View this email in your browser
October 15, 2021 | ISSUE #21



In re: Appeal for Formation of Independent S.D. Consisting of the Borough of Highspire, 2021 WL 4618660 (Pa. Supreme Ct. 2021)

     Educational Merit • Financial Considerations a Factor
     Section 2-242.1 • Educational Standpoint

The Pennsylvania Supreme Court reversed the Commonwealth Court and remanded this matter involving a petition for the formation of an independent school district. In this case, a majority of the taxable inhabitants of Highspire Borough (Coalition) filed a petition seeking to be established as a school district independent from Steelton-Highspire School District (Steel-High) for the sole purpose of having the new school district be absorbed into the neighboring Middletown Area School District (Middletown). Pennsylvania’s secretary of education (Secretary) issued an opinion and order denying the transfer on the grounds that the academic benefits to be enjoyed by the transferring students did not outweigh the educational detriments imposed upon the students in the Steel-High and Middletown districts. In particular, the Secretary concluded that the transfer would undermine the financial stability of Steel-High and put a strain on class size and facilities at Middletown. On appeal, the Commonwealth Court reversed, taking issue with the Secretary’s consideration of finances and holding that the Secretary should have instead narrowly focused on the academic benefits that would be enjoyed by the transferring students. On appeal, the Supreme Court focused on whether the instruction in Public School Code § 242.1(a) that the Secretary consider the “merits of the petition ... from an educational standpoint” allows for consideration of whether the financial impacts of the transfer affect the quality of education and, relatedly, whether the Secretary may evaluate the resulting quality of education for the students in all of the school districts affected by the transfer (as opposed to just the transferring students).
In this case, the Department of Education conducted an extensive review, even hiring an outside consultant to conduct a financial audit and a classroom audit. The review from an educational standpoint included both academic achievements and other considerations, such as distance of travel for affected students and financial concerns. After a hearing, the Secretary acknowledged that the most significant factors in favor of the petition were that it would permit the Highspire students to join a school district with a better history of academic results. However, “the transfer would come at a great educational cost to the remaining students” in Steel-High, and the Secretary did not approve the petition. An appeal to the Commonwealth Court followed. The Commonwealth Court criticized the Secretary’s rejection of the transfer based upon his focus on financial, rather than educational, grounds. Although the court acknowledged that the consideration of educational merits of a petition might be broader than consideration of academics, it disagreed that “educational” is broad enough to encompass “financial,” thereby rejecting the Secretary’s conclusion. The Commonwealth Court thus ruled that the Secretary’s focus must be limited to the “educational merit for Highspire students” without regard to the financial implications of the transfer on the quality of education for the students at Steel-High or Middletown.
In determining the scope of the Secretary’s educational merit analysis, the Court first reviewed the In re Weaverland Independent School District case and determined that the Commonwealth Court took out of context the reference in the case to “school considerations.” Because of this, the Commonwealth Court incorrectly excluded from any consideration by the Secretary the financial conditions related to the petition. The Court next analyzed § 2-242.1(a) of the Public School Code and reviewed the provisions of the Public School Code relating to legislative policy choices. Based on this review, the Court found that it was “abundantly clear that the General Assembly’s educational policy choices reflect[ed] the integral role of school district finances” in determining a school district’s ability to provide a suitable education. The Court held that “[t]o the extent that a proposed independent school district results in undermining the ability of the remaining school district to finance the educational needs of its students, that detriment is a legitimate consideration in the Secretary’s analysis.” Accordingly, the Commonwealth Court was reversed and the matter was remanded.
Editor’s Note: The Commonwealth Court decision is published at 57 SLIE 5.
Editor’s Note: PSBA participated as amicus curiae in this case.
Click here for the opinion.

W.C., et al v. Warren County School District, et al, Civ. Docket No. 1:21-cv-00273-SPB (W.D. Pa. 2021)

     Fourteenth Amendment • Due Process

The District Court granted a temporary restraining order (TRO) preventing Warren County School District (Warren) from continuing its optional mask-wearing policy. Warren’s policy allowed individuals to decline from wearing face coverings without the need to provide medical documentation. The court stated, “Defendants’ September 13, 2021 vote, ‘Mr. Stewart’s Recommended Action,’ on whether to eliminate the universal masking requirement that has gone into effect upon the authority of the Pennsylvania Department of Education on September 10, 2021 occurred without any advance notice, sufficient hearing, of any of the standard procedures for changing School District policy.” After finding that the plaintiffs were likely to suffer irreparable injury, the court determined that “[t]his [TRO] will serve the public interest as well as the health, safety and welfare of the school students in the School District.”
Click here for the opinion.

