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JUDICIAL & ADMINISTRATIVE DECISIONS
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Tanya Hewlette-Bullard, et al v. Pocono Mountain School District, 2021 WL 674240 (M.D. Pa. 2021)
CIVIL RIGHTS/CONSTITUTIONAL RIGHTS
First Amendment • Speech Protected
Fourteenth Amendment • Due Process
SCHOOL BOARD POLICY
Student Expression
The District Court granted in part and denied in part Pocono Mountain School District’s (Pocono) motion for summary judgment on the plaintiff’s First and 14th Amendments, Americans with Disabilities Act (ADA), Rehabilitation Act (RA) and Pennsylvania Constitution claims. J.H-B. was a student at Pocono who is diagnosed with autism spectrum disorder and Tourette syndrome, and previously received special education services under the Individuals with Disabilities Education Act (IDEA). In 2017, Pocono investigated J.H-B.’s Instagram account and discovered memes that included images of the Las Vegas mass shooting, images of people using automatic weapons, images of Black people captioned with racist language, references to school shootings and references to ethnic cleansing. After meeting with J.H-B.’s mother, it was agreed that J.H-B. would undergo a mental health assessment and a psychological evaluation and he would regularly check in with Pocono’s guidance counselors. In the fall of 2017, Pocono received information about threats and other sundry acts involving J.H-B. that prompted them to investigate J.H-B.’s Instagram account again. As a result, Pocono “concluded that a credible threat existed” and suspended J.H-B. based on its investigation into both the statements and the Instagram posts. J.H-B.’s mother met with Pocono after the exclusion from school commenced but Pocono did not allow J.H-B. to return to school; instead, it provided tutoring to J.H-B. A few months later, J.H-B’s mother met with Pocono to discuss J.H-B.’s educational placement. At the conclusion of the meeting, they agreed that J.H-B. would be allowed to undergo a forensic psychological evaluation, psychoeducational evaluation and psychiatric evaluation once he was back in school. At the beginning of the year, J.H-B. was allowed to return to school and was subjected to a weapons search and required to pass through a metal detector every day. In total, J.H-B.’s exclusion from his regularly scheduled classes continued for 61 1/2 school days, but he continued to receive five hours a week of tutoring in three of his four classes during that period. Following his return to school, J.H-B. underwent a forensic psychological evaluation, an independent educational evaluation and a forensic psychiatric evaluation. All of the results concluded that J.H-B. was not a danger to himself or others.
Ultimately, J.H-B.’s mother filed a complaint against Pocono raising causes of action for violation of J.H-B.’s right to free speech under the First Amendment, enforcement of a facially overbroad and vague speech restriction in violation of the First and 14th Amendments, enforcement of an overbroad and vague content restriction in violation of the First and 14th Amendments, discrimination in violation of the RA, discrimination in violation of the ADA, violation of J.H-B.’s right to equal protection under the 14th Amendment, and violation of the due process and equal protection clauses of the Pennsylvania Constitution. Pocono filed a motion for summary judgment.
The District Court started its analysis by reviewing J.H-B.’s First Amendment claims and denied Pocono’s summary judgment motion. The court reviewed the Tinker decision along with the B.L. v. Mahanoy Third Circuit decision and determined that for a student’s speech to be protected by the First Amendment, the court must determine whether the speech constitutes “on- or off-campus speech.” The court also postulated that, based on Third Circuit precedent, the nature of the disruption that a student’s speech causes at school is also an important consideration in the First Amendment context. The court opined that a student’s speech that threatens school safety may be entitled to less First Amendment protection even where the speech occurs on social media rather than in the student’s school. Ultimately, most of the First Amendment claims were allowed to move forward because of the existence of multiple issues of material fact.
The court turned to J.H-B.’s overbreadth and vagueness claims and granted Pocono’s summary judgment motion as to those claims. J.H-B.’s challenge in this case was based on Pocono’s Board Policy 220, alleging that it was too broad because it applies to both on- and off-campus speech. The court disagreed with J.H-B. because a reasonable limiting construction of Pocono’s policy shows that it is not overbroad. Pocono’s policy gives Pocono the power “to designate and prohibit manifestations of student expression which are not protected by the right of free expression because they violate the rights of others.” The court determined that it is reasonable to read the language “not protected by the right of free expression” as a limiting clause clarifying that Pocono’s policy is coextensive with the First Amendment right of free expression. Similarly, J.H-B.'s vagueness challenge failed because the policy is not impermissibly vague in its application to on-campus speech and, although the policy is somewhat vague as to whether a student must be on school property for the policy to apply, that vagueness is not “especially problematic.”
