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Vol. 53, No. 23

Ensuring Educational Stability for Children in Foster Care

New requirements relating to the educational stability of children in foster care under the Every Student Succeeds Act (ESSA) take effect on Dec. 10, 2016. Click here to learn more about these new requirements.

D.C. v. Department of Human Services, 2016 WL 6900780 (Pa. Cmwlth. 2016 ).

     Indicated Report • Notice

Commonwealth Court held “that a person whose name is entered into the ChildLine Registry as a perpetrator of child abuse is entitled to a clear and unequivocal notice of the post-deprivation hearing as a matter of due process.”
      Washington County Children and Youth Services (CYS) filed an indicated report of child abuse with the Department of Human Services (DHS). DHS notified D.C. that it had received and was maintaining CYS’s indicated report on its ChildLine Registry. DHS’s notice stated, in relevant part, as follows:
If you disagree with the decision that you committed child abuse or student abuse, you have the right to a review of that decision. You must respond within 45 days of the mailing date listed at the top of this notice.YOUR REQUEST MUST BE POSTMARKED WITHIN 45 DAYS FROM THE MAILING DATE ON THIS NOTICE. IF YOUR REQUEST IS LATE, YOU MAY BE ON THE CHILD ABUSE REGISTER FOREVER.

      D.C. did not respond within 45 days; however, a few months later, he requested a hearing on the indicated report. The Administrative Law Judge dismissed D.C.’s appeal as untimely. D.C. appealed, arguing that he was entitled to challenge the indicated report nunc pro tunc.
      An appeal nunc pro tunc may be allowed where the delay in filing the appeal was caused by a breakdown in the administrative process, for example inadequate notice. Thus, the court examined the adequacy of the notice, focusing on the conditional language – “If your request is late, you may be on the child abuse register forever.” This language suggested that submissions might be accepted after 45 days, especially since the notice did not clearly state that if D.C. did not request a hearing within 45 days of the notice, the hearing would not take place. Moreover, the language in the notice departed from the statutory language.         
      The court concluded that D.C. is entitled to a nunc pro tunc appeal since the department’s notice was confusing and equivocal. The court left for another day, “the question of whether the process available to an alleged perpetrator under the current version of the Child Protective Services Law satisfies constitutional standards...”
Click here for the full decision.


In Short

Americans for Fair Treatment, Inc. v. Philadelphia Federation of Teachers, Local 3, AFL-CIO, et al., 2016 WL 6833073 (Pa. Cmwlth. 2016). In this suit challenging the union leave of absence provision in the 2010 collective bargaining agreement (CBA), Commonwealth Court affirmed dismissal of the complaint for lack of standing. The plaintiff, Americans for Fair Treatment, Inc., an Oklahoma nonprofit corporation with members throughout the country, filed a complaint seeking to declare invalid and enjoin Article III, Section B of the 2010 CBA, which permits teachers and other bargaining unit employees to take union leave to hold full-time positions with the union. Although the complaint alleges that the plaintiff’s membership rolls include Philadelphia teachers, it does not identify any member who is a Philadelphia teacher or taxpayer. “An association has standing to bring an action on behalf of its members where at least one of its members is suffering an immediate or threatened injury as a result of the challenged action.” The “plaintiff organization must allege sufficient facts to show that at least one of its members has a substantial, direct and immediate interest.” The trial court dismissed the complaint because the plaintiff failed “to plead sufficient facts, whether by identification or description of the allegedly aggrieved members, from which it could be determined that those members had standing.” The court affirmed dismissal, finding that the trial court correctly concluded that the plaintiff failed to show any of its members have standing. The court also concluded that the plaintiff cannot satisfy the requirements for taxpayer standing.      
Click here for the full decision.

Kimberton Fire Company v. Chester County Board of Assessment Appeals and Phoenixville Area School District, 2016 WL 6901348 (Pa. Cmwlth. 2016). OPINION NOT REPORTED. Commonwealth Court affirmed the trial court’s order in this case involving whether property owned by a voluntary fire company was exempt from the payment of real estate taxes. Kimberton Fire Company (KFC), a volunteer fire company, has been granted tax-exempt status for its principal office property, which is improved with a fire house. KFC owns other property adjacent to its principal office property, which it does not use. The property is used as a day care center operated by ABC-123, Inc. (ABC), a nonprofit corporation. ABC is a wholly owned subsidiary of KFC, and ABC contributes all of its net proceeds from the day care’s operations to KFC. KFC filed applications for tax exemption for the property, which were denied. On appeal, KFC argued that the property is exempt from tax under section 8812(a)(11) and/or section 8812(a)(15). Since KFC does not occupy or use the property and KFC cannot be presumed to occupy the property through ABC’s use since it’s a wholly owned subsidiary, the court concluded that KFC is not exempt from taxation under either section. 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 full decision.

