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Vol. 53, No. 10

Landon B. v. Hamburg Area School District, 2016 WL 1730735 (E.D. Pa. 2016).


SPECIAL EDUCATION
     Appropriateness of IEP • Private Placement • Tuition Reimbursement
 

The court upheld a hearing officer’s decision denying tuition reimbursement for a student’s senior year of high school.
      The student, eligible for services pursuant to the IDEA, attended school in the district from kindergarten through February of his 10th-grade school year. He testified that he was bullied and felt scared to go to school. In February of his 10th-grade year, he was lured to a basketball court located off school property by four students, one of whom struck him on the back of the head with a blunt instrument. He was treated at the hospital and after a period of recovery returned to school. When he returned, he heard that a video of the incident was being shared with other students. The district denied a request for homebound instruction; consequently, he did not finish his 10th-grade year. Pursuant to a resolution with the district, he repeated 10th grade and completed 11th grade at a private school for students with disabilities. Prior to his senior year, the district initiated the re-evaluation process. The re-evaluation report noted adequate gains in some areas. The IEP team met, and the proposed IEP placed him back at the district high school for his senior year. His mother raised concerns about him being bullied. As a result the second proposed IEP placed him in the local vocational technical school for half of a day and the district for the other half of the day. Concerned that his return to the district would be detrimental to his social-emotional health, his parents placed him back in the private school for his senior year.
      His parents filed a due process complaint, alleging that he had been denied a FAPE and seeking tuition reimbursement for his senior year. In concluding that the parents had adduced no proof that returning to the high school would cause undue stress and trauma that would impede his learning, the hearing officer found that the student was presently scared about the prospect of returning to school; however, she also noted that he continued to have friends at the high school, he had never been diagnosed with post-traumatic stress disorder, and he has matured and blossomed academically. With regard to the IEP, the hearing officer concluded that the IEP appropriately presented measurable goals and provided specially designed instruction and related services to assist Landon in accessing the curriculum. She also found that parents “sabotaged” the meetings by “refusing to participate in the planning process” and that they would have refused any IEP that did not place their son at the private school.
      On appeal, the court noted that “the Hearing Officer properly assessed the IEP in light of Landon’s needs and abilities and there is no indication that the Officer conflated her analysis of the appropriateness of the IEP with her assessment of the conduct of Landon’s parents at the IEP meetings.” Moreover, the court agreed that he would have been able to receive an appropriate education pursuant to the IEP prepared by the district.
      Accordingly, the court affirmed the decision of the hearing officer.
 
Click here for the full decision.


 

R.L. v. Central York School District, (M.D. Pa. 2016).


