary Relief and declared the school masking order issued by the Pennsylvania Department of Health (DOH) void ab initio and unenforceable. The court found that the acting secretary of health failed to comply with the requirements of Pennsylvania law in imposing the masking order. The petitioners argued that because the masking order does not rely on a gubernatorial declaration of disaster emergency, it represents a rule or regulation that was issued without complying with statutory rulemaking procedures. The respondents asserted that the masking order is not a rule or regulation subject to rulemaking procedures because it was promulgated pursuant to existing statutory and regulatory authority.

The court started by reviewing the parameters of the Regulatory Review Act (Act). The court pointed out that “in the absence of a gubernatorial proclamation of disaster emergency or a statute or regulation that authorizes … a new agency rule or requirement… agencies [must follow] the mandatory procedures for review set forth in the Regulatory Review Act.” The court noted that procedures exist to expedite administrative rulemaking, if necessary. The court turned to reviewing whether the masking order fell within the requirements of the Act and determined that it was a “regulation” and not “mere guidance.” The court discounted the arguments raised by DOH that the masking order was promulgated pursuant to the authority set forth in the Disease Control Law (Law). The court found that “no deference [was owed] to [DOH’s] interpretation” of the Law and then conducted a detailed review of the specific sections of the “Pennsylvania law upon which the Acting Secretary base[d] her authority to implement the Masking Order…” The court concluded that “[t]he purported authority cited by the Acting Secretary in the Masking Order does not convey the authority required to promulgate a new regulation without compliance with the formal rulemaking requirements of the Commonwealth Documents Law and the Regulatory Review Act.” Accordingly, the court declared the school masking order void ab initio and unenforceable.

Judge Wojcik dissented, finding that the acting secretary had the authority to issue the mask mandate and that it was “clear that neither the Secretary nor the Joint Committee acted with fraud or bad faith, or that either committed an abuse of discretion or clearly arbitrary action.” Additionally, Judge Wojcik opined that the court “should defer to the Joint Committee’s expertise and determination that the Secretary’s Order does not constitute a rule or regulation within the requirements of the [Regulatory Review Act or the Commonwealth Documents Law]…”

Editor’s Note: This decision was immediately appealed by the Commonwealth triggering a stay of the Commonwealth Court’s ruling and keeping the mask order in effect.

Click here for the opinion.

Editor’s Note: In light of this decision, a related case, J.W. et al v. Acting Sec. of the Pa. Dep’t of Health, 2021 WL 5232308 (Commw. Ct. 2021) was dismissed as moot.

Click here for the opinion.

Dr. Christine Lentz, et al v. Dr. Kathleen Taylor, et al, 2021 WL 5121247 (3d Cir. 2021)

CIVIL RIGHTS/CONSTITUTIONAL RIGHTS
Fourteenth Amendment • Due Process

Fourth Amendment • Reasonableness of Seizure

The Third Circuit affirmed the decision of the District Court, dismissing this civil rights complaint that arose out of an alleged conspiracy to remove Lentz from her position within the public school district and levy criminal charges against her. For more than 20 years, Lentz worked in various teaching and administrative roles in the Ocean City School District (Ocean City). Over the course of her employment, Lentz alleged continued hostility and animus relating to her employment at Ocean City. She alleged that she experienced various personal and professional issues with the superintendent, including alleged interference with Lentz’s appointment to a school board and denied health benefits to Lentz and her same-sex partner. During her time as chair of the union’s negotiation committee, Lentz claims that confidential information was leaked, resulting in the initiation of a false investigation against her. Due to the leak, an outside consultant was hired to conduct an internal investigation of Lentz’s alleged unlawful access of the superintendent’s email. As a result of the investigation, Lentz received a formal letter notifying her that she was charged with unauthorized access to the superintendent’s email. The letter also notified her of her suspension and hearing. Following her formal suspension, the county prosecutor filed criminal charges against Lentz for the unauthorized access of the superintendent’s email. The criminal charges included second degree official misconduct, third degree theft, and third degree computer-related theft. After several days of trial, Lentz was acquitted. Following her acquittal, Lentz filed suit against the defendants who moved to dismiss the complaint, arguing that two of the defendants are not state actors under § 1983 and that the substantive and procedural due process claims failed as a matter of law because Lentz did not suffer any constitutional violations. The District Court granted the defendants’ motions, and this appeal followed.