Oberheim, et al v. Bason, et al., 2021 WL 4478333 (M.D. Pa. 2021)

     Fourteenth Amendment • Due Process
     First Amendment • Freedom of Association

The District Court denied the motion for preliminary and permanent injunction that was filed by a group of parents challenging the constitutionality of the Montoursville School District’s (Montoursville) policy requiring students to wear masks while on school premises and buses. On July 19, 2021, the school board held a meeting on Montoursville’s “Health and Safety Plan.” At the meeting, the school board approved a proposal to include in the Health and Safety Plan a “mask optional policy,” which provided that Montoursville “will maintain mask optional status for the 2021–2022 school year.” The school board ultimately approved the Health and Safety Plan by a vote of 8-0. The Health and Safety Plan includes the following health policy statement:
The district has and will continue to review any recommendations and follow any laws or mandates we receive from the Pennsylvania Department of Education or Pennsylvania Department of Health as well as consider the unique needs of our community and district.
On July 19, 2021, the superintendent sent “a district-wide email to parents concerning the Health and Safety and Education Plans for the 2021–2022 School Year.” In the email, the superintendent included a link to the Health and Safety Plan, which contained the “mask optional policy” and health policy coordination statement described above. But by the end of the following month, the public health landscape concerning COVID-19 had changed dramatically. Between July and August 2021, Pennsylvania’s COVID-19 case count increased “from less than 300 cases per day to more than 3,000 cases per day.” The number of COVID-19 cases “among school-aged children ... increased by 11,000 in a one-month period and by more than 79,000 since the beginning of the year.” In response to these developments, on August 31, 2021, the Pennsylvania Department of Health issued a mandate to school entities, including public Pre-K–12 grade schools that “[e]ach teacher, child/student, staff, or visitor working, attending, or visiting a School Entity shall wear a face covering indoors, regardless of vaccination status, except as set forth in Section 3.” After receiving this directive from the Department of Health, the superintendent announced a new policy for Montoursville, requiring all students and teachers to wear masks on school premises and buses (Mask Mandate). On September 13, 2021, the plaintiffs filed their original complaint arguing that the Mask Mandate violated their children’s constitutional rights under the First, Fifth and 14th Amendments. The plaintiffs requested a temporary restraining order and preliminary injunction “to enjoin the Superintendent or members of the [School] Board from enforcing the [Mask Mandate],” and, ultimately, a “permanent injunction.” Although the amended complaint names the secretary of the Department of Health as a defendant, the plaintiffs clarified that “it is not [their] intent to argue the legality of [the Secretary of the Department of Health’s] Order”; instead, they asserted that the Mask Mandate was “not required by …[the] Order” and unconstitutional. As such, the motion for preliminary relief concerned only the Mask Mandate.
The court determined that the plaintiffs did not show a reasonable probability of success on the merits to warrant the issuance of preliminary relief. The court was not aware of “any cases standing for the proposition that school masking requirements violate parents’ right to raise their children.” The court postulated that this was likely because “[a]lthough parents possess the right to raise their children as they see fit, they are not entitled to undermine the Government’s public health efforts during a global pandemic by refusing to have their children comply with a school masking requirement.” Additionally, the court found that the Mask Mandate did not deprive students of their legitimate entitlement to a public education. The court explained that “[a]ll students are permitted to attend school, go to class, and perform all other functions associated with receiving their education. They must, however, wear masks while doing so.” The court also held that the students did not possess a fundamental right to attend school without wearing a mask or other face covering, particularly since a school has “a legitimate interest in promoting the health and safety of its students.” The court stated that “the Mask Mandate is rationally related to the legitimate interest in reducing the spread of COVID-19. The Mask Mandate thus satisfies rational basis review.” Turning to the plaintiffs’ final claim that the Mask Mandate deprived the students of free association under the First Amendment, the court declared this claim to be a “head scratcher.” The plaintiffs did not explicitly allege that the Mask Mandate prevented or otherwise impeded their children from engaging in the types of association protected by the First Amendment. Accordingly, the court declined to grant the motion for a preliminary injunction.
Click here for the opinion.

