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Vol. 53, No. 15

In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278 (Federal Communications Commission, Aug. 4, 2016). 


Telephone Consumer Protection Act
     Emergency Purposes Exception • Robocalls and Automated Texts
 

The Federal Communications Commission (FCC) recently issued a declaratory ruling confirming “that school callers may lawfully make robocalls and send automated texts to student family wireless phones pursuant to an ‘emergency purpose’ exception or with prior express consent without violating the Telephone Consumer Protection Act (TCPA).”
      The TCPA, enacted by Congress in 1991, and the FCC’s implementing rules prohibit: “(1) making telemarketing calls using an artificial or prerecorded voice to residential telephones without prior express consent; and (2) making any non-emergency call using an automatic telephone dialing system (“autodialer”) or an artificial or prerecorded voice to a wireless telephone number without prior express consent. The TCPA expressly exempts from these prohibitions calls made for ‘emergency purposes.’” The rules define “emergency purposes” to mean “calls made necessary in any situation affecting the health and safety of consumers.”
      Blackboard, Inc. filed a request for a declaratory ruling that “all automated informational messages sent by an educational organization via a recipient’s requested method of notification are calls made for an ‘emergency purpose’ and thus outside the requirements of the [TCPA].”
      The FCC confirmed “that school callers may lawfully make autodialed calls and send automated texts to student family wireless phones without consent for emergencies including weather closures, fire, health risks, threats, and unexcused absences.” Here are the key takeaways related to calls made for an emergency purpose:
  • “Specifically, we confirm that autodialed calls to wireless numbers made necessary by a situation affecting the health and safety of students and faculty are made for an emergency purpose. In such situations, autodialed calls made by school callers do not require consent pursuant to the TCPA’s ‘emergency purpose’ exception as defined in the Commission’s implementing rules.” p. 9.
  • “Even though calls made for an emergency purpose can be made without the prior express consent of the called party, we encourage educational organizations to regularly update their emergency calling lists to ensure that emergency-purpose calls do in fact reach the parent or guardian of each affected student and are not received by consumers with no connection to the school. In this context, we are concerned not only about the privacy of persons who are mistakenly called, but also about the privacy and safety of students.” p. 9.
      The FCC declined to extend the TCPA’s emergency purpose exception to all robocalls made by school callers. Here are the key takeaways related to calls made for non-emergency purposes:
  • The FCC noted that “[n]on-emergency autodialed or prerecorded calls are permissible under the TCPA and our implementing rules when made with the prior express consent of the called party, …” p. 11.
  • The FCC granted “school callers additional relief for calls and messages that, while not emergencies, nevertheless are closely related to the school’s mission, such as notification of an upcoming teacher conference or general school activity, by clarifying our understanding that such calls are (absent evidence to the contrary) made with the prior express consent of the called party when a telephone number has been provided to an educational institution by that called party.” p. 8.
  • And, clarified that “when a parent/guardian or student provides only their wireless number as a contact to a school, the scope of consent includes communications from the school closely related to the educational mission of the school or to official school activities absent instructions to the contrary from the party who provides the phone number. In other words, a parent/guardian or student who provides their wireless number to a school as a contact has given permission to be called at that number for such purposes.” p. 11.
  • The FCC encouraged “schools to disclose the full range of all potential calls and messages that a parent/guardian or student should expect to receive when requesting consent from parents/guardians and students. Such disclosure will ensure that anticipated calls made by an educational institution fall within the scope of consent given by parents/guardians and students to be contacted by a school.” p. 12.
  • And, reiterated that “consumers have a right to revoke prior consent, using any reasonable method including orally or in writing. Schools, therefore, must be prepared to honor revocation requests from parents/guardians or students who no longer wish to receive non-emergency calls and texts from the school.” p. 12.
      The FCC did caution against the limited scope of its declaratory ruling, tailoring the relief to the narrow circumstances presented in this case.
 
Click here for the full decision.


 

Freedom from Religion Foundation, Inc. v. New Kensington-Arnold School District, 2016 WL 4191499 (3rd Cir. 2016).


