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July 23, 2021 | ISSUE #15
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JUDICIAL & ADMINISTRATIVE DECISIONS
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T.R., et al v. School District of Philadelphia, et al, 2021 WL 2879494 (3d Cir. 2021)
SPECIAL EDUCATION; SECTION 504; ADA; GIFTED EDUCATION
Exhaustion of Administrative Procedures/Remedies • Systemic Exception
The plaintiffs brought a putative class action suit against the School District of Philadelphia (Philadelphia) claiming that Philadelphia’s translation and interpretation services violated the Individuals with Disabilities Education Act (IDEA). The Third Circuit affirmed the District Court order that denied class certification and granted summary judgment in favor of Philadelphia based on a failure to exhaust administrative remedies. The Third Circuit reviewed the facts alleged by the plaintiffs in the light most favorable to the plaintiffs. Philadelphia oversees hundreds of public schools providing educational programs to hundreds of thousands of enrolled students. Given the size and diversity of such enrollment, there are some enrolled students — and parents of enrolled students — who have limited English proficiency (LEP), meaning English is not their primary language so that they have a “limited ability to read, write, speak, or understand English.” Philadelphia records from 2013 show that there were approximately 25,900 families of enrolled students whose primary home language was not English and 19,670 families who had expressly requested documents from Philadelphia in a language other than English. Philadelphia’s Office of Family and Community Engagement (FACE) provides translation and interpretation services to support these parents. Some general, standard documents are translated into common languages and made publicly available on the school’s website. At the school level, Philadelphia employees can request that translation or interpretation services be provided by a bilingual counseling assistant (BCA), either through FACE or directly from a BCA who can translate day-to-day communications or provide live interpretation at meetings. However, “the demand for interpreters often exceeds the number of staff available” so that “not all employee requests for translation are fulfilled.” The plaintiffs before the Third Circuit were Madeline Perez and her children and Manqing Lin and her child, since the original plaintiffs dismissed their claims against Philadelphia. Madeline Perez is the mother of three children with disabilities, who is LEP and speaks Spanish. She believes that she would “be able to contribute more fully [at IEP team meetings] if she received translated IEPs” and other documents. However, Perez and her children have not exhausted their administrative remedies. Manqing Lin is the mother of one child with disabilities and is able to understand and speak some English words, but she is LEP and speaks only Mandarin at home with the father of her children and her children. Her ability to provide input at individualized education program (IEP) team meetings is hampered by the fact that Philadelphia does not provide her with translated draft IEPs or other IEP-related documents before meetings. Prior to joining this litigation, Ms. Lin requested mediation through Pennsylvania’s Office for Dispute Resolution and ultimately reached an agreement with Philadelphia regarding the receipt of some translated documents, but she also has not exhausted her administrative remedies.
In affirming the District Court’s grant of summary judgment, the Third Circuit determined that a “systemic exception” to the IDEA’s administrative exhaustion requirement applied. The plaintiffs “allege systemic legal deficiencies and, correspondingly, request system-wide relief” that cannot be addressed via the administrative process. Structuring the complaint as a class action seeking injunctive relief did not excuse exhaustion. In this case, the systemic exception applied since the plaintiffs challenged policies that threaten basic IDEA goals instead of mere components of special education programs. In the case of both of these plaintiffs, they could bring their IDEA claims before a hearing officer who could order Philadelphia to provide each parent with improved translation services. The claim and the relief would be individualized, even if the relief might spillover to benefit other parents.
Click here for the opinion.
