View this email in your browser
August 6, 2021 | ISSUE #16



Black & Davison, et al v. Chambersburg Area School District, 2021 WL 3360970 (3d Cir. 2021)

     First Amendment • Policymaking Position

The Third Circuit affirmed the grant of summary judgment in favor of the defendant school district on First Amendment claims by a law firm whose services were terminated by the district during the term for which it was appointed, allegedly because members of the law firm had actively supported and campaigned for political opponents of a newly elected school board majority. The District Court had earlier dismissed the law firm’s breach of contract claim, which the firm did not appeal. On appeal, the Third Circuit rejected the law firm’s argument that the school board’s termination of the firm’s services violated the firm’s First Amendment rights to freedom of speech and association because, after applying the multifactor tests outlined in Elrod v. Burns and Branti v. Finkel, the court concluded that there was no genuine dispute of material fact that the solicitor position was a policymaking position that could be conditioned upon political affiliation without violating such First Amendment rights. Among the factors the court found to weigh heavily in favor of this determination were that the solicitor exercised a variety of discretionary functions requiring the exercise of independent professional judgment, participated in high-level meetings, was highly paid, exercised power over others, and spoke on behalf of district policymakers in the course of representation.
Editor's Note: Pursuant to its Internal Operating Procedures, the Third Circuit declines to cite "not precedential" opinions in its reported decisions.
Editor's Note: The District Court decision was published at 57 SLIE No. 15.

Click here for the opinion.

Miriam Fultz, et al v. AFSCME, Council 13, 2021 WL 3076410 (M.D. Pa. 2021)

     Applicability of Janus • Voluntary Union Memberships

The District Court granted, in part, and denied, in part, the motion to dismiss filed by the American Federation of State, County and Municipal Employees (AFSCME) in this matter involving the applicability of Janus to employees who attempted to resign their memberships in the union. The plaintiffs are all current “public employe[es]” and “Commonwealth employe[es]” as those terms are defined by 43 P.S. § 1101.301(2) and 43 P.S. § 1101.301(15). Each was, at some point, a dues-paying member of AFSCME, but each resigned their respective membership between May 8, 2020, and December 23, 2020. Eight of the 14 plaintiffs joined AFSCME prior to the Janus decision. AFSCME is an “Employe organization” and a “Representative,” as those terms are defined by 43 P.S. § 1101.301(3) and 43 P.S. § 1101.301(4), that represents certain employees of the Commonwealth of Pennsylvania, including the plaintiffs and proposed class members, exclusively for purposes of collective bargaining with the Commonwealth. The Public Employe Relations Act (PERA) “authorizes public employers and employee organizations and/or representatives to engage in collective bargaining relevant to membership dues deductions.” Pursuant to PERA, AFSCME entered into collective bargaining agreements, (CBAs) with the Commonwealth that “have controlled the terms and conditions of Plaintiffs’ [...] employment at all relevant times hereto.” PERA defines “membership dues deduction” as “the practice of a public employer to deduct from the wages of a public employe [sic], with his written consent, an amount for the payment of his membership dues in an employe [sic] organization, which deduction is transmitted by the public employer to the employe [sic]organization.” Any such authorizations “shall remain in effect until expressly revoked in writing by the employee in accordance with the terms of the [initial] authorization.” Under the CBA, the Commonwealth deducts dues from the wages of AFSCME-covered employees based on the AFSCME membership cards. These cards serve as each employee’s application for membership in AFSCME and officially authorize the Commonwealth to make voluntary dues deductions from their paychecks. While the plaintiffs are free to resign their AFSCME memberships at any time, they agreed to be financially responsible for AFSCME membership dues for a period of one year from the date of signing their cards. They may relieve themselves of their dues deductions obligations only by notifying AFSCME and the Commonwealth of their desire to do so, in writing, during the 15 days prior to the one-year anniversary of their initial card signing. In this case, each plaintiff resigned their respective AFSCME membership between May 8, 2020, and December 23, 2020, by providing notice to AFSCME and the Commonwealth. However, the plaintiffs claim that they have been informed that “they must continue dues deductions to and financial support of Council 13 indefinitely, at least until a purported annual 15-day escape window.” Accordingly, the plaintiffs brought this action alleging violations of their First Amendment rights and violation of procedural due process. The defendants filed a motion to dismiss the claims, alleging that Janus does not apply to public sector employees who voluntarily join a union and that holding the plaintiffs to the terms of the bargain does not violate the First Amendment.
The court started by reviewing the applicability of Janus to this case. After analyzing the Janus decision and the recent Third Circuit decision, Fischer v Governor of New Jersey, the court determined that Janus does not provide a basis for challenging their union membership agreements, nor the dues paid pursuant to that agreement. The court next reviewed whether the membership cards constitute enforceable contracts. The court reviewed the plaintiffs’ pleading and determined that the complaint did not really raise material contract breach arguments as the plaintiffs asserted, and accordingly, dismissed this claim. Finally, the court turned to the plaintiffs’ claims asserting due process violations. The court allowed one of these claims to move forward – the claim that the process by which to cease paying dues was procedurally deficient. In the end, the court was specific that this case was not about the applicability of Janus to the voluntary nature of union memberships and dues payments but more about the plaintiffs’ contractual responsibilities to AFSCME.
Click here for the opinion.