CIVIL RIGHTS/CONSTITUTIONAL RIGHTS
     Article III of the ConstitutionStanding

 
The U.S. Court of Appeals for the Third Circuit REVERSED the district court’s decision granting New Kensington-Arnold’s motion for summary judgment.
      In 1956, New Kensington-Arnold accepted a donation of a Ten Commandments monument from the local Order of the Eagles. The six-foot-tall monument stands 15 feet from the walkways leading to the gym entrance of Valley High School (Valley HS). The words, “The Ten Commandments” and “Lord” are in larger font and can be read from a distance. After the school board rejected the Freedom From Religion Foundation’s (FFRF) demand that the monument be removed, a local citizen, Schaub, contacted FFRF. Schaub’s daughter was not yet a student at Valley HS, but had participated in athletic events there as a child. On a few occasions over several years, they entered Valley HS using the walkways that lead past the monument. Schaub, a resident of New Kensington-Arnold, on behalf of her daughter and herself, joined FFRF in filing a lawsuit seeking a declaratory judgment that the monument violates the Establishment Clause of the First Amendment, injunctive relief, nominal damages (available when a right has been violated without proof of an actual injury) and attorneys’ fees. Schaub sent her daughter to a different high school because of the monument.
     The district court held none of the parties had standing in this case, in part based on the fact that Schaub and her daughter had infrequent exposure to the monument and that it was not necessary to their routine that they come in contact with it. It also held that the daughter did not claim her contact with the monument was unwelcome at the time litigation commenced. Regarding prospective relief, the district court found that since Schaub sent her daughter to a different high school, even though this was due to the monument, the daughter no longer required injunctive relief and so in addition to lacking standing, the claim for injunctive relief was moot.     
      The Third Circuit reversed as to Schaub and held FFRF could have organizational standing to proceed if Schaub was a member of FFRF when the suit was brought. Her daughter did not meet the standing requirement for nominal damages. Standing is conferred if a party shows “direct and unwelcome personal contact with the alleged establishment of religion. It was improper to require this contact be frequent or part of Schaub’s ordinary routine as “…[a]n identifiable trifle is enough for standing to fight out a question of principle.” In addition, the court held “…that one should not be required to avoid an unwelcome object or activity to have standing to bring an Establishment Clause claim.” Schaub could claim nominal damages because she alleged the monument turns her stomach and it signals that she is an outsider because she does not follow the religion or god it endorses. She could continue to seek injunctive relief because she might permit her daughter to attend Valley HS if the monument is removed or to attend the Career & Technology Center at the same campus if she could avoid contact with the monument.
      Editor’s Note: Related decisions were published at 50 SLIE 40 and 52 SLIE 17.
 
Click here for the full decision.
 

Hannis-Miskar v. North Schuylkill School District, 2016 WL 3965209 (M.D. Pa. 2016)
 