Y.B., on behalf of S.B., et al v. Howell Township Board of Education, et al, 2021 WL 3027635 (3d Cir. 2021)
SPECIAL EDUCATION; SECTION 504; ADA; GIFTED EDUCATION
Stay-Put Provision • Applicability to Intrastate Transfers
A panel of the Third Circuit affirmed the District Court’s decision to grant Howell Township Board of Education’s (Howell) motion for summary judgment in this case which reviewed whether the “stay put” provision of the IDEA required the provision of the same services that a child was receiving before transferring to another school district within the state. S.B. is a 12-year-old boy diagnosed with Down syndrome who “shows delays in cognitive, social, and motor areas” and requires special educational care. In 2014, S.B. and his parents moved from Brooklyn, NY, to Lakewood, NJ. Upon the family’s arrival, S.B.’s parents requested an individualized education program (IEP) for S.B. from the Lakewood Township School District (Lakewood). Lakewood determined it could not provide S.B. an IDEA-mandated free appropriate public education (FAPE) at its own public schools, so it crafted an IEP that placed S.B. at the private School for Children with Hidden Intelligence (SCHI) and reimbursed S.B.’s parents for SCHI-associated costs. In November of 2016, the family moved homes and transferred S.B. from Lakewood to Howell. Howell’s staff reviewed the Lakewood IEP and met with S.B. and his parents. After meeting with S.B., Howell informed the parents “that [S.B.’s] IEP can be implemented in [Howell’s special education] class at [one of Howell’s elementary schools] where [S.B.] will receive a free appropriate public education in the least restrictive environment.” Despite this assurance, the parents continued to send S.B. to SCHI and on February 3, 2017, Howell terminated S.B.’s enrollment. Seven months later the parents requested a due process hearing under the IDEA challenging Howell’s refusal to implement S.B.’s IEP and asserting that Howell must reimburse the parents for S.B.’s SCHI tuition. The hearing officer and the District Court ruled in favor of Howell.
S.B.’s parents alleged that the “stay put” provision of the IDEA applied to S.B., whereas Howell argued that the intrastate provision applied. The Third Circuit agreed with Howell and held that in a voluntary intrastate transfer, the “stay-put” provision does not apply and the new school district needs to only provide “services comparable” to those the student had been receiving under the IEP in effect before the transfer. While § 1415(j), the “stay-put” provision, provides generally that eligible students must remain in their current educational settings during certain procedures, § 1414(d)(2)(C)(i)(I), the intrastate transfer provision, says that schools need only provide eligible transfer students comparable services to those they were previously receiving. Based on this holding, the court affirmed the District Court's holding that Howell satisfied the intrastate transfer provision in S.B.’s case and that Howell was not responsible for reimbursement related to the costs of S.B.’s attendance at SCHI. Judge Roth filed a concurring opinion expanding upon the reasons that the “stay-put” provision is not applicable in this case.
Click here for the opinion.
Riverview School District v. Riverview Education Assoc., PSEA/NEA, 2021 WL 2909759 (Cmwlth Ct 2021)
COLLECTIVE BARGAINING; ARBITRATION; LABOR
Public Policy Exception • Sexual Harassment
Reviewing this case for a second time, the Commonwealth Court affirmed the trial court’s decision that upheld the decision of the arbitrator to reinstate a grievant who was discharged by Riverview School District (Riverview). Riverview and Riverview Education Association (Association) are parties to a collective bargaining agreement (CBA) effective July 1, 2014, through June 30, 2018. A dispute arose between the parties with regard to the termination of the grievant, who is a professional employee who taught in one of Riverview’s elementary schools. In June of 2012, the grievant had been admonished by the superintendent and directed to maintain proper, professional boundaries with a female teacher. Subsequent thereto, the collegial relationship between the grievant and another teacher changed significantly. The grievant’s visits to the other teacher’s classroom became more frequent; he tried to converse with her in closer proximity; and he presented her with gifts and correspondence suggesting that they engage in a romantic relationship, even though both he and the other teacher are married to other people. The grievant would also sit next to her and, at times, place his hand on her knee or kiss her head. The other teacher rebuffed these actions by the grievant and repeatedly asked him to step back and leave her alone and/or get out of her classroom. While away on a college visit with her daughter, the other teacher received several text and email messages from the grievant, which made her uncomfortable. Upon her return, the grievant left a package for her with a stuffed mascot of the school that she and her daughter had visited, along with a note that she found odd and discomforting. The teacher discussed the situation with some colleagues but did not confront the grievant regarding this incident. The grievant continued to give the other teacher gifts and surprises and express his desire to commence a romantic relationship with her. The other teacher eventually sent an email to the principal complaining that the grievant’s conduct crossed professional boundaries and intruded into her personal space. She noted that she had trouble sleeping and sought counseling. Ultimately, the teacher filed a complaint against the grievant and an internal investigation was initiated. This culminated in the grievant being placed on administrative leave in February 2015. In March, the grievant was suspended without pay, resulting in the grievant filing a grievance, which served as the continuing vehicle to address his unpaid suspension and pending termination.
