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January 22, 2021 | ISSUE #2
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JUDICIAL & ADMINISTRATIVE DECISIONS
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A.B., through his parent Katina B. v. Abington School District, 2021 WL 71699 (3d Cir. 2021)
SPECIAL EDUCATION; SECTION 504; ADA; GIFTED EDUCATION
Tuition Reimbursement • Private School
The Third Circuit affirmed the decision of the District Court that private school tuition reimbursement was not owed to A.B. by Abington School District (Abington). After receiving special education services from Abington during grades 1-4, A.B., who is diagnosed with autism spectrum disorder, was enrolled in a private school. From September 2016 until January 2018, A.B.’s parents and Abington staff discussed the types of services that would be available to A.B. if he were to return to Abington. In the spring of 2018, A.B.’s parents separately requested an evaluation of A.B.’s sister, who was also attending private school. In August 2018, A.B.’s mother contacted Abington via email and stated that Abington “has [not] offered an appropriate program and placement for [A.B.] ... leaving us with no other option but to continue [A.B.’s] enrollment at [AFS] for the 2018-2019 school year” and requesting that “the school district fund the tuition.” Abington responded by letter dated August 20, 2018, stating that it did not believe it had an obligation to fund A.B.’s tuition at the private school, since A.B.’s mother unilaterally withdrew him from Abington in 2016 and had not requested or completed the Abington reenrollment process.
A.B. filed a special education due process complaint against Abington – alleging that A.B. was denied a free and appropriate public education (FAPE) for the 2017-18 and 2018-19 school years, in violation of the Individuals with Disabilities Education Act (IDEA), the Rehabilitation Act, and state law – and seeking tuition reimbursement. The hearing officer ultimately determined that A.B. was not entitled to reimbursement because A.B.’s mother posed “vague questions” to administrators which did not convey a clear interest in enrolling A.B. in an Abington special education program for either school year at issue. As A.B.’s mother’s inquiry did not place Abington on notice that it had a duty to evaluate and propose programming for A.B., Abington was not required to reimburse tuition. The hearing officer was affirmed by the district court following an appeal.
The Third Circuit affirmed as well, finding that A.B.’s mother’s statements did not reflect an intent to reenroll A.B. or constitute a request for an evaluation. Just as “general expressions of concern” do not “constitute a ‘parental request for evaluation’ under the plain terms of the statute,” A.B.’s mother’s general inquiry about programs did not trigger Abington’s IDEA obligations either.
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.
Patricia Lear v. Derry Township School District, et al, 2020 WL 7342750 (M.D. Pa. 2020)
EMPLOYMENT DISCRIMINATION
Release of Claims • Validity
The District Court granted in part and denied in part the defendants’ motion to dismiss this discrimination matter filed by Lear. Lear was employed by Derry Township School District (Derry) in various positions from approximately August 2002 through September 2018. She suffers from various psychiatric conditions that render her a qualified individual with a disability under the Americans with Disabilities Act (ADA). She alleges that the defendants were aware of her disabilities or perceived her as suffering from a disability. Lear claims that the defendants engaged in “a pattern and practice of harassing employees with disabilities or perceived disabilities” and that she was subjected to regular and pervasive harassment and different treatment on the basis of her disabilities, which ultimately resulted in Lear suffering “an emotional breakdown which required extended hospitalization.” Upon her release from the hospital, she was unable to continue her employment and she submitted a letter of resignation on September 10, 2018. Lear alleges that: (1) during the course of her employment, she complained about the alleged harassment and discrimination to numerous individuals, including her union president, union representative and to the assistant superintendent, who was the nondiscrimination compliance officer; (2) Derry “took no action to investigate or correct the behavior”; and (3) the conduct “continued unabated and escalated after [Lear]’s initial complaints.” This prompted her to file a complaint for disability discrimination, harassment, hostile work environment, and retaliation under the ADA and the Pennsylvania Human Relations Act. The defendants, in turn, filed a motion to dismiss based on a waiver and release of claims that was signed by Lear.
In denying the motion to dismiss on this basis, the court first reviewed the validity of the release based on the list of factors established by the Third Circuit in Coventry v. U.S. Steel Corp. The defendants submitted that the factors set forth in Coventry were satisfied and urged the court to consider the release of claims at this stage of the proceedings because “it is integral to whether [Lear] may pursue her claims at all.” Lear, on the other hand, argued that the release should be considered at the summary judgment stage of the proceedings since it is a document outside the pleadings and “there are genuine issues of material fact concerning the execution” of the release. The court determined that it lacked sufficient information at this time to determine whether the purported release of claims at issue is a valid and enforceable release of claims. “[Lear’s] discrimination claims are premised on her treatment in the work place and eventual termination, not a document that purportedly set forth the parties’ rights after that termination.” Accordingly, this part of Derry's motion to dismiss was denied.
