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April 30, 2021 | ISSUE #9
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JUDICIAL & ADMINISTRATIVE DECISIONS
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Central Dauphin School District v. Valerie Hawkins, et al, 2021 WL 1567524 (Commw. Ct. 2021)
RIGHT-TO-KNOW LAW; PUBLIC RECORDS
Loss of Federal Funds • FERPA – Bus Video
This Right-to-Know Law (RTKL) appeal was before the Commonwealth Court on remand from the Pennsylvania Supreme Court for further consideration consistent with its opinion in Easton Area School District v. Miller, 232 A.3d 716 (Pa. 2020). On remand, the court reached the same result as reached in their original opinion and affirmed the trial court, although the reasons for doing so were modified to conform to the rationale of Easton. This case involves a school bus video. The video captured parts of an incident in which a principal’s wife confronted a student outside the basketball team bus and followed her onto the bus to continue the confrontation. Each bus had two cameras, one which was mounted over the driver’s head and faced toward the door and the other mounted in front of the bus, facing down the aisle to the back of the bus. The content of the video is overwritten every 10 to 14 days and is downloaded for review to determine “if there should be student discipline or staff discipline [or] if there were any unsafe acts that took place on the bus.” In this case, parents complained about the incident. The district investigated the matter by reviewing the video, interviewing students and staff, and speaking with parents. At least one student and a staff member were disciplined. The video was stored in a safe in the office of the assistant superintendent who oversees district finance and operations, including the bus fleet, and is Central Dauphin’s open records officer. In February 2016, Valerie Hawkins, on behalf of Fox 43 News, requested a copy of the video that captured the incident. Central Dauphin School District (Central Dauphin) denied the request, claiming that disclosure of the video would violate the Family Educational Rights and Privacy Act (FERPA). The Office of Open Records determined that the video was not exempt and ordered its release, and this was affirmed by the trial court. An appeal to the Commonwealth Court followed and the court affirmed the trial court. In 2019, Central Dauphin petitioned the Pennsylvania Supreme Court which ultimately vacated the opinion of the Commonwealth Court and remanded the matter so the Commonwealth Court could reconsider its decision in light of the Easton decision.
The court started its analysis by conducting an extensive analysis of the Easton decision. The court found that the Pennsylvania Supreme Court concluded that the school bus video in Easton was a record both “maintained” by the school and “directly related” to the student and was therefore an “education record” under FERPA. The court continued its analysis by observing that even though the Pennsylvania Supreme Court deemed it an “education record,” it determined that the video could still be released under FERPA as a “public record” in redacted form.
In applying this analysis to the instant case, the court concluded that the video in this case was also an “education record” under FERPA. However, the court found that the public disclosure of the video would not result in the loss of federal funds thereby negating the availability of the loss-of-federal-funds exemption in the RTKL. Next, the court determined that despite its status as an “education record” under FERPA, once the video is redacted it does not “run afoul of FERPA’s coverage and thus eliminates 65 P.S. § 67.305(a)(3) as a basis for exemption.” In other words, redacting the students’ images “removes any argument that the video is a public record and exempt under Federal law.” Accordingly, the matter was remanded with instructions to redact the personally identifiable information of the students in the video.
Editor’s Note: The first Commonwealth Court opinion in this case is published at 55 SLIE 22.
Editor’s Note: PSBA participated as amicus curiae in this case.
Click here for the opinion.
Betty Bell and Propel Schools, et al v. Wilkinsburg School District, 2021 WL 1522160 (Commw. Ct. 2021)
CHARTER SCHOOLS
Pupil Transportation • Public Transit
Families of students attending several Propel charter schools brought suit to challenge the school district’s cost-cutting decision to stop providing school bus transportation for charter school students and instead issue them public transit passes, while continuing to transport the district’s students by school bus. The charter school students claimed that public transit was less convenient, required more travel time and was not as safe as school bus transportation, and therefore the district was not providing equal transportation, as the charter school students contended, was required by law. After a non-jury trial, the trial court dismissed the complaint and denied the students’ post-trial motions. The trial court concluded that providing transportation via public transit was authorized by the School Code and that the Code did not require that transportation of charter school students be provided using the same type of carrier as used for district’s own students or otherwise be identical.