The Third Circuit analyzed whether the contractor and the law firm, who were named defendants, qualified as “state actors.” Lentz argued that they did because they occupied a role traditionally reserved by the state. The Third Circuit determined that neither qualified as state actors because lawyers are not state actors simply because they are “officers of the Court.” The court also found that the contractor did not qualify as a state actor “simply because [the contractor] was carrying out a state sponsored program and … being compensated … by the state.” The Third Circuit turned to the substantive and procedural due process claims against the remaining defendants. The court dismissed both claims holding that “tenured public employment… is not a protected property interest” and that Lentz was appropriately afforded notice and an opportunity to be heard. The court also dismissed Lentz’s malicious prosecution claim under the Fourth Amendment, finding that Lentz was not “seized within the meaning of the Fourth Amendment.”

OPINION NOT PRECEDENTIAL

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.

H.U.; B.U., Parents & Natural Guardians of K.U. v. Northampton Area School Dist., et al, 2021 WL 4810170 (3d Cir. 2021)

CIVIL RIGHTS/CONSTITUTIONAL RIGHTS
Fourteenth Amendment • Failure to Train – Deliberate Indifference • State-Created Danger

The Third Circuit affirmed the District Court’s grant of the summary judgment motion filed by Colonial Intermediate Unit-20 (CIU-20). The plaintiffs brought a §1983 claim against Northampton Area School District (Northampton) and CIU-20 after their daughter, K.U., was sexually assaulted on a bus operated by CIU-20. The bus was supervised by two CIU staff members. Each student had assigned seating and K.U. usually sat alone. At some point in December, she asked if she could move and sit with another student. This student sexually assaulted K.U. several days later during the van ride home from school. K.U.’s parents brought this action on her behalf arguing that CIU-20 violated K.U.’s substantive due process rights under a state-created danger theory or, alternatively, that CIU-20 was liable for failing to train its employees to respond to sexual violence. The plaintiffs voluntarily dismissed their claim against Northampton, and the District Court granted summary judgment for CIU-20. The District Court concluded that the plaintiffs failed to create a dispute of material fact under the state-created danger theory because they failed to present any evidence that the assault on K.U. was foreseeable or that the CIU-20 staff members on the bus were on notice that the other student posed a risk of sexual violence. This appeal followed.

The Third Circuit affirmed the District Court’s finding that the CIU-20 staff on the bus had no information that would have made a sexual assault by one student on another foreseeable. The court pointed out that the plaintiffs failed to allege any information that the bus staff had any knowledge about the sexual aggressor’s background that would have made it foreseeable such an action was going to occur. The Third Circuit also affirmed the District Court’s summary judgment grant to the defendants on the plaintiffs’ failure-to-train theory of liability. The plaintiffs argued that the CIU-20 staff members were on notice that there was at least an abstract risk of student-on-student violence given the general special needs of their student population and thus, failure-to-train on how to respond to sexual violence constituted deliberate indifference. Under Third Circuit precedent, however, this abstract risk was not enough. Citing Connick v. Thompson, the Third Circuit noted that ordinarily a pattern of constitutional violations by untrained employees is necessary to put a municipality on notice of the need for different or more training. A vague awareness of some broad threat is not enough. Further, CIU-20 bus staff were given training on responding to violent student aggression, and the act of sexual aggression in this case, fell within that category of personal violence. The Third Circuit further affirmed the District Court’s finding that the plaintiffs failed to present adequate evidence of deliberate indifference on the part of CIU-20 to create a dispute of material fact sufficient to survive a summary judgment motion.

OPINION NOT PRECEDENTIAL

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.

J.L., et al v. Lower Merion School District, 2021 WL 4262321 (E.D. Pa 2021)

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

The District Court granted, in part, the plaintiffs’ motion to supplement the record on their appeal of a hearing officer’s decision, which found that Lower Merion School District (Lower Merion) provided A.L. a free and appropriate education (FAPE) under the Individuals with Disabilities Education Act (IDEA) and did not discriminate against the plaintiffs in violation of Section 504 and the Americans with Disabilities Act (ADA). The plaintiffs and the school district had a long-running dispute over whether A.L. would be allowed to use a letterboard at school, whether school officials would be trained on use of the letterboard to communicate, and whether the district was properly evaluating A.L.’s abilities. Eventually, A.L.’s parents withdrew A.L. from school, alleging the school district’s refusal to allow the use of a letterboard was harmful to A.L.’s physical and mental health and informing the school they would be seeking reimbursement for appropriate educational programming. The plaintiffs filed a due process complaint against Lower Merion, seeking reimbursement for their expenses in privately educating A.L. and reimbursement for a private psychological evaluation. The hearing officer ruled against the plaintiffs on all their claims. The plaintiffs appealed to the district court and filed this motion to supplement the administrative record to allow for the following: testimony from A.L, videos of A.L. using a letterboard to communicate, and a peer-reviewed study discussing whether letterboards are an effective means of communicating for nonverbal individuals.