City of Erie & Erie City School District v. Erie County Bd of Assessment Appeals, et al, 2021 WL 2944364 (Commw. Ct. 2021)

     Tax Assessment • Convention Center Hotels

The Commonwealth Court affirmed the Erie County Court of Common Pleas decision that found the hotels and parking garages owned by the Erie County Convention Center Authority (Convention Center) are not subject to real estate taxation by the City of Erie or Erie City School District (Erie). The Convention Center is located on the shoreline of Presque Isle Bay and opened on August 2, 2007, and eventually a 200-room Sheraton and 192-room Courtyard were built. From its inception, the plan included an adjoining host hotel of at least 200 rooms as an essential component to the ultimate success of the Convention Center. For the 2016-18 period, the Sheraton had an overall average occupancy rate of approximately 72.2%, and the Courtyard had an overall average occupancy rate of 64.2%. For that same period, the Sheraton had a Convention Center venue-related occupancy rate of 49.2%, and the Courtyard had a related occupancy rate of 36.4%. It was stipulated that, to the extent that hotel rooms are not needed for people attending events at any of the Convention Center properties, they are open to, and are rented by, members of the general public. On September 28, 2016, the Board of Assessment Appeals (Board) sent a “Notice of Change of Assessment” to the Convention Center regarding the tax-exempt status of the hotel properties. On November 3, 2016, the Convention Center appealed the change of assessment challenging the hotel properties’ taxable status, but not contesting the fair market values or assessments themselves. After a hearing, on December 13, 2016, the Board issued a “Hearing Decision Notification” in which it did not change the amount of assessments but granted each hotel property tax-exempt status. On January 11, 2017, Erie appealed the Board’s decision with respect to each of the hotel properties to the trial court, arguing that to the extent the hotels rent rooms to the general public and not to guests associated with the Convention Center venue, they are subject to taxation because the renting of rooms to the general public is not the purpose of the Convention Center. The Convention Center argued that its hotel properties are immune from taxation as a Commonwealth agency under § 2399.55(a) of the Alternative Act (Act) and exempt from taxation under § 2399.69 of the Act. The trial court granted summary judgment in favor of the Convention Center, and this appeal followed.
In affirming the trial court, the Commonwealth Court reviewed various court cases and learned that pursuant to the provisions of § 2399.53 of the Act, the operation of the hotels falls within the broad definition of “convention center” or “convention center facilities,” such that rental of rooms to the general public does not fall outside of the core functions of this “Commonwealth agency and instrumentality.” The court concluded that there is no distinction made within the statutory definition of “convention center” or “convention center facilities” and declined to insert language into the Act to create one. The court also agreed with the trial court that the commingling of the general public’s use of the hotel rooms with those used for Convention Center-related functions did not affect the immunity of the Convention Center’s hotel properties.  
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.

School District of Upper Dublin v. Montgomery County Bd of of Assessment Appeals, et al, 2021 WL 3009800 (Cmwlth Ct 2021)

     Tax Assessment • Selection Criteria

The Commonwealth Court affirmed the Montgomery County Court of Common Pleas decision, which determined that the owner of the property did not demonstrate that the School District of Upper Dublin’s (Upper Dublin) appeal of the property’s tax assessments violated the Pennsylvania Supreme Court’s Valley Forge decision. Upper Dublin filed a reverse appeal from a decision of the Montgomery County Board of Assessment Appeals (Board) in regard to the tax assessment of a shopping center consisting of 9.7 acres of land and 90,691 square feet of retail space in two buildings located in Montgomery County, Pennsylvania.

