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Vol. 53, No. 7

S.K. v. North Allegheny School District, 2016 WL 806483 (W.D. Pa. 2016).

      Different or Additional Measures • Student-on-Student
      Deliberate Indifference • Title IX

The court denied part of the school district’s motion to dismiss in this case involving student-on-student bullying and sexual harassment.
      Before S.K. entered ninth grade at North Allegheny Intermediate School (NAI), she received a barrage of threats from older students via text messages and Facebook posts. On her first day of school, S.K. and her parents reported the threatening messages to the principal. After she reported the incident to the principal, the threats continued via text message and verbally. One student said, “I’m going to slit your throats, that’s a promise not a threat.” S.K. reported this communication to the principal, and he discussed the incident with the student, but did not punish her. The harassment continued, initiated by both male and female students, and escalated to include physical and sexual assault both at school, at school-sponsored events, and at her place of employment. S.K. and her parents continued to report the incidents, but no significant or substantive punishment was imposed and “the students acted as if they could harass, humiliate, and sexually grope and assault [S.K.] with impunity, which essentially had proven to be true.” As a result of the relentless harassment, S.K. became largely exiled from the student body and attempted to take her life. Students continued to make comments about her and spread rumors, and her parents continued to complain to the principal, the superintendent and even the school board. District officials recommended a transfer, and S.K. finished her ninth grade year in another school district. For 10th grade, S.K. returned to NAI after her parents spoke with the school board, but the harassment continued, so S.K. returned to the other school district.
      S.K. sued the district, alleging violations of Title IX and the First and Fourteenth Amendments. In order for a school district to be held liable for a claim of student-on-student harssament under Title IX, a plaintiff must establish that an “appropriate person” (one who can take corrective action and address alleged discrimination) had actual notice of the discrimination and acted with deliberate indifference toward the discriminatory conduct. The court focused on these two elements after concluding S.K. provided sufficient factual content to support the other four elements needed to establish Title IX liability.). With regard to actual knowledge, the court concluded that S.K. and her parents had reported the events to the principal and the superintendent, both of whom are appropriate school officials to whom student-on-student harassment should be reported because each is capable of taking corrective action. Thus, S.K. sufficiently alleged that the district had actual knowledge of the harassment. With regard to the deliberate indifference requirement, the court noted that where it has become apparent that the initial approach has been proved to be woefully insufficient, the failure to undertake different or additional measures can be a basis for a finding of deliberate indifference. Here, S.K. averred sufficient facts to show that when it became clear that the initial measures to address the harassment proved to be ineffective, nothing was implemented to curb the escalating abuse; thereby, satisfying the deliberate indifference requirement at this stage.
      The court granted the school district’s motion to dismiss with regard to S.K.’s retaliation claims under Title IX and the First Amendment and her Fourteenth Amendment Equal Protection claim.

Click here for the full decision.

In Short

Commonwealth v. Cooper, No. 1438 MDA 2015 (Pa. Super. Ct. 2016). NON-PRECEDENTIAL DECISION. The Pennsylvania Superior Court held that the evidence was insufficient to sustain Cooper’s summary conviction of harassment. Janet Marie Cooper, a teacher’s aide employed by the Reading School District, was supervising a group of eight special needs students on an outdoor playground. After Cooper informed the students that they must come down the slide in a sitting position, not head-first, an 8-year-old boy with autism came down the slide in a sitting position and hit Cooper in the face with an open hand, jarring her glasses and causing an injury to her face. Cooper’s hand came into contact with the student’s face, and he exclaimed, “ow, my ear.” The police issued a citation to Cooper for the summary offense of harassment. A Magisterial District Judge (MDJ) conducted a hearing. At the hearing, Cooper testified that any contact she had with the student after he struck her on the slide was accidental. The student’s behavioral aide also testified, admitting that she did not actually see the contact and did not know what Cooper’s exact reaction was since she wasn’t inside her head. The MDJ found her guilty of harassment and the trial court affirmed after a review of the transcript from the MDJ. She was sentenced to pay a fine of $300, plus court costs. On appeal, Cooper claimed that the evidence did not prove that she had the intent to “annoy, harass or alarm” the student. This intent is an element of the crime of harassment. The court concluded the Commonwealth did not meet its burden, since the evidence was insufficient to establish that Cooper intended to “annoy, harass or alarm” the student. Consequently, the court reversed her conviction and sentence.
Editor’s Note: Unreported decisions of the Superior Court are not intended to have precedential value, but may be cited in legal proceedings (1) when it is relevant under the doctrine of law of the case, res judicata, or collateral estoppel, and (2) when the memorandum is relevant to a criminal action or proceeding because it recites issues raised and reasons for a decision affecting the same defendant in a prior action or proceeding.
Click here for the full decision.


The Public Sector Arbitration publication is not possible without the efforts of solicitors and superintendents who send us new arbitration decisions. PSBA would like to thank those individuals who have contributed arbitration decisions. If you would like to make such a contribution, please send a scanned copy of the decision to or mail a hard copy to PSBA, Attn: Katherine Fitz-Patrick, 400 Bent Creek Blvd., Mechanicsburg, PA 17050-1873.


PSBA Legal Services Team Update

PSBA’s annual Spring Legal Roundup workshop is being offered at locations throughout Pennsylvania in March, April and May. The workshop provides important updates on significant developments in school law over the last year. Spring Legal Roundup offers three substantive CLE credits. Topics, registration information, and a complete list of dates and locations can be found here.

In Other News

School Climate – On March 31, 2016, the U.S. Department of Education released new resources on improving school climate. Click here for the press release, and here for the Quick Guide on Making School Climate Improvements.
Every Student Succeeds Act (ESSA) – On April 1, 2016, the U.S. Department of Education sent proposals to the committee working on proposed regulations for the ESSA. Click here for more information on the proposals.

Mark Your Calendars

March-May 2016 – Spring Legal Roundup, various locations
July 14-15, 2016 – Solicitors’ Symposium, State College, PA
Thursday, Oct. 14, 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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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, Deputy General Counsel, Member Services and Editor.

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