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April 16, 2021 | ISSUE #8
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JUDICIAL & ADMINISTRATIVE DECISIONS
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Northfield City Board of Education v. K.S., on behalf of L.S., 2021 WL 1191633 (3d Cir. 2021)
SPECIAL EDUCATION; SECTION 504; ADA; GIFTED EDUCATION
Compensatory Education • Child Find
The Third Circuit affirmed the District Court which granted summary judgment for Northfield City Board of Education (Northfield) in this matter addressing child find obligations. L.S. needed regular therapy because of childhood trauma. When she began attending Northfield, her mother, K.S., told the school of her daughter’s emotional difficulties. That fall, L.S. did well in most of her classes and showed writing talent but struggled in math and started working with a school-provided tutor. The next semester, K.S. asked the school to evaluate her daughter for special education. But after looking at her grades and talking with her teachers, the school decided that she did not have a disability and did not need special education. Though she had a “C” in math, she was doing well in her other classes. She did, however, have some emotional problems and Northfield put L.S. into a program to address those emotional issues. She started meeting with a social worker a few times a week who ultimately advised K.S. to take L.S. for a psychiatric evaluation. Thereafter, L.S. attended school based on a transition plan developed for her by Northfield. After reevaluation, L.S. was classified as “emotionally disturbed” and an individualized education program was implemented. That summer, a psychiatrist diagnosed her with anxiety, depression and post-traumatic stress disorder.
Before the start of the next school year, K.S. filed an administrative complaint claiming that Northfield did not do enough for L.S.’s emotional needs and alleging that Northfield did not catch L.S.’s problem early enough. The administrative law judge found in favor of Northfield but awarded compensatory education for some special math classes that L.S. missed when the new school year started. The district court agreed that Northfield had classified L.S. in time and provided a proper program but reversed the award of compensatory education. On appeal, K.S. seeks only compensatory education to make up for the special education L.S. missed in fifth and sixth grades.
In affirming the District Court decision, the Third Circuit addressed K.S.’s argument that Northfield did not catch L.S.’s disability in time. In reviewing the facts, the court determined that Northfield was not on notice of the need for special education from the start of the school year in the fall of 2016. The court agreed with Northfield’s decision to delay evaluating L.S. in January 2017, noting that after L.S.’s psychiatric evaluation, the school had a transition plan in place and agreed to reevaluate L.S. for an educational disability. The court also reviewed Northfield’s decision to keep L.S. in general education classes after the litigation was initiated by K.S. and determined that Northfield acted appropriately in the interest of keeping the “educational status quo.” Accordingly, the Third Circuit affirmed the decision of the District Court.
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.
JKG, by and through his parent, JK v. Wissahickon School District, 2021 WL 1122526 (E.D. Pa. 2021)
SPECIAL EDUCATION; SECTION 504; ADA; GIFTED EDUCATION
Child Find • Compensatory Education • FAPE • de minimus Educational Benefit
The District Court granted Wissahickon School District’s (Wissahickon) motion for judgment on the administrative record in this case alleging violations of the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act. JKG is a minor who, during the relevant period, lived within the boundaries of Wissahickon and enrolled in the third grade for the 2017-18 school year. During enrollment, JK completed a Health History Form and indicated in the general comments section that JKG had been diagnosed with generalized anxiety disorder, and had a rule-out for autism spectrum disorder, attention deficit disorder, and attention deficit/hyperactivity disorder which was supported, in part, by JKG’s physical examination from his healthcare providers. During the beginning of the school year, the school and JK frequently communicated about the issues they observed while JKG was in school. Ultimately, in February 2018, Wissahickon’s Child Study Team convened to discuss JKG’s diagnosis and concluded that JKG should be referred for a multidisciplinary evaluation, including academic assessments, behavioral and emotional assessments, and a functional behavioral assessment (FBA). JKG was evaluated and the report contained an FBA identifying JKG’s behaviors of concern as being off-task and invasion of personal space. The report concluded that JKG qualified for special education as a student with autism, but that a positive behavioral support plan was not warranted since JKG’s behaviors “were not atypical to a level from his peers.” An individualized education program (IEP) was developed and approved by JK, and when JKG entered his fourth-grade year in September 2018, he received social skills instruction from a Wissahickon special education teacher. Following incidents at school on the playground and the school bus, JKG’s IEP was revised several times. Ultimately, in December 2018, JKG was involved in another behavioral incident that lasted approximately two hours, and Wissahickon contacted the police. After JK arrived, JKG eventually calmed down and was removed from the school and in January 2019, JK withdrew JKG from Wissahickon.