Krebs v. New Kensington-Arnold School District, et al., 2016 WL 6820402 (W.D. Pa. 2016). The court denied the school district’s motion to dismiss, concluding that the plaintiffs sufficiently plead statutory liability under Title IX, Section 504 of the Rehabilitation Act, the Americans with Disabilities Act (ADA), and the Individuals with Disabilities Education Act (IDEA). The plaintiffs sued the district and several school officials after their daughter took her life. Their daughter, a 14-year-old ninth-grader, endured three years of alleged bullying, harassment and sexual harassment by schoolmates. Doctors diagnosed her with depressive disorder, anxiety disorder and borderline anorexia nervosa. Plaintiffs notified the district about the incidents and diagnoses, but the incidents continued and her health and grades declined. In their complaint, the plaintiffs alleged a violation of Title IX – “the District and its employees knew of gender based harassment targeted at Destinee, failed to enact reasonable preventive measures, and were deliberately indifferent to the gender based harassment.” The court addressed each element of a Title IX claim, and ultimately concluded the plaintiffs sufficiently plead a plausible claim under Title IX. The only claim that failed at this stage was a Section 1983 claim, but the court provided the plaintiffs with leave to amend their complaint with regard to this claim.
Click here for the full decision.


Clearfield Area School District v. Clearfield Education Association

Ronald F. Talarico Esq., arbitrator
Sept. 1, 2016

     1. Past Practice
     2. Job Bidding/Seniority

The arbitrator denied the grievance in this dispute involving whether the district violated the collective bargaining agreement (CBA) by not posting and awarding specific secondary guidance counselor assignments by seniority. The district assigned secondary guidance counselors on a grade-level basis, switching briefly to an alphabetical basis, then back to a grade-level basis. The district assigned one counselor to grades 7 and 8, one counselor to grades 9 and 10, and one counselor to grades 11 and 12. The union contends that the secondary guidance counselors have the right to bid into a specific grade level and the right to bid on ancillary duties (such as military duty counseling), by seniority. The district contends that it has the right to assign guidance counselors to the grade level of its choice and to assign ancillary duties. The arbitrator noted that “unless the collective bargaining agreement provides otherwise, employees are not entitled to exercise their seniority to select the duties that they particularly prefer within their job position/classification.” The arbitrator concluded that the district retains the right to place guidance counselors at its discretion, since the CBA does not provide the right to bid on a specific guidance counselor assignment. Furthermore, the arbitrator found no evidence of a binding practice of secondary guidance counselors bidding and being awarded assignments and ancillary duties on the basis of seniority. Therefore, the arbitrator denied the grievance.
Click here for the full opinion and award.

East Stroudsburg Area Education Support Professional Association, PSEA/NEA v. East Stroudsburg Area School District

John M. Skonier Esq., arbitrator
April 10, 2016
     1. In-Service Days
     2. Early Dismissal on Last Day of School
     3. In-Service Opt Out

The arbitrator sustained the grievance in this dispute involving unilateral changes to existing past practices. At issue, is whether the district violated the collective bargaining agreement and past practice by: (1) requiring health room nurses and paraprofessionals to work 7 1/2 hours on in-service days (for at least 25 years, health room nurses and paraprofessionals worked 5 1/2 hours on in-service days and were paid for 7 1/2 hours); (2) requiring health room nurses, paraprofessionals, and student aides to work 7 1/2 hours on the last student day of school (for at least 25 years, health room nurses, paraprofessionals, and student aides were permitted to leave one hour after the students were dismissed and were paid for 7 1/2 hours); and (3) increasing the number of hours required to opt out of an in-service day to seven (for at least 10 years, health room nurses and paraprofessionals could opt-out of in-service days if they took five hours of professional development on their own time). The association argued that the past practices have existed for a large number of years along with the integration clause, and the past practices do not conflict with contract language. The district argued that the integration clause coupled with newly bargained language eliminated any past practices. The arbitrator noted that “past practices are assumed to continue into the new collective bargaining agreement unless they are specifically excluded by negotiated contract language or their cessation is specifically discussed during the negotiations leading to the successor agreement.” With regard to the validity of a past practice when a zipper clause is in the contract, the arbitrator noted that “arbitrators have generally found that past practices will continue into the contract unless they conflict with express contract language.” Since the past practices at issue here do not conflict with express contract language, the arbitrator concluded that they continued into the new contract. Therefore, the arbitrator sustained the grievance, ordering the district to cease the new practices and credit each affected employee.          
Click here for the full opinion and award.


In Other News

Diabetes in School Children: Recommendations and Resource Guide for School Personnel – On Nov. 22, 2016, the Pennsylvania Departments of Health and Education published a resource guide, which provides information that administrators, school nurses, school personnel, parents/guardians and students should consider to help ensure effective diabetes management. A brief summary of Act 86 of 2016 is available here, and the resource guide is available here
Final Regulations to Promote a High-Quality, Well-Rounded Education and Support All Students – On Nov. 28, 2016, the U.S. Department of Education announced final regulations to implement the accountability, data reporting and state plan provisions of the Every Student Succeeds Act (ESSA), with a focus on supporting states in using their flexibility to provide a high-quality, well-rounded education, and ensure equity remains at the core of implementation.  
EEOC Issues Enforcement Guidance on National Origin Discrimination – On Nov. 21, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued its updated enforcement guidance on national origin discrimination to replace its 2002 compliance manual section on that subject.

Mark Your Calendars


July 13-14, 2017 – Solicitors Symposium, State College, PA
Wednesday, Oct. 18, 2017 – School Law Workshop, Hershey, PA


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For questions about this publication, contact Katherine Fitz-Patrick, (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 Esq.
    Emily J. Leader Esq.
    Katherine M. Fitz-Patrick Esq.
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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, Esq., Editor.

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