Paradise Concepts, Inc., et al v. Thomas W. Wolf, et al., 2021 WL 4552392 (E.D. Pa 2021)

     Fourteenth Amendment • Due Process • Equal Protection Claim

The District Court granted the defendant’s motion for summary judgment on claims that Governor Wolf’s Business Closure Order (Order) early in the pandemic, requiring all “non-life sustaining” businesses to close, infringed on the plaintiffs’ due process and equal protection rights under the 14th Amendment. The plaintiffs are a group of businesses that were deemed “non-life sustaining” and required to shut down according to the Order. They sought to apply for waivers from the Department of Community and Economic Development to keep their businesses open, and all were denied waivers without explanation. Their due process and equal protection claims were based on the fact that, in contrast to their business, other businesses in their area, which served the same customers and provided substantially the same type of products, were granted waivers. For example, one plaintiff operated a home inspection business and was denied a waiver, but a competitor of that plaintiff, located only 10 miles away, received a waiver.
The defendants asserted 11th Amendment immunity against the plaintiffs’ claims. The defendants argued that no 11th Amendment exception to immunity is applicable because the Order is no longer in effect. The court agreed and found there is no ongoing violation by the defendants which may be enjoined. The defendants also argued that the case is moot because the Order is no longer in effect, and therefore, there is nothing to litigate. The plaintiffs responded by arguing that the “voluntary cessation” exception to the mootness doctrine applied because the Order may be reinstated at any time. The court found, however, that the plaintiffs failed to show any higher level of possibility, and the defendants also affirmed that the Order will not return “under any circumstances.” For the foregoing reasons, the court granted summary judgment to the defendants and denied the plaintiffs’ motion for summary judgment.
Click here for the opinion.

Ambur Ames v. Washington Health System Foot and Ankle Specialists, Inc., 2021 WL 4594673 (W.D. Pa 2021)

     Americans with Disabilities Act • Masks
     Section 504 – Rehabilitation Act • Masks

The District Court denied in part and granted in part Washington Health System Foot and Ankle Specialist’s (Washington Health) motion for summary judgment on Ames’ Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Sec. 504) claims. Ames scheduled an in-person medical appointment at Washington Health in May 2020, a time when Washington Health, in an effort to mitigate the spread of COVID-19, had implemented a mandatory masking policy for all patients. The masking requirement did not make exceptions for persons with medical disabilities. Ames alleged that she suffered from a skin condition that caused a painful rash to break out when she wore a mask, and she had received a note from a nurse practitioner that excused her from wearing a mask. When she came in for her appointment, despite explaining her circumstances, Washington Health refused to see her and instead suggested Ames reschedule and do a telemedicine appointment as an alternative. Ames declined and went to another health care provider which was able to successfully treat her. Ames brought a claim under the ADA and Sec. 504 against Washington Health for discrimination and refusal to provide an appropriate accommodation for a disability.
The District Court granted summary judgment in favor of Washington Health on Ames’ ADA claims. The plaintiff sought declaratory and injunctive relief under the ADA, but because she had no plans to return to Washington Health and suffered no ongoing adverse effects from Washington Health’s decision, she lacked standing to bring them. Moreover, Washington Health had since changed its policy and now regularly examines patients without masks. With respect to her Sec. 504 claim, unlike claims brought under the ADA, claims brought under the Rehabilitation Act allow for the recovery of monetary damages and therefore didn’t suffer from the same standing defect. The District Court found that there were issues of material fact about whether the plaintiff’s requested accommodation was reasonable and whether it was necessary to provide her with a “like experience” to non-disabled parties. Additionally, the trial court found issues of material fact in Washington Health’s two asserted defenses that an accommodation to masking wasn’t necessary because the accommodation to masking posed a direct threat to the health and safety of others, and that masking was a legitimate safety requirement during COVID-19. To prevail under these defenses, however, it must be shown that Washington Health made a specific individualized determination based on the circumstances at hand. The District Court denied Washington Health’s summary judgment motion on this issue.
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.


Appeal of Kennett Consolidated School District v. Chester County Bd of Assessment Appeals dismissed
The Pennsylvania Supreme Court dismissed Kennett Consolidated School District’s (Kennett) appeal on September 22, 2021, finding that it has been “improvidently granted.” In November 2020, the court granted Kennett’s petition for allowance of appeal from the order of the Commonwealth Court to review possible violations of the Uniformity Clause of the Pennsylvania Constitution. After oral argument, the appeal was dismissed. PSBA participated as amicus curiae in this case. 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. 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 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 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.

You are receiving this email as a member of the Pennsylvania School Boards Association.

Our mailing address is:
Pennsylvania School Boards Association
400 Bent Creek Blvd
Mechanicsburg, PA 17050-1873

Add us to your address book
unsubscribe from this list   
update subscription preferences 
Copyright © 2021 Pennsylvania School Boards Association, All rights reserved.

Want to change how you receive these emails?
You can update your preferences or unsubscribe from this list.