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February 19, 2021 | ISSUE #4
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JUDICIAL & ADMINISTRATIVE DECISIONS
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Lacy Swogger v. Erie School District, 2021 WL 409824 (E.D. Pa. 2021)
SPECIAL EDUCATION; SECTION 504; ADA; GIFTED EDUCATION
Damages • Compensatory & Punitive
The District Court denied Erie School District’s (Erie) motion to dismiss Swogger’s Americans with Disabilities Act, Title II (Title II) and Section 504 of the Rehabilitation Act (Sec. 504) claims. The sole issue before the court was whether Title II and Sec. 504 allow for the recovery of noneconomic damages to compensate for emotional harm. P.W. is Swogger’s child and a former student at Erie who has a primary disability of emotional disturbance and a secondary disability of autism spectrum disorder. P.W. had an individualized education program (IEP) and a positive behavior support plan (PBSP) that were designed to accommodate his disability-related limitations, assist with his education and required that P.W. receive transportation to and from school. On March 5, 2020, P.W. experienced a “melt down” while in school and began swearing. While on his way to the principal’s office, he was confronted by two police officers and two Erie employees. During the confrontation, one of the school officials slapped a pen out of P.W.’s hand. That official and two police officers then briefly restrained P.W. but released him several seconds later, upon the school principal’s arrival. P.W. was then escorted to the front lobby and instructed to go home. P.W. called his mother, who was at work, but she did not immediately see the message. P.W. was then “gently but firmly” pushed out of the front door, which locked behind him. The principal left a message for P.W.’s mother stating that P.W. was “on his way home” and asking that she call him back; however, no other efforts were made to arrange for P.W.’s safe transportation home. Swogger did not hear the principal’s message until hours later, when she was on her lunch break. Meanwhile, P.W. sat on the school steps for several minutes as he attempted (unsuccessfully) to contact other friends for a ride home. He was ordered to leave school property but was provided no transportation. P.W.’s home was located 2.8 miles from school, but P.W. did not know how to get there and was incapable of riding public transportation. Although P.W. apparently arrived home, it is unclear from the complaint how he managed to do so. Despite her repeated calls to the school administration’s offices, Swogger was never given any explanation for P.W.’s ejection from the school’s premises. As a result of the March 5, 2020 incident, P.W. enrolled in Pennsylvania Cyber Charter School and will likely never be physically and emotionally capable of attending a public high school.
Swogger initiated a lawsuit against Erie on May 27, 2020, alleging that Erie’s actions constituted unlawful discrimination against P.W. in violation of Sec. 504 and Title II. As relief for these alleged violations, Swogger is seeking damages in excess of $75,000.00 and attorney fees. Erie responded by filing a motion to dismiss arguing that, as a matter of law, Swogger may not recover emotional distress damages or attorney fees under Sec. 504 or Title II.
The District Court started by determining that “the remedies for violations of [Title II] and [Sec. 504] are coextensive with the remedies available in a private cause of action brought under Title VI of the Civil Rights Act of 1964.” Based on this determination, the court reviewed what remedies are permissible under Title VI. The court then reviewed cases that analyzed what types of damages are available under Title VI and, based on this comparison, found that Title II and Sec. 504 allow plaintiffs to recover damages for emotional harm where there is evidence of intentional discrimination. “[P]ublic entities and federal funding recipients have fair notice of their potential liability for resulting emotional harm when they intentionally violate the provisions of [Title II] or [Sec. 504]. Allowing the recovery for emotional harm in such situations is thus fully consistent with the Supreme Court’s Title VI jurisprudence.”
Click here for the opinion.