The court denied Pocono’s summary judgment motion as to the due process claim because although J.H-B.’s exclusion from classes was more than 10 days in duration, there are genuine issues of material fact as to whether the district provided J.H-B. even the minimal procedural protections required by Goss. All of the other claims (equal protection, ADA and RA) were dismissed.
Click here for the opinion.
Lucas M. Ivers v. Brentwood Borough School District, et al, 2021 WL 768166 (W.D. Pa. 2021)
CIVIL RIGHTS/CONSTITUTIONAL RIGHTS
State-Created Danger • Policy or Custom • Monell Liability
The District Court granted, in part, and denied, in part, the motion to dismiss filed by Brentwood Borough School District (Brentwood) in this § 1983 action alleging various violations of the 14th Amendment. On June 5, 2018, Ivers and the minor defendant, N.M., were students at Brentwood. They were in gym class playing against one another in a basketball game. During the game, N.M. became angry with Ivers and made contact by “slapping,” “elbowing [Ivers] in the ribs,” and “pushing [Ivers] in the face.” The gym teacher was present and observed these acts. When N.M. attempted to slap Ivers again, at approximately 1:00 p.m., Ivers grabbed N.M.’s arm, which caused both boys to fall to the ground. N.M. then “lifted [Ivers] up on his shoulders and said, ‘it’s over.’” He slammed Ivers to the ground and Ivers’ head “forcefully” hit the gym floor. Ivers was unable to move; he could not feel his torso, arms or legs, including his left hand that was lodged underneath his body. The gym teacher approached and tapped Ivers on the shoulder to see if he was awake and alright. The school nurse arrived at approximately 1:15 p.m. and asked Ivers to get up; he responded, “I can’t move.” The nurse told Ivers he was fine and that he could get up from the floor. When he requested assistance, the nurse said he could do it himself. All the while, Ivers was crying. At some point, the nurse “slid” Ivers to the wall with her hand on his back. At no point did the nurse “stabilize or immobilize” Ivers’ spine. When the paramedics arrived, they strapped Ivers onto a stretcher without spinal stabilization. When Ivers’ mother arrived, she expressed concern because his shoulders appeared crooked. Paramedics told her that Ivers was okay, his condition was not serious, and that the nurse had cleared his neck.
Ivers’ mother took him to her vehicle with the assistance of two men and transported him to a nearby MedExpress for treatment. On the way, as Ivers was in and out of consciousness, she determined he needed to go to the hospital instead of MedExpress. She then drove home and got Ivers an ice pack, ibuprofen and water. While she was inside, Ivers slid out of the car and onto the driveway pavement. The paramedics arrived and asked Ivers to hug himself, which he was unable to do. A paramedic took Ivers’ arms and crossed them against his chest. Another paramedic lifted Ivers’ legs while another paramedic lifted Ivers’ arms to place him on a stretcher. Ivers was transported to the emergency room where doctors and staff asked why Ivers’ neck and back were not stabilized and an argument ensued between them and the paramedics. Ultimately, Ivers filed a complaint against the school district, various school district employees and the emergency medical team alleging state-created danger theories of liability. In response, Brentwood filed this motion to dismiss.
The court’s analysis focused solely on whether Ivers’ allegation that his substantive due process rights under the 14th Amendment were violated based on a state-created theory of liability. The court dismissed the complaint against the gym teacher but not the school nurse. The court determined that Ivers adequately pled that the harm caused to him was a result of the nurse’s conduct and that the nurse acted with a mental state of “deliberate indifference.” Regarding the § 1983 Monell claim against Brentwood, the court determined that Ivers did not allege sufficient facts to plausibly identify a policy or practice attributable to Brentwood that would impose liability on Brentwood. Accordingly, this claim was dismissed.
Click here for the opinion.