On July 29, 2013, Upper Dublin appealed to the Board to challenge the $4,905,860 assessment of the shopping center. On September 26, 2013, a hearing was held before the Board, and on October 30, 2013, the Board determined that the assessment was proper. On November 25, 2013, Upper Dublin filed an appeal with the trial court, and both the owner of the shopping center and the Upper Dublin Township filed notices of intervention. In June 2017, the parties agreed to a settlement, but on July 5, 2017, the Pennsylvania Supreme Court issued its opinion in Valley Forge Towers Apartments N, LP v. Upper Merion Area School District. Thereafter, on July 18, 2017, the owner filed a petition to declare the settlement null and void and to dismiss Upper Dublin’s appeal based on the Valley Forge decision. On August 7, 2017, Upper Dublin filed a motion to enforce the settlement agreement. The parties agreed to an interim resolution of the Valley Forge issue, which was addressed in a trial court order dated February 15, 2018, that provided that Upper Dublin’s appeal for tax years 2011 through 2017, and the owner’s petition to dismiss the appeal, were both withdrawn. However, the order provided that the owner preserved its argument that the appeal for tax year 2018 should be dismissed based on the Valley Forge decision and that the issue could be raised any time prior to, or at, trial for tax year 2018.
At a July 12, 2019 pretrial conference, the trial court stated that the Valley Forge issue would be heard during trial and would be determined as part of the trial court’s ruling on the overall appeal. After the trial court issued its opinion setting forth the assessed values for the property and finding that Upper Dublin’s appeal of the assessed value of the property did not violate Valley Forge, the owner appealed to the Commonwealth Court.
The Commonwealth Court first addressed various procedural matters and then turned to whether Upper Dublin’s monetary threshold approach to tax assessment appeals was implemented in a nondiscriminatory manner. The court recognized that Valley Forge establishes that the Uniformity Clause does not permit a school district to selectively appeal assessments of commercial properties while choosing to forego appeal of assessments of other types of properties, such as single-family residential homes. The court noted that the Valley Forge Court also clearly enunciated the caveat that a monetary threshold or other criterion would not violate the Uniformity Clause, so long as it is implemented without regard to the type of property in question or the residency status of the property’s owner. Based on this the court concluded that the owner did not show that Upper Dublin’s policy was violative of the Valley Forge standard. The court also reviewed subsequent case law and affirmed the trial court’s determination that Upper Dublin did not violate the Uniformity Clause of the Pennsylvania Constitution.
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.

Kathy Minnich v. Northeastern School District, et al, 2021 WL 3166013 (M.D. Pa. 2021)

     Fourth Amendment • Unreasonable Search & Seizure
     Fourteenth Amendment • Due Process
     Rehabilitation Act • Section 504

The District Court granted, in part, and denied, in part, the motion to dismiss that was filed by the defendant in this matter involving allegations of discrimination and retaliation. Minnich commenced her employment with the Northeastern School District (NESD) in August 1999 as a school social worker. She held this position until January 2020, and currently holds the position of long-term substitute school psychologist. On February 23, 2016, Minnich requested workplace accommodations under the Family Medical Leave Act (FMLA) in order to attend therapy sessions to treat her anxiety and panic attacks. She subsequently requested FMLA leave to take her children to therapy appointments in connection with their post-traumatic stress disorder. Both FMLA leave requests were denied on March 7, 2016. In early April 2016, Minnich participated in an investigative hearing held by the Pennsylvania Department of Education concerning her estranged husband and shortly thereafter, she received a Formal Letter of Reprimand. On June 22, 2016, Minnich was informed that her office was being relocated in order to accommodate a floater nurse. Then, in August 2016, she alleges that the superintendent and others were in her office searching through her personal belongings and files. All of this culminated in Minnich filing a dual charge with the Equal Opportunity Employment Commission and the Pennsylvania Human Relations Commission on December 23, 2016, and she received a Right to Sue Letter but took no action. After filing these claims, Minnich raised claims of bullying and harassment and NESD investigated her claims. In June 2019, she applied for a position as permanent school psychologist and as a result of filing a grievance, Minnich was awarded her present position of long-term substitute school psychologist. In March 2020, Minnich initiated this action alleging violations of her Fourth and 14th Amendment rights as well as claims under Section 504 of the Rehabilitation Act and the Pennsylvania Human Relations Act (PHRA). NESD filed a motion to dismiss, which dismissed some of her claims, but she was granted leave to amend her complaint. She filed a second amended complaint in February 2021, asserting the same claims that she asserted in her initial complaint. NESD filed a motion to dismiss.
The District Court reviewed and dismissed Minnich’s 14th Amendment due process claim, which she based on the disclosure of her personal cellphone records and calendars to third parties without her consent. The court determined that such disclosures did not impinge on a constitutionally protected privacy interest or otherwise implicate a fundamental right. However, the court did find that Minnich adequately pleaded a claim for Fourth Amendment violation against two of the named school officials who searched areas in which the court found Minnich had a reasonable expectation of privacy. The court also found that Minnich adequately alleged that the search was unreasonable at its inception and in its scope. The court also denied the defendant’s motion to dismiss based on the qualified immunity of the school officials but granted the motion as to NESD, finding that municipal liability did not attach to NESD since Minnich failed to state a viable Monell claim against NESD. The court also found that the claims asserted under Section 504 were time-barred and that the complaint failed to state claims for hostile work environment under Section 504 and the Pennsylvania Human Relations Act (PHRA) and accordingly, they were dismissed. Finally, the court dismissed Minnich’s claims for retaliation under Section 504 and the PHRA.
Editor’s Note: The previous District Court opinion related to this case is published at 2021 SLE No. 3.
Click here for the opinion.