Click here for the opinion.
Noel Koenke v. Saint Joseph’s University, 2021 WL 75778 (E.D. Pa. 2021)
EMPLOYMENT DISCRIMINATION
Gender Discrimination • Title IX
The District Court granted the motion to dismiss filed by Saint Joseph’s University (St. Joes) seeking dismissal of Koenke’s Title IX employment discrimination case asserting claims of discrimination based on sexual orientation. Koenke is a homosexual woman who was employed by St. Joes, a private, Catholic university, as an assistant director for music and worship until she resigned in November 2017. Her position was ministerial in nature, as defined by the breadth of precedent regarding the ministerial exception. Koenke alleges in her complaint that she was discriminated against on the basis of her sex, more specifically, her sexual orientation, and was subjected to a hostile work environment and tangible adverse employment actions, which included the imposition of impermissible conditions on her continued employment, impermissible different treatment regarding the terms, conditions and privileges of her employment, and a constructive discharge. St. Joes alleges that the complaint fails to state a claim upon which relief can be granted because: (1) some claims are barred by Title IX’s statute of limitations; (2) all are barred by the First Amendment’s ministerial exception; (3) all claims fail because sexual orientation is not a protected class under Title IX; and (4) the hostile work environment claim fails because Koenke did not allege facts sufficient to establish such a claim.
The court determined that sexual orientation is a protected class under Title IX based on the Bostock v. Clayton Cnty Supreme Court case. The court also found that hostile work environment claims, particularly those brought pursuant to Title VII or Title IX, clearly fall within the scope of cases banned by the ministerial exception under the First Amendment. As a result, the court did not address the remaining claims since the ministerial exception barred all of Koenke’s employment discrimination claims.
Click here for the opinion.
Yolanda Wright, et al v. Whitehall Township, Whitehall-Coplay School District et al, 2021 WL 100091 (E.D. Pa. 2021)
CIVIL RIGHTS/CONSTITUTIONAL RIGHTS
State-Created Danger
The District Court granted the motion to dismiss filed by the defendants seeking dismissal of the plaintiffs’ complaint that asserted 22 causes of action, including two claims of state-created danger – substantive due process violations of the 14th Amendment. The incident at the heart of this lawsuit occurred on January 28, 2020, when the Whitehall-Coplay School District (Whitehall-Coplay) enlisted the assistance of law enforcement to remove a student from the gymnasium during a basketball game. The removal did not occur voluntarily, necessitating the use of force by law enforcement and resulting in the arrest of many individuals.
Regarding the state-created danger claims against Whitehall-Coplay, a motion to dismiss was filed arguing that the plaintiffs failed to plead facts to support that: (1) the plaintiffs’ harm was direct and foreseeable; (2) the defendants’ conduct was of a level of culpability that “shocks the conscience”; and (3) any direct causal relationship existed between the defendants’ conduct and the harm suffered by the plaintiffs. The court dismissed the state-created danger claim because the complaint failed to adequately plead that the harm was foreseeable and fairly direct or that the state actor acted with a level of culpability that “shocks the conscience.” The court stated that the harm alleged by the plaintiffs is attributable to the acts of the defendant police officers, not the athletic director who had no involvement in those acts. Further, the harm suffered by the plaintiffs was not foreseeable and Whitehall-Coplay cannot disregard a risk that was never foreseeable in the first place. Accordingly, the court dismissed this claim along with all of the other claims.
Click here for the opinion.
Open PA Schools, et al v. Commw’lth of Pa, Dep’t of Education, et al, 2021 WL 129666 (Commw. Ct. 2021)
PENNSYLVANIA PUBLIC SCHOOL CODE
Section 15-1501 • Minimum Number of School Days
Section 15-1506 • Flexible Instruction Days
CIVIL RIGHTS/CONSTITUTIONAL RIGHTS
Judicial Review • Standing
An en banc panel of the Commonwealth Court sustained the preliminary objections of the respondents, denied the petitioners’ Application for Expedited Summary Relief and dismissed their Petition for Review. The petitioners filed the petition and asserted that the Pennsylvania Department of Education’s (PDE) policy allowing the responding districts to begin the school year in a largely or entirely remote learning capacity violated the School Code’s requirement that school districts provide 180 school days in the 2020-21 school year. They supported their argument by alleging that the 180-day requirement is mandatory even in emergencies, requires in-person learning and can only be altered by the General Assembly. The petitioners read § 1506 of the School Code, which enables districts to provide up to five flexible instructional days per year when circumstances, including a “disease epidemic,” “prevent a school building from opening,” as meaning that “open ... for the purposes of instruction” as set forth in § 1501 must mean that schools are physically open and providing in-person instruction in order for days to count toward the 180-day requirement, otherwise § 1506 is superfluous. The petitioners also challenged PDE’s position that § 520.1 of the School Code confers upon PDE the discretion and authority to allow districts to conduct largely or entirely remote teaching. The petitioners alleged that § 520.1 only allows districts to extend the school week or shorten the school day. The petitioners were seeking a declaratory judgment that remote learning days will not count toward the 180-day requirement and that all students will receive at least 180 days of in-person instruction during the 2020-21 school year. The respondents raised numerous challenges including lack of standing, failure to exhaust administrative remedies and lack of subject matter jurisdiction.