Office of General Counsel v. Bumsted, et al, 2021 WL 682166 (Commw. Ct 2021) & Office of General Counsel v. Carter Walker, et al, 2021 WL 684415 (Commw. Ct 2021)
RIGHT-TO-KNOW LAW; PUBLIC RECORDS
Exemptions • Employment Applications • Predecisional Deliberation
Pennsylvania Constitution • Information Privacy
The Commonwealth Court affirmed in part, vacated in part, and remanded in part, these two companion cases involving a Right-to-Know Law (RTKL) request from a media group (Requestors). In the first request, on October 10, 2019, Requesters filed a RTKL request with OGC, seeking any “[a]pplications submitted to [the Office of General Counsel (OGC)] for one vacancy on the Commonwealth Court,” noting that the applications were due on October 9, 2019, at 5:00 p.m. In the second request, on December 4, 2019, Requesters filed a RTKL request with the OGC, seeking “documentation of all individuals who submitted their names this year, 2019, for consideration to be appointed to an open seat on [the Court of Common Pleas of Lancaster County (Common Pleas)]. Applications were due Nov. 15.” In both cases, OGC denied the requests, claiming the “applications and related information of applicants not hired by an agency are exempt from access” pursuant to § 708(b)(7)(iv) of the RTKL. OGC also stated that it “has not provided records that would reveal the internal, predecisional deliberations of an agency, its officials or employees, or records used in such deliberations,” citing § 708(b)(10) of the RTKL. Finally, OGC maintained that “records or portions of the requested records are protected by the attorney-client or attorney-work product privileges,” citing Section 102 of the RTKL. Requesters appealed both of OGC’s refusals to the Office of Open Records (OOR). In both appeals, OOR granted Requesters’ appeal in part and denied it in part, and directed OGC to provide Requestors with the responsive applications. OGC appealed to the Commonwealth Court arguing that OOR erred when it concluded that the applications were not records of individuals seeking employment with an agency subject to the employment application exemption set forth in § 708(b)(7)(iv) of the RTKL. OGC also argued that OOR erred when it concluded that applications were not protected by the deliberative process exemption provided by § 708(b)(10) of the RTKL.
The court first focused on whether the records were exempt from disclosure because they are “[t]he employment application of an individual who is not hired by the agency.” After analyzing the RTKL under the Statutory Construction Act, the court concluded that, based on the common approved usage of the words “employee,” “appointee,” and “appointment,” the individuals who submitted applications for a gubernatorial appointment are neither agency employees nor are they individuals who were not hired by an agency, and, consequently, the exemption provided by § 708(b)(7)(iv) of the RTKL does not apply to the applications of individuals seeking a judicial appointment from the governor to fill the vacancy. The court turned next to the whether the judicial vacancy applications were protected by the deliberative process exemption. The court determined that the applications were also not exempt from disclosure because they were not “deliberative.” Finally, the court turned to the Pennsylvania constitutional protections that are afforded to third parties. The court determined that the responsive documents may contain information privacy and remanded the matter to OOR to provide notice and an opportunity to be heard to the third parties and to perform the balancing test required under the PSEA case.
Click here for the Walker opinion.
Click here for the Bumsted opinion.
Tom Ford and The Boro v. Mount Pocono Borough, No. 5082 CV 2020 (Monroe County Ct of Comm. Pleas 2020)
RIGHT-TO-KNOW LAW; PUBLIC RECORDS
Public Records • Social Media
The Monroe County Court of Common Pleas affirmed the decision of the Office of Open Records (OOR) that required the Borough of Mount Pocono (Mount Pocono) to provide records relating to a Facebook Group called “Mount Pocono Borough Updates by Council.” The local newspaper requested that Mount Pocono produce records logged since April 16, 2020, under the “Moderate Group” tab of the “Mount Pocono Borough Updates by Council” Facebook Group. Mount Pocono denied the request, stating that no responsive records existed and that such materials would not be “records” as defined in the RTKL. The Facebook Group was created by Claudette Williams and used for her campaign for public office. It was originally titled “Claudette for the People” and later Williams renamed it “Mount Pocono Borough Updates by Council” after Williams was elected to Borough Council. Among others, Williams and the mayor were administrators of the group. After the RTKL request was received, the group name was changed to “Mount Pocono Borough Residents.” On several occasions, Borough Council members posted about borough matters. The mayor and six of the seven Borough Council members were members of the group.
The court acknowledged that the question of whether posts may be considered a “record” under the RTKL has not been addressed by Pennsylvania’s appellate courts. The court reviewed the Facebook page and determined that the content of the page demonstrated that it was being used as a significant platform by a number of Borough Council members and the mayor to conduct economic development, community planning, maintenance and community service projects. Despite the fact that the Borough Council never officially adopted the page, it was used for borough business and based on this, the court determined that the page constituted a public record under the RTKL. Mount Pocono appealed the decision two days later.
Click here for the opinion and the Notice of Appeal.
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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!
In re: Williamsport Area School District and Williamsport Area Education Association
Howard Grossinger, Esq., arbitrator
- Salary Schedule Placement
This grievance concerning enhanced credit on the salary schedule based on graduate level courses that the grievant completed prior to attaining her master’s degree, and which were not required to earn her degree, was denied. The parties are subject to a collective bargaining agreement (CBA) effective July 1, 2017, through June 30, 2021. The grievant earned her bachelor’s degree in child development and family studies and her master’s degree in elementary education. While pursuing her master’s degree, she completed additional graduate credit hours in several extra courses which were not required as part of her master’s degree curriculum. She earned additional graduate credits at a teaching job in West Virginia. When she was hired by Williamsport School District (Williamsport) she was placed on M+9 of the salary schedule. However, the union alleges that she should have been placed on M+27 of the salary schedule based on the total graduate credits she attained.