CIVIL RIGHTS/CONSTITUTIONAL RIGHTS
     First Amendment • Off-Campus Speech

SCHOOL BOARD POLICY
     Policy is Overbroad

STUDENT DISCIPLINE/STUDENT MISCONDUCT
     Suspension • Facebook Post about Bomb
 

The court granted in part the defendants’ motion for summary judgment in this case involving student off-campus speech.
      At 8:30 a.m. on Oct. 23, 2013, a student reported that he had found a note which read, “there is a bomb in the school.” At 9:15 a.m., students and staff evacuated to the regular fire drill locations while school administrators searched the stadium to determine if it was safe for everyone to be moved there. Students were ultimately moved to the baseball field because another student tweeted that “the bomb is supposedly in the stadium.” In the meantime, the district notified the school community and parents about the bomb threat and evacuation, the gas lines were disconnected as a precaution, and the police searched the school. At 11:30 a.m., the superintendent canceled school for the remainder of the day and sent the students home. After being dismissed for the day, R.L., a ninth-grade student, posted the following message on Facebook, “Plot twist, bomb isn’t found and goes off tomorrow.” The message was posted off-campus, using a personal computer. Local law enforcement notified the district of the post, and the superintendent discussed the post and possible responses with other administrators and local law enforcement. The superintendent traveled to an away football game to discuss the post with the student and his father. The student admitted to authoring the post, which had already been deleted, and the superintendent suspended him from school for 10 days. After a discipline hearing, the district expelled the student for an additional 13 days for violation of the Student Code of Conduct provision involving “behavior or items brought to school that are inappropriate, that may cause a disruption to the school environment.”
      The student’s parents subsequently filed a lawsuit, claiming violations of their son’s First Amendment free speech rights and Fourth Amendment due process rights.
      The court’s analysis focused on a school’s authority to maintain discipline and order contrasted with students’ free speech rights, noting the complexities with regard to student speech that occurs off-campus. The court noted that federal precedent “consistently frames the rule as allowing for punishment where school administrators could reasonably forecast a substantial disruption at school based on the student speech.” The court also noted that several circuit courts are comfortable applying this rule to off-campus speech “where school administrators could reasonably forecast substantial disruption at school, especially in cases where the speech could reasonably be viewed as threatening student or school safety.” Here, the school had already been disrupted by a bomb threat, and the administrators and police reasonably thought the post might be a continuation of the same bomb threat or, at the very least, that the post would lead to more disruption at the school. In holding that the defendants did not violate the student’s First Amendment free speech rights when he was disciplined for the Facebook post, the court noted that school administrators should be able to address that type of speech “regardless of whether it is transmitted over the telephone to the school, on a piece of paper at the school, or on a student’s social media page.” Thus, the defendants were entitled to summary judgment on the plaintiffs’ First Amendment claims.
      The court granted summary judgment in favor of the plaintiffs on their claim that the Student Code of Conduct provision is facially overbroad to the extent it regulates more speech than is permissible under Tinker. However, the court noted that schools need clear guidance from the Third Circuit or the Supreme Court on whether and when they can regulate off-campus speech.
 
Click here for the full decision.
 


In Short

E.C. v. Philadelphia School District, 2016 WL 1085498 (3rd Cir. 2016). OPINION NOT PRECEDENTIAL. In this appeal related to an award of attorneys’ fees in a special education case, the district argued that the fee lodestar should be reduced because the parents were not successful on all of their claims, and the award should have taken into consideration the financial condition of the district. Prior to awarding compensatory education and tuition reimbursement, the hearing officer determined that the child was denied a FAPE in reading, math, writing, supplementary aids and services, but not in speech and language and postsecondary transition. Even though parents did not prevail on all of their legal theories, the court concluded that the district court’s refusal to reduce the fee lodestar was appropriate because the parents obtained excellent results. The court also affirmed the district court’s refusal to reduce the fee award by 15% to account for the “distressed” financial condition of the school district because the fiscal woes “can neither be visited upon the shoulders of these plaintiffs nor excuse the school district from its statutory obligation of paying the reasonable fees here.”
Editor’s Note: Pursuant to its Internal Operating Procedures, the Third Circuit will not cite “not precedential” opinions in their reported decisions.
 
Click here for the full decision.
 
Nace v. Pennridge School District, 2016 WL 2609789 (E.D. Pa. 2016). The court granted the school district defendants’ motion for summary judgement on all of the plaintiffs’ claims. The claims stemmed from a sexual relationship between a high school softball coach and a female student. A few years before being hired by the district to coach softball, Eric Romig (coach) had been asked to resign from his positon as girls’ basketball coach at a Christian school following allegations of sexually inappropriate text messages with a student. Here, the coach used text messages to cultivate the relationship. The relationship became physically sexual during the summer between the student’s sophomore and junior years. The district first learned of the relationship after the coach was arrested. The plaintiffs’ claims against the district are: for a violation of the student’s constitutional due process rights pursuant to Section 1983 (based on failure-to-train and state-created danger theories), a Title IX sexual harassment claim, and a state-law claim for willful misconduct. The plaintiffs’ claims implicate the district’s sexual harassment training program and the history of sexual harassment and abuse by district staff. With regard to the failure-to-train theory, the court concluded that the fact that the coach “was not offered sexual harassment training does not demonstrate deliberate indifference to the risk of constitutional violation.” And, on the state-created danger theory, the court concluded that the claim fails because a reasonable fact-finder could not conclude that the district acted with a degree of culpability that shocks the conscience or that the harm was foreseeable. The Title IX claim failed because the plaintiffs’ failed to allege that an official with authority to institute corrective measures had actual knowledge of discrimination and failed adequately to respond.
Editor’s Note: Subsequent to this case, the Pennsylvania General Assembly enacted Act 168 of 2014, which added Section 111.1 to the Public School Code related to Employment History Reviews, requiring schools to reach out to former employers to ascertain whether the prospective employee has been the subject of allegations of abuse or sexual misconduct. Additionally, in 2015 PSBA drafted a policy guide, available to members of Policy Services, on Maintaining Professional Adult/Student Boundaries.
 