EMPLOYMENT DISCRIMINATION
      Pregnancy Discrimination


The court partially denied the school district’s motion to dismiss in this case involving discrimination claims under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act, as amended by the Pregnancy Discrimination Act.
      Plaintiff, Amy Hannis-Miskar, served as the elementary school assistant principal from October 2008 until July 2014. In September 2014, when she was four months pregnant, she submitted a letter to the district alleging harassment and retaliation due to her pregnancy. After a normal pregnancy, she took maternity leave in February 2014. While on leave, the school board approved retaining her as assistant principal at the elementary school, but a month later, transferred her to the assistant high school principal position. She served as assistant principal at the high school from the time she returned from leave in July 2014 until April 2015, when she resigned.
       In her complaint, plaintiff claims that the district transferred her after her pregnancy to force her to resign in violation of several discrimination laws. The district filed a motion to dismiss all of her claims.
      To state a claim under the ADA, a plaintiff must establish that he or she is a qualified individual with a disability. The court noted that “federal courts that have addressed whether pregnancy, absent complications, is itself a disability have determined that a normal pregnancy is not a physical impairment limiting one or more major life activities.” Here, plaintiff failed to assert complications with her pregnancy. Consequently, the court dismissed her ADA discrimination and retaliation claims because she failed to plead that her pregnancy qualifies as a disability under the ADA or that the district regarded her pregnancy as a disability.
      “To establish a claim for pregnancy discrimination under Title VII, a plaintiff must demonstrate that: 1) she is or was pregnant and that the employer knew, 2) she was qualified for her job, 3) she suffered an adverse employment action, and 4) a nexus exists between her pregnancy and the adverse employment action that allows for an inference of discrimination.” The court focused its analysis on the last two elements. Plaintiff alleges that her constructive discharge is an adverse employment action. The court agreed, noting that factors to be considered when assessing a claim of constructive discharge include whether the employee involuntarily transferred to a less desirable position or being subject to altered job responsibilities, and that whether a particular reassignment is materially adverse depends upon the circumstances of a particular case. Here, plaintiff alleges an involuntary transfer to a less desirable position and being subject to altered job responsibilities, as well as that her coworkers believed that the district encouraged her to resign. The court concluded that, at this stage, she has sufficiently pled an adverse employment action. With regard to causal connection, the court concluded the she alleged a sufficient causal connection between her protected activity, the letter and her maternity leave, and the district’s adverse employment action, her transfer which happened 10 months later while she was on maternity leave. Consequently, her discrimination claim under Title VII survived the district’s motion to dismiss.

Click here for the full decision.



Vladimirsky v. School District of Philadelphia, 2016 WL 4126472 (Pa. Cmwlth. 2016).


EMPLOYEE DEMOTION; DISCIPLINE; EVALUATION; TERMINATION
      Board Resolution Required Prior to Written Statement of Charges
PENNSYLVANIA PUBLIC SCHOOL CODE
      Section 1127 • Termination Procedures

Commonwealth Court again ordered the reinstatement of a professional employee due to the school district’s failure to comply with the mandatory employment termination procedures set forth in the Public School Code.
      On two occasions in early 2011, Serge Vladimirsky, a tenured social studies teacher, exhibited inappropriate, aggressive behavior in front of staff and students. His behaviors included yelling obscenities at students and physically confronting a student. After several meetings to discuss the incidents, the chairman of the SRC and deputy superintendent notified Vladimirsky, in writing, of the charges against him, of the recommendation to terminate his employment, and of his right to request a hearing. A hearing was held on Nov. 28, 2011, and on April 5, 2012, the Hearing Officer notified Vladimirsky that the SRC terminated his employment on March 15, 2012, effective July 20, 2011. On appeal, the secretary of education sustained his March 15, 2012 discharge, but ordered back pay for the period between July 20, 2011 and March 15, 2012.
      Similar to its recent decision in School District of Philadelphia v. Jones, 53 SLIE 11 (June 3, 2016), the court held that before dismissing Vladimirsky, the SRC was obligated to strictly comply with Section 1127 of the School Code, which requires the board of school directors, here the SRC, to resolve to dismiss the employee and to furnish the employee with a written statement of the charges prior to the hearing. Here, the district terminated Vladimirsky’s employment before the SRC had any knowledge of the matter. Consequently, the court held that the district failed to comply with the School Code’s mandatory employment termination procedures and ordered Vladimirsky’s reinstatement until the district properly terminates his employment.
      Editor’s Note: On July 18, 2016, Judge Leavitt denied the school district’s Application for Reconsideration/Reargument in School District of Philadelphia v. Jones, No. 2150 C.D. 2013. On August 1, 2016, in a Per Curiam Order, Commonwealth Court amended the School District of Philadelphia v. Jones opinion. Click here for the order.
 
Click here for the full decision.