Thank you to all who plan to or who have contributed recent or older but useful arbitration opinions and awards.


Resources for ESSER and Governor’s Emergency Education Relief (GEER)
The Pennsylvania Department of Education recently released the inaugural edition of ESSER/GEER Extra. This is intended to be a frequent communication to provide school districts with reminders, resources, information and guidance related to ESSER and GEER funds. The first edition can be accessed here. 

Whether Section 564 of the Food, Drug, and Cosmetic Act prohibits entities from requiring the use of a vaccine subject to an emergency use authorization
There has been an argument circulating for months that under the federal statute authorizing emergency vaccine approval there is an individual right to refuse the vaccine if it only has emergency approval. The U.S. Department of Justice released a legal opinion this week rejecting that argument. Click here to download the opinion.
Also, at least one court, in Texas, has rejected this argument. See Bridges v. Houston Methodist Hosp., appeal docketed, No. 21-20311 (5th Cir. June 14, 2021).
The U.S. Department of Education released guidance on ‘long COVID’ as a disability
The Department of Education's Office for Civil Rights (OCR) and Office of Special Education and Rehabilitative Services (OSERS) have issued a new resource: Long COVID under Section 504 and the IDEA: A Resource to Support Children, Students, Educators, Schools, Service Providers, and Families. To date, many students have contracted COVID-19 and are still experiencing its effects, in the form of what has come to be called "long COVID." The resource from OCR and OSERS clarifies that, for young children and students, long COVID can be a disability that gives rise to Individuals with Disabilities Education Act (IDEA) eligibility and may also be a disability under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act.

PSBA Legal Services team welcomes Jo Mundis
Jo Mundis recently joined PSBA as the legal services coordinator. She began her career as an intern for the PA Bar Association, securing her first job in the law office management department. Since then, she has worked for many years as a regional director for a mental health services organization and an executive assistant/office manager for a private financial services group. Jo brings 30 years of experience to the team and holds a degree in computer information systems from Central Penn College.


2021 School Law Workshop - Register now!
Registration is now open for the annual School Law Workshop, held in conjunction with the PASA-PSBA School Leadership Conference, from 8:30 a.m.-4:15 p.m. on September 27 at Kalahari Resorts & Conventions in the Poconos. School attorneys will find valuable networking and learning opportunities including a review of what's happened in the past year and insight about what's likely to come. Solicitor attendees may earn up to 5.5 continuing legal education credits. This year's presentations include:
  • COVID Round 2 Roundtable
  • Developments in Responding to Right-to-Know Law Requests
  • In the Wake of Mahanoy: What we’ve learned about responding to off-campus student speech and rules for participation in extracurricular activities
  • School Law Update


The Continuing Legal Education (CLE) Distance Learning area of the PSBA website and distance learning platform has gone live and is now available here! This spring, PSBA 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


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 Jo Mundis at (717) 590-5645, or email her at

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.

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.
Jo Mundis
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.

You are receiving this email as a member of the Pennsylvania School Boards Association.

Our mailing address is:
Pennsylvania School Boards Association
400 Bent Creek Blvd
Mechanicsburg, PA 17050-1873

Add us to your address book
unsubscribe from this list   
update subscription preferences 
Copyright © 2021 Pennsylvania School Boards Association, All rights reserved.

Want to change how you receive these emails?
You can update your preferences or unsubscribe from this list.