Click here for the full decision.


 

Athens Area Educational Support Professional Association v. Athens Area School District
 

Richard M. Goldberg Esq., Arbitrator
Dec. 29, 2015

     1. Change in Pay
     2. Past Practice


The arbitrator sustained the grievance in this dispute related to change in pay. For approximately 40 years, “District employees have been able to elect to have their wages paid over either a nine (9) month period (the school year) or a twelve (12) month period (a calendar year).” The arbitrator concluded that a past practice existed in regard to the election, and turned his attention to whether the practice has been appropriately terminated by the district. The district argued it had a right to unilaterally terminate this practice, contending it’s a basic management right. Due to the lengthy past practice, which has become part of the parties’ collective bargaining agreement (CBA), the arbitrator concluded it could not be unilaterally terminated. However, the district may terminate the past practice at the end of the parties’ agreement by giving due notice of the intent not to carry it over into the successor contract. The district did notify the association and individual employees that it would issue its paychecks based on actual hours worked during the payroll period; thereby giving notice of its intent to discontinue the practice at the conclusion of the CBA. Consequently, if the successor CBA does not contain a provision allowing the practice to continue, it is to be considered terminated as of the date of the new CBA.
 
Click here for the full opinion and award.
 


Upper Bucks County Technical Education Association, PSEA/NEA v. Upper Bucks County Technical School


Timothy J. Brown Esq., Arbitrator
Oct. 28, 2015

     1. Salary Schedule

The arbitrator sustained the grievance, after concluding that the association met its burden of establishing the school violated the collective bargaining agreement (CBA) by incorrectly placing the grievants on the salary schedule. The salary schedule in the CBA had a “+” symbol in the column headings, i.e., M+15 and M+30. Both grievants had earned credits prior to receiving their respective master’s degrees that were not applied to their respective column designations. The issue before the arbitrator is what was intended by the “+” symbol in the various column headings. The school argued their credits were not available for column movement consideration because the “+” in the column headings means “after” the master’s degree. The association argued that the “+” means “plus” or “in addition to” the master’s degree. The arbitrator found that the “+” symbol conveys only one meaning, “in addition to,” as evidenced by other language in the CBA and the lack of support for an interpretation of the symbol to mean “after” or “subsequent to.” Accordingly, the arbitrator ordered the school to retroactively place the grievants on the salary schedule recognizing their credits earned prior to receiving their degrees.
 
Click here for the full opinion and award.


The Public Sector Arbitration publication is not possible without the efforts of solicitors and superintendents who send us new arbitration decisions. PSBA would like to thank those individuals who have contributed arbitration decisions. If you would like to make such a contribution, please send a scanned copy of the decision to katherine.fitz-patrick@psba.org or mail a hard copy to PSBA, Attn: Katherine Fitz-Patrick, 400 Bent Creek Blvd., Mechanicsburg, PA 17050-1873.
 