The Commonwealth Court focused on the challenge to the petitioners’ standing. The respondents asserted that “[o]ther than the conclusory allegation that Petitioners have ‘suffered direct, immediate, and substantial injury,’ the Petition is devoid of any facts in support of this legal conclusion. ... Nowhere does the Petition assert how the continuation of virtual learning, pursuant to the [Department’s Policy], will cause the individual Petitioners any substantial, direct, and immediate harm or impact.” The court agreed, finding that the petition did not specifically assert that any of the individually listed petitioners sustained any harm; the only implication of actual harm is the petition’s assertion that although “[p]arents voted overwhelmingly in favor of either full [in-person] learning or a form of hybrid learning,” the responding school districts opened the 2020-21 school year conducting largely or entirely remote learning. Further, the petition failed to specify any actual or even potential harm to the group or its members. Therefore, because the petition assertions averred either no harm or stated just “general averments,” the court found the claims of the petitioners were insufficient to achieve standing.
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.
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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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U.S. Supreme Court granted certiorari in Mahanoy Area School District case
On January 8, 2021, the U.S. Supreme Court granted the Petition for a Writ of Certiorari that was filed in the case of Mahanoy Area School District v. B.L. 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 petition, including PSBA’s amicus brief, can be found at this link.
NAACP voices support for white applicant’s suit against Gateway School District
The National Association for the Advancement of Colored People (NAACP) has announced its full support in the lawsuit Korie Morton-Rozier brought against the Gateway School District (GSD) on the basis of racial discrimination. Morton-Rozier’s federal court suit alleges she was rejected for the athletic director position because she is married to a Black man.
PA Supreme Court issues order concerning CLE credits
On December 23, 2020, the Pennsylvania Supreme Court issued an order permitting attorneys to complete their 2021 compliance requirements with 12 credits earned through accredited distance learning programming. In accordance with adopted Continuing Legal Education (CLE) Board policy: (1) online programs conducted live in a synchronous learning environment will be treated as traditional credits; and (2) pre-recorded/asynchronous distance learning credits taken in excess of 12 credits during the 2021 compliance periods will not carry forward toward future annual compliance deadlines.
Click here for the PA Supreme Court order.
Click here for the PA CLE website.
District seeking solicitor
The Phoenixville Area School District in Chester County is inviting proposals from school law firms/attorneys interested in appointment as the district solicitor. The Request for Proposals may be found at this link. Proposals are due no later than February 15, 2021.
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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 our Senior Memberships Coordinator Crista DeGregorio, at (800) 932-0588, ext. 3426, or email her at crista.degregorio@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
Save the date! Spring Legal Roundup
This year, due to the COVID-19 pandemic, Spring Legal Roundup will be virtual on March 24, 2021. Details on how to register will be provided in the near future.
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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! A 12-session live School Law CLE webinar series kicked off in November. The series of one-credit-hour live webinars will continue on a weekly or biweekly basis, Tuesdays or Wednesdays from 9:00-10:00 a.m. through March 2021. Registration is now open for the next live installments on January 26, February 3 and February 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.
See below for details and register now!
Questions? Contact PSBA Legal Services staff at clelegal@psba.org.
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January 26, 9:00 – 10:05 a.m.
Child Safety and Protection in the Virtual Environment
Presenter: Peter C. Amuso, Esq., Rudolph Clarke
(1 hour substantive)
February 3, 9:00 – 10:05 a.m.
Coronavirus and Your Mental Health
Presenter: Brian S. Quinn, Esq., Lawyers Concerned for Lawyers
(1 hour ethics)
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February 10, 9:00 – 10:05 a.m.
Misadventures in Ethics Land - You can't make this stuff up!
Presenter: Robert H. Davis Jr., Esq., Law Office of Robert H. Davis, Jr.
(1 hour ethics)
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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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