On appeal, Commonwealth Court reversed on other grounds without addressing the trial court’s conclusions. The court ruled that by failing to obtain advance approval of the Department of Education before implementing the shift to public transit for charter school students, the shift was made in violation of § 23.2 of the regulations of the State Board of Education. Accordingly, the Commonwealth Court remanded, directing the trial court to enter judgment in favor of the charter school students.
Click here for the opinion.
L.B., by his Parents R.B. and M.B. v. Radnor Township School District, 2021 WL 1224077 (E.D. Pa. 2021)
SPECIAL EDUCATION; SECTION 504; ADA; GIFTED EDUCATION
Eligibility • Gifted Education
Discrimination • Section 504 • ADA
The District Court granted Radnor Township School District’s (Radnor) motion for judgment on the administrative record in this case involving the district’s evaluation of a child with disabilities for potential provision of gifted educational services. L.B. is a student with autism and a speech and language impairment who is eligible to receive special education and related services. When L.B. was in second grade, he had an individualized education plan (IEP) that included a paraprofessional aide to assist him throughout the day with on-task behavior. At the end of second grade, L.B.’s teacher referred him to be evaluated for gifted educational services. L.B.’s parent gave written consent for Radnor to begin a gifted multidisciplinary evaluation on June 15, 2018. L.B. scored very high on the IQ test that was administered. Radnor issued L.B.’s gifted evaluation report in the fall of 2018 and it concluded that L.B. was “doing well academically and has a particular strength in reading, is a creative writer and competent math student. However, his academic achievement does not show educational needs beyond those available within the regular education enrichment opportunities.” Therefore, the report concluded, L.B. did not qualify for gifted education. Following an IEP meeting in October 2018, L.B.’s IEP team adopted the recommendation of the gifted evaluation report, and L.B.’s proposed third grade IEP did not include gifted education. His parents did not request another gifted evaluation for L.B. Thereafter, the parents filed an administrative complaint alleging that Radnor’s denial of gifted education services to L.B. violated the Individuals with Disabilities Education Act (IDEA), Sec. 504 and the Americans with Disabilities Act (ADA). The hearing officer issued a decision in favor of Radnor. The parents then filed a complaint with the court seeking review of the hearing officer’s administrative decision.
The court started by analyzing the Pennsylvania standards for gifted education. The court reviewed the State Board of Education regulations that dictate how Pennsylvania school districts provide gifted education and identify students who are thought to be gifted. Based on this review, the court concluded that Radnor appropriately evaluated the multiple criteria and determined, on the whole, that it did not indicate L.B.’s need for gifted education. The court next considered whether Radnor violated Sec. 504, the ADA or IDEA. The court determined that the accommodations that Radnor made to L.B.’s gifted evaluation process were reasonable. Additionally, the parents did not meet their burden to show that there was a reasonable accommodation sufficient to make L.B. otherwise qualified for gifted education. Further, the parents did not provide any evidence of systemic disparate treatment to show that Radnor discriminated against L.B. Accordingly, the Sec. 504 and ADA claims were denied. Similarly, the IDEA claim was denied since the parents did not show that refusing to provide L.B. gifted educational services denied him meaningful educational benefits in light of his intellectual potential and individual abilities.
Click here for the opinion.