Williamsport argued that the CBA requires that to be entitled to salary enhancements, the credits must be earned “after” the master’s degree was earned. The arbitrator agreed, pointing out that the CBA specifically provides that in order for the credits to count toward higher salary placement, the credits must be “after” the master’s degree. After distinguishing several cases presented by the union, which were based on the language of those cases’ CBAs, the arbitrator explained that the CBA in this case contains precise wording stating the time frame within which the extra credits must be earned to count for salary advancements. The grievance was accordingly denied.
Click here for the opinion.
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William Fearen, Esq. - 1928 - 2021
We are saddened to learn of the passing of William Fearen, Esq. on February 24, 2021, at age 93. Bill was General Counsel to the Pennsylvania School Boards Association from the early 1970s until his retirement from the practice of law in July 1988. He was involved in the creation of the Solicitor’s Association and was one of its early presidents. Click here to read a tribute prepared by Michael Levin, Esq., PSBA’s current general counsel. His obituary can be found at this link.
Governor says PA teachers can get Johnson & Johnson COVID-19 vaccine
On Wednesday, March 3, Governor Tom Wolf and the COVID-19 Vaccine Task Force announced that PreK-12 public and non-public school teachers and other school staff have been prioritized to receive the COVID-19 vaccine. The announcement was hailed by PSBA and other education groups that have been urging the state to prioritize providing the vaccine to Pennsylvania’s educators, support staff, and school administrators. The vaccination of educators is separate from the ongoing Phase 1A vaccine rollout, which continues at an accelerated pace. The state expects to receive approximately 95,000 initial doses of the Johnson & Johnson single-dose vaccine that would be available for school personnel that wish to receive it. Information and FAQs from PDE on COVID-19 vaccines for educators can be found at this link.
PSBA filed an amicus curiae brief in Mahanoy School District case
On March 1, 2021, the PSBA, along with the Pennsylvania Principals Association, filed an amicus brief in support of Mahanoy School District with the U.S. Supreme Court. Approximately, 11 other amicus briefs have been filed in this case. The case involves the appropriate legal analysis to apply to disruptive and offensive student speech that originates outside a school’s boundaries but is directly and intentionally aimed at the school community. Copies of all of the briefs that were filed related to the case, including PSBA’s amicus brief, can be found at this link.
Petition for Certiorari filed in the Gloucester County School District case
Gloucester County School District has filed a petition for certiorari asking the U.S. Supreme Court to review a Fourth Circuit decision that schools must allow transgender students to use restrooms consistent with their gender identity. Citing several federal appeals courts as well as an executive order signed by President Biden, Gloucester County alleges that there is a “nationwide policy” that deprives school districts from tailoring policies to protect the privacy rights of cisgender students. A copy of the Petition for Writ of Certiorari can be found at this link.
Attorneys will be able to participate in special education mediations
Effective March 1, 2021, attorneys are able to participate in special education mediation. Attorney participation will mirror that of the resolution meeting process: If the parent chooses to bring an attorney to mediation, then the local education agency (LEA) has the option of bringing its attorney to mediation, if it chooses to do so. If the parent chooses to attend mediation without counsel, the LEA will likewise not have an attorney present. The updated Mediation Guide can be found at this link.
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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
REGISTER NOW! Spring Legal Roundup
This year, due to the COVID-19 pandemic, Spring Legal Roundup will be virtual on March 24, 2021. Click here to register via the continuing legal education portal on the PSBA website.
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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! Registration is now open for the last live installment in a 12-webinar CLE series on March 10. See below for details and register now!
Note: Per a recent Pennsylvania Supreme Court order, these live programs will be treated as traditional CLE credits, meaning they can be carried forward toward future annual compliance deadlines.
Questions? Contact PSBA Legal Services staff at clelegal@psba.org.
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March 10, 9:00 – 10:05 a.m.
Virtual, hybrid and in-person instruction: What every solicitor needs to know about special education
Presenters: Timothy E. Gilsbach, Esq., Fox Rothschild, LLP; and Paul J. Cianci, Esq., Levin Legal Group
(1 hour substantive)
SPECIAL NOTE: At the conclusion of the March 10 CLE webinar, please turn your video and audio on for a social get-together. Feel free to bring your favorite snack or beverage!
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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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