The trial court was asked on remand from the Commonwealth Court to specifically address whether the grievant’s actions constituted sexual harassment, and if so, whether the arbitrator’s award violated the public policy against sexual harassment in the workplace. The trial court concluded that the grievant’s actions toward the teacher constituted “obvious sexual harassment” but focused on the penalty related to the grievant’s actions and whether it made a “mockery of the dominant public policy against sexual harassment.” The trial court also reviewed Title IX, the Pennsylvania Human Rights Act (PHRA) and § 1122(a) of the School Code, and concluded that reinstatement after a nine-month unpaid suspension did not violate the prohibition against sex-based discrimination in this case.
The Commonwealth Court commenced its review by determining whether the award violated a “well-defined and dominant public policy of the Commonwealth.” After reviewing the arbitrator’s findings of fact, Riverview’s antiharassment policy, the PHRA and Title VII of the Civil Rights Act, the court concluded that the arbitrator’s award does not contravene the public policy against sexual harassment and that the public policy exception does not apply in this matter. The court turned to § 1122(a) of the School Code to determine if this was an independent basis for the termination of the grievant. After analyzing § 1122(a), the court appeared to dismiss this argument by Riverview and then affirmed the award.
Judge McCullough filed a dissenting opinion finding that the arbitrator failed “to appreciate the legal significance of [the public policy against sexual harassment in the workplace].” She postulated that although the arbitrator’s decision was entitled to deference, “it is not entitled to a level of devotion that makes a mockery of the dominant public policy against sexual harassment.”
OPINION NOT REPORTED
Editor’s Note: Unreported decisions of the Commonwealth Court are not intended to have precedential value but may be cited in legal proceedings for persuasive value.
Click here for the opinion.
N.T. v. Dep’t of Education, 2021 WL 2815217 (Cmwlth Ct 2021)
EDUCATOR DISCIPLINE ACT
PSPC Scope of Review • Underlying Facts or Details
Crime of Moral Turpitude • Element of Fraud
The Commonwealth Court affirmed the order of the Professional Standards and Practices Commission (Commission) revoking N.T.’s teaching certificate and employment eligibility for committing a crime of moral turpitude. The petitioner is the chief executive officer of a cyber charter school who has the following teaching certifications issued by the Pennsylvania Department of Education (PDE): (1) an Instructional I teaching certificate in the area of Social Studies 7-12; (2) an Administrative I certificate in the area of Secondary Principal 7-12; (3) an Administrative I certificate in the area of Elementary Principal K-6; and (4) a Letter of Eligibility in the area of Superintendent PK-12. On August 21, 2013, the United States brought an indictment against the petitioner alleging, among other charges, a violation of Section 371. Under Count 6, the indictment states that the petitioner “did knowingly and willfully conspire ... to defraud the United States[.]” The petitioner ultimately pled guilty to only “Count 6” on August 24, 2016, in the United States District Court for the Western District of Pennsylvania. The Amended Judgment describes the “Nature of Offense” to which the petitioner pled guilty under Section 371 as a “Tax Conspiracy.” Thereafter, on October 10, 2019, PDE filed a Notice of Charges (Notice) with the Commission, alleging that the petitioner had been convicted of conspiring to defraud the United States under Section 371 and that the offense is a crime involving moral turpitude. PDE also filed a motion for summary judgment requesting that the Commission revoke the petitioner’s teaching certificate and employment eligibility as an educator. The petitioner filed a response to the summary judgment motion admitting he “pled guilty to a violation of [Section] 371,” but stating that because there are multiple ways in which Section 371 can be violated, “[i]t is impossible to determine based upon the literal language contained in Section 371 if the crime to which [he] pled guilty relates to a crime of ‘moral turpitude.’” The Commission granted summary judgment explaining that “[t]he determination of whether a crime involves moral turpitude is based solely upon the elements of the crime” and that “[t]he facts underlying the charges are not relevant to the issue of moral turpitude.” The Commission then ordered that the petitioner’s “educator certification and eligibility to be employed as a charter or cyber school staff member or a contracted educational provider staff member” be immediately revoked.
This appeal followed wherein the petitioner argued that the Commission’s finding regarding conviction under the defraud clause of Section 371 was not supported by substantial evidence. The crux of this assertion is that the Commission erred by considering extraneous sources – the indictment – when determining whether the petitioner committed a crime of moral turpitude. PDE responded that while it “must rely solely on the elements of a crime when determining whether it is a crime involving moral turpitude, it is appropriate ... to look to the certified court records, here the indictment, to determine which elements are subject to moral turpitude analysis.” The court determined that in this case the Commission limited its review of the indictment to determining which clause of Section 371 was the basis for the petitioner’s charge and ultimate guilty plea. Moreover, consideration of only this preliminary statement in the indictment does not implicate a review of the “underlying facts or details” of the indictment in violation of 22 Pa. Code § 237.9(b).