 

 

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

 

Richard M. Goldberg Esq., Arbitrator
Feb. 11, 2016


     1. Pay Discrepancy

The arbitrator concluded that he could not determine, with absolute certainty, if the grievants were compensated for all hours actually worked or credited as paid time off. The district recently converted its payroll system, issuing paychecks based on actual hours worked during the payroll period. The union argued that as a result of the conversion, employees failed to receive payment for all wages earned. The district contends the grievants have been “pre-paid,” and that no one lost any wages for any work performed. The arbitrator concluded the only way to determine if prepayment had occurred is to audit the grievants’ actual hours worked and those credited as paid time off and the wages actually paid. If the audit shows the grievants were fully compensated, the grievance will be denied. If the audit shows the grievants were not fully compensated, the grievance will be sustained and compensation will be required for the unpaid hours worked.
Editor’s Note: See Athens Area Educational Support Professional Association v. Athens Area School District, 53 SLIE 10 (May 20, 2016) for opinion and award related to change in pay.
 
Click here for the full opinion and award.
 



Ringgold School District v. Ringgold Education Association


Marc A. Winters, Arbitrator
Jan. 4, 2016

     1. Spousal Exclusion


The arbitrator denied the grievance in this dispute related to the effective date of the newly negotiated healthcare spousal exclusion provision. On Sept. 2, 2014, the parties signed a collective bargaining agreement (CBA), retroactive to Sept. 1, 2013, which contains language implementing a spousal exclusion within the healthcare coverage such that certain employees’ spouses are excluded from coverage. The district intended to implement the language immediately, but the union argued that the language should not take effect until the first regular open enrollment period following ratification of the CBA. Generally, in deciding when provisions become effective, if unclear, most arbitrators follow the effective date of the whole agreement; however, an exception to the rationale would be if the provision lists an alternative effective date or if clear and convincing evidence existed which proved the parties had mutually agreed to a different effective date for the particular item. Here, the arbitrator found that the effective date was never discussed during the negotiations and the parties had not agreed to a different effective date for the spousal exclusion provision. Consequently, the arbitrator concluded the evidence did not support the union’s claims and the effective date for the new spousal exclusion language was Sept. 1, 2013.
 
Click here for the full opinion and award.

 

 

Pennsylvania School Board Solicitors Association (PSBSA) 


School Law Workshop. Registration is now open for the Fall School Law Workshop. Click here to sign up today (you must be logged in to the Members Area to register). For information on how to register for a PSBA event, click here.
 
Fees:
     • Early Bird (before September 1) – $299
     • After September 1 – $320 
Lodging:
     • Registration Deadline – September 12
     • Click here for pricing and to make online reservations
Topics:
     • Creative Revenue Streaming
     • School Closings
     • School Law Update
     • Family Educational Rights and Privacy Act
     • Criminal History Background Checks
 
Stay tuned for additional information on topics and speakers.

 

In Other News

 

U.S. Department of Education Releases Guidance to Schools on Ensuring Equity and Providing Behavioral Supports to Students with Disabilities. On Thursday, Aug. 1, 2016, the U.S. Department of Education’s Office of Special Education and Rehabilitative Services (OSERS) “issued guidance in the form of a Dear Colleague Letter (DCL) that emphasizes the requirement that schools provide positive behavioral supports to students with disabilities who need them. It also clarifies that the repeated use of disciplinary actions may suggest that children with disabilities may not be receiving appropriate behavioral interventions and supports. When schools fail to consider and provide for needed behavioral supports through the Individualized Education Program (IEP), it is likely to result in children not receiving the free appropriate public education to which they are entitled under federal law.”
 
Education Department Releases Guidance on Homeless Children and Youth. On Wednesday, July 27, 2016, the U.S. Department of Education released guidance to states and school districts on the new provisions in the Every Student Succeeds Act (ESSA) for supporting homeless youth. The press release is available here; and the guidance is linked below. Expanding Access to High-Quality Early Learning. On Aug. 1, 2016, the U.S. Departments of Education and Health and Human Services “released a national report and state reports today that show Early Learning Challenge states are rapidly improving the quality of early learning programs while enrolling more children, especially from low- and moderate-income families, in the highest-quality programs.” The press release is available here.

 

Mark Your Calendars


Thursday, October 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, Esq., Deputy General Counsel, Member Services and Editor.



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