In February, JK filed a due process complaint seeking compensation for Wissahickon’s alleged failure to adhere to its child find obligation and duty to craft an IEP reasonably calculated to enable JKG to receive a meaningful education. The hearing officer determined that while Wissahickon denied JKG a free appropriate public education (FAPE) in not having a social skills goal as part of the June 2018 IEP, there was no evidence that this denial placed JKG in a position where JKG must be made whole through compensatory education. JK appealed to the District Court seeking reversal of the hearing officer’s decision.
The court started by analyzing whether Wissahickon violated its child find obligations. The court agreed with the hearing officer’s decision to deny JK’s child find claim. The court determined that the record supported a finding that Wissahickon took the appropriate steps, within a reasonable time, to evaluate and accommodate JKG once it noticed a potential disability. The court specifically noted that in response to JKG’s ongoing diagnostic and behavioral developments, Wissahickon consistently sought to evaluate JKG and appropriately address his educational needs and regularly communicated with JK regarding JKG’s needs in the classroom. The court also agreed with the hearing officer’s decision not to award compensatory education. Despite the finding that there was a denial of FAPE, JK offered no evidence justifying compensatory education. Additionally, the IDEA procedural violation by Wissahickon did not support an award of compensatory education since it did not deprive JKG of educational opportunities or benefits. Similarly, under Section 504, compensatory damages were not available since there was no evidence to support an allegation of discrimination or the denial of appropriate accommodations. Finally, the court did not accept any additional evidence from JK justifying an award of compensatory education since the information was not available when Wissahickon made decisions related to JKG.
Click here for the opinion.
A.C. and D.C., parents and natural guardians, on behalf of C.C. v. Owen J. Roberts School District, 2021 WL 1174558
SPECIAL EDUCATION; SECTION 504; ADA; GIFTED EDUCATION
Independent Education Evaluation • Mootness
The District Court determined that the issue of funding for an independent education evaluation (IEE) based on a 2017 evaluation report (ER) was moot and that there was no basis to disturb the hearing officer’s decision in this case involving the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act. The student is a gifted child with medical conditions. In the spring of 2016, the parents consented to a multidisciplinary evaluation of the student. The Owen J. Roberts School District (Owen Roberts) found that the student was not eligible for IDEA services, and instead created a Section 504 agreement for occupational therapy services. In the spring of 2017, the parents agreed to a reevaluation, provided that Owen Roberts did not conduct cognitive or achievement testing, as the Children’s Hospital of Philadelphia recommended against such testing in light of the fact that the student had sustained three concussions during the spring of 2017. In the summer of 2017, the ER concluded that the student met the IDEA criteria for autism, and that the student’s medical impairments (previously diagnosed urinary and bleeding disorders) met the eligibility criteria for other health impairments. The parents disagreed with the findings of the ER but did not request an (IEE) until the spring of 2019. Owen Roberts denied this request and filed a due process complaint to defend the ER. After four administrative hearings, the hearing officer issued his final decision in favor of Owen Roberts on October 14, 2019. The parents then filed this action.
Owen Roberts argued that the parents' request for an IEE was not ripe and was moot. The ER was completed on August 3, 2017, and the parents objected to it and sought an IEE more than 18 months later, in the spring of 2019. The request for an IEE was made within the three-year period that the evaluation was in effect and during the two-year statute of limitations to request a due-process hearing. However, Owen Roberts argued that after the 2017 ER, it offered three times to conduct a reevaluation and the parents refused to consent. Owen Roberts argued that this refusal precluded the parents’ IEE request now and further argued that because the 2017 ER was no longer in effect, the case was moot. The court agreed with Owen Roberts and held that the funding issue related to an IEE based on the 2017 ER was moot. The court also conducted a thorough analysis of the hearing officer’s findings and alternatively determined that there was no basis to disturb the hearing officer’s decision.
Click here for the opinion.
Kevin Medina v. Harrisburg School District, No. 2018 CV 216 MD (Ct. of Comm. Pleas of Dauphin Co. 2021)
PENNSYLVANIA PUBLIC SCHOOL CODE
Section 10-1089(c) • Applicability to Business Administrators
The Dauphin County Court of Common Pleas affirmed the statement and adjudication of the Harrisburg School District (Harrisburg) regarding the reassignment of its business administrator. In June 2017, Harrisburg sent a letter of reprimand to Medina alleging numerous failures, including failing to demonstrate leadership, payroll errors, disastrous implementation of a timekeeping and absence management system and incomplete budget analysis of expenses and income. In July 2017, Harrisburg sent a Notice of Allegations indicating that if the allegations are true, they “may constitute incompetency, intemperance, neglect of duty, violation of any of the school laws of the Commonwealth or other improper conduct.” The notice specifically alleged that Medina: (1) failed to notify the superintendent of a vehicle loss; (2) submitted a budget to the Pennsylvania Department of Education with incorrect total and figures; (3) failed to schedule and execute building renovations; (4) failed to provide leadership, execution and implementation of business-related responsibilities and duties; and (5) failed to make arrangements for mail pickup and delivery at the district’s property. Harrisburg sought to reassign Medina to the position of program grants administrator.