The Commonwealth Court reviewed whether a violation of the defraud clause of Section 371 qualified as a crime of moral turpitude. The court found that any crime of conspiring to defraud the United States is a “crime involving moral turpitude” based on Jordan v. De George, which is a U.S. Supreme Court case that analyzed this issue. Accordingly, a crime that has an element of fraud on the face of the statute defining it qualifies as a crime of moral turpitude. The court also found that the petitioner’s due process rights were not violated when the Commission revoked his educator’s certificate and eligibility on summary judgment.
Click here for the opinion.
GM Berkshire Hills, LLC et al v. Berks Co. Bd of Assessment & Wilson School Dist., 2021 WL 2835340 (Cmwlth Ct 2021)
TAXATION
Tax Assessment • Selection Criteria
The Commonwealth Court affirmed the trial court’s order regarding Wilson School District’s (Wilson) tax assessment appeal of two properties that are owned by GM Berkshire Hills LLC and GM Oberlin Berkshire Hills LLC (Properties). The Properties are located in Spring Township, which is within Wilson’s geographical boundaries, and are the sites of 47 residential buildings, including 408 rental units. Berkshire is the current record owner, having purchased the Properties in November 2017 for a combined sales price of $54,250,000. At that time, the county recorded an assessed value for the Properties at a combined total of $10,448,700, based on the last countywide assessment in 1994. In June 2018, Wilson’s school board passed a resolution (Resolution) authorizing its business office to initiate and litigate appeals of property assessments within Wilson. The Resolution directed the business office to use monthly reports generated by the State Tax Equalization Board (STEB) as a basis to select properties for appeal. The Resolution instructed the business office to begin with recently sold properties within Wilson and their current assessments from the STEB reports, apply the county’s applicable common level ratio (CLR) of 68.5% to each recent sales price, compare the resulting figure to the property’s current assessed value, and pursue an appeal if the difference between the two figures exceeded $150,000 for a given property. The $150,000 figure represents a cost-benefit threshold at which the revenue from a successful appeal would justify the cost of the legal and appraisal fees necessary for Wilson to undertake the appeal. The Resolution did not instruct the business office to consider the type or nature of a property (commercial, residential, agricultural, or industrial, etc.) when determining whether the property may be underassessed and subject to an appeal. Appeals initiated by Wilson using this method during the relevant time period included properties classified as “industrial, farm, commercial, residential, and apartment complexes.”
Using the method outlined in the Resolution, Wilson determined that the Properties were underassessed, according to this calculation, by over $26 million. Wilson appealed the Properties’ assessments for the 2018 and 2019 tax years to the County Board of Assessment (Board) in August 2018. After a hearing in September 2018, the Board increased the assessed and taxable value of the Properties to a combined new total of $37,161,300 (68.5% of the November 2017 combined sales price of $54,250,000). GM Berkshire appealed to the trial court, which, after reviewing the constitutional parameters, concluded that Wilson’s method relied on publicly available information that provided “a reasonable facsimile to fair market value,” did not select properties based on their type or classification, and “did not deliberately choose to appeal one property and reject another” based on any unconstitutional premise. An appeal to the Commonwealth Court followed.
The Commonwealth Court started its analysis by reviewing the Consolidated County Assessment Law and the various applicable constitutional provisions, namely the Equal Protection Clause of the U.S. Constitution and the Pennsylvania Constitution’s Uniformity Clause. The court also analyzed the Kennett Consolidated School District case that is currently before the Pennsylvania Supreme Court and distinguished this case from Kennett. The court found that the issue before this court was an issue of first impression – “this is an issue of first impression in the context of our precedents, which since Valley Forge Towers have focused on (and prohibited) differentiation by type of property” and in this case GM Berkshire is focused on the constitutionality of Wilson’s use of recent sales prices to select property assessments for appeal. Reviewing the case with this focus, the court determined that Wilson’s method is purely quantitative in nature, beginning with type-neutral listings of recent sales transactions in the monthly STEB reports and found that it did not present the type of constitutional infirmities present in Valley Forge Towers.
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!