Pennsylvania School Board Solicitors Association


School Solicitors Symposium, July 14-15, 2016, Nittany Lion Inn, State College, PA – Plan now to be at the 2016 School Solicitors Symposium, presented by PSBA and Pennsylvania School Board Solicitors Association. Get up to speed on recent developments in school law, anticipated trends public school clients are likely to be dealing with soon, and valuable strategies that can help school boards stretch scarce resources. Get ahead of the learning curve on cutting-edge issues likely to confront your school clients in the near future! For more details and registration, click here.
 
 

In Other News


New Continuing Education Requirements for Coaches Engaged at a PIAA Member School – Effective July 1, 2016, all coaches must complete a coaching education course and a first aid course. All coaches currently employed or engaged by a PIAA member school must complete the courses no later than June 30, 2018. Coaches hired after July 1, 2016, will have two years from their date of hire to complete this requirement. More information on the new PIAA coaching education requirements is available here.
 
FAA Administrator Makes Two Major Drone Announcements – On May 2, 2016, the FAA Administrator announced the agency is establishing a broad-based advisory committee that will provide advice on key unmanned aircraft integration issues. He also announced plans to make it easier for students to fly unmanned aircraft as part of their coursework.
      In the March 2016 Inquiry & Analysis, a COSA publication, Erin D. Gilsbach Esq., of King, Spry Herman, Freund & Faul, in Bethlehem published an article titled, “Legal Considerations Regarding Drone Regulation and Use in Public Schools.”
 
EEOC Issues Final Rules on Employer Wellness Programs – On Monday, May 16, 2016, the Equal Employment Opportunity Commission (EEOC) issued “final rules that describe how Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act (GINA) apply to wellness programs offered by employers that request health information from employees and their spouses.” In addition to a brief summary of the final rules, the press release includes links to the final rules as well as links to question-and-answer documents.
 
Helping Schools Ensure the Civil Rights of Transgender Students – On Friday, May 13, 2016, the U.S. Departments of Education and Justice issued joint guidance “to help provide educators the information they need to ensure that all students, including transgender students, can attend school in an environment free from discrimination based on sex.” The guidance is available here. The departments also released Examples of Policies and Emerging Practices for Supporting Transgender Students, a compilation of policies and practices that schools across the country are already using to support transgender students.
      PSBA has several resources on transgender student issues. One of the education sessions at last year’s PASA-PSBA School Leadership Conference dealt with transgender issues. This session was recorded and is available on the LEARN Portal for viewing. The “It's the Law” column in the January/February issue of the PSBA Bulletin also focused on the rights of transgender students.
 
Overtime Pay – On Wednesday, May 18, 2016, President Obama and Secretary Perez announced the publication of the Department of Labor’s final rule updating the overtime regulations under the Fair Labor Standards Act (FLSA). The final rule will be published in the Federal Register on May 23. The rule, which does not impact teachers and administrators, will go into effect for public, private and nonprofit employers on Dec. 1, 2016. Additional information can be found here.


Mark Your Calendars

 
July 14-15, 2016 – Solicitors’ Symposium, State College, PA
Thursday, Oct. 13, 2016 – School Law Workshop, Hershey, PA
 

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For questions about this publication, contact Katherine Fitz-Patrick, Tel: (717) 506-2450, ext. 3414


 
School Board Solicitors Association Officers
    Carl N. Moore Esq., Erie, President   

    Patrick J. Fanelli Esq., Duncansville, President-Elect
    Erin D. Gilsbach Esq., Bethlehem, Secretary
    Kristine Marakovits-Roddick Esq., Bethlehem, Immediate Past President

 

Legal Services Team:
    Stuart L. Knade, General Counsel
    Emily J. Leader, Senior Deputy General Counsel
    Katherine M. Fitz-Patrick, Deputy General Counsel, Member Services



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No claim of copyright to information on other websites or to original U.S. Government Works.
 
The School Law Information Exchange & Public Sector Arbitration 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 Katherine Fitz-Patrick, Deputy General Counsel, Member Services and Editor.



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