With respect to the plaintiffs’ request to supplement the record with A.L.’s testimony, the District Court found that such additional evidence should be allowed. The District Court noted that the types of strategic reasons that would prevent a plaintiff who declined to initially offer the evidence before a hearing officer were absent in this case. Additional evidence is properly excluded if the reason it was left out before the hearing officer was considerations such as conserving expense, time management or excluding evidence because the party believed they would be successful without it. None of those reasons were found here, and the court acknowledged that testimony from A.L. would be helpful to resolving the FAPE claim. With respect to the second piece of evidence – videos of A.L. using a letterboard – the court said that it would also admit this evidence, despite it being excluded by the hearing officer, because, in order to determine whether the videos were properly excluded, they must be examined, especially in light of the fact that the plaintiffs had provided these videos to Lower Merion at the time they were requesting A.L. be allowed to use the letterboard. Lastly, the court declined to allow as additional evidence a peer-reviewed study on the effectiveness of letterboards in aiding communication in nonverbal individuals. This conclusion was based on the fact that the study hadn’t been released until after the hearing officer’s decision, and since, on appeal, a District Court looks to whether there was “clear error” in making a FAPE ruling, the hearing officer could hardly have made a clear error in refusing to consider evidence that did not exist at the time of his decision.

Click here for the opinion.

Shanicqua Bryant v. Pottstown School District, 2021 WL 4893368 (E.D. Pa 2021)

CIVIL RIGHTS/CONSTITUTIONAL RIGHTS
     Fourth Amendment • Failure to State a Claim

SPECIAL EDUCATION; SECTION 504; ADA; GIFTED EDUCATION
     IDEA • Failure to State a Claim

The District Court dismissed the plaintiff’s complaint without prejudice for failure to state a claim and granted leave to file an amended complaint. Bryant filed a §1983 action against the Borough of Pottstown, the Pottstown School District and a Pottstown police officer. Bryant’s §1983 claim arose from an incident on February 21, 2020, involving her minor child being placed in handcuffs and taken to jail. The District Court also understood the complaint to raise claims under the Individuals with Disabilities Education Act (IDEA). The court found that the complaint failed to state a cause of action under both laws. Under federal pleading standards, a complaint must identify discrete defendants and the action taken by defendants in regard to a plaintiff’s claims. A complaint so vague and ambiguous is inadequate because the defendant cannot reasonably be expected to respond without knowing what he is accused of doing. The District Court found that there wasn’t enough factual information to sufficiently describe what happened to Bryant and what actions were taken by defendants which violated Bryant’s rights under §1983. Similarly, Bryant’s IDEA claim failed to set forth any violations of Bryant’s substantive rights under the IDEA, nor did it describe any action the defendants took to violate those rights.

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

Petition for Allowance of Appeal Granted
On November 3, 2021, the Pennsylvania Supreme Court granted Wilkinsburg School District’s Petition for Allowance of Appeal. The Court will consider whether 22 Pa.Code § 23.2 requires school districts to obtain advance approval from the Pennsylvania Department of Education of pupil transportation plans and transportation service contracts. Click here for a copy of the order.

Office of Special Education and Rehabilitative Services released New Q&As.
The U.S. Department of Education’s Office of Special Education and Rehabilitative Services (OSERS) released two new Q&As entitled:

The Office of Civil Rights Releases Fact Sheet on Supporting Intersex Students
On October 26, 2021, the Office of Civil Rights released a fact sheet designed to provide information about what it means to be intersex and the important role schools play in supporting the dignity, safety and well-being of all students. The fact sheet offers suggestions on ways schools can best support intersex students. Click here for a copy of the fact sheet.

The following decisions were recently added to the Office for Dispute Resolution's website:

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 LegalServices@psba.org, with “COVID information” in the subject line.

MARK YOUR CALENDAR

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 October 20 session, attendees discussed masking litigation as well as masking and safety at school board meetings. The next session will be held November 17, 2021. 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!

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! 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 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
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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

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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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