E.P., by and through his parents, Allison H.-P. and Michael P. v. Twin Valley School District, 2021 WL 365878 (E.D. Pa. 2021)
SPECIAL EDUCATION; SECTION 504; ADA; GIFTED EDUCATION
Child Find • FAPE • Section 504
The District Court affirmed the decision of the administrative hearing officer who determined that Twin Valley School District (Twin Valley) failed to provide a free appropriate public education (FAPE) to E.P. The parties dispute whether the behavior about which E.P.’s parents consistently complained warranted school-based accommodations even though E.P. was able to perform at grade level without them. The facts of this case are extensive but can be summarized by E.P.’s profile, which includes neurological issues related to in-utero exposure to crack cocaine; social issues related to interracial adoption, the deaths of family members, and his parents’ separation over the time period at issue; and gifted cognitive abilities which may have masked the effects of his limitations at school. The school’s descriptions of E.P.’s functions were virtually the polar opposite of the parents’ descriptions of E.P.’s functioning. Throughout most of his elementary school years, E.P. had a gifted individual education plan (GIEP). He also had physical and psychological issues during this same time period which were frequently diagnosed by professionals. When he was in third grade and after he started getting bullied at school, his parents entered E.P.’s first 504 Agreement with Twin Valley. Despite all of this and the increase in his absences, his grades continued to be normal. In his final fact-finding paragraph, the hearing officer acknowledged that “[t]hroughout first through fourth grade,” E.P. “was able to attain grade-level expectations and pass all classes.” Nonetheless, E.P. “had multiple meltdowns at home, had difficulties relating to social interactions, homework completion issues, peer-to-peer conflicts and teacher mistrust issues.”
The issue in this case was whether the hearing officer applied the correct legal standard in finding in favor of E.P. Twin Valley’s position consistently throughout E.P.’s elementary career was that his impairments created no legal obligations on its part because his parents failed to prove that he was “excluded from participation in, denied the benefits of, or subject to discrimination at school.” Although Twin Valley acknowledges that it did not evaluate E.P.’s eligibility for benefits under Section 504 during the kindergarten assessment that set up his programming for the rest of his elementary school tenure, it denies any liability for this failure because “there is no evidence that [E.P.] needed accommodations to access the regular school services” from kindergarten through third grade. However, the hearing officer determined that Twin Valley denied E.P. a Section 504 FAPE by “under identifying the areas in need of an accommodation.” The court disagreed with Twin Valley’s argument, that it was not required to adjust E.P.’s academic program even though its standard program was causing E.P. substantial emotional and behavioral dysregulation outside of school because it conflicts with the definition of “impairment” in the Americans with Disability Act regulations. Additionally, the court determined that Section 504’s Child Find provision required Twin Valley to offer E.P.’s parents an individual assessment to determine if E.P. was eligible for Section 504 FAPE supports. The court also found that E.P. suffered substantive harm from Twin Valley’s failure to provide FAPE. The court also addressed the statute of limitations claim and determined that the operative date was the date of the first Section 504 Agreement because it was the first date the parents should have known that Twin Valley intended to implement legally inadequate accommodations.
Click here for the opinion.
Hugo Prieto v. School District of Philadelphia, TTA No. 04-20
EMPLOYEE DEMOTION; DISCIPLINE; EVALUATION; TERMINATION
Termination • Intemperance
The secretary of education affirmed the dismissal of Hugo Prieto from his chemistry teacher position in the School District of Philadelphia (Philadelphia). In December 2018, male students who did not belong in Prieto’s classroom fought with other students in his classroom. On December 7, 2018, three students who were not enrolled in Prieto’s class came to his classroom, sat in the back of the room talking to other students and refused to leave. Prieto called the main office seeking assistance. The assistant vice principal went to Prieto’s classroom and started to usher the students out of the classroom. Prieto became angry and threw a textbook at one of the unwelcomed students. The textbook hit the student who shouted an expletive at Prieto. The assistant vice principal stepped between Prieto and the student as the student attempted to get by the assistant vice principal to fight Prieto. While restraining the student, the assistant vice principal directed Prieto to leave the room but he didn’t leave. The student escaped the hold of the assistant vice principal and confronted Prieto and the two exchanged punches. The assistant vice principal intervened again and told Prieto to leave the room while restraining the student. The student broke free again and confronted Prieto again and the two exchanged punches again. There were various video recordings made of the interactions. Ultimately, the student was suspended for his actions and Prieto was suspended without pay after a Statement of Charges was issued recommending disciplinary action against Prieto. After a hearing, a hearing officer recommended that Prieto be terminated from his employment and Philadelphia’s Board of Education adopted a resolution following this recommendation.