United States v. David T. Shulick, 2021 WL 1377804 (3d Cir. 2021)
CRIMINAL OFFENSES
Fraud • Embezzlement
After a complex, multiyear fraud investigation, David T. Shulick was ultimately charged and convicted. Shulick owned and operated Delaware Valley High School Management Corporation (DVHS), a for-profit business that provided alternative education to at-risk students. DVHS’s business model was to contract with school districts to handle the operation of their schools. One of those school districts was the School District of Philadelphia (Philadelphia). In early 2010, Philadelphia hired and signed a contract with DVHS and Shulick to operate its Southwest School in Philadelphia, an institution serving at-risk high school students with attendance, behavioral, emotional and familial issues, including some who had dropped out of school entirely. The contract set forth a high-level plan for Southwest, dictating the number of students enrolled at the school and the services to be provided to them. The agreement was not flexible as to budgeted items and it required DVHS to “carry out the Work and bill the School District strictly in conformity with the Contractor’s Budget.” Despite the contract’s clear requirements, Shulick failed to provide the services and staff he agreed to provide. Overall, Shulick represented to Philadelphia that he spent $850,000 on salary and benefits each year but spent under half of that. In all, of the over $2 million in funds he received, he spent only $1,186,001 on expenditures designated for Southwest. Shulick’s failure to spend these funds on Southwest was part of an elaborate conspiracy to embezzle money. Shulick directed the unspent funds to co-conspirator Chaka Fattah Jr., an employee and confidante of Shulick and the son of former U.S. Representative Chaka Fattah Sr. The two agreed that Fattah Jr. would use the funds to pay off various liabilities incurred across Shulick’s business ventures, while also keeping a cut of the embezzled money for himself. He was convicted for conspiring with Fattah Jr. to embezzle from a program receiving federal funds; embezzling funds from a federally funded program; wire fraud; bank fraud; making a false statement to a bank; and three counts of filing false tax returns. On the conspiracy, federal program embezzlement, bank fraud and false statement counts, Shulick was sentenced to 60 months’ imprisonment and three years’ supervised release. On the three tax fraud convictions, Shulick was sentenced to 20 months for each count, to be served consecutively to each other but concurrently with the sentence on the other convictions, plus a year of supervised release. The District Court also imposed two fines of $20,000 each and a special assessment of $700. It ordered restitution of $759,735 to Philadelphia and $5,000 to PNC Bank. Shulick appealed, asserting several theories to challenge his conviction and sentence. The Third Circuit rejected each theory and upheld his conviction and sentence.
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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Tax credits for volunteer firefighter and EMT personnel
Solicitors may be receiving questions arising from Act 91 of 2020, which added school districts to the local taxing authorities that may enact the tax credits for certified volunteer firefighter and emergency medical technician (EMT) personnel authorized under Act 172 of 2016 (now found at 35 Pa.C.S.A. Chapter 79A). The other pertinent effect of Act 91 was to elevate the limit on such credits to 100% of what otherwise would be the tax liability for which the credit is given.
PSBA encourages support of the firefighting and ambulance companies that serve the schools within school districts. Supporting the individual volunteers serving those entities is likewise a laudable goal. However, but when it comes to tax credits, districts must make sure to take into account the potential constitutional limitations under the Uniformity Clause of the Commonwealth of Pennsylvania’s Constitution (Article VIII, Section 1).
The Uniformity Clause has a broad reach, with some specific exceptions expressly stated in the constitution. One such exception allows the homestead exclusions (Art. VIII, §2 (b)(vi) now operable under the Homestead Farmstead Exclusion Act of 1998 and integral to Act 1. Another allows the General Assembly to establish classes of persons needing special tax provisions due to age, disability, infirmity or poverty (Art. VIII, §2(b)(ii).
The problem is that there is no Uniformity Clause exception in the constitution that would appear to allow the General Assembly to enact local tax exemptions or exclusions for volunteer firefighters and EMTs. For this reason, PSBA encourages school boards to consult closely with their solicitors about the constitutional limits on a school board’s ability to lawfully enact such tax credits.
 Solicitors needed for ‘Ask the solicitor’ video segment
PSBA has launched a new school law segment on its weekly Video Edition series. In the brief segment, a guest solicitor responds in about two minutes, on camera, to a basic “ask the solicitor” type of question. We are seeking solicitors interested in being a part of this initiative. Your time commitment would be minimal, but the series’ reach is about 10,000 around the state! If you are interested, please contact Darby Sells, media production manager, at Darby.Sells@psba.org to coordinate a time to record remotely.
Office of Open Records – Review of RTKL request webpages
The Office of Open Records (OOR) is reviewing how agencies post Right-to-Know Law information on their websites. Click here to read the announcement from the OOR.
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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
SAVE the DATE! Solicitors Symposium: July 8 & 9, 2021
Network with other school attorneys and enjoy an informative and relaxed training opportunity online. This day-and-a-half program focuses on topics of special legal significance, featuring Pennsylvania’s best-known experts in various areas of school law practice. Registration coming soon!
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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! PSBA recently 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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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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