In the Matter of Arbitration Between Conneaut School District and The Conneaut Education Association
Vincent C. Longo, Esq., arbitrator
- Job Abandonment
This grievance concerning whether a teacher abandoned his teaching position when the grievant, who refused to wear a face covering, did not report to work, was sustained. The parties are subject to a collective bargaining agreement (CBA) effective July 1, 2017, through June 30, 2022. In preparation for the 2020-21 school year, Conneaut School District (Conneaut) enacted a policy that employees and students must wear a face covering while on school property. The policy provided an exception for “any individual who is unable to wear a face covering due to a medical condition…Students and staff requesting to be excused from the requirement to wear a face covering shall provide appropriate documentation in accordance with applicable law and regulations.” The superintendent sent an August email to all employees, making them aware of the policy. Thereafter, the grievant and the superintendent exchanged 13 emails between August 14 and the first day of school (September 2, 2020), consisting of a “debate” between the grievant and the superintendent about the face covering policy. In one exchange, the superintendent requested documentation from the grievant regarding his inability to wear a face covering and offering to engage in an “interactive process” to find a reasonable accommodation for the grievant. The grievant would not provide any documentation of his medical condition. On the morning of the first day of school, the grievant “engaged in an interactive process” with Conneaut on a phone while in the school parking lot. The persons on the phone included district administrators and the union president and vice-president. The discussion concluded with no resolution. Thereafter, Conneaut had to arrange for substitute teachers since the grievant could not report to work without a face covering. This continued until September 18 when Conneaut sent a letter to the grievant explaining that since the grievant had refused to report to work “the District considers [the grievant] to have abandoned [his] position of employment with the District.” Conneaut explained that the grievant was considered to have voluntarily terminated his employment and that he was no longer considered an employee of Conneaut. This grievance followed.
Conneaut argued that the grievant abandoned his job because he failed to report for work and failed to inform Conneaut of his intent with regard to his use of paid time. He also did not request a sabbatical or other unpaid time off and was, in essence, off work without any official leave status. Conneaut asserted that the grievant was not terminated but voluntarily quit and abandoned his position. Accordingly, Conneaut took no disciplinary action against the grievant. On the other hand, the union asserted that the grievant was discharged because Conneaut directed him not to report to work without a face covering and he did not have to provide medical documentation of his inability to wear a face covering because of the Department of Health’s July 1 Universal Face Coverings Order (DOH Order). Thus, the union postulated that Conneaut failed to afford the grievant proper pre-termination due process, thereby violating his Loudermill rights.
The arbitrator focused on the DOH Order and determined that “there was a reasonable disagreement between the grievant and [Conneaut] on the issue of whether [Conneaut] had the right to require documentation from the grievant of his claimed medical condition.” The arbitrator opined that this was not the issue in this case and instead the issue was whether the grievant’s “behavior demonstrated an intent to abandon his job.” Based on this review, the arbitrator concluded that “the grievant’s actions in August and September 2020 did not manifest an intent to abandon his job.” The arbitrator opined that “[t]he grievant’s behavior was troubling.” He pointed out that the grievant “was willing to place his students and co-workers at risk by not wearing a face covering during a pandemic and not justifying this decision with medical documentation to prove that he legitimately could not wear a face covering.” At this point, the grievance was sustained.
Click here for the opinion.
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Pennsylvania Department of Education letter regarding CDC guidance
The Pennsylvania Department of Education and Department of Health recently released a Dear Colleague letter regarding the current Centers for Disease Control and Prevention (CDC) guidance regarding K-12 schools.
U.S. Department of Education Q&A document regarding Title IX
The U.S. Department of Education’s Office for Civil Rights (OCR) released “Questions and Answers on the Title IX Regulations on Sexual Harassment” and a related appendix. The Q&A clarifies how OCR interprets schools’ existing obligations under the 2020 amendments, and the appendix provides examples of Title IX procedures. Click here for a link to the Q&A document. OCR also published the transcript of the June 2021 virtual public hearing on Title IX. Click here for a link to the transcript.
 Essentials of School Board Secretary Service
An updated version of Essentials of School Board Secretary Service, formerly named School Board Secretaries Handbook, is now available to members in the Resources section of myPSBA. In a quick-reference format, the guide outlines the key responsibilities and legal requirements of the position and provides applicable resources in each section. For the first time, it is being offered at no cost as a complimentary member benefit.
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MARK YOUR CALENDAR
Save the Date: School Law Workshop - September 27, 2021
The School Law Workshop on Monday, September 27 will be an in-person event, as planned, at Kalahari Resorts & Conventions in the Pocono Mountains. More information to come!
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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! 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 clelegal@psba.org.
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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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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.
Jo Mundis
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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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