The secretary of education determined that Prieto received due process and was properly suspended without pay. Prieto had ample opportunity to be heard regarding the incident at the investigatory conference and the second-level conference. The Statement of Charges was issued after these two conferences. Thereafter, Prieto was afforded a hearing before the Board of Education in compliance with § 1127 of the School Code. Additionally, because Prieto’s conduct was potentially harmful to children, Philadelphia had the right to suspend him. The secretary also determined that there were substantive grounds to terminate Prieto’s employment. Prieto alleged “self defense” but the secretary found credible evidence that demonstrated Prieto was angry that the students disrupted his class and ignored his instructions to leave. It was Prieto’s own anger and lack of self-control that caused the melee that ensued in Prieto’s classroom, constituting intemperance and justifying his termination from employment.
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!
Greater Johnstown Education Association v. Greater Johnstown School District
Sanford Kelson, arbitrator
- Salary Schedule Placement
- Timeliness
After determining that it was timely filed, the grievance, concerning credit on the salary schedule for long-term substitutes who are later hired as permanent full-time teachers, was denied. The arbitrator first addressed whether the grievance was timely filed and determined that it was timely based on the “continuing violation” doctrine. Under this doctrine, the failure to grieve issues of salary placement within the time limits of the collective bargaining agreement does not operate as a waiver of those rights because of § 1121 of the School Code since rights granted in the School Code cannot be waived by either party.
Next, the arbitrator turned to the substance of the grievance – whether a salary freeze denied the grievants’ credit on the salary schedule for their long-term substitute service with the school district when they were hired as permanent full-time teachers. The school district argued that the teachers were not denied credit for the year they served as long-term substitutes because their salaries were frozen by an across-the-board freeze of all teacher salaries in the school district. After reviewing the effect that the salary freeze had on all teacher salaries as well as equity issues, the arbitrator determined that the freeze did not have any adverse effect on the grievants in comparison to other full-time teachers. The grievance was accordingly denied.
Click here for the opinion.
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The Office of Dispute Resolution added these decisions to their website on February 11, 2021:
- 22849-19-20: Lower Merion School District (IEP, Tuition Reimbursement)
- 23146-19-20: Westmont Hilltop School District (Child Find, Gifted and/or Talented, Eligibility)
- 23330-19-20: Downingtown Area School District (Tuition Reimbursement, Statute of Limitations, IEP, Specific Learning Disability
- 23642-19-20: School District of Philadelphia (Statute of Limitations, Eligibility, Child Find, Parent Rights)
- 23652-19-20: Sharpsville Area School District (Specific Learning Disability, Private School Placement, Tuition Reimbursement)
- 23710-19-20: Commonwealth Charter Academy Charter School (Charter School, IEP, Compensatory Education, Parent Rights)
- 23791-19-20: Sharpsville Area School District (IEP, Specially Designed Instruction, Compensatory Education)
The Transgender Legal Update webpage on the PSBA website has recently been updated.
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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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MARK YOUR CALENDAR
REGISTER NOW! Spring Legal Roundup
This year, due to the COVID-19 pandemic, Spring Legal Roundup will be virtual on March 24, 2021. Click here to register via the continuing legal education portal on the PSBA website.
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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! Registration is now open for the next live installments in a 12-webinar CLE series on February 24, March 3 and March 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.
Questions? Contact PSBA Legal Services staff at clelegal@psba.org.
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February 24, 9:00 – 10:05 a.m.
Cybersecurity and privacy compliance for PA school solicitors
Presenter: Devin J. Chwastyk, Esq., CIPP/US, McNees, Wallace & Nurick, LLC
(1 hour substantive)
March 3, 9:00 – 10:05 a.m.
You want COVID leave? After FFCRA? Let’s get answers to your questions
Presenter: John Audi, Esq., Sweet, Stevens, Katz, Williams
(1 hour substantive)
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March 10, 9:00 – 10:05 a.m.
Virtual, hybrid and in-person instruction: What every solicitor needs to know about special education
Presenters: Timothy E. Gilsbach, Esq., Fox Rothschild, LLP; and Paul J. Cianci, Esq., Levin Legal Group
(1 hour substantive)
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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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