The matter before the court was commenced when Medina filed his first petition for review to appeal the November 2017 decision of Harrisburg. The court vacated the decision of Harrisburg and remanded the matter in July 2018. Thereafter, Harrisburg adopted a resolution in October 2018 reaffirming its November 2017 decision that Medina neglected his duties as business administrator and violated school law resulting in reassignment to the position of program grants administrator. Medina filed another petition for review in the instant matter.
The court first focused on the application of the School Code, specifically § 10-1089(c), and determined that Harrisburg erred in concluding that it was inapplicable to Medina’s removal from the position of business administrator. The court disagreed with Harrisburg’s assertion that the employment action was a reassignment rather than a removal. The court also disagreed with Harrisburg’s assertion that a removal meant “termination.” The court found that to place Medina in the position of program grants administrator meant he must first be removed from his business administrator position. Next, the court focused on whether Medina received due notice and an opportunity to be heard regarding the reasons Harrisburg sought to remove him as business administrator. The court reviewed the process followed by Harrisburg in effectuating his reassignment to program grants administrator and determined that Medina was afforded due process. The court also found that there was substantial evidence to support Harrisburg’s decision. Although Medina asserted that Harrisburg’s “removal” as business administrator and reduction in salary improperly reduced, eliminated or withheld his salary and was a violation of the Pennsylvania Wage and Employment Act, the court determined that the act was inapplicable.
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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Pennsylvania Supreme Court grants the Petition for Allowance of Appeal in a charter school case
On April 7, 2021, the Pennsylvania Supreme Court granted the Petition for Allowance of Appeal that was filed in the case of Eastern University Academy Charter School v. School District of Philadelphia. The court will consider the following question: Is a school district’s decision to not renew a charter school’s charter agreement untimely where the decision has been rendered after the expiration of the charter term for which renewal was sought?
Click here for a copy of the order granting the petition.
Department of Education to review Title IX regulations
The U.S. Department of Education’s Office of Civil Rights will conduct a comprehensive review of the Title IX Regulations issued in May 2020. This letter outlines the plan to solicit the public’s input on the regulations.
Tax credits for volunteer firefighter and EMT personnel
Solicitors may be receiving questions arising from Act 91 of 2020, which added school districts to the local taxing authorities that may enact the tax credits for certified volunteer firefighter and emergency medical technician (EMT) personnel authorized under Act 172 of 2016 (now found at 35 Pa.C.S.A. Chapter 79A). The other pertinent effect of Act 91 was to elevate the limit on such credits to 100% of what otherwise would be the tax liability for which the credit is given.
PSBA encourages support of the firefighting and ambulance companies that serve the schools within school districts. Supporting the individual volunteers serving those entities is likewise a laudable goal. However, but when it comes to tax credits, districts must make sure to take into account the potential constitutional limitations under the Uniformity Clause of the Commonwealth of Pennsylvania’s Constitution (Article VIII, Section 1).
The Uniformity Clause has a broad reach, with some specific exceptions expressly stated in the constitution. One such exception allows the homestead exclusions (Art. VIII, §2 (b)(vi) now operable under the Homestead Farmstead Exclusion Act of 1998 and integral to Act 1. Another allows the General Assembly to establish classes of persons needing special tax provisions due to age, disability, infirmity or poverty (Art. VIII, §2(b)(ii).
The problem is that there is no Uniformity Clause exception in the constitution that would appear to allow the General Assembly to enact local tax exemptions or exclusions for volunteer firefighters and EMTs. For this reason, PSBA encourages school boards to consult closely with their solicitors about the constitutional limits on a school board’s ability to lawfully enact such tax credits.
 Solicitors needed for ‘Ask the solicitor’ video segment
PSBA has launched a new school law segment on its weekly Video Edition series. In the brief segment, a guest solicitor responds in about two minutes, on camera, to a basic “ask the solicitor” type of question. We are seeking solicitors interested in being a part of this initiative. Your time commitment would be minimal, but the series’ reach is about 10,000 around the state! If you are interested, please contact Darby Sells, media production manager, at Darby.Sells@psba.org to coordinate a time